Can They Sue Me for That?
The employment landscape can be hard to navigate without the right toolset. Attorneys in our Labor & Employment group are constantly being asked, “Can my employee sue me for…?” Asking the question after an employee files a claim is too late. A preventative approach is the best way to defend your company against lawsuits. In this quiz we cover three issues that frequently surprise businesses.
Social Media Dangers
After an employee had a particularly bad day at work and was disciplined by his supervisor for poor work performance, the employee goes home and posts on his Facebook page:
“The administrative assistants have BANDED TOGETHER — one and all agree that the management of ACME CORP. are a bunch of PENNY PINCHING JERKS WHO NEVER GIVE RAISES AND KEEP THE FRUITS OF OUR HARD WORK!”
After the discovery of the Facebook posting, the employee is terminated the next day.
Can my employee sue me for that?
Answer: Yes
In his Facebook entry, he has said the “magic words” to wrap himself in the protection of Section 7 rights under the National Labor Relations Act (“NLRA”). Specifically, the employee claims that his termination was unlawful and in violation of the NLRA because he engaged in “protected concerted activity” for the “mutual aid and protection” of himself and his co-workers. Of course, an NLRB unfair labor practice charge investigation will disclose whether the employee truly “banded together” with other employees or whether he was complaining about his own perceived mistreatment.
Bullying in the Workplace
A female minority employee works as an administrative assistant for an, especially valued and effective executive. The executive is notoriously difficult to work for because of his mood swings, coarse language, verbal abuse and intimidating conduct. After one too many instances of suffering the brunt of the executive’s wrath, the female minority employee quits her job, files for unemployment compensation benefits, and sues for harassment and a hostile work environment.
Can my employee sue me for that?
Answer: Maybe
There is no law to protect employees against “Bullying in the Workplace.” Title VII (of the Civil Rights Act of 1964) prohibits discrimination and harassment based on protected classifications, e.g., race, sex, color, national origin. However — Title VII does not create a “code of civility” for the workplace. There is no “protected classification” that safeguards employees against being victims of “general” bullying in the workplace. The female, minority employee could state a case for harassment only if she claimed it was on the basis of sex or race. She cannot sue only on the basis that her boss is a bully. Of course, she might still be eligible for unemployment compensation if the unemployment compensation office believes that she quit her job for a cause of a “necessitous and compelling reason.”
Unintended Employment Agreement
A construction management firm routinely engages individuals to work for its clients’ long-term projects. The company hires a consultant and provides an Offer Letter regarding the terms and conditions of the position. The consultant works for four months and the underlying project is discontinued for an indefinite time as a result of unforeseen zoning and utility issues that the company’s client encounters. The consultant sues the company for breach of contract and claims that they owe him his full salary and benefits for 3 years, contending that his Offer Letter was an Employment Contract for a term.
Can my consultant sue me for that?
Answer: It depends
If the Company provides a confusing Offer Letter, the letter can be construed to have formed an Employment Agreement for a specific term. The language of the Offer Letter will be construed against the company if the company drafted it. If the company failed to follow the law, a poorly drafted Offer Letter may be construed to have formed an Employment Agreement. The best course of action is to always include explicit disclaimer language such as “an Employment Contract is not being formed” and “the Employee is employed At-Will.” Even better yet, don’t play lawyer. Have your Offer Letter reviewed by experienced counsel. Employment and labor law cases have almost doubled since 1990. Be prepared with the appropriate workplace documents and handbooks. Your business’ best offense to liability is a good defense.
