Hostile Work Environment

by David McCarthy                     

Another interesting misconception about hostile environment and retaliation came to our attention recently.  

An individual we will name John Doe had been employed for a relatively short time, about six months, but long enough to know that he and the owner of the business did not get along. What brought it to a head was a disagreement over a "prioritizing" of tasks.  

Mr. Doe was filling an order for a customer who was due to arrive later in the day. The owner asked him to put that work down and turn his attention to a different task -- a task that was perfectly legal. Mr. Doe did not do what the owner asked him to do. He opposed the owner and asserted that the task he was working on should receive priority.  

The owner threatened to strike Mr. Doe if his opposition continued, and Mr. Doe was suspended from work. He then contemplated the filing of criminal charges, and supposed that doing so would position him to be a viable retaliation plaintiff if he got fired. 

In our judgment, the State had a pretty good case against the owner on a misdemeanor charge, but that was not going to make Mr. Doe a viable retaliation plaintiff. Every antagonistic relationship between employees and superiors, and there are a lot of them, does not provide the ingredients for a "hostile environment" case.  

To get to that place, the "hostility" has to relate to a form of discrimination that is prohibited in the workplace, e.g., lewd jokes, racist remarks, mocking older workers. 

Something more than a mere clash of personalities is required, though a clash of personalities can certainly be distracting and stressful and unpleasant. Mr. Doe did not fall into any of the classes who are protected by workplace discrimination laws, and the friction between him and the owner, though plenty hostile, did not rise to the level of a "hostile environment" case.  

And in our judgment, the filing of a complaint with the police did not qualify as a predicate act that would set Mr. Doe up to be a viable retaliation plaintiff were he to lose his job over the dispute with the owner because it did not constitute the opposing of an unlawful employment practice. (Ironically, if Mr. Doe were to lose his job and apply for unemployment benefits, an objection by the employer on the grounds of insubordination would have a fair chance of being sustained.)

Family Medical Leave Act and Job Security

by David McCarthy

It is easy to suppose that an employee on leave under the Family and Medical Leave Act ("FMLA") enjoys a special "halo" of job security and protection that co-workers who are on the job do not. After all, businesses subject to FMLA must allow eligible workers up to 12 weeks of unpaid leave each year plus reinstatement to their old position. That invites an inference that an employee on leave has privileges and protections that an employee at work does not.

But it is not so. The work-at-will rule continues to apply to the employment relationship and does not yield to leave-taking.

Suppose the employee on leave had worked the night shift, and the employer puts an end to the night shift. Does that mean that only those who were actually working the night shift are out of a job while the one who was on leave is not?

Answer: no.

If the position would have been eliminated while the employee was on active duty, so to speak, the fact that the employee is on leave does not preclude elimination of the position or obligate the employer to hold the position open for the employee.

FMLA is codified at 29 U.S.C. 2601 et. seq. It generally applies to businesses with 50 employees or more. An eligible employee is one who has worked for the employer for at least 12 months (though that need not be 12 months in a row) and who has worked at least 1,250 hours in the 12 months immediately prior to the start of leave. That employee is entitled to reinstatement to his/her old position or to a position that is similar in terms of pay, benefits, etc.)