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Annual Review of the Strange and Unusual Employment Cases
Once again we take a look at the truly odd and remarkable employment cases from near and far.
Tweet the Gift Horse in the Mouth and You Might Be Shown the Door
An American company’s annual holiday gift to Canadian employees was a bottle of barbeque sauce and a grill scraper. One of the employee recipients of the sauce and scraper expressed his “gratitude” for the gift by tweeting: “What kind of multi billion company gifts its Canadian employees barbecue sauce as a holiday gift? Yet the USA employees stuff their face with an actual holiday giftbox?” The employee named the company in his tweet. It is unclear what the American employees were stuffing their faces with.
The tweet went viral and was reported by at least one news outlet. According to a company representative, they began receiving messages on the company’s website from individuals who said they would no longer purchase the company’s products. Once they heard of the tweet as the possible origin for the negative comments, the employee was fired. The company did not disclose the reason for the employee’s termination but cited it followed company policy and the law.
While public employees enjoy greater rights regarding the regulation of speech, both public and private, employers generally should exercise caution when disciplining an employee for social media posts. Employers also should regularly review their social media posting policies and ensure that employees are adequately informed of those policies.
The Hit-Man vs. Workers’ Compensation
This is a story about how an innocent phone call to a co-worker turned into an unsuccessful murder-for-hire plot and a successful workers’ compensation claim.
When an employee called his co-worker at home to discuss a work matter, the co-worker’s husband became convinced his wife was having an affair with the employee. That suspicion turned into threats and harassment against the employee who made the call, as well as the husband’s plan to hire a hit man.
The husband also complained to his wife’s employer about the alleged affair, which resulted in an internal investigation and the employee requesting a transfer. Having had enough of it all, he filed a workers’ compensation claim against the employer, claiming his preexisting post- traumatic stress disorder was exacerbated by the threats and harassment such that he was unable to work.
The employer argued the injury was not related to his employment and not compensable. The workers’ compensation board, however, found sufficient nexus between the injury and the employee’s work to award benefits. On appeal, the court agreed: “As the record reveals no connection between claimant and the coworker’s husband outside of claimant’s work-related duties, the Board properly found the required nexus between the threatening conduct that exacerbated claimant’s preexisting condition and claimant’s employment.”
California has specific statutory protections that employers may utilize to protect its employees from outside threats of violence and harassment. Employers may file for workplace violence/harassment restraining orders. A court likely would find a restraining order appropriate if a co-worker’s husband tried to hire a hit man to murder an employee simply because he called the co-worker at home to discuss a work matter.
(Surprisingly?) Baldness is Not a Qualifying Disability
A school teacher in the United Kingdom sued his employer, claiming his follicle challenges resulted in harassment from his students. According to the teacher, he was forced to resign, thus constructively discharged, because students perceived his baldness as a weakness. He testified, “How can I stand in front of a class with confidence to get on with my job when I am getting teased and bullied about baldness, when I think they are laughing at me all the time.” He argued his baldness had a “substantial and long term effect” on his ability to do his job.
The judge, however, disagreed with the teacher, finding that the teacher’s lack of hair did not meet the definition of an impairment under the disability laws.
While baldness may not regarded as a disability, an applicant or employee could assert that baldness is an attribute commonly associated with age. Whether an age discrimination claim based on baldness could succeed would depend on the facts and circumstances. Something to consider.
Subsequent Reminders of National Origin Harassment
With the recent release of Borat Subsequent Movie Film: Delivery of Prodigious Bribe to American Regime for Make Benefit Once Glorious Nation of Kazakhstan, we revisit a case from the past.
A Jordanian-born employee was nicknamed “Borat” by his co-workers. For those of you who don’t know, Borat was a fictional Kazakh journalist with a thick accent who was in a film of the same name and portrayed as naïve, ignorant, chauvinistic, and anti-Semitic. The employee’s co-workers routinely referred to him as Borat and told other employees to do the same. There were other comments made to him, such as “We let you in this country, and we gave you a Green Card. The least you can do is speak English.” Although he did not complain to supervisors, he repeatedly asked his co-workers to stop calling him Borat because he found it to be offensive. His supervisor overheard him complain to his co-workers about the name-calling but did nothing.
Eventually, the employee’s performance reviews declined and he was facing a potential performance improvement plan. Before the employer had a chance to implement a PIP, the employee took a leave of absence to return to his family’s estate in Jordan. When he came back to work, he was told his job had been filled. He then sued his employer for hostile work environment, termination based on national origin, and retaliation for making internal complaints. The court concluded a reasonable jury could find he was harassed because he is Jordanian, and that the employer could be liable for failing to take corrective action. The employer attempted to argue it should not be held responsible because the employee did not directly complain; however, the harassing conduct occurred in open areas where management likely was aware and his supervisor overheard the complaints but took no action.
We hope you enjoyed our annual review of unusual employment cases—until next year.
This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.