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31
May
2022

Beware of Office Birthday Parties!

Written by: Monica Munin, Esq.

One Kentucky employer got a nasty surprise after inadvertently hosting a birthday party on behalf of an employee who requested that his birthday not be observed due to social anxiety. Kevin Berling, a former employee of Gravity Diagnostics, sued the Company after he was fired for behavior, he exhibited in response to an unwanted birthday party.

Berling had approached his office manager to request that the Company not throw him an office birthday party. He explained that he had an anxiety disorder as well as a propensity for panic attacks that becomes exacerbated when he is the center of attention. Berling also indicated he had accumulated “bad memories” associated with his birthday that made parties upsetting to him. The Office Manager inadvertently forgot to pass on the information to the rest of the company and was out of the office on Berling’s birthday.  As a result, a birthday party, including balloons and a banner, was set up for Berling in the office break room. When Berling heard about the party, he suffered a severe panic attack and went to his car to hide from the celebration.  The next day Berling was called into a meeting to discuss the incident where his managers allegedly scolded and belittled him for his reaction to the unwanted birthday party.  Berling indicated one manager accused him of “stealing his co-worker’s joy.”  The meeting led to another panic attack with Berling clenching and unclenching his fists as instructed by his therapist to try and mitigate his panic symptoms. His behavior further alarmed his managers who asked him to immediately leave the property and assumed he was on the verge of a violent outburst.  Later that week Berling was terminated “because of the events of the previous week.” Berling then brought suit alleging discrimination under a Kentucky disability law similar to the Americans with Disabilities Act (ADA) and retaliation for exercising his rights. The Company asserted that Berling had been fired due to a legitimate fear of violence rather than because of his anxiety. A jury sided with Berling and found that the Company violated Berling’s disability rights, awarding him $450,000. The jury essentially held that Berling’s reaction was a reasonable mitigating measure to control his panic attacks and that the manager’s assumption Berling was on the verge of violence was discriminatory. Berling’s attorney, Anthony Bucher, summarized the incident to the British Broadcasting Company by stating:

“He had a panic attack. That is all. And, because representatives from Gravity Diagnostics did not understand his panic response and were unnerved by his response, they assumed he was a threat. Assuming that people with mental health issues are dangerous without any evidence of violent behavior is discriminatory.”

The incident serves as a reminder to employers that mental disabilities can qualify for protection under disability discrimination statutes and that employees are not required to file a formal request for accommodations in order to be entitled to those protections. Here, the jury found that Berling’s request was an exercise of his right to a reasonable accommodation under Kentucky disability law even though he did not explicitly refer to the law or use the phrase “reasonable accommodation.” Federal and Virginia state disability statutes have also been interpreted by courts as providing expansive rights to eligible employees. Employees do not need to use specific “buzz words” in order to be entitled to protections under the statutes. It is vitally important that employers ensure their supervisors and staff are familiar with employee rights under disability law and that they receive training regarding what a request for an accommodation can look like. Further, training should be sure to include general information regarding mental disabilities. While the facts in Berling’s case are unique, we can be sure that disability cases involving mental health disorders are likely to continue to evolve as courts attain a better understanding of the nature of such disabilities.

Need supervisor training? Unsure about a disability matter or other employment law issue? Contact Monica Munin, Esq. at mmunin@vfnlaw.com for answers.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

3
May
2022

New District Court Case Limits Application of Attorney-Client Privilege in Workplace Investigations Conducted by Counsel

Written by: Monica Munin, Esq.

The United States District Court for the Western District of Virginia released a published opinion granting (in part) a plaintiff’s motion to compel seeking the release of an employer’s communications and investigation report with counsel regarding a complaint of sexual harassment.  The motion also sought information from counsel regarding what advice the employer received from counsel regarding “how to structure” the plaintiff’s termination. The motion was denied with respect to the attorney’s communications with counsel regarding the plaintiff’s termination and granted with respect to the communications relating to the investigation of the plaintiff’s sexual harassment claims.

The case involves a woman employed by the Town of Front Royal, Virginia (“the Town”) who complained of repeated instances of sexual harassment perpetrated by a colleague, William Sealock.  According to the plaintiff, she met with the Human Resources Department in August of 2019 to discuss her complaint following conversations she had had with other Town employees regarding repeated instances of unwanted touching and inappropriate remarks despite telling Sealock that the comments and touching were unwanted. Human Resources told the plaintiff she would hear back within two weeks following the completion of an investigation. The plaintiff did not hear from Human Resources or anyone from the Town, however, until November 2019. According to the plaintiff she had to repeatedly request updates on the status of the investigation and sought help from the Town to alleviate the harassment and retaliatory conduct she was suffering since reporting the sexual harassment. The plaintiff alleges that the investigation report in the matter was “wholly dismissive of her complaints (to the extent they were investigated at all) and [was] indicative of a sham investigation.” The plaintiff went on medical leave in December 2019 and was terminated upon returning to work on January 30, 2020. The plaintiff alleges that the Town’s stated reason for her termination, that her job was subject to “right-sizing” was a pretext for sex-based discrimination and retaliation. The plaintiff initially filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) before bringing suit against the town for violations of the Family Medical Leave Act (“FMLA”), as well as violations of Title VII of the Civil Rights Act of 1964.

Specifically, the plaintiff alleged sex-based discrimination, unlawful retaliation, and retaliatory hostile work environment in addition to her allegations that FMLA was violated. Shortly thereafter, the plaintiff filed a motion to compel, claiming that the Town had put the advice provided by the attorney hired to conduct the investigation in issue, thereby waiving attorney-client privilege over the communications. During depositions, the Town’s representative testified that Julie Judkins was hired “to make sure that everything in the investigation, and later in the firing of [the plaintiff] was done to ensure it was legal.” The plaintiff’s motion sought the release of “information and documents underlying Ms. Judkin’s involvement in both the investigation of [the plaintiff’s] harassment and retaliation complaints and in the termination of [the plaintiff’s] employment.” During depositions, the Town’s attorney had refused to allow Ms. Judkin (the Town’s counsel) to respond to a question asking if “Ms. Judkin’s advised the town how to end the plaintiff’s employment with the Town.” When asked why the Town had hired Ms. Judkins, the Town’s reply was “to advise Town council as it relates to a complaint that was made by [the plaintiff].” The Town representative’s deposition indicated that the investigation into the plaintiff’s allegations was “conducted by [Human Resources] and counsel” and that “if legal counsel and the [Human Resources] Department had concluded that there was sexual harassment or retaliation or a hostile work environment, he without a doubt…would have encouraged Council to take all the appropriate action afforded to us by law.” The Town’s representative further testified (after being asked to opine if the plaintiff’s allegations, assuming they were true, violated the company’s sexual harassment policy) “that would be up to the investigative body, in this case, it was the [Human Resources] Director in conjunction with legal counsel, to draw that legal conclusion of what that was harassment or not…” The Town had asserted privilege over its communications with the attorney that conducted the investigation as to the communications regarding the investigation, any advice sought regarding how to structure the plaintiff’s termination, and any advice regarding the conclusions of the investigation and remedial action recommended thereafter. The Town’s argument against waiving privilege is that it had not raised “reliance on the advice of counsel” as a defense in the case.

The Court held that the Town “put Ms. Judkin’s involvement in the investigation of [the plaintiff’s] internal complaints at issue but had not put ‘at issue’ her advice regarding Brown’s termination.”  In granting the plaintiff’s motion with respect to the attorney’s involvement in the investigation, the Court noted “[the Town] essentially turned the investigation of the plaintiff’s charges over to the attorney, and it was counsel who assembled the facts, drew the conclusions, and constructed the remedial response…under those circumstances, to prevent plaintiffs from discovering what was done by counsel and why, would be tantamount to giving the defendants both the ‘sword’ (i.e. the argument ‘that we were reasonable because we had our attorneys investigate the charge and craft a response’) and the ‘shield’ (i.e. what our attorneys did and why they did it, is privileged’).”  The Court found that the information sought by the plaintiff was “likely to speak directly to whether the defendants had actual knowledge of all the circumstances surrounding the allegations and whether their response to such allegations was clearly unreasonable.” It was the town’s reliance on the attorney to assist with the investigation and advice about what remedial measures were necessary, if any, that put the Town’s communications with counsel at issue in the case. The Court thereafter permitted the plaintiff to depose the Town’s counsel to an inquiry “[limited to] knowledge concerning the investigation and actions taken by the defendant in response to plaintiffs’ allegations.”  With respect to the plaintiff’s assertion that the Town had put communications with counsel at issue regarding the plaintiff’s termination and had waived privilege by stating in its EEOC position statement that counsel was hired to “ensure compliance with the law,” the Court found that attorney-client privilege had not been waived and the plaintiff could not depose the town’s counsel regarding that issue.”

The case underscores the delicate balance clients and attorneys must strike when seeking to investigate and address allegations of discrimination in the workplace.  It is vitally important to work with an attorney knowledgeable not only about the employment law statutes at issue but also skilled in ensuring that protected communications are not put into an issue where an employer would prefer to maintain confidentiality. 

Questions or concerns about this case? Please feel free to reach out by way of phone or email Monica Munin for guidance.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

24
Jan
2022

Labor Reforms Targeted as Virginia Prepares for a Change in Administration

Written by: Monica Munin, Esq.

Republican governor Glenn Youngkin assumed office on January 15, 2022, enacting 11 executive orders including orders that; end mandatory masking for children in grade K-12; ban critical race theory from state classrooms; promise to “investigate wrongdoing” in Loudoun County Public Schools; and, promise to cut workplace regulations.  Consequently, the fate of recent labor reforms in Virginia, including a scheduled increase to the State’s minimum wage, domestic workers bill of rights, and the COVID-19 emergency standard, remains uncertain.  Republicans swept the State’s elections this year, claiming the governor’s office, lieutenant governor’s office, attorney general’s office, and a majority in the House of Delegates. Youngkin cast himself as an employer-friendly candidate who would eliminate “job-killing regulations” and oppose government lead vaccination mandates.

While it is not yet clear how far Republican can or will go to stem or otherwise reverse the policies implemented during the Governor Northam’s administration, Youngkin has wasted no time preparing for a change in priorities.  In addition to the 11 executive orders signed on his first day in office, Youngkin delivered an address outlining his plan for education and tax reform.  Prior to his swearing in, Youngkin had also announced that he intends to appoint George “Bryan” Slater, as state labor secretary.  Slater was a former U/S/ Labor Department official under the Trump administration and served as White House liaison to the Labor Department under President George W. Bush as well. Democrats currently retain control of the State Chamber, which is not up for reelection until 2023.

Nonetheless, incoming Republicans in the State legislature are hoping to capitalize on Youngkin’s win and pass a number of bills, including a freeze on the scheduled increase to the state’s minimum wage which would keep the minimum wage at $11, bills limiting domestic worker protections, and bills intended to prevent cities and counties from using government contracts to ensure wage rates and employee benefits beyond what is currently required by state or federal law.

Worried about what the change in administration means for your business? Confused about how to proceed? Please feel free to reach out by way of phone or email Monica Munin for guidance.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer