The Mississippi Workers' Rights Blog
Too fast, too slow, too crooked, too straight:
The tangled net of federal employee civil rights
Federal employees have a tremendously complicated procedure to vindicate their civil rights. An employee who has been unlawfully terminated can easily miss significant advantages by using the wrong procedure.
Three Choices and No Time to Make Them
A terminated permanent employee can either file a union grievance, file an Equal Employment Opportunity claim with the Agency's internal EEO office, or file with the Merit Systems Protection Board. The choice typically must be made within a matter of only a few weeks. The procedures are widely different. For our purposes right now, I will focus only on the EEO and MSPB.
- EEO investigation - The employee contacts the EEO office and initiates an
informalcomplaint. After 30 days of
counselingthe employee requests a
formalinvestigation, and the Agency takes statements from all potential witnesses and gathers documents to complete a Report known as an ROI. The quality of these investigations varies dramatically from agency to agency.
- MSPB - Within 30 days, the employee files an appeal with the MSPB. There is a lightning fast discovery period - the attorney had better be on his game for this - and then a trial, usually within six months.
If you take the EEO route, you can always short-circuit it any time after 120 days to start an MSPB case or go to federal court.
After the MSPB
Initial Decision: Four Choices or More
After the MSPB Administrative Judge issues an initial decision against the employee the employee has four options to appeal.
- Petition for Review by the full MSPB: An appeal to the Board permits the broadest kind of
appellatestyle review. But right now there is only one MSPB member and the Board has no quorum. There are probably 1,500 petitions for review pending in front of the MSPB right now. So expect big delays and likely bad decisions as the Board affirms everything in sight in a desperate bid to catch up on the backlog.
- Appeal to the EEOC: If you don't appeal to the MSPB but wait and let the decision become final, you can appeal the EEO claims in the case to the Equal Employment Opportunity Commission's Office of Federal Operations. But the EEOC OFO is also significantly backlogged. Expect more lengthy delays.
- Appeal to the CAFC: The Court of Appeals for the Federal Circuit can also hear appeals from final MSPB decisions. Expect the judges to be most attuned to complex legal issues - rather than the basic fairness of the case.
- New trial in District Court: Finally, the most aggressive option is to simply start over with a brand new trial in District Court. Depending where you live, your reception in court will vary. Here in Mississippi, you will be taking your chances; some judges are great, and others less so.
To make things still more complex, these aren't either/or options: you can often string them together. The most thorough method is probably to start the case with the EEO process, then, when the ROI is just finishing, request an MSPB appeal, then file a petition for review with the MSPB, then an EEOC appeal, and only then go into federal court for a brand new trial. The case can sometimes take a decade - particular if you win some of those appeals and there are remands along the way.
If you have enough interest in this topic to have read this far, chances are good that you may need the help of an attorney experienced in representing federal employees. There are no easy answers, but at least the attorney can help you understand the consequences of your choices.
Good Help is Hard to Find
It is extremely hard to judge the skill set of a stranger - or even a friend, if you have not worked with him before. There are those who do just enough to get by, and those who are motivated to be the very best. Whether it is hiring an employee, retaining a lawyer, or finding the right place to get a haircut, the difference between
good and merely
good enough is subtle.
And yet a wide gulf separates the results these two types of people get. The drive to be constantly improving, and the curiosity to be always seeking out opportunities for growth - these are the things that set a person apart.
And they are particularly important in a lawyer, whose work is such a complex mixture of practical and intellectual enterprise.
Experience is not a sum of years; a person who seeks out challenges - and learns from them - can pack more meaningful
experience into three years of practice than an incurious person can accumulate over thirty years.
My personal belief is that no amount of hard work and determination can replace the intrinsic motivation of a genuine curiosity. Curiosity makes a hard research problem into a journey of discovery; it makes a dry legal brief into a work of art; it transforms every task into an opportunity for exploration. A person who works out of curiosity, who works in order to learn, will naturally and organically continue to improve.
I call it
the school of litigation, and it is what makes my work such a joy, day in and day out.
The Due Process Rights of College Students
The due process rights of students - and college students in particular - is an often murky area. This is no real surprise: Constitutional law is, unfortunately, among the least rational and clear of all areas of law. But here you can learn at least some general concepts and parameters.
The first concept to bear in mind is that - with the exception of the Thirteenth Amendment (slavery) - the Constitution only limits
state action. This means that your private colleges and universities, like Belmont and Mississippi College, are not restricted by the Constitution. This is why - in case you were wondering - private colleges can be religious while e.g. school-mandated prayer is impermissible in public colleges. This does not mean that private schools can do whatever they want, but it means that the discussion which follows is inapplicable to them. This discussion will be limited to public schools like Ole Miss or Jackson State.
Is a college education property?
The due process clause prohibits the state from
depriv[ing] any person of life, liberty, or property, without due process of law. And so the first question is whether a college student has any liberty or property interest in their studies. Let's start with property.
Because property itself is a creature of state law - your rights to your land, your car, your gun: all are created (and limited) by state law - the answer will depend on the particular laws of your state.
Thus, in Mississippi, the Mississippi Supreme Court has held that
the cases involving public universities demonstrate that a student's interest in attending a university is a property right protected by at least the procedural protections of the due process clause. UMMC v. Hughes, 765 So. 2d 528, 538 (Miss. 2000).
In Texas, by contrast, the Courts have ducked the question and so it is still not entirely clear whether college students have a property right in college. University of Texas Med. School v. Than, 901 SW 2d 926 n.1 (Tex. 1995)
The liberty interest in college education
The liberty interest has been recognized based on harm to a college student's reputation and future prospects because of the expulsion:
[W]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of due process must be satisfied. Goss v. Lopez, 419 U.S. 565, 574 (1975). This suggests that, to some extent, the scope of the liberty interest will depend on what the student is accused of doing, and how serious the discipline being imposed will be.
Disciplinary vs Academic actions
Disciplinary actions are one thing. But the Supreme Court has cautioned that the courts should not be involving themselves too heavily in second-guessing the academic decisions of public schools. As the Court said in a case involving a graduate medical school, court review of academic decisions would
further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship. Board of Curators of Univ. of Mo. v. Horowitz, 435 US 78 (1978)
The upshot is that academic dismissals are not really subject to much due process under the Constitution.
But what exactly is an academic action? It would seem obvious: flunking out. But unfortunately, certain courts with a special hostility to students have hooked on to a minor footnote in Horowitz and blown it out of all proportion to suggest that virtually everything is
academic and nothing disciplinary. Everything from lying to profanity to tardiness have - from time to time - been considered
academic by certain courts. As one court admitted:
The Court recognizes that this definition of academic dismissal is very broad and leaves a finding of disciplinary dismissal to a narrow range of cases. It justified its decision on pure policy grounds - again, trying to stay out of the school's business. These decisions are - at best - poorly reasoned. But that doesn't mean that they won't carry the day sometimes. Real people lost those cases.
What process is due?
Assuming this is a real disciplinary expulsion case coming from a state where college students have recognized property rights, the next question is what process is due. It depends on the gravity of the discipline - a suspension requires only notice and a chance to respond in an
informal give and take with the student, as the Supreme Court noted in Goss.
But an expulsion - particularly an expulsion on extremely serious charges - may require more. The analysis is pretty vague, and involves the weighing of three factors:
- How serious the threatened harm to liberty/property;
- How useful particular procedural tools would be at making sure the right result is reached;
- How annoying, expensive, or time-consuming the procedural tool would be to use.
Good facts and good lawyering are your best bet at success, but there are no guarantees whatsoever in this area of the law.
The Transformation of Veterans Affairs Employment Law
If you are one of the thousands of Mississippians working for the VA, you should know that the law governing your work has been fundamentally transformed by Congress this summer. The President signed the "Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017" this summer, and just a few weeks ago signed the "Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017." Both statutes both weaken and strengthen the laws protecting VA employees in ways that it is crucial for all affected employees to understand.
Attend an hour-long seminar about these new changes in the law taught by Joel Dillard.
The seminar will be taught around shift changes in early December 2017 at convenient locations within a few blocks of the VA Hospital and VBO in Jackson, Mississippi.
Joel has worked for the General Counsel's office of the American Federation of Government Employees (AFGE), as well as the General Counsel's Office of the AFL-CIO. He has clerked for the Chair of Equal Employment Opportunity Commission (EEOC), and written EEOC Office of Federal Operations (OFO) opinions governing federal employees. He has clerked for Judge Dyk of the Federal Circuit, where he assisted in reviewing decisions of the Merit Systems Protection Board (MSPB). He has represented dozens of federal employees in disciplinary hearings, before the MSPB and the EEOC, as well as in federal court.
Sign up online in two easy steps:
- Register and select a seminar time by using the linked registration form: REGISTRATION FORM
- Make a small registration payment of $19 to cover facilities and materials, using this link: Secure online payment. Enter "VA Seminar Registration" on the memo line.
Fighting against Wage & Hour Retaliation
As with many other statutes, the Fair Labor Standards Act provides protections to employees that are trying to enforce their rights. If an employer fires or disciplines an employee for raising FLSA concerns or filing an overtime/minimum wage lawsuit, the employer can be subject to much greater liability than merely paying for the lost wages. And the FLSA in particular has somewhat stronger protections than most anti-retaliation statutes.
Informal and internal complaints are protected.
[A]n informal, internal complaint may constitute protected activity. Hagan v. Echostar Satellite, LLC, 529 F. 3d 617, 625-27 (5th Cir. 2008).Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011) This includes calling HR, or simply telling your supervisor. Of course, complaints to the U.S. Department of Labor or lawsuits filed in court are also protected against retalitaion.
However, the complaint must be about violations of the FLSA. It is not enough to complain that the pay is
too low in some vague, general sense. The employee must make it clear that it is minimum wage or overtime violations that are being alleged, whether by using those words or otherwise. And these allegations must be, in general, reasonable and asserted in good faith. As a practical matter, it is important to put these sorts of thing in writing.
It also includes complaints you make on behalf of someone else, other than yourself. One limitation on this, however, is important for managers and HR employees in particular to bear in mind. A complaint which you simply
pass along or which you make as part of your job duties is not protected activity.
Emotional distress and other damages are available for retaliation violations.
The remedies available for retaliation claims under Section 15(a)(3) are broader than those available for garden-variety FLSA violations. They include not only back pay for his missed wages since termination, as in any other wrongful termination case, but Congress amended the Act in 1977 to provide that
any employer who violates the provisions of section 215 (a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215 (a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. As Judge Easterbrook put it in Travis v. Gary Comty. Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir. 1990),
this amendment authorizes ‘legal’ relief, a term commonly understood to include compensatory and punitive damages. As the Fifth Circuit recently ruled, this means that employees can get emotional distress damages for wrongful termination in violation of Section 15(a)(3) of the FLSA. Pineda v. JTCH Apts., 843 F. 3d 1062 (5th Cir. 2016).
Personal, individual liability of business owners and managers
Assuming the business meets the jurisdictional limit of doing at least $500,000 per year in business, you should also be aware that the corporate form will be no shield to individual liability by the owners and operators of the company. Under the FLSA specifically, the courts have held that such persons are - individually, jointly, and severally -
employers under the Act, and subject to individual liability. Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194-95 (5th Cir. 1983); Wirtz v. Ross Packaging Co., 367 F. 2d 549 (5th Cir. 1966).
Whistleblower that raise overtime and minimum wage violations have significant legal protections, and no employee should act without knowledge of them.
Gambler, Soothsayer, Counselor, Warrior
What is a lawyer?
In Kenny Rogers' immortal words, you've got to know when to hold 'em and when to fold 'em. Lawyers live the gambler's reality every day - and not just when they roll the dice on a big contingency fee case. It is remarkable how much like gambling the practice of litigation is, as a few recent experiences really brought home to me.
You've got to know when to fold 'em. Being right is no guarantee. The truth will not protect you. Because it isn't just about the truth - but the proof. And with a half-dozen credible witnesses against you, and no one to stand by you, it matters to no one but God whether you are telling the truth. It may be time to find a way to pack it up and move on, to minimize the damage. Don't pray to the Court - the courts of man know no God - just fold 'em before you lose your shirt. The lawyer must know when to walk away from the table, no matter how deep they are in the hole.
But you've also got to know when to look 'em in the eye and re-raise, even when they make a big bet against you. As I recently had cause to say to someone -
You've got a pocket pair, and they're aces, but if you're looking for me to promise you that you're going to win, there's no way I can do it. You haven't even seen the river yet. That doesn't mean you fold. You've got a great hand - play it! You may get cracked, but when you've got a hand to play you can't let them buy the pot with what may very well be a bluff.
Humankind cannot know the future, but a lawyer has to try. And has to do it after only a few words conversation with a perfect stranger. As Dickens said
every human creature is constituted to be that profound secret and mystery to every other. The lawyer must attempt the superhuman feats of the soothsayer.
When a stranger walks into my office - and every client was a stranger once - you have to feel deep within you what this person is all about. They may tell a good tale, they may win an Oscar for their acting, they may look to have a significant case, and sometimes you've got to say
no thanks because you feel it in your gut that something's not right.
Or maybe they walk in with nothing but a suspicion, a speculation, a guess that they've been done wrong. Maybe they set off all kinds of traditional alarm bells that say
stay away from this one. Maybe they have a long and uneven litigation history. You take the client anyway, because you just feel it. (My biggest settlement to date had its origins in an initial interview like this.)
And at trial this process repeats with every single juror: after only the slightest few questions in voir dire, you must choose whether to put your client's livelihood in their hands.
Sometimes a client will start to get emotional, and feel compelled to apologize for it. I say
don't apologize, this is what I'm here for. There is a reason they call a lawyer a counselor at law. And it isn't just to listen to the client. It is necessary to understand the client's psychic state to know how to serve the client's true best interests.
This is particularly true in a field - like employment law - where emotions run so high. Like family law and divorce, losing a job can be one of the great traumas of life. Add into the calculation mental or psychological disabilities in ADA, Rehab Act, or FMLA cases, and it can make for quite a potent mix.
Sometimes the gambler has to take a back seat to the counselor: the right gamble may be to play the hand, but the right decision for the client is to settle.
And sometimes the counselor is needed to help the gambler survive. No matter how wronged the client may feel, the counselor is the one who helps the client find a way to do what is in their best interest, and let go.
What more is there to say? This is what everyone imagines the lawyer to be - at least if you judge by lawyer's TV ads.
And it is often true. When the cards are all down on the table, when you've read the tea leaves, when you've confronted the internal conflict... you go to war. It may mean shouting down repeated and improper speaking objections, it may mean deposing the company president armed with a long and embarrassing list of his
inconsistencies, or filing a motion for well-deserved sanctions, or a devastating cross-motion for summary judgment. A jury trial is like a war from start to finish, with a host of complex tactical difficulties worthy of Sun Tzu, and sometimes the only way to win is to see it to the end and achieve a decisive victory on the field of battle. This is often the most satisfying part of the job.
Severance Agreements: Gift or Trap?
Severance agreements come in two basic types. The first type includes those negotiated in advance, as part of your original employment agreement. The second type includes those voluntarily offered by the employer at the time employment ends. The two are fundamentally different.
1. Contractual: the
buy out or
golden parachute severance agreement.
Again, the first type of severance to consider is the
golden parachute. In this types of severance, everything is usually governed in your initial employment agreement. These are sometimes called a
buy out because the contract basically requires the employer to make a significant payment in order to end the employment.
These are unquestionably good for the employee. First and foremost, they act as an important check on the ability of the employer to fire the employee without a good reason. If the employee is doing well, the employer will keep them on even if they might otherwise prefer to fire them, so that they can avoid the buyout.
And there isn't much of a downside for the employee. By law, they typically cannot be interpreted to destroy statutory rights to file suit for things that happen during employment.
Often, these kinds of agreements tie the payout to the length of the employee's tenure, giving them, for example, a month of salary for each year worked for the employer. This kind of arrangement serves both employer and employee well, because it encourages the employee to stay on with the company longer, but also gives the employee an infusion of cash when beginning retirement or moving to other work. (This is basically an amped-up version of the annual leave buy-out, a very common practice which will be the subject of a future post.)
If you are in a profession where your unique skills are in high demand, you may be in a position to bargain for one of these clauses. I highly recommend it - particularly when the employer is asking for a very restrictive non-compete agreement. It makes a lot sense. If the employer wants you to promise not to practice your profession for a year or more after leaving working for them, then they ought to provide a big enough severance package to help you through that time on the sidelines. This can be a perfectly reasonable trade.
At the same time, any contract you sign - particularly one as important as an employment agreement - should be reviewed by an experienced employment lawyer to make sure it is fair to you. The firm provides this service at a surprisingly reasonable rate.
2. Post-employment severance: the
full release severance agreement.
More common - particularly among less highly-specialized work - is the severance agreement which is voluntarily offered by the employer when separating you from work, usually an involuntary separation.
These severance payments aren't required by contract, or by law, so you should be asking yourself:
Why am I being offered this? Is it a gift?
Usually, the answer is
no. Usually, these severance agreements are attached to what is called a
full release of the employer for any liability for anything they ever did wrong at any time during or after your employment up until the date of signature.
Now, I don't want to paint the wrong picture for you. Usually, you aren't really giving anything up, because you don't have a valuable lawsuit against the employer. Usually you weren't hand-picked for this severance because you pose a particular worry to the employer. Usually this does not indicate anything about how concerned your employer is about any potential lawsuit you might have. Usually, this just means your employer is smart, and wants to cover themselves and avoid any unnecessary albeit groundless litigation.
But not always. I have found it increasingly common for employers to handpick a few people to offer these
severance agreements to, people that they fear might pose a particular litigation risk. Although, again, this does not mean they actually fear the outcome of the litigation - necessarily - it means they've identified this person as someone that might want to sue. If so, this may also mean that they would be willing to offer you more to settle your disputes, and you would benefit from a bit of negotiation. Again, not always, but it is sometimes the case.
Regardless of the employer's intent, however, you should definitely review this agreement with a lawyer. These are completely different from the
golden parachute. These are basically full-blown settlement agreements, where you sign away significant legal rights forever in exchange for a payment.
They may have a confidentiality clause, where you promise to say nothing about the existence of the agreement. This is an alarm bell that there may be more to this than meets the eye.
They may have a non-disparagement clause, where you promise not to say anything bad about the company or your bosses ever again. This is another alarm bell.
And they may have liquidated damages provisions, where you agree to pay them (and their attorney) if you breach the contract. Huge alarm bell.
Whatever the issue, you want to know what your are giving up before you sign one of these. Buy some time - tell them you really appreciate their generosity and very much want to take it (never hurts to be nice) but that you need a few days to go over it in detail first. Then call a lawyer, talk everything through, and make an informed decision. Again, the firm provides this service at a surprisingly reasonable rate.
3. Wait a minute, just one more: statutory WARN Act and COBRA violations
There is one more, but it isn't really
severance. If your employer has more than 100 employee and is laying off more than 50 or so employees in a particular month, then you may be entitled to 60 days notice under the WARN Act. If, and only if, no such notice is given, you may be entitled to up to 60 days of what is essentially severance pay instead of notice.
In addition, if you have health insurance through your employer do not get COBRA rights notifications, then you may be owed up to $110 per beneficiary per day until the proper notice is given.
Again, these aren't exactly severance, but they can function in a similar way under certain special circumstances.
I also highly recommend this linked Forbes article, which has a lot of sound advice for employees facing a decision on severance packages if you are interested in reading more.
Complaining about sexual harassment to HR
In a recent survey released by noted blog fivethirtyeight.com, over 1,000 respondents were asked what should you do when you have been the victim of sexual harassment. In the scenario presented, a combination of texts and verbal encounters with a co-worker showed the co-worker making repeated sexual advances, being rebuffed, and then insulting and criticizing the victim. Respondents were given five choices, with the following results:
- Compile the texts and confront the harasser. 7.8%
- Compile the texts and do nothing. 6.5%
- Compile the texts and take them to human resources to notify them ahead of any repeat incident. 40.1%
- Compile the texts, take them to HR, and ask to be moved. 33.2%
- None of the above is good advice. 12.5%
The law in this area is far more complicated than you might expect, and to make the best decision, it is important to understand this legal background.
Is this illegal sexual harassment?
Harassment was not explicitly addressed in the sex discrimination provisions of Title VII of the Civil Rights Act, which only spoke to adverse
employment practices - typically demotion, suspension, non-hiring, termination, etc. But the Supreme Court recognized in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) that harassment because of sex can be unlawful.
But the Court explained that the harassment must be
severe or pervasive and it must be because of sex, race, disability, etc. An
equal opportunity harasser - that is, someone that is mean to everyone, or even a bisexual that sexually harasses on both men and women at work - is not violating the statute, as noted in among other cases, Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000).
severe or pervasive standard is sometimes quite difficult to meet, especially in the Fifth Circuit, as the employee found in Jones v. Flagship Int'l, 793 F.2d 714 (5th Cir. 1986). My rule-of-thumb is, unless there has been either unwanted offensive touching (assault), or at least weekly explicit communication (well attested by evidence), then you can't be certain whether the court will see it as
severe or pervasive - although there are many cases where far less was accepted, such as in Idom v. Natchez-Adams School Dist., 115 F. Supp. 3d 792 (S.D. Miss. 2015).
What steps should be taken to respond to harassment?
The next steps depend on the precise nature of the harassment, and the victim's goals in addressing it. For example, if the harassment is by the boss, and involves a quid pro quo - like, sleep with me or you are fired; sleep with me and you get a raise; etc. - then sometimes the best next step is to file an EEOC charge, develop the evidence, and proceed into court if the matter does not settle. This kind of harassment the employer is liable for, even if it isn't reported to HR. With that said, depending on the claim, the kind of company, and the victim's career situation, sometimes it is better to go to HR first, or to take other steps. This is a question of strategy, rather than pure law.
But if the harassment is by a coworker or customer, or if the supervisor is not engaging in any explicit
quid pro quo, then a complaint to HR is generally MANDATORY before filing an EEOC charge. In fact, before the employer can be held liable, you must follow all the official procedures of the employer for reporting harassment, and give them a chance to fix it. This was the holding of the Faragher and Elerth cases. (This doctrine doesn't apply if the company has no such policy, or if the policy is futile - like reporting the misconduct directly to the harasser.)
This played out to agonizing effect in Harvill v. Westward Comm. LLC, 433 F.3d 428 (5th Cir. 2005) In that case, the plaintiff was clearly harassed:
In her deposition, Harvill testified that, during that seven-month period, Rogers grabbed her and kissed her on the cheek, popped rubber bands at her breasts, fondled her breastsHarvill reported the harassment to her supervisor over and over, and he did nothing. But Harvill still lost the case. This was because Harvill did not use the employer's complaint proceedure that the employer had in the handbook to address sexual harassment, and therefore didn't go over her bosses head, for about seven months. And:numerous times,patted her on her buttocksnumerous times,and came behind her and rubbed his body against her. At one point, Harvill estimated that Rogers touched her breasts or her buttocks perhaps as often as once a week—although she later stated that it may not have been as often as once a week. She also claims that on one occasion Rogers made comments to her about her sex life and her abilities in bed.
When Harvill did contact Human Resources, the company immediately separated Rogers and Harvill, after which time Harvill concedes that all harassment ceased. Therefore, Westward contends that it did take prompt remedial action that was calculated to end the harassment after Harvill bypassed [supervisor] French and took advantage of the corrective opportunities made available to her [by HR].The failure to call HR sooner was enough to completely shield the company from liability for the harassment.
Pitfalls: retaliation and sham investigations
Be aware though: HR
representatives are not your representatives, they are the company's representatives, and their first mission is to cover the company's butt. This may mean helping you, and it may mean proving you a liar (even if you are telling the truth).
Also be aware that going to HR about sexual harassment is statutorily protected activity: you cannot lawfully be fired or disciplined or in any other way retaliated against because of it. But that does not mean it does not happen, so be sure to document who knows about your complaint and when they learned of it. It may be helpful to tell the harasser and your boss immediately by emailing them a copy of the complaint, to prove any subsequent actions are potentially retaliation.
Taken together, this means that occassionally - rarely - the best response for some victims' goals is to ignore it and look for other work. I wish it were not so, but practically speaking, the law is sometimes not strong enough to meaningfully protect the complainant. I'm thinking most particularly of complainants in careers or environments with a
small pond culture, where an informal blacklist can develop that destroys the victim's career if she complains. This is becoming far less common nowadays, but it is still true sometimes.
The bottom line: call a lawyer
The bottom line, though, is that the 73% percent of respondents to the survey that said to go to HR were generally right - and I would add that the victim should read the employee policy handbook carefully and follow it. But equally important is the advice of good lawyer first, who can keep you on the straight and narrow path to best protect your career and interests.
Leaving work the right way
Leaving work is never easy, but for employees that have potential legal claims, it can also be a trap for the unwary.
If you resign, for example, this means you weren't terminated, and that can have a number of consequences for legal claims. It is not easy to argue that you were wrongfully terminated if the decision to leave work is one that you made on your own. It isn't impossible, but it makes the case significantly more complex and difficult than a true termination case.
For example, suppose a boss said something offensive and the employee responded
well I'll see you in court and walked off the job. This may have just ruined the case. First, you can bet the boss will deny what he said, and with nothing in writing it can be hard to prove him a liar. Second, he didn't fire the employee, and by walking off the employee risks (at least) the lion's share of any potential back pay. The employee may have benefited from getting advice from an attorney before quitting.
To be clear, quiting isn't always fatal to a case. Sometimes the Courts will treat a resignation as if it were a termination under the doctrine of
constructive discharge. There are two ways to prove a constructive discharge: (1) either the employee was given an ultimatum to
resign or get fired, or (2), the employee was in working conditions so terrible that any reasonable person would feel compelled to resign.
ultimatum-type case is simple to prove, so long as the employee has some kind of email, text message, or other written proof of the ultimatum.
The working-conditions-type case, however, is always difficult. Usually, some demotion or extraordinary harassment must take place.
Courts weigh the following factors to determine constructive discharge: (1) demotion; (2) reduction in salary; (3) reduction in job responsibility; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee's former status. Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir.2011).
For example, in one case, the City of Meridian wanted to get rid of a chemist working at the water treatment plant. Their attorney told them they didn't have sufficient grounds to fire her. And so, instead, they reclassified her as a
laboratory technician and drastically cut her pay to try to force her out. She resigned. The Court held that this was a
constructive discharge. Loftin-Boggs v. City of Meridian, Miss., 633 F. Supp. 1323, 1327 (S.D. Miss. 1986). (The employee still lost the case, though.)
On the other hand, with only harassment to go on, these cases are usually losers. E.g., Simpson v. Alcorn State Univ., 27 F. Supp. 3d 711 (S.D. Miss. 2014). Sometimes, though, in just the right circumstances, a harassment-based constructive discharge claim can turn out to be a winner. E.g., Idom v. Natchez-Adams School Dist., 115 F. Supp. 3d 792 (S.D. Miss. 2015).
The upshot here is to be certain to understand the consequences of resignation. Some employers are very savvy at forcing an employee out in subtle ways that can be difficult to prove as a constructive discharge. Employees facing these hard choices may need to consult with an attorney for legal advice about their options.
What to do before you sign a non-compete agreement
You're excited. The new boss seems great, everybody is really friendly, and you'll finally be able to escape that miserable service job and actually use your degree.
Then the initial paperwork arrives: an I-9, insurance notices and brochures, some kind of contract... wait a minute, what is this? A Noncompete Agreement...
Well, you say to yourself,
I guess that only matters if I leave this job. I'm not thinking about that right now. And I have to sign it, I guess, so I'm sure this will work itself out later...
Think again. You need to understand what you are signing before you sign it: you could be signing away your right to practice your profession. The average tenure in one job is only about five years. There are no guarantees about tomorrow, and, whether it is a better offer somewhere else, or that jerk Dave getting promoted over you and treating you like dirt, or family reasons that require you to move away, you could find yourself leaving this job very quickly - and deeply regretting that noncompete agreement.
Mississippi law allows non-compete agreements, so long as they are
reasonable, which is as vague as it sounds. Redd Pest Control Co. v. Heatherly, 248 Miss. 34 (1963). What it amounts to, in practice, is that the courts will enforce your non-compete agreement to whatever extent they think is
reasonable for someone doing the kind of work you do for the kind of employer you have. Some non-competes can prohibit you from engaging in your profession anywhere in the nation for a period of a year or more. Others will be limited to a particular county, or to a five-mile radius. It will depend on the nature of the business and your place in it. If, for example, you develop close relationships with the employer's customers all over the state, the courts will likely enforce an agreement preventing you from practicing the same profession for yourself or any competitor anywhere in the state, perhaps for year or even longer.
Some of these agreements are unclear. For example, consider a veterinarian prohibited from practicing
within Madison County, within a ten-mile radius of the employer's practice. Suppose the veterinarian opens a practice 9 miles away, but in Rankin County? Is this prohibited? It is good to notice these issues before signing, and the trained eye of an attorney can identify and advise about these kinds of issues.
What about bargaining with the employer about the non-compete before signing? This is a matter requiring a great deal of sensitivity: the new employee doesn't want to send a signal to the employer that she is already planning to leave, or that she loves to litigate, but at the same time she needs to protect herself.
The strategic, confidential advice of an attorney could be extremely helpful in this situation. And it may be more affordable than you think.
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