NEW YORK (MainStreet) - George Bernard Shaw once wrote of America that “in your dread of dictators you established a state of society in which every ward boss is a dictator, every financier a dictator, every private employer a dictator, all with the livelihood of the workers at their mercy.”
He was unimpressed by American capitalism. Yet despite the obvious parallels between an Arby’s day manager and Mussolini, the Irish writer did touch on something that resonates. America has always embraced the idea of at-will employment and as a result workers have few real protections against losing their job.
With most people living paycheck to paycheck, the power we entrust to that shift manager at Arby’s is vast.
From time to time, workers who lose their jobs push back. They don’t always win, but here are the stories of a few people who took their shots at wrongful termination suits, and what it might mean for you.
So Hot She Got Fired
When a small child gets hurt in your tool shed marked “happy candy free puppy and fun place,” lawyers call it an attractive nuisance and award lots and lots of money.
Turns out in Iowa the same thing goes when it comes to employees, only without all the money. If your assistant is too hot, she might constitute an “irresistible attraction.” By all means feel free to kick her (evidently shapely) posterior out the door.
Perhaps that last line was a touch crude, but there’s no real good way to write about Melissa Nelson’s wrongful termination suit, filed after getting fired by dentist James Knight, because he found her distractingly attractive and a threat to his marriage. At the insistence of his wife and their pastor, the Associated Press reported, Knight decided his assistant needed to go, because “he feared he would eventually try to start an affair with her.”
This after reportedly telling Nelson that “if his pants were bulging that was a sign her clothes were too revealing,” a comment that in almost any other state would have the employee planning early retirement.
But Nelson’s lawyers didn’t think she had enough for a sexual harassment case, so instead they sued for gender discrimination. A unanimous Iowa Supreme Court noted that Knight had an all-female staff and replaced Nelson with another woman, making it unlikely that he had fired her because of her gender. Knight fired Nelson because of how he felt about her, not because she happened to be a woman.
A sexual harassment claim might have survived, but gender discrimination wasn’t going to cut it.
Smoking Pot Might Be Legal, But It Can Get You Fired
Here’s one of the lesser-known problems with marijuana legalization. (Aside from those incredibly obvious stoners trying to collect signatures for “medical” marijuana.) Most national companies maintain strict policies against drug use, and those rules apply in Colorado as well as in Texas.
Take the case of Brandon Coats. A former Dish Network employee, Coats got fired after testing positive for THC in violation of the company’s zero-tolerance policy. In his lawsuit, Coats tried to bring up the catch to this whole story: he lives and works in Colorado, where smoking weed on a Saturday night is perfectly legal. In fact, Coats didn’t even smoke recreationally; he had a prescription for medical marijuana based on an injury sustained decades ago.
Not good enough, Dish Network said, and the Colorado Supreme Court agreed. Locally legal or not, smoking pot is still a federal crime, and major companies still try to comply with the law at every level.
This isn’t some covert war on drugs, it’s about simple liability. Marijuana has become a mess, with federal laws in conflict with state and a tentative status quo maintained by nothing more than a memo of non-enforcement from the Justice Department. For a company whose business is selling personal satellite dishes, that’s a mess they don’t want to go anywhere near.
They’ll change their policies when it becomes very clearly safe to do so. Until then, smoke up at your own peril.
Big Brother Is Watching, Waiting and Firing
Not too many people also know that their employer is often perfectly free to fire them for what happens outside the office, off the clock and in the privacy of their own home.
It comes back to “at-will employment.” Except for what the law specifically protects, employers may terminate for any reason or none at all. Your boss can decide to fire every Ohio State fan in the office and, he’d have every legal right to do so.
From time to time, states will carve out protections, such as the roughly 29 jurisdictions that protect smokers from retaliation by companies that don’t want to pay higher insurance premiums. Four states, including Colorado, have even broadly legislated to ban retaliation for any otherwise legal activity conducted outside of working hours.
Those exceptions are few and far between, and the digital age has brought this issue roaring into the spotlight as social media broadcasts all sorts of personal indiscretions far and wide.
More complicated, though, is the case of Myrna Arias, a California woman currently suing Intermex after she was fired for deleting a permanent GPS app from her phone.
Arias is seeking half a million dollars in a lawsuit filed earlier this year, claiming that her company required employees to install an app that tracked their movements constantly and required everyone to keep their phones on at all times, whether working or not.
In her suit, Arais has claimed breach of privacy alongside wrongful termination. If she can convince a judge that Intermex’s tracking app amounted to actually following and monitoring employees off the clock, this may finally test the limits of at-will employment in the 21st Century.
The Unfortunate Odor Firing
No one wants to know much about unemployment law. There’s just no cracking into this subject, because things have gone right in your life; either something has happened and you need the law’s protection, or something worse has happened and you’ve actually become a lawyer.
Take the recent case of Louann and Richard Clem, two former employees of the Case Pork Roll Company in Trenton, New Jersey. Here’s a couple that just wanted to roll pork, and today they’re learning about discrimination protections under the Americans with Disabilities Act.
According to the Clems’ lawsuit, the problem started after Richard Clem underwent gastric bypass surgery and suffered side effects including extreme flatulence and uncontrollable diarrhea. President Tom Dolan began to complain about the smell, saying that it was causing customer problems and interfering with work in the office.
The complaint alleges that Richard Clem was soon fired, causing Louann to herself feel forced out.
The Clems have filed their case under the ADA, claiming that Richard's obesity constitutes a disability within the meaning of the statute. But there’s a much bigger picture, one that’s why everyone should care about this case. This lawsuit has very little to do with obesity, it’s about whether side effects can cause a protected disability.
Have a bad reaction to medication and scream at your boss for 15 minutes, are you protected? Go under the knife and get nicked, can UPS fire you because you can’t lift as much anymore? This is potentially a problem for everybody.
Richard Clem had a medical procedure with severe, he would argue crippling, side effects. Courts have set out a three-point test, described on the New Jersey Employment Lawyer Blog, regarding medical side effects, but the law is still very unsettled on the issue. There are more questions in this field than answers.
The Clems’ case is about a lot more than one couple’s dream to make pork more rolled. It’s about clarifying an area of the law that can affect every single worker.
For a case about farts, the implications waft pervasively.