Employer Challenging Unemployment Compensation Award Fails to Establish Willful Misconduct Based on Alleged Code of Conduct Violation

A Pennsylvania employer challenging an award of unemployment compensation failed to establish willful misconduct based on an alleged code of conduct violation.

For roughly 13 years, the fired employee worked as a food service manager for a drug and alcohol treatment center.  The employer regularly assigned residents of the treatment facility to assist in the kitchen without providing the fired employee with background information on the residents.

On a chaotic day, the fired employee was on the phone placing a time sensitive food order when a resident informed the fired employee that the garbage truck urgently needed the fired employee to move her car so that the garbage truck could empty the dumpster.  The fired employee was heading to the door to move her car when a resident informed her that he had a driver’s license and could move her car so that she could continue her telephone conversation.  The fired employee gave the resident her keys and he moved her car roughly 20 feet to allow the garbage truck access to the dumpster.

It was later revealed that the resident did not have a valid driver’s license.  Subsequently, the employer fired the employee and challenged the Unemployment Compensation Board of Review’s award of unemployment to the employee.  The employer appealed the award and argued that the fired employee engaged in willful misconduct when she violated the Employer’s code of ethics/code of conduct.

Specifically, the section of the employer’s code of ethics that the employer cited, prohibited unprofessional conduct such as intimae relationships with residents and interactions in which money exchanged hands.  The Commonwealth Court of Pennsylvania found that this case did not fall into one of those categories and that to apply the cited rule to an instance where an employee allows a resident to move her car a short distance would stretch the employer’s rule too far.

In sum the court did not find that the employer met its burden of establishing willful misconduct because the employer maintained no rule specifically prohibiting the fired employee’s actions or prohibiting residents from operating a motor vehicle while at the facility.

Colonial House v. Unemployment Comp. Bd. of Review, 2017 Pa. Commw. LEXIS 913 (Nov. 14, 2017).

 

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CVS Pharmacy’s Code of Conduct & Ethics Hotline Featured in Recent Litigation

CVS Pharmacy recently lost a motion to dismiss a case alleging a hostile work environment caused by: (1) directions to use racial profiling against black and Hispanic store customers; and (2) an alleged barrage of racial slurs in the workplace.

In denying CVS Pharmacy’s motion, the court focused, in part, on the fact that a reasonable jury could find that CVS Pharmacy failed to adhere to its own Employee Handbook and Code of Conduct  (“CVS Handbook”) and possibly mishandled calls to its ethics hotline.

The CVS Handbook prohibits discrimination against CVS employees and customers on the basis of race and color (among other things).  CVS Pharmacy provides a copy of its CVS Handbook to its employees when they are hired and makes the CVS Handbook available on the company’s internal intranet portal.

In the event of discrimination, the CVS Handbook states that employees are “expected to report incidents of inappropriate behavior, unlawful discrimination, workplace violence, and workplace or sexual harassment as soon as possible after they occur.”  The CVS Handbooks describes a number of ways to report unlawful discrimination, including notifying employees that they may call the CVS Caremark Ethics Line at any time.

In seeking to have the case dismissed, CVS Pharmacy alleged that it had no record of a compliant of race discrimination from either of the two plaintiffs in the case.  Nonetheless, one of the plaintiffs testified that he called the ethics hotline on several occasions to report incidents of racial discrimination.  CVS Pharmacy’s records reflect that the plaintiff called the ethics hotline, however, CVS denied that the plaintiff’s reports to the ethics hotline included complaints of race discrimination.  The court found that the plaintiff’s testimony, that his complaints to the ethics hotline were ignored, raises questions regarding whether the hotline was a viable means of reporting racial discrimination.  The court further found that there was sufficient evidence to conclude that the protocol for handling discrimination complaints, as outlined in the CVS Handbook, was not followed by supervisors and that the written policy was thus “window dressing.”  In other words, there was a genuine issue of fact as to whether CVS’ policy had force.

The other plaintiff in the case, never called the CVS ethics hotline to report discrimination during her employment, but testified that she did call the hotline after her employment ended.

The plaintiffs asserted a theory that CVS has poor record keeping.  The court found this theory to be bolstered by several pieces of evidence, including the second plaintiff’s testimony that she called the hotline after her termination– a call for which CVS has no record–and evidence showing that CVS does not consistently document complaints of racial discrimination or escalate such complaints up the reporting chain, as required by the CVS Handbook.  In sum, the court concluded that “a reasonable jury could clearly find that CVS negligently ignored the complaints of racial discrimination by the plaintiffs.”

Although this case has yet to be resolved, the court’s opinion makes it clear that corporations must follow their own internal policies and carefully track and respond to calls to their ethics hotlines.

See Zaire Lamarr-Arruz & Mominna Ansoralli v. Cvs Pharm., 2017 U.S. Dist. LEXIS 157843 (U.S. District Court, Southern District of New York, September 26 ,2017).

 

 

PA Supreme Court Weighs in on Post- Employment Restrictions Finding Restrictions Apply Equally to Attorneys

In Yocum v. Commonwealth, an attorney working for the Pennsylvania Gaming Control Board (“the Board”) challenged, as unconstitutional, certain temporal employment restrictions imposed upon attorneys by the Board.

The Board’s restrictions stated that any employee of the Board was restricted for a period of two years after termination of employment with the Board from: (1) accepting employment with a licensed gaming facility; (2) accepting employment with an applicant, licensed entity, affiliate, intermediary, subsidiary, or holding company; or (3) appearing before the Board for a hearing or proceeding representing any of the aforementioned entities.

The Board attorney asserted that she wished to seek employment as an attorney representing gaming clients and that the Board’s employment restrictions placed an unconstitutional restriction on her ability to practice law.

Had the Board’s employment restrictions only applied to attorneys, the Pennsylvania Supreme Court would have declared the restriction unconstitutional.  However, since the restriction applied to all Board employees, the Pennsylvania Supreme Court found the employment restriction constitutional.

Instead, the Court expressed its support for the sound public policy considerations underlying the Board’s restrictions on future employment, which include preventing conflicts of interest, or the appearance of conflicts, in a historically controversial industry, by restricting current Board employees from using their contacts and insider expertise as a springboard to other employment opportunities within the gaming industry for a certain period of time.

In other words, the Court found it reasonable for the state legislature to place restrictions on the gaming industry aimed at preventing corruption and ensuring public confidence. The court noted that such restrictions are not novel and can be found in other industries where employees are privy to information and knowledge which could lead to the appearance of a conflict of interest in their field of post-employment.

 

For Whom does the Whistle Blow? Common Law versus Statutory Law

This week, the United States District Court for the Middle District of Tennessee dismissed a case against Wal-Mart that involved several calls to Wal-Mart Global Ethics. See Hall v. Wal-Mart Stores, 2017 U.S. Dist. Lexis 75208. The only cause of action that the ex-Wal-Mart employee brought against Wal-Mart, however, was a statutory claim under the Tennessee Public Protection Act (“TPPA”).

The TPPA gives a party a cause of action under its anti-retaliation provisions if the party engages in whistleblowing activities meant to protect the public good.

Wal-Mart alleged that the ex-employee failed to state a claim under the TPPA because her whistleblowing activities were merely private and proprietary and did not advance the public good. In what is an interesting opinion for ethics junkies, the court agreed with Wal-Mart and dismissed the ex-employee’s complaint.

While still employed by Wal-Mart, the ex-employee reported to Wal-Mart Global Ethics what she perceived to be her supervisor’s unethical conduct. It is unclear whether the supervisor’s conduct was actually unethical. After the ex-employee made the report, she received her first poor evaluation, which she claimed was in retaliation for her report to Wal-Mart Global Ethics.

There appears to have been some tension between the ex-employee and the supervisor. Whether the supervisor was unfairly targeting the ex-employee or simply frustrated with her performance is unknown. However, on one occasion, the supervisor got so frustrated with the ex-employee that he punched a box. Other employees saw this and reported it to Wal-Mart Global Ethics. The Hall v. Wal-Mart opinion certainly indicates that Wal-Mart employees at this particular store knew how to contact the ethics department—a sign of a good ethics and compliance program.

In reaching its conclusion, the Hall v. Wal-Mart court stated that the TPPA will protect a whistleblower from retaliation if it can be shown that the whistleblowing activity was to further protect the public good. Other courts have found that, under the TPPA, whistleblowing activity may serve a public purpose where, for example, the whistleblowing relates to unsafe working conditions, but not where it relates to racial discrimination in a single person’s pay. The Hall v. Wal-Mart court concluded that under the TPPA, blowing the whistle on discrimination against oneself is a private and proprietary interest that must be vindicated through means other than the TPPA.

While the TPPA is a statutory law that protects whistleblowers from retaliation in situations where the whistleblowing was meant to protect the public good, there are common-law retaliatory-discharge claims that do not require showing that the whistleblowing activity protected the public good at-large, however, the ex-employee did not assert a common law claim for retaliatory discharge.

Does Your Code of Conduct Speak Loud Enough?

When it comes to explaining where and how to report violations of your company’s code of conduct, does your code of conduct speak loud enough or does it mumble? If employees pick up a copy of the code today are the channels for reporting clear?  Would a jury agree that the procedures for reporting are clear? Why does this matter?

Specifying the method for reporting violations matters because U.S. employers may defend certain employment related claims, at least in part, if they can show that the employee asserting the claim failed to report the alleged wrongdoing in accordance with company policy and procedure. In other words, if an employer can show that an employee did not exercise reasonable care to avoid harassment by reporting the harassment in accordance with the company’s policies and procedures, an employer may be able to successfully defend a harassment claim.  The defense turns on whether the employer established a procedure for reporting misconduct and whether the employee reasonably followed the procedure.

Adding a clause to your code of conduct specifying where employees should report violations sounds simple.  Maybe your gut reaction is to add a line stating that an employee should report violations to her supervisor.  But what if the employee is not comfortable with her supervisor or the supervisor is the violator?  Can employees make a report to just any supervisor at your company?  If casting such a wide net, has your company trained supervisors on how to handle reports and who to contact after a report has been made to them?  Are all relevant departments involved in the reporting process?  For example, does your code direct employees to report to HR, Legal, or Compliance & Ethics?  What happens if the violation is a safety violation?  Is it acceptable for the employee to report to the safety director?  Does your head hurt yet?

I recently came across a case involving Sprint that underscores the need for your code to shout your reporting procedures.  The case, decided in 2001, is a federal appellate court case that examined the channels for reporting sexual harassment that Sprint had in place in the early 90s (the Clinton days).

In Frederick v. Sprint/United Management Co., the employee alleged that in the early 90s her supervisor subjected her to a range of discomforting behavior including: staring at her for prolonged periods, blowing her kisses, lingering at her work station, once kissing her on the cheek, touching her breasts while standing over her to supposedly assist her with typing; and subtly (or maybe not so subtly) implying that they should have sex.

The harassment allegedly started in 1992. At that time, Sprint had a 1990 sexual harassment policy with complaint procedures. Sprint also had a code of conduct entitled “Sprint’s Code of Ethics,” which was a 20 page booklet that described a broad range of employee misconduct.  Two lines in Sprint’s Code refer to sexual harassment complaints.  Specifically, Sprint’s Code stated: “It is our policy, in accordance with the law, to maintain an environment free from discrimination on the basis of sex, race…or disability.  Sexual harassment is both illegal and unethical and it should be reported immediately.”  Sprint’s Code further provided that “any questions” about incidents arising under the Code should be reported to “one’s supervisor, who in turn will work with HR, Legal and the Chief Ethics Officer to get an answer.”  The Code last indicated that an employee can anonymously call the Sprint Ethics Code Hotline with her questions.  Sprint produced its 1990 Policy and Sprint’s Code as part of its defense and claimed that the employee failed to report the misconduct in accordance with the policies outlined above.

The employee testified that she received Sprint’s Code and that she knew the Code applied to her sexual harassment claim, but she alleged she did not understand how to file a complaint under Sprint’s Code. It was undisputed that the employee never complained to her direct supervisor (who keep I mind was the alleged violator) or to any of the various departments listed in Sprint’s Code.  Moreover, the employee never called Sprint’s Ethics Code Hotline.  However, the employee testified that she reported the misconduct to two other managers at Sprint.

Two years after the alleged harassment started, Sprint published a revised Sexual Harassment Policy in 1994. Sprint’s 1994 revision to its sexual harassment policy apparently did not limit the employee to complaining to a direct supervisor, but allowed employees to report misconduct to anyone in a management position with whom they felt comfortable.

Sprint defended the lawsuit by alleging that when the alleged misconduct took place only the 1990 harassment policy and Sprint’s Code were in effect and therefore employees were required to report their allegations to either: (1) their supervisors; (2) HR; (3) the Chief Ethics Officer; or (4) through Sprint’s Ethics Code Hotline. Since the employee did not report the misconduct in accordance with the 1990 policy and Sprint’s Code, Sprint asserted as part of its defense that the employee failed to exercise reasonable care to avoid the harassment.  The employee disagreed asserting that she reported the misconduct to two other managers in accordance with the 1994 sexual harassment policy.

The federal appellate court found a material issue of fact for a jury to decide. Issues of fact for the jury to consider included: (1) whether the 1994 Policy was in fact in place when some of the harassment took place; (2) even it the 1994 policy was  inapplicable, whether it was unclear how to report a complaint under the code; and (2) whether the lack of clarity surrounding how to report  a complaint (or other extenuating circumstances) prevented the employee from reporting a complaint in a timely fashion.

Personally, I see a flaw in Sprint’s Code in that a strict reading of the Code makes it seem like the only way of reporting a complaint are to report to one’s supervisor who will then take the issue to HR, Legal or the Ethics department. However, employees exercising commonsense should know that HR, Legal and Ethics were other acceptable channels for reporting.  Regardless, it appears Sprint corrected the shortcoming in its 1994 Policy by allowing employees to report to other members of management.  The risk with allowing employees to report to any managers (and this was another issue in the Sprint case) is that some of those managers don’t always appropriately escalate the report.

Ethics & Chill: The phrase “Can you Hear me Now?” should be the mantra of companies when drafting the complaint reporting procedures within their codes of conduct and other policies.

Your Code of Conduct Encourages Employees to Report Violations. Are You Listening?

I remember reading the U.S. Supreme Court’s decision in Kasten v. Saint-Gobain  while I was practicing employment law at a private law firm.   Back then, I was focused on what the decision meant for employers.   I wasn’t reading the case through the lens of a compliance and ethics officer, so I didn’t hone in on the role of the employer’s code of ethics and business conduct until I recently reread the case.

Kasten is a Fair Labor Standards Act (“FLSA”) case.  The FLSA sets forth employment rules concerning minimum wages, maximum hours, and overtime pay; it contains a statutory provision that prohibits retaliation against employees who report a FLSA violation.

In Kasten, the employee alleged that his employer unlawfully retaliated against him after he repeatedly orally complained to his employer about unlawful timeclock locations.  It appears that the employee cited the employer’s code of ethics and business conduct as supporting justification for his complaints. It appears that the company’s code of ethics and business conduct (like many codes of conduct) obligated every employee to report suspected violations of any applicable law of which the employee becomes aware.

The employee alleged that he expressed his concerns over the placement of the timeclocks to his shift supervisor, his lead operator, human resources, and the operations manager. The employee alleged that this activity caused the company to discipline him and ultimately dismiss him.   [Note, in a separate legal action, a court held that the placement of the timeclocks violated the FLSA.]

The employer, however, denied that the employee made any significant complaints about the timeclock locations.  Rather, the employer alleged that it dismissed the employee because he failed to record his comings and goings on timeclocks.

While the sole issue that the U.S. Supreme Court decided in Kasten was whether an oral complaint in violation of the FLSA is protected conduct under the act’s anti-retaliation provisions, this case also highlights the need to vigilantly listen for employees who might be reporting a violation of the company’s code of conduct.  In Kasten, the U.S. Supreme court ultimately held that oral complaints are sufficient to trigger anti-retaliation protections, stating that to hold otherwise would prevent the effectiveness of things like hotlines, interviews, and other oral methods of receiving complaints, all of which are components of effective compliance and ethics programs.

Just Ethics & Chill Takeaway

Employers should listen carefully to their employees to discern whether what they are hearing could amount to an oral complaint related to violations of law, regulation, or internal policy.

When Platonic Friendships Create Conflicts of Interest

Even in this Netflix and chill world, some friendships create personal conflicts of interest (“COIs”).  Take for example, the 2011 U.S. Supreme Court case  of Nevada Commission on Ethics v. Carrigan, heard during a time when Obama was in office and Justice Scalia sat the bench (ah, the good ol’ days).    The case, which decided whether state legislators have a personal, First Amendment right to vote on any given matter (they don’t), is an example of a situation where a platonic long-time friendship created a conflict of interest that warranted disclosure and recusal.

From the facts of the case, it appears that a Nevada elected city councilmen, mindful of an upcoming vote to approve the application of a hotel/casino project, approached the city’s attorney with concerns that his long-time friend was a consultant for the company seeking approval of the application.  The city’s attorney seemingly advised the councilmen that disclosing his long-time friendship with the consultant before voting would satisfying the councilmen’s obligations under Nevada’s Ethics in Government Law.   Accordingly, the councilmen disclosed his friendship and then voted in favor of the application that benefited his friend’s employer.

Predictably, the Nevada Commission on Ethics received complaints that the councilmen had a disabling conflict that required him to abstain from voting on the application because his long-time friend (who was also the councilmen’s campaign manager) was a paid consultant of the company seeking the application’s approval.

The Commission launched an investigation and concluded that the councilmen had a disqualifying conflict of interest under Nevada’s Ethics in Government Law’s catchall provision because the councilmen’s relationship with his long-time friend/campaign manager was substantially similar to other prohibited relationships listed in the statute.  Prohibited relationships in the statute included: (1) members of the elected official’s household; (2) relatives related by blood, adoption or marriage; (3) employers of the elected official; (4) employers of members of the elected official’s household; and (5) anyone with a substantial and continuing business relationship with the elected official.  The catchall provision essentially said that if a relationship was substantially similar to any of the relationships listed above, that relationship would also be construed as conflicting.

The Commission censured the city councilmen for failing to abstain from voting, but did not impose a civil penalty because his violation was not willful.  Remember, the councilmen sought advice from the city’s attorney before voting; he just got bad advice.

Ethics & Chill Takeaways

  1. The catchalls will get you.  Many states, public agencies, and corporations have catchall provisions to capture relationships like long-time friendships.
  2. Trust your gut and seek ethics opinions.  The councilmen was smart enough to consult the city’s attorney before voting. The city’s attorney just gave him bad advice on Nevada’s Ethics in Government Law.   Not all attorneys are experts in the field of ethics.  In addition to legal advice, consider seeking an opinion from a state ethics commission, a public agency’s ethics officer, or, in the case of private industry, the company’s ethics officer.
  3. Think Critically.  Ask Yourself Why Is the Policy/Rule In Place.  The city attorney advised the councilmen to disclose the close friendship before voting, but did not tell him to abstain from voting.  The councilmen should have questioned how merely disclosing the conflict would alleviate the statute’s concern over the potential for the councilmen’s objectivity to be impaired by his close friendship.  The only way to mitigate the conflict was to abstain from voting.  It’s important to ask what the ethics statute or policy is seeking to prevent or protect and then question whether your actions are consistent with the intended purpose of the statute/policy.