Wednesday, May 31, 2017

The Texas Supreme Court Takes an Egg from the Employment Plaintiff's Basket

In its ExxonMobil Corporation and WHM Custom Services Inc. v. Rincones decision issued last week, the Texas Supreme Court held that there is no independent cause of action in Texas for compelled self-defamation.  http://www.txcourts.gov/supreme/orders-opinions/2017/may/may-26-2017/.
 
The crux of this sometimes-recognized tort is that a former employee's publication to a third party can satisfy the publication element of a defamation claim because the former employee is effectively compelled to publish the defamatory statement to prospective employers when the employee is asked why she left her former employment.  The claim often arose in cases where an employee alleged that the employer gave a false reason for the employee's discharge, and the employee was "compelled" to publish the false statement to prospective new employers during the hiring process.  Prior to the Supreme Court's decision, several appeals courts in Texas had recognized the theory.

In its decision, the Court cited several reasons for its refusal to recognize the claim.  First, such a refusal is a natural extension of the well-established rule that if the publication about which the plaintiff complains was consented to, authorized, invited, or procured by the plaintiff, she cannot recover for injuries sustained by reason of the publication.  Second, the recognition of such a claim would not only discourage plaintiffs from mitigating damages to their own reputations, but would also enable an employee to unilaterally create an actionable tort against the employer, and third, the compelled, self-defamation doctrine would unacceptably impinge on the at-will employment doctrine.  
 
In short, employment plaintiffs now have one less claim to assert against employers in Texas.

Tuesday, May 16, 2017

When Can Employers Expect a Cessation of the NLRB's Handbook Policy Hostilities?

Pundits proclaimed that with the new administration, the National Labor Relations Board (NLRB) would dial down or pull back from its current position of DEFCON 2 with respect to employer handbook policies.  As evidenced by a decision issued by an Administrative Law Judge last week, it does not appear that a retreat is in sight.
 
In Entergy Nuclear Operations Inc. and United Government Security Officers of America, Local 25, Case Nos. 01-CA-153956, 01-CA-158947, and 01-CA-165432 (May 12, 2017), the ALJ found that the following handbook policies violated the National Labor Relations Act (NLRA), even though most of them were not actually at issue in the case:
 
1.  Integrity Code (communications): employees should not engage in communications that "include material that is inappropriate, untrue, or disparaging to outside parties or to [employer]."  According to the ALJ, the NLRB has repeatedly held that such a prohibition is unlawful because it restricts employees in the exercise of their Section 7 rights by prohibiting statements which are merely false, as distinguished from those which are maliciously so.  Bottom line: Section 7 protects employees who make false statements. 
 
2.  Information Protection Policy (disclosure of employee information):  provisions that prohibit employees from disclosing "employee information" and "employee records."  According to the ALJ, the policies "fail to clarify that they do not prohibit employees from disclosing such information as part of NLRA-protected activity."
 
3.  Information Protection Policy (use of company name and logo):  employees are prohibited from allowing any outside party to use "the name of any [employer] and any [employer] logo...without prior approval" from management officials.  The ALJ found that the employer could not articulate a "business reason" for the restrictions.
 
4.  Information Protection Policy (recordings): prohibits employees from photographing, video-recording, or audio-recording anything at the facility and/or anything that includes information that the employer deems "confidential" or an "information asset" without approval from the employer.  The ALJ found that the employer, which operates a nuclear power plant and must comply with various Nuclear Regulatory Commission regulations, could not articulate a "legitimate business need" for a blanket policy.
 
5.  Issue Resolution Policy (confidentiality):  prohibits employees, without the approval of the senior vice president of human resources, from discussing with, or disclosing to, individuals who do not have a legitimate business reason to know any information collected by the decision-making panel.  The ALJ found that a blanket policy such as this one interferes with the employees' Section 7 rights.
 
6.  Government Investigations Policy (participation):  various provisions prohibit employees from answering any questions posed by a governmental investigator without first contacting the company's legal departments, prohibit employees from providing any documents requested by a government investigator without first contacting the company's legal department, and require employees to contact the legal department before contacting a governmental agency about the company's business.  Without hesitation, the ALJ found that these provisions "unlawfully interfere with employees' independent communications with the NLRB and its representatives." 
 
Absent a clear directive from the administration or definitive action by the Board, unionized and non-unionized employers need to continue to ensure that their handbook policies comply with the myriad of restrictions imposed by the NLRB. 
 

Friday, May 12, 2017

Texas Supreme Court Takes Up Important Issues in Same-Sex Harassment Case

Currently pending before the Texas Supreme Court is a case involving three important issues for Texas employers, both public and private.  First, to invoke the TCHRA’s waiver of governmental immunity, must a plaintiff establish but-for causation found in the third step of the McDonnell Douglas burden-shifting framework? Second, what kind of evidence can establish that same-sex harassment was not just about gender, but because of gender?  And third, must a supervisor actually exercise hiring and firing authority under the United States Supreme Court’s standard in Vance v. Ball State Univ. for the purpose of establishing vicarious liability?
 
In Alamo Heights Ind. Sch. Dist. v. Clark, No. 16-0244, Clark, a female physical education teacher and coach, claimed she was sexually harassed by her female supervisor and a co-worker, and fired in retaliation for her complaints.  In the trial court below, the school district filed a plea to the jurisdiction, which the trial court denied, and then appealed the denial to the Fourth Court of Appeals, which upheld the trial court’s ruling.  The Texas Supreme Court recently agreed to hear the case.
 
Both sides weave vastly different stories in their briefing.  The school district claims that the trial court and the Fourth Court of Appeals erred, and should have: (1) required Clark to prove but-for causation to survive the plea to the jurisdiction; (2) determined that Clark was unable to prove her sex harassment claim because the harassment was about gender, but not based on gender; and (3) found that Clark’s “supervisor” was not a “supervisor” in accordance with the Vance standard.
 
In turn, Clark: (1) disputes that she is required to prove but-for causation to survive the plea to the jurisdiction, and instead claims she must only establish a prima facie case; (2) claims that the evidence, which includes lewd comments and touching, establishes that the harassment was based on sex; and (3) contends that one of the harassers was a de facto supervisor under Vance, and was also a “supervisor” for other reasons. 
 
If the school district is right about the jurisdictional issue, plaintiffs seeking a waiver of sovereign immunity under the TCHRA will face a high burden early in the litigation when challenged by a plea to the jurisdiction.  If Clark is right about her same-sex harassment claim, then the Court could arguably, expressly or implicitly, expand the evidentiary routes for a plaintiff to establish harassment because of gender.  And finally, the Court’s decision about the scope of authority required to establish “supervisor” status, if reached, could either expand or contract the pool of individuals who can subject an employer to vicarious liability.