In 2012, Consolidation Coal Company installed an attendance tracking system for payroll purposes at a mine in West Virginia. The system was a biometric hand scanner that creates and stores electronic information about an individual's hand geometry for purposes of future identification. Mr. Butcher, an evangelical Christian, who had worked at the mine for thirty-five (35) years, stated that his religious beliefs prohibited him from submitting to the scanning and requested a religious accommodation. Mr. Butcher gave his manager a letter explaining his beliefs about the relationship between hand scanning technology and the Mark of the Beast. As discussed in the Book of Revelation, the Bible describes, "a beast that has authority on earth during end times and forces all people, to receive a mark on their right hands or on their foreheads." (Rev. 13:16-17). Some Christians believe that technology will be used to implement the mark. Mr. Butcher proposed that the mine allow him to continue submitting his time and attendance manually as he had previously done, or that he be permitted to clock in and out with his supervisor.
Our office has received a number of calls from employees of Colorado companies who are currently working overseas. Their employment, and litigating legal issues arising in their employment, raises interesting questions of venue, jurisdiction, and conflict of law. For example, an employee may live in New Jersey and work in Afghanistan for a company based in Colorado. These cases present a conflict of laws question because it is unclear which state, or even which countries', laws should apply to the employment dispute. Similarly, some employment agreements contain a forum selection clause that requires the employee to bring a lawsuit in a different state or even a different country than where the individual resides.
In 2011, Denver's newly elected Mayor, Michael Hancock, asked Mr. McDonald to work for the City of Denver. Mayor Hancock orally promised Mr. McDonald employment for the duration of his term or terms of office. Mr. McDonald accepted and began working for the City on July 18, 2011, as Executive Advisor to the Mayor, Special Projects Manager. On March 8, 2012, Mr. McDonald was reassigned to work in the Department of Excise and Licenses as Executive Advisor to the Mayor, Manager of External Affairs. Ms. Wise was employed by the City of Denver as a police officer. Shortly after Mayor Hancock was elected, Ms. Wise began to serve on his security detail. Mr. McDonald interacted with Ms. Wise when he traveled with Mayor Hancock around Denver. Between September 2011 and March 2012, Ms. Wise telephoned Mr. McDonald on his personal cell phone at least forty-one (41) times, before and after work hours and occasionally recorded their calls. The pair exchanged Christmas gifts, attended church together, and Ms. Wise met Mr. McDonald's family. The last time they spoke was on March 14, 2012. On May 18, 2012, Mr. McDonald was informed that Ms. Wise had filed sexual harassment charges against him. On May 21, 2012, Mr. McDonald was informed that he could either resign or be fired due to Ms. Wise's allegations. Mr. McDonald requested an investigation and opportunity to defend himself against the accusations. Mr. McDonald's request was denied; he was not provided a hearing and the City fired him on the spot.
Generally speaking, an employer can be held liable for a supervisor's conduct and even another employee's actions toward other employees. However, while an employer is strictly liable for the behavior of a supervisor; the employer is only liable for a non-supervisor's actions if the employer is negligent in their response to prior complaints. In two separate cases decided in 2013, the Supreme Court of the United States and the Court of Appeals for the Tenth Circuit reviewed the definition of what constitutes a "supervisor."
A Texas employer was arrested after firing a worker who insisted on honoring her civic duty of responding to a call for jury duty. Ms. Sutton, an executive assistant at a Dallas based computer company Affiliated Computer Services, claims she reminded her boss about the jury duty summons several times in advance. Her boss's response was to give her a reprimand and an additional work assignment, which she came to work early to finish on the morning her jury duty, was to begin. Her boss then demanded that she stay to finish the task. Ms. Sutton told her boss that she needed to leave for jury duty, he responded by telling her to pack up her stuff and she was fired. Ms. Sutton told the judge in her assigned case who issued a warrant for the boss's arrest and ordered Dallas deputies to bring him in at once. This particular case ended in an undisclosed settlement amount.
Mandatory vaccination programs have become increasingly common, particularly in the health care sector. In 2012, Colorado's Board of Health voted that all hospitals, nursing homes and health care facilities across the state must achieve at least a ninety percent (90%) flu vaccination rate for workers by 2015. Employees in other states have been fired for refusing to comply with vaccination requirements; which may soon be likely in Colorado.
Recently the issue of money paid by an employer to a prospective employee pre-employment, in the form of a sign-on bonus, has come up in my law practice. For example, a recent client was given a $10,000.00 signing bonus but had to pay it back if he left the company within two (2) years. The gentleman wanted to leave the company prior to the two (2) year commitment, and wondered if he had any recourse to avoid paying back the bonus monies received.
Peoplemark is a temporary-employment agency with offices in Michigan, Tennessee, Kentucky, and Florida. Peoplemark's application form asks applicants whether they have a felony record. The criminal records of all applicants are also independently investigated by Peoplemark. In 2005, an African American named Sherri Scott with a felony conviction submitted an application to Peoplemark's Grand Rapids office. Peoplemark did not refer Ms. Scott for employment. Because of this refusal, Ms. Scott filed a charge of discrimination with the Equal Employment Opportunity Commission (hereinafter "EEOC"), alleging that Peoplemark denied her application because of her felony record.
Mr. Terry Childs served as the principal network engineer for the Department of Telecommunications and Information Services (DTIS) of the City and County of San Francisco. DTIS was responsible for administering the city's computer network, providing computer services to city departments including Internet and department database access. The company was responsible for maintaining, operating, and repairing the network.
Non-competition agreements are becoming more common in the employment realm. The agreement requires certain employees or the sellers of a business to not compete with the business for a period of time after they leave. (Non-competition agreements may also include non-solicitation of co-employees clauses and non-disclosure agreements regarding proprietary information which will be addressed in future blogs.) If the former executives are allowed to compete without restriction, the business could easily lose key customers, depriving the business of profits. On the other hand, individuals who are restricted by a non-compete may be deprived of their ability to earn a living.