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Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 2 of 3)

Common Mistake No. 2: Paying a Separating Employee Something Extra Without Requiring a Waiver and Release

This post continues the discussion of common errors made by employers terminating employees which can be easily avoided.

Whether it is advisable to pay a separating employee something extra in exchange for a waiver and release of claims against the employer depends on a number of factors, such as the strength of the potential claims that the employee would be waiving and the likelihood of the employee filing suit. That said, an employer should never pay separating employees money to which they are not otherwise entitled without requiring the execution of a waiver and release.

While the wisdom of this advice might be obvious to some, it is not uncommon in my experience to see an employer gratuitously pay a couple of weeks pay to a separating employee without requiring the employee to execute a waiver and release. As you might guess, this mistake typically comes to my attention because the separating employee is threatening the employer with legal claims after depositing the employer’s gratuitous severance payment, given further credence to the first rule of employment law: No good deed goes unpunished.

While employers sometimes voluntarily provide severance to separating employees at the time of separation, other employers contractually obligate themselves to provide severance (without a corresponding duty on the part of the employee to provide a release) through poor drafting of employment agreements. For example, the employer promises in an employment agreement at

Missouri Legislature Changes the Burden of Proof for Workers’ Compensation Retaliation Claims

May 10, 2017

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On Monday, May 8, 2017, the Missouri Legislature passed Senate Bill 66.  Senate Bill 66 amended a number of sections of the Missouri Workers’ Compensation Act.  Of significant note for employment litigators, Senate Bill 66 modifies the burden of proof for workers’ compensation retaliation claims under §287.780 R.S.Mo.  This change was a direct response to the Missouri Supreme Court’s decision in Templemire v. W&M Welding, Inc., 433 S.W.3d 371 (Mo. 2014).  

In Templemire v. W&M Welding, Inc., the plaintiff alleged he was fired in retaliation for filing a workers’ compensation claim. The trial court entered judgment in favor of the employer.  The Missouri Supreme Court ultimately reversed and held that to make a submissible claim of retaliation under §287.780 R.S.Mo., “an employee must demonstrate his or her filing of a workers’ compensation claim was a ‘contributing factor’ to the employer’s discrimination or the employee’s discharge.”  The Templemire decision was regarded by employers in Missouri as controversial.  Templemire rejected stare decisis and overturned two prior Missouri Supreme Court cases that had held that a plaintiff asserting a claim under § 287.780 must prove an exclusive and casual relationship between plaintiff’s actions and defendant’s actions.  Templemire rejected these prior holdings in favor of the “contributing factor” standard it had adopted for Missouri Human Rights Act claims.

Senate Bill 66 undoes the holding of Templemire, and §287.780 now provides:

No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this

Missouri Legislature Passes Significant Changes to the Missouri Human Rights Act

May 9, 2017

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Today, the Missouri House of Representatives passed Senate Bill 43, which makes significant changes to the Missouri Human Rights Act (“MHRA”), Missouri’s fair employment practices law.  Having now passed both Chambers, Senate Bill 43 now goes to Governor Greitens desk for approval.  Senate Bill 43 makes a number of important changes to the MHRA: 

Burden of Proof Changed to Motivating Factor

The burden of proof on claims under the MHRA is changed to “motivating factor.”  In 2003, the Missouri Supreme Court held there was a right to a jury trial under the MHRA.  In 2005, an advisory committee on Missouri’s jury instructions considered the need for a new instruction for claims under the MHRA, and ultimately recommended that the burden of proof for claims under the MHRA be “contributing factor.”  The Supreme Court adopted that recommendation, and in Daughtery v. City of Maryland Heights, 213 S.W.3d 814 (Mo. banc 2007) held that this standard must be applied to MHRA discrimination claims, and in Hill v. Ford Motor Co., 277 S.W3d 659 (Mo. banc 2009) held that this standard must be applied to MHRA retaliation claims.  Since then, there have been numerous efforts in the Missouri Legislature to undo those decisions requiring use of the contributing factor standard.  Twice legislation was passed by both chambers, but Governor Nixon vetoed those bills in 2011 and 2012. 

Under Senate Bill 43, where the MHRA says it is unlawful to discriminate “because of” a protected characteristic, “because of” means  “as

Avoiding State Law Pitfalls (Part 2 of 4)

May 8, 2017

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This is the second hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

Scenario #2

A manager of a Chicago, Illinois restaurant calls you regarding a long-term employee whose son is in the U.S. Marines. The employee would like to take a month off work to spend time with his son before he departs for Iraq. The employee does not have any unused vacation or other form of leave available under the Company’s policies. The manager advises that the employee’s performance is average, but a 30-day leave would negatively impact the restaurant’s operations during the busy summer months. You advise the manager that the Family & Medical Leave Act does not apply because neither the employee nor his family member suffers from a serious health condition, and the Uniformed Services Employment & Reemployment Act (USERRA) is inapplicable because that statute only protects employees who are, themselves, in the military. You further inform the manager that it is permissible to deny the employee leave and that the manager should apply the Company’s attendance policies consistently to all employees. The manager denies the employee’s leave request, and the employee decides that spending time with his son before he goes to war is more important than any job. The employee advises the manager of his decision, and the manager terminates the employee.

Result

The employee brings suit against the Company under the Illinois Family Military Leave Act, which provides up to 30 days of unpaid family military leave to

The Use of Unconditional Offers of Reinstatement to Reduce Damages Exposure

This post discusses the underutilized litigation strategy of extending an unconditional offer of reinstatement to a former employee-plaintiff who has filed (or has threatened to file) suit challenging his or her termination from employment.

How the Rejection of an Unconditional Offer of Reinstatement Impacts Damages

The U.S. Supreme Court has held that a former employee’s rejection of an unconditional offer of reinstatement (i.e., one that does not require the plaintiff to waive or compromise his or her discrimination claim) to a substantially equivalent position tolls the accrual of the employer’s back pay liability:

An unemployed or underemployed claimant, like all other Title VII claimants, is subject to a statutory duty to minimize damages. . . . This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding suitable employment. Although the unemployed or underemployed need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to back pay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer charged with unlawful discrimination often can toll accrual of back pay liability by unconditionally offering the claimant the job he sought, and thereby providing him with an opportunity to minimize damages.

A plaintiff’s rejection of a Ford Motor Offer is measured by an objective standard – namely, whether a reasonable person would refuse the offer of reinstatement. See Feidler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808 (8th Cir.

Paid Sick Leave

April 25, 2017

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Paid Sick Leave

April 25, 2017

Authored by: Lily Kurland

While no federal law requires employers to provide employees with paid sick leave benefits, such an obligation does exist under certain state and municipal laws, including but not limited to those in Connecticut, California, Illinois, Massachusetts, Oregon, Vermont, Washington, D.C., Seattle, and New York City.

The scope of each of these laws, however, varies greatly. For example, while Connecticut’s law generally only applies to hourly workers in certain “service” occupations, California’s law generally applies to all employees, including temporary employees, who work in the state for 30 or more days per year. The consequences for failing to comply with the relevant state or municipal law likewise vary, with certain locales providing employees with their own private right of action.

In order to determine what, if any, paid sick leave obligations it has, employers should be sure to familiarize themselves with the following information:

  • The states or municipalities that have laws requiring paid sick leave;
  • The types of industries and/or employers to which each applicable law applies;
  • What, if anything, an employee must do to qualify for paid sick leave benefits under each applicable law;
  • The type and amount of paid sick leave to which an employee is entitled under each applicable law;
  • How paid sick leave benefits are accrued under each applicable law;
  • The purposes for which paid sick leave may be used under each applicable law; and
  • Whether paid sick leave benefits must be paid out upon termination under each applicable law.

Bryan Cave LLP has a

Getting More Bang for Your Buck With Separation and Settlement Agreements

All employers, at one time or another, will provide terminated employees with a severance payment for a release of all claims that employees may have against the employer, as well as other promises.  Too often, employers blindly “copy and paste” language from old agreements that may contain outdated provisions that no longer comply with current law, or that were tailored to a factual setting different from the situation they are currently facing.  Employers should review their standard settlement agreements, with the following non-exhaustive items to bear in mind.

Timing of Execution.   An employee may not release future claims, i.e., claims that have not yet accrued.  Employers sometimes provide severance agreements to departing employees while they are still employed.  If the employee signs while employed, waiving any past claims, the waiver would not apply to any claims that accrue after the employee’s execution of the agreement.  Thus, if the employee is subjected to improper conduct after executing the agreement (but while still employed), or does not receive a bonus or some other benefit to which the employee believes he or she is entitled, the employee’s release would not be a defense to such a claim.  Accordingly, the employer should present the separation agreement to the employee on the last day of employment or after the employee has been terminated.  In the alternative, the employer may present the separation agreement to the employee while employed, but include language in the agreement that requires the employee to sign the agreement after the employee

Early Dismissal Strategies When Dealing With a Dishonest Plaintiff

April 19, 2017

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Dishonest plaintiffs can make it difficult, and in some cases impossible, to successfully move for summary judgment. Indeed, a dishonest plaintiff who understands the legal landscape can easily defeat summary judgment by claiming that there exists “direct evidence” of discrimination in the form of an admission by management that the challenged employment action was motivated by discriminatory animus (e.g., “my supervisor told me he was firing me because of my age”).

While there sometimes is nothing that can be done about a dishonest plaintiff other than attack his/her credibility in front of a jury, it is critical to ensure that that all early dismissal strategies are explored before reaching the dispositive motion stage of case. These early dismissal strategies include examination of plaintiffs’ representations in their post-employment bankruptcy petitions and in forma pauperis (“IFP”) applications.

Those new to employment litigation may be surprised by the percentage of plaintiffs that file for bankruptcy and/or seek IFP status. It is not uncommon for plaintiffs to have filed for bankruptcy following the termination of their employment. Nor is it uncommon for plaintiffs, especially those proceeding pro se, to request permission from the court to proceed without the payment of a filing fee (i.e., to proceed in forma pauperis). Of course, these mechanisms serve an important function in society, and this post is not intended to discourage their use by honest litigants. Rather, this article outlines defense strategies for dealing with dishonest litigants who seek the discharge of their debts in bankruptcy and/or the

Avoiding State Law Pitfalls (Part 1 of 4)

April 19, 2017

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This is the first hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

Navigating the treacherous waters of federal employment law is not easy. Well-intentioned employers can unknowingly violate some of the more complicated (albeit well-known) laws like the Family & Medical Leave Act and the Americans With Disabilities Act due to a lack of familiarity with the applicable regulations or the case law interpreting them. When an employer has operations in multiple jurisdictions, the analysis becomes even more complex due to circuit splits on pivotal issues.

With so much to worry about on the federal front, it is no wonder that human resources personnel, in-house counsel, and outside counsel often do not spend sufficient time and resources staying apprised of some of the more obscure state laws on the books. If you are reading this article, you almost certainly have internal or external clients relying on you to give them accurate advice whether the applicable statute is federal or state, well-known or obscure, recently-passed or decades old. The purpose of this article is to highlight the importance of this obligation through four different hypothetical examples over the next few weeks of well-intentioned employers violating unfamiliar state laws.

For purposes of the hypothetical examples, assume you are in-house counsel for a large restaurant chain with operations throughout the United States. You do not have human resources personnel in each state, and you often are called upon to render advice regarding the legality of various employment decisions.

Scenario

FMLA Administrators: Have You Checked Out The DOL’s Website Lately?

If you are responsible for administering any aspect of your company’s Family and Medical Leave Act (“FMLA”) policy, from handling leave requests and paperwork to training managers on FMLA compliance, consider spending some time on the U.S. Department of Labor’s FMLA webpage (https://www.dol.gov/whd/fmla/).

The DOL has undertaken efforts to make its FMLA webpage much more user-friendly, for both employees and employers. The FMLA homepage now includes clear links and easy access to:

  • General Guidance materials (such as FAQs and separate employee and employer guides);
  • Fact Sheets (topics range from the meaning of “in loco parentis” to joint employer responsibilities);
  • E-Tools (interactive online tools and presentations about the FMLA);
  • Posters (including the new FMLA poster issued in April 2016; use of the new poster is not yet required, but the information in the new poster has been streamlined and simplified);
  • Forms (consider making it a practice to pull FMLA notices and certification forms from the website each time they are needed, so as to ensure you are using the most recent forms);
  • Interpretive Guidance (such as DOL opinion letters on thorny topics);
  • Law and Regulations (if you’re looking to go directly to the source!).

You’ll likely find it worth your while to spend some time reviewing the above FMLA materials.

We will continue to post FMLA blogs from time to time on Bryan Cave’s L&E blog. You can also find FMLA blogs from the past several years on

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