Shoving or discrimination?

A male supervisor who was offended at a comment made by a female employee during a meeting, shoved the female employee on her arm.  The female employee sought treatment for the alleged pain from the altercation, and she also claimed to have suffered headaches, nightmares, and high blood pressure as a result of the incident.  The female employee eventually sued the company, claiming that her experience there constituted both harassment and a hostile work environment.  The company disputed her claim as legally flawed, and asked the court to dismiss her lawsuit without a trial.

Who won?
The company won.  A federal judge in Alexandria dismissed the case a few weeks ago after finding that there was no evidence that the shoving incident was motivated by the male supervisor’s hostility toward women.   This case is a good example of how federal discrimination laws are often wrongly invoked to remedy workplace situations that, while being inappropriate, do not rise to the level of actionable discrimination.  The terms “harassment” and “hostile work environment” have specific legal meaning in the context of federal discrimination laws, and only harassment or hostility that is motivated by a bias against one of the protected classifications (gender, race, age, disability, religion, etc.) can support a discrimination claim.  Here, the evidence showed that the supervisor was mad at a comment made by the female employee in a meeting, but that her gender had nothing to do with the supervisor’s angry act toward her.

The female employee in this case was not without recourse for the shoving incident.  She could have filed an assault and battery lawsuit against the supervisor, and probably also brought the company into the case under the theory of respondeat superior.  But by raising her grievance in the context of a federal discrimination lawsuit, the employee learned the hard way that these laws are not intended to address all problems in the workplace.

Non-compete agreements: overly broad and unenforceable?

An employee for Virginia-based Paramount Pest Control Company left to go work for a competing pest control company, and once there, he actively solicited Paramount’s customers.  The employee had signed a non-compete agreement with Paramount, which prohibited him for a period of two years from working in any capacity with a competing pest control company in any city or county where Paramount operated.  Paramount’s exact non-compete language had previously been found by the Virginia Supreme Court to be enforceable.   Paramount sued the former employee for violating his non-compete.

Who won--Paramount or the ex-employee?
The ex-employee did, after the Virginia Supreme Court this past Friday found Paramount’s non-compete overly broad and therefore unenforceable, because it restricted the employee from taking any job at a competitor, not just a job that would compete with Paramount’s business.  This defect in the non-compete is commonly referred to as the “janitor defense,” since a broad provision like the one in this case would prohibit an employee from working even as a janitor at a competing company.
Incredibly, in 1989 the Virginia Supreme Court had found the exact same Paramount non-compete provision to be fine and fully enforceable.  But the Court recognized that times had changed in the twenty years since that decision, and that Virginia (like many other states) now requires a non-compete to be expressly limited to the same or similar job positions previously held by the employee that would actually compete with the work of the former company.

This case is perhaps the best illustration that non-compete agreements need to be reviewed and updated at least every two years, if not more frequently, to take into account changes in the law.

Facebook and employee grievances

A salesperson for a BMW dealership posted mocking comments and pictures on his Facebook page about the food the dealership served at a promotional “Ultimate Driving Event” held to introduce clients to the new BMW Series 5.  The salesperson was disappointed that his dealership chose to serve hot dogs, bags of Doritos, cookies, and mini water bottles purchased from the local Sam’s Club at an event where the dealership should have been trying to impress its clients.  The Facebook postings complained that the choice in food was not befitting an event centered on a luxury car product, a viewpoint that the salesperson discussed with his colleagues before he posted them.  The negative Facebook postings were accompanied by photos of the salesperson and his colleagues posing in mocking fashion with various food items at the event.

The BMW dealership eventually discovered the Facebook postings, and fired the salesperson for demeaning the company.  The salesperson challenged the legality of his termination, claiming that his Facebook postings were protected activity since he was venting about workplaces issues.

Who won this issue?
The salesperson did.  A judge in New York found that the Facebook postings were protected under Section 7 of the National Labor Relations Act (NLRA), since the cheap food selection could have resulted in less car sales and therefore reduced commissions for the salesperson and his colleagues.  The judge noted that of the salesperson’s 95 “friends” on Facebook, 16 of them were co-workers at the dealership.  Therefore, the postings could be seen as facilitating a discussion among employees of the dealership about workplace issues.

Legal issues such as this involving social media in the workplace are becoming more prevalent every day.  Section 7 of the NLRA applies to all employees and workplaces, not just unionized ones, and prohibits any conduct by an employer that restricts an employee’s ability to commiserate with other employees about workplace issues such as compensation.  Not too long ago, the main concern here would have been employees griping around the water cooler.  But with the advent of social media such as Facebook and Twitter, employees are using online postings to air their employment grievances, creating a major legal dilemma for employers who attempt a heavy-handed approach in response.  Companies need to take great care and work with experienced employment counsel in crafting an effective social media policy.