What Trump’s Termination of James Comey Teaches Employers on What Not to Do

Donald Trump fired James Comey, Jr. as the FBI Director with a letter and memorandum of the rational for the termination (if you haven’t seen them you can take a peek here.) While this act is taken at the highest levels of government related issues of enormous public interest, it is substantively little different than decisions to terminate employees that private employers make every day.  What lessons can this event teach employers about terminations?  How do employers terminate employees in such a way as to limit potential legal liability?

The general best practices include

  • Have provable and documented evidence of the infraction(s) resulting in termination
  • Complete adequate investigation of those infractions
  • Follow the policies provided in the employer’s handbook
  • Provide consistent feedback on issues of concern
  • Act swiftly

The reason each of these best practices are important is because in most cases the best defense is simple – We had a legitimate business reason for terminating the employee. In response, the employee must then argue that the legitimate reason is pretextual (or made up) and the real reason is an illegal one. Each of these best practices are designed to protect the stated reason for termination from an attack that it is pretextual and therefore increase an employer’s risk of liability.

In the case of Comey, President Trump is at significant risk that his stated reason may lack credibility and provides a good example for employers on what not to do and why following your best practices is so critical.

Donald Trump Has Not Been Consistent

Throughout the campaign and after his election, Trump praised James Comey and the FBI.

Complicating matters for Trump is that the very conduct that he cited to support his termination of Comey (his public statements regarding his investigation of Secretary Clinton’s emails during an election cycle) was the very same conduct he praised numerous times before.

Employer Take Away: If you are going to discipline an employee, you need to ensure that you have been unwavering in your critique of the offending conduct. This is particularly true if you ultimately rely on it when making a decision to terminate.

The Termination Decision was Made Before the Investigation Was Completed

Even before Mr. Trump took office, the Justice Department’s inspector general announced it was conducting an investigation into the conduct of Mr. Comey and the way he handled the investigation of Secretary Clinton’s emails. This investigation of Mr. Comey’s conduct was largely praised by everyone in Washington.

Nonetheless, Trump made the decision to terminate Comey without the investigation’s findings to support his decision.

Employer’s Take Away: A proper investigation can often be the best line of defense and provide adequate cover and justification for a disciplinary decision.

Act Swiftly

If you are going to terminate an employee for conduct, you need to ensure you are doing it in a timely and reasonable fashion. In Mr. Comey’s case, the conduct at issue occurred last June and November. Relying on it six months later leaves open the question  Why Now?

Waiting too long creates the implication that there was some other motivating factor. As a result, it creates an opening to argue that some other reason (something more recent) was the driving force behind the decision to terminate.  In this case, Mr. Comey’s investigations into Mr. Trump’s ties to Russia.

Employer’s Take Away: Acting timely and appropriately supports the disciplinary decision. This best practice is aligned with an employer’s consistent application of it disciplinary procedures.

Do not Ask to Create the Documented Evidence

There are reports (who knows if they are accurate) that President Trump asked the Department of Justice to “justify” Mr. Comey’s termination. That puts into question  the authenticity of the justification and proof supporting it.

Employer’s Take Away: Follow the disciplinary procedures you have in place and rely on the process. Trying to create evidence outside of your normal procedures creates unnecessary risk. Utilize the investigation process to create the supporting evidence do not manufacture it.

Keep Your Termination Letter Short and Sweet

President Trump’s termination letter includes a reference to the FBI’s ongoing investigation of the most recent election. It has no relationship to the stated reasons for the termination and only creates additional questions and concerns about the legitimacy of the reason for terminating Mr. Comey.

Employer’s Take Away: If you document the reasons for the terminating an employer it should be laser focused. It should be concise and to the point. Any inconsistency creates an opening for the employee to argue that the stated reason is pretextual for something illegal.

The employment attorneys at Maduff & Maduff have been specializing in employment law and civil rights cases for more than 20 years. If you are experiencing an employment or employee issue, contact us immediately to see how we can help to resolve your employment law needs today.

Employee/Employer: When Hiring An Employment Attorney Can Be A Good Idea

Lawsuits are becoming more and more common in today’s workplace. Whether you are an employee, or an employer, it is important to know whom you can trust in the event you need to file or defend a lawsuit.

Employee Issues

Failure to pay proper wages or overtime (“Wage Theft”) as well as deprivation of rights like Family Medical Leave Act (“FMLA”), Illinois’ Victims’ Economic Security and Safety Act (“VESSA”) and comparable acts in other states, Uniformed Services Employment and Reemployment Rights Act (“USERRA”) and similar legal protections for employee rights.

Civil Rights in Employment

Violations of employees’ civil rights take the form of an “adverse employment action”. The ultimate adverse employment action is termination or failure to hire, but lesser adverse employment actions may involve retaliation or any adverse change in the terms or conditions of employment, for example, failure to promote, a hostile environment, harassment or unwanted sexual advances, etc. The common thread of civil rights violations is usually that they are motivated by an immutable characteristic: Race, Sex, Age, Disability, Religion, Ethnicity, Sexual Orientation.

If an employee thinks their rights have been violated, retaining an employment attorney quickly can help diffuse volatile situations, negotiate resolutions quickly, gather and preserve evidence for use in litigation and filing charges of discrimination with the appropriate governmental agency or court.

Employer Issues

Large corporations usually have a Human Resources Department knowledgeable in employment laws. Those corporations frequently have employment policies stated in an Employee Handbook which, when it is followed, can avoid violations. But sometimes, even with corporations truly interested in protecting employee rights, lower level managers can cause violations without their superiors’ knowledge.

When running your own business, there are many risks, especially when it comes your employees. Smaller companies have less resources, and hence more exposure. They cannot afford a full department staffed with HR specialists. As early as possible after starting their company they need outside help to establish employment policies and write a good Employee Handbook. An employment attorney can be very valuable at this point, preventing problems before they occur.

Most importantly, if an employee asserts a compensation or civil rights claim an employer, large or small, needs an experienced employment attorney right away to get the issue resolved. Even if the employee’s complaint is determined to be meritless, the employer will still have incurred legal expenses. An employment attorney experienced in negotiating settlements early in a case can be invaluable.

Consult With Our Employment Attorneys

The employment attorneys at Maduff & Maduff have been specializing in employment law and civil rights cases for more than 20 years. If you are experiencing an employment or employee issue, contact us immediately to see how we can help to resolve your employment law needs today.

Seventh Circuit: Title VII Protects Against Sexual Orientation Discrimination in the Workplace

 

In an en banc opinion which the dissent calls “momentous”, on April 4, 2017, the Seventh Circuit held “that a person who alleges discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”   With this opinion, the 7th Circuit becomes the first in the nation to explicitly recognize sexual orientation as a protected classification under Title VII.

In the past, same sex sexual harassment claims have been cognizable under Title VII on the theory that it was the gender of the victim that motivated the harassment.  The EEOC concluded that sexual orientation discrimination was actionable under Title VII more than two years ago in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015).  Still, numerous other circuit courts and district courts have come to the opposite conclusion.

The Seventh Circuit concluded that Title VII coverage of sexual orientation as a protected classification is supported both by the standard analysis (comparing the Plaintiff to someone of the opposite gender with the exact same facts) as well as under an associational theory as was the case in the Supreme Court’s opinion in Loving v. Virginia, 388 U.S. 1 (1967).  Judge Posner in concurrence adds a third basis for finding that Title VII protects against discrimination based on sexual orientation through a process he calls “judicial interpretive updating”.  In a nutshell, Judge Posner notes that while perhaps the word “sex” did not include “sexual orientation” in 1964, it does today.

For more information or help with your sexual orientation discrimination claimcontact the employment attorneys at Maduff & Maduff today.

What To Do If You Are Being Sexually Harassed At Work

So you have recognized that you are a victim of sexual harassment, but you may be asking yourself what you should do now. Reporting sexual harassment at work can be scary, especially when you are worried that you could be a victim of retaliation. In fact, many people fail to report sexual harassment because they are afraid to be seen as a liar and looked at differently.

However, no matter the consequences you may be afraid to face, it is imperative that you report your sexual harassment claim, in a timely manner.

Here is what to do if you are being sexually harassed at work:

1. Contact an Employment Attorney

While dealing with sexual harassment can be overwhelming, and can leave the victims feeling alone, it is important that they do not wait or do anything rash. There will be all kinds of concerns about what will happen if actions are taken. Since every situation is different, it is critical that an employment attorney is consulted, so they can explore the issues related to each particular situation, and determine the best course of action. Always consider consulting with an attorney before making a report of harassment.

2. Document the Evidence

Carefully documenting the sexual harassment itself is critical. From specific dates and times, to the actions, by documenting and keeping these records, one can better be prepared for potential litigation, giving an employment attorney the opportunity to keep these notes confidential when the time comes. Writing on each sheet, “Privileged & Confidential, Prepared for Legal Counsel” can be helpful in maintaining privilege so others can’t see them. Later, if your lawyer wants to use your notes as evidence, you can waive the privilege.

3. Report the Sexual Harassment

It is critical that the sexual harassment be reported to the proper authorities at the employer, which gives the employer a chance to fix the problem. The employee handbook is a good place to look in order to determine who to report harassment and discrimination concerns to. If whom to report sexual harassment to is not covered in the hand book, report it to the H.R. department or someone in senior management. Of course, if your boss, or even the president of the company is the harasser you can’t report him to himself. Report to someone else in senior management. If the harasser is the president of the company report it to a senior vice president. When deciding when and how to report sexual harassment in the work place, an employment attorney can often give you guidance to avoid the pitfalls.

Specializing in harassment, discrimination, wage and overtime theft, and civil rights litigation for more than 20 years, the employment attorneys at Maduff & Maduff are here to help. Contact us for more information today.

Understanding Your Severance Agreement

When an employee’s employment is “at will”, this means that an employee can either quit or be fired at any point during their employment. Which means that in the case of either of these scenarios, an employee may not receive compensation once employment has been severed.

However, many employers will use a severance agreement in order to let the employee go without any potential issues.

Understanding Your Rights

It is critical, however, that employees know their rights and what they may possibly be giving up when signing a severance agreement.

Here are a few reasons why it is always best to consult with an employment attorney before signing your severance agreement:

Severance Pay

When it comes to receiving severance pay, many employees believe that they are required to sign a severance agreement. While in most cases this is true, there are some employees out there that are entitled to severance pay either through their contract or according to company policy. For this reason, it is important to consult with an attorney to ensure you are not signing an agreement that is not necessary.

Owed Money

When an employee is terminated, he or she may be required to pay back unearned paid time off, such as vacation or sick pay. It is imperative to ensure that in the event you owe your employer upon termination that this information is included in your severance agreement, including the amount to be paid back and the date by which it must be paid.

Employee Benefits

Severance agreements should fully explain what employee benefits will continue, including healthcare and COBRA options.

References

Most severance agreements will cover things, such as the employer’s policies, with disparagement and providing references. However, by hiring an employment attorney to review your severance agreement, you can negotiate how your references will be handled in the future, as well as what information will be shared with potential employers.

The employment attorneys at Maduff & Maduff are here to protect your rights, contact us to ensure you are receiving what is rightfully yours upon separation from employment.

Understanding Gender Discrimination

Gender discrimination has become a hot topic of conversation lately, especially when it comes to equal pay for men and women. And while both men and women certainly have the ability to be equally as successful, there are still things that women, or men, may experience, often due to outdated perceptions about gender roles, equality, or just plain prejudice.

Gender, or sexual, discrimination typically results in unequal treatment in many areas of employment:  hiring, promotions, pay, working conditions, and harassment generally or sexual harassment. Men are also victims of sexual harassment, not just women, although not as frequently. Also, while sexual harassment usually appears in a heterosexual situation, it occasionally appears in a homosexual situation as well.

Gender Discrimination and Title VII of the Civil Rights Act of 1964

There are laws in place to protect employees from gender discrimination, including Title VII of the Civil Rights Act of 1964 which applies nationally as well as specific state, or even municipals laws.

Title VII of the Civil Rights Act of 1964 protects men and women from gender discrimination, making it illegal in the workplace. With this law, employers are prohibited from terminating or refusing to hire or promote an employee on the basis of their gender, as well as prohibiting an employer  from depriving an employee of other employment opportunities due to their gender.

While Title VII of the Civil Rights Act of 1964 prohibits sexual discrimination in the workplace it also prohibits employers from retaliating against any employee who files a discrimination claim. Filing a discrimination claim in this context can mean many things: Filing a formal charge of discrimination with the EEOC or a state or municipal agency, consulting an attorney about suspected discrimination, or even complaining about discrimination to a supervisor, the employer or its human relations department.

Whether you feel you have been a victim of gender discrimination, or any other form of discrimination in the workplace, be sure to contact the employment attorneys at Maduff & Maduff immediately.

Are You Entitled to Overtime Pay?

Often times employees do not understand if they should be receiving overtime pay or not. To help clear things up, the employment attorneys at Maduff & Maduff want to provide you with an understanding of the legal requirements when it comes to overtime pay. At the national level, overtime pay is governed by the Fair Labor Standards Act (FLSA).

What is Overtime Pay? 

If you qualify for overtime pay your employer must pay you one-and-one-half times your regular hourly for all hours worked in excess of 40 hours in a week. The FLSA does not define overtime pay in terms of hours worked per day or hours worked at night, on weekends or holidays, although those situations may be covered by a contract, usually a union contract. Frequently employees are paid on a bi-weekly basis. Consider the situation where you worked 45 hours in week one and 35 hours in week two. Although you worked a total of only 80 hours in the two week period, you are still entitled to be paid 5 hours overtime in addition to your regular wage.

Qualifying for Overtime Pay                       

In order to receive overtime, there are certain requirements that must be met, including the following:

Treatment by Employer-If the employer pays you an hourly wage and your weekly income varies from time to time depending on the number of hours you work in the pay period, you may be entitled to overtime pay regardless of your weekly or annual income. If your pay stub lists the same number of hours every week regardless of how many hours you actually worked and you are considered exempt because of the type of work you do (see below) your employer may claim you are being paid a salary and not entitled to overtime pay under the FLSA.

Earnings- If you  earn less than $455 per week, or $23,660 per year, you will be automatically entitled to receive overtime pay.

Categories- If you earn more than the above requirements, are a salaried employee, and the type of work you do falls into one of the following categories, then your employer may classify you as “exempt” from the overtime provisions of the FLSA. Therefore you will not be eligible for overtime pay:

  • Creative – If your profession’s duties involve things such as invention or imagination, or involve the use of your talent with creative and artistic abilities, then you may be exempt from overtime pay.
  • Learned- If your profession involves the requirement of certain knowledge and expertise in a field of science or learning, which is typically acquired from specialized instruction or education, and not from the employer itself, then you may be considered exempt from overtime pay.
  • Executive- If your profession involves office and non-manual labor, is related to the management of the employer’s operations, and requires you to make decision, judgments, or use discretion, then you may be exempt from overtime pay.
  • Outside Sales- If your profession involves the primary duty of making sales, most times away from the employer’s operational facility, you may be exempt from receiving overtime pay.

If you are a non-exempt, that is, not an exempt employee as described above, and qualify for overtime pay, but you are not receiving it, it is important that you contact Maduff & Maduff for help with your case immediately.

Wage Theft: A Common Workplace Issue

Wage theft is a common workplace issue that is increasingly becoming a problem for employees all over the country. Wage theft may occur when an employee does not receive all of their wages or any wages at all.

Recognizing Wage Theft

Not paying employees correctly maybe a violation of the Fair Labor Standards Act (FLSA). The FLSA establishes a Federal Minimum Wage (states, cities and counties may have higher minimum wages). The FLSA also requires an employer to pay its employees overtime for those hours worked in excess of 40 in a workweek. When an employee is not paid correctly it may also violate other laws.

When an employee is not paid correctly, it can lead to very expensive lawsuits that can be pursued on a class wide basis. It is important for employers to pay employees correctly to avoid these expensive cases.

Employment Misclassification

Perhaps the biggest mistake an employer can make is misclassifying its workers as independent contractors and not employees. Even if an employee signs an agreement claiming to be an “independent contractor” they may still be an employee. Employers often make this incorrect determination to save on costs, but when challenged (often through unemployment claims) it can lead to significant penalties.

Exempt vs Non-Exempt

Many employers believe that paying an employee a salary means they do not need to be paid overtime. However, this is only one side to the question. The employer needs to also evaluate the job duties of the employee to determine if overtime needs to be paid. Failure to classify an employee correctly can lead to significant damages.

Failure to Pay Overtime

Employers can also be liable for not paying an employee for all time worked. This typically occurs when an employer discourages an employee from recording all hours worked or when an employee “hides” their time and does not record it. An employer may be responsible for this work even if it was not recorded. Another common “off-the-clock” example is not paying employees for lunch breaks that are actually work or pre and post shift work.

Think You Are a Victim of Wage Theft?

Unfortunately, wage theft can occur to anyone, at any company, at any time. For this reason, it is critical to ensure that you are receiving your legally contractual pay, you are being classified correctly, and that your withholdings are correct.

If you feel that you are a victim of wage theft, it is important that you direct your concerns to your employer. If your concern is not being addressed appropriately, it is then critical that you consult with an experienced employment attorney immediately. Contact Maduff & Maduff today for help with your employment law needs.

Recognizing Sexual Harassment In The Workplace

Every workplace should be free from sexual harassment or discrimination of any kind. All workplaces are required by law to ensure that each and every employee is free from these concerns. Nonetheless, they do happen, and often.

Unfortunately, many people fail to understand that sexual harassment comes in a variety of forms, and identifying it is not always easy.

Here are just a few examples of sexual harassment:

  • Continued requests for dates
  • Unwanted or unwarranted sexual advances
  • Requests for sexual favors
  • Inappropriate touching or attention
  • Conversations about the way you dress or look
  • Discussions about your sex life or sexual preferences
  • Jokes and/or emails with sexual undertones or sexual innuendos
  • Continuous staring at your body
  • Indications that fulfilling sexual requests will help you to move up in the company
  • Threats or implications that failing to accept sexual advances will hurt your career

If anyone has made you feel uncomfortable, made sexual advances, or intimidated you into inappropriate behavior, especially if it interfered with your ability to get your job done, then you are likely a victim of sexual harassment.

Sexual harassment can happen to anybody. Sexual harassment can come from a supervisor, manager, co-worker, or even non-employees like customers or vendors. Even though the majority of sexual harassment claims consists of women victimized by men, we have seen cases of women imposing themselves on men, men harassing men, and women harassing women. These cases can be gender-neutral.

If you feel that you are experiencing sexual harassment in your workplace, it is important to refer to your company’s sexual harassment policy and report the issue as soon as possible to your human resources department or management. Frequently, this will result in the employer remedying the situation. But some employers may not cause the sexual harassment to stop or even take retaliatory action against the employee making the complaint. Retaliation itself is an additional type of discrimination and sometimes the retaliation will result in a greater recovery than the initial harassment.

If your sexual harassment claim has not been adequately addressed by your employer, then contact an employment attorney immediately. Maduff & Maduff specialize in sexual harassment, discrimination, and other workplace issues. Contact us for help with your employment law issue today.

What Does a Trump Administration Mean in Employment Law

On January 20, Donald Trump was inaugurated as the 45th President of the United States. While the new administration’s policies are unclear on a wide range of issues, his comments during the campaign provide some hints on positions he will take with regard to labor and employment law.  At the outset, we can assume that they will not be in line with those of the prior administration.  With this blog, we turn to our proverbial crystal to make some predictions. Here are three:

Overtime

As many employers were preparing for new changes in the salary basis test to take effect on December 1, 2016, a Texas District Court issued a preliminary injunction blocking its implementation. On December 1, 2016, the Obama administration appealed the ruling to the Fifth Circuit Court of Appeals. The Fifth Circuit granted an expedited appeal, but the issue will not be fully briefed until January 31, 2017, and oral arguments will occur thereafter. As a result, it will be the new Department of Labor under the Trump Administration who will take responsibility for it and the decisions around the government’s position.

What We Think Will Happen: All indications suggest Trump would likely not support the current appeal initiated by the Obama administration or the new DOL overtime regulations. Trump has talked against eliminating regulations that harm business’s bottom line. Trump has also suggested that these issues should be handled on the local level. Here in Chicago that process has already started.  As a result, the Department of Labor may simply abandon the appeal altogether.

Employee Paid Leave

Paid leave became an important campaign issue.  Currently there is no Federal Law mandating any paid leave (whether it is sick leave or medical leave). There are a number of cities and states that are making changes to the laws locally, but nothing has yet been put in place on a national level.

Trump campaigned for paid leave. On his website, he lists one of his priorities is to “provide 6 weeks of paid leave to new mothers before returning to work.”

What We Think Will Happen: It is unlikely that a Republican controlled congress will support such a change. The GOP has long opposed any paid leave. Complicating matters — even if the law were passed, it would face significant constitutional challenges because as currently described, it only benefits new mothers and leaves out “non-mothers” that are new parents. As a result it would be subjected to an attack under the Equal Protection Clause.

Non-Compete Agreements

There was a growing swell of support for a national “No” non-compete regulation. The Obama administration was beginning to implement practices that discouraged restrictive covenants and there was talk of establishing a federally mandated rule.

What We Think Will Happen: It is unlikely the Trump Administration will continue to support these efforts. These changes are likely to continue to be controlled by state-law and will vary widely from state to state.

A Final Note

Although Trump tweet at 2:00 in the morning on the most mundane of issues, he still cannot micro-manage the huge federal government. In fact, his cabinet appointments suggest just the opposite. While many of those appointees have been criticized for lack of experience in the field of the departments they are going to manage, none of them lack substantial independent management experience. In fact, at confirmation hearings many of them have taken positions contrary to Trump’s own stated positions. Not only has Trump not tried to rein in his appointees, he has encouraged them to express their own opinions. Therefore, in the long run, we must look at the individual cabinet members to predict future directions of the administration.

For example, the Secretary of Labor designee is Andrew Puzder, CEO for the fast food companies, Carl’s Jr. and Hardee’s, an industry where a substantial component of their costs is minimum wage employees. This industry could be heavily hit by even a modest increase in the minimum wage. Confirmation hearings for Mr. Puzder are scheduled for February 2nd. How he responds to questions from senators, Democrats as well as Republicans, may give us more accurate insight into where employment law and policies will go under his administration than Mr. Trump’s own statements so far.

Please Stay With Us.

As the legal landscape continues to shift with the incoming administration it is important to be in contact with an experienced Employment Lawyer. Please contact us to discuss how we can help you prepare.