Kristine M. Howard
VIRGINIA CFO PREVAILS IN EARLY SARBANES-OXLEY WHISTLEBLOWER CLAIM
by Jill Stricklin Cox

In the first trial on the merits of a whistleblower claim under the Sarbanes-Oxley Act, a Virginia bank holding company has been ordered to reinstate its former CFO, with whom it had had a series of disagreements regarding accounting practices. (Welch v. Cardinal Bankshares Corp., DOL ALJ, No. 2003-SOX-15 Jan. 28, 2004.) If it stands, this early victory for the plaintiff’s bar may significantly impact the manner in which employers handle internal complaints.

Sarbanes-Oxley was a post-Enron measure enacted in 2002 to protect investors in publicly traded companies by improving the accuracy and reliability of corporate disclosures. The Act contains a whistleblower provision prohibiting employers from discharging or taking other adverse actions against employees for participating in fraud investigations. Activity protected under Sarbanes-Oxley includes providing information or otherwise assisting in an investigation of conduct that the employee “reasonably believes” violates federal law.

Although only publicly held companies are subject to Sarbanes-Oxley, all employers should heed the lessons of the Welch case. These days, employees are more inclined than ever to voice their concerns about perceived workplace problems of all types, and subsequent employment actions against those employees may result in retaliation claims. In fact, the Equal Employment Opportunity Commission recently reported that retaliation claims have doubled within the last 10 years and, in the discrimination and harassment context, allegations of retaliation now constitute 25 percent of charging party complaints.

Welch v. Cardinal Bankshares Corp.
CFO David Welch claimed that he was fired for voicing concerns about possible accounting irregularities. Cardinal Bankshares, however, maintained that it discharged Welch for refusing to cooperate with the audit committee’s investigation into the CFO’s concerns. Specifically, the company asserted that Welch refused to participate in an audit committee meeting unless his own personal attorney was present.

Administrative Law Judge Stephen L. Purcell ruled on January 28, 2004 that Cardinal Bankshares had called the audit committee meeting as a mere pretext for firing Welch in retaliation for protected activity under Sarbanes-Oxley. The ALJ ordered the company to reinstate Welch, and awarded the CFO backpay and attorneys’ fees. This administrative decision is appealable to the Department of Labor’s Administrative Review Board and, ultimately, to the federal courts.

The ALJ determined that Welch engaged in the following protected activity under Sarbanes-Oxley:

  • Welch refused to certify certain company financial reports, and sent a memo to the CEO stating that improper accounting entries had caused quarterly earnings to be overstated by almost 14 percent.
  • In his memo to the CEO, Welch asserted that the company’s internal controls were deficient because non-finance personnel made journal entries without the CFO’s knowledge or approval.
  • Welch also complained that he had been cut out of communications between the company and its outside auditors who had prepared the financial reports, making it impossible for him to fulfill his responsibilities as CFO.

After Welch raised these and other concerns, the audit committee began investigating the CFO’s allegations. At the same time, the committee also began looking into concerns that had been expressed about Welch’s job performance as CFO. The company’s inquiry into Welch’s performance deficiencies was based in part on reports from the same outside auditors whom the CFO had charged with wrongdoing.

Matters came to a head when Welch was asked to present his allegations of financial irregularities to the audit committee. At that point, the CFO refused to attend the audit committee meeting without his personal attorney. Cardinal Bankshares terminated Welch’s employment for this conduct. The company explained at trial that Welch was not entitled to have private counsel present at the meeting and that the presence of the CFO’s lawyer would have destroyed the confidential nature of the proceedings and prevented the attorney-client privilege from attaching.

In determining whether Welch was discharged due to his protected activity, the ALJ adopted the proof standard applied under other whistle-blower statutes: the complainant bore the burden of proving that the protected activity was a “contributing factor” in the discharge. A “contributing factor” was one that “tended to affect in any way the outcome” of the termination decision.

In turn, the employer could avoid liability by producing “clear and convincing” evidence that it discharged the complainant for a legitimate reason. As the ALJ recognized, “clear and convincing” is a higher proof burden than a “preponderance of the evidence” and lower than “beyond a reasonable doubt.”

Under these employee-friendly standards, the ALJ held that Cardinal Bankshares had discharged Welch because of his protected activity. According to the judge, the audit committee meeting was not intended to “conduct a legitimate inquiry into the various concerns raised by Welch,” but to “create a situation whereby Welch would not attend the meeting so they could use that act as a justification for terminating his employment.”

In reaching this conclusion, the ALJ primarily relied upon the close temporal proximity between the protected conduct and the termination, which all occurred within six or seven weeks. The ALJ also found that Cardinal Bankshares had “manipulated” the audit committee and the investigation, citing among other things the company’s reliance on reports from the same outside auditor whom Welch had accused of improper conduct. Additionally, according to the ALJ, the company already had taken significant steps toward discharging Welch, whose job performance was called into question before the CFO insisted on having his lawyer present at the meeting.

The ALJ rejected the company’s contention that it discharged Welch because the CFO had refused to participate in the audit meeting without his lawyer. Noting that the purported purpose of the meeting was to elicit information from Welch—not to provide new information to the CFO, the ALJ found that it was unlikely that confidentiality concerns would be compromised by the outside attorney’s presence. The ALJ further concluded that, at any rate, the meeting minutes showed that the company had divulged the substance of Welch’s allegations to another third-party entity, thereby waiving any attorney-client privilege that otherwise might have applied.

The Welch case begs the question of whether employers can (or should) exclude personal attorneys from internal investigations. Given the Welch ruling, complainants and others involved in internal investigations are more likely to demand that their private attorneys be present during investigative meetings and interviews. Before Welch, employers routinely excluded private lawyers from such proceedings. Now, employers should be more cautious about excluding private counsel, especially in information-gathering proceedings. However, employers still should consider excluding private attorneys from meetings where investigative conclusions or confidential/ proprietary information are disclosed. Moreover, when private attorneys are permitted to attend investigative proceedings, certain ground rules should be enforced; for example, private counsel should not be permitted to interfere with or influence the investigation.

Tips for Avoiding Whistleblower and Retaliation Claims.
Employers can take preventative steps to avoid claims and minimize liability under Sarbanes-Oxley and other laws prohibiting retaliation against employees who complain of unlawful conduct or engage in other legally protected conduct.

  • Establish and publicize internal complaint mechanisms. If possible, provide alternative avenues for employees to voice their concerns.
  • Treat all complaints seriously, even if they seem frivolous. Under Sarbanes-Oxley and most other whistleblower laws, even a meritless complaint can lead to liability for retaliation as long as the complainant reasonably believed that the underlying complaint was well-founded (or, in some cases, if the complaint was made in good faith).
  • Thoroughly document and investigate all complaints regarding discrimination, harassment, safety and health, fraud and misuse of company or government resources.
  • Upon receiving a complaint, carefully choose the investigators. Select investigators who are not implicated in the complaint. When possible, use investigators who will not be responsible for evaluating the complainant’s job performance, administering discipline, or making other employment decisions regarding the complaining employee.
  • Separate the investigation of the employee’s complaint from any other concerns that might be raised regarding the complainant’s own job performance or misconduct.
  • Where a complaint involves technical subject matter (such as computer processes or complicated accounting procedures), choose investigators with the know-how to adequately address the subject matter of the complaint.
  • Explain to everyone involved in the investigation the employer’s policy against retaliation and invite participants to immediately report any retaliatory conduct.
  • Stress to the individual who has been accused of wrongdoing that the company will not tolerate any form of retaliation against the complainant or others who participate in the investigation. Explain what constitutes retaliation, as well as the potential consequences of retaliatory conduct.
  • Communicate with the complainant throughout the investigation process. Follow-up after the investigation is complete to ensure that all is well.
  • Be mindful of confidentiality concerns while investigating and responding to complaints.
  • Where appropriate, consider distancing the accused from the complaining employee or otherwise minimizing the accused wrong-doer’s ability to punish the complainant. Be careful, however, not to penalize the complaining party (e.g., by moving the complainant to a different work group to separate him from the accused).
  • Scrutinize employment actions taken against an employee who has engaged in protected conduct. Document thoroughly, and check for consistent treatment of other employees in similar situations.
  • Do not be overzealous in monitoring or supervising an employee who has made a complaint. By the same token, do not avoid or shun the complainant.
  • Consider implementing a stand-alone policy prohibiting retaliation against individuals who make complaints against the company. Although many employers already have policies against retaliation, they frequently are buried in other broader personnel policies and procedures, where they might be overlooked.
  • Provide training to employees and supervisors regarding the company’s policy prohibiting retaliation.

Conclusion
With its relatively low proof standards and broad definition of protected activity (not to mention the potential for recovering attorneys’ fees), Sarbanes-Oxley now provides an attractive means of relief for aggrieved employees who otherwise might not have had a viable cause of action. If the CFO’s win in the Welch case is any indication, employers are likely to see more of these claims in the future.

Jill Stricklin Cox (Winston-Salem, NC) practices in the area of employment litigation prevention and defense.

DIGITAL DATA DISCOVERY AND SPOLIATION
by William A. "Zan" Blue

Consider this scenario. The plaintiff’s lawyer sends a letter to the company with a draft complaint. The letter says you folks need to preserve all evidence relevant to this case because I am filing this complaint tomorrow. The sales associate fired 364 days ago is suing for age discrimination under state law in state court. The complaint is duly filed and served.

Ten days later at a subsidiary’s offices 1500 miles away, a laptop computer is being prepared to be given to a newly hired employee. The IT people, concerned about the privacy of whoever used to use this computer, reconfigure the hard drive and run some data scrubbing software. That somebody, of course, is the fired sales associate. Meanwhile, emails more than ninety days old are automatically purged from the system if not specifically archived. The IT department does not support archiving because too much data clogs the system.

Each month a backup tape is run. It gathers everything on all five of the company’s servers that is “active.” Deleted emails are not active. Emails found in outboxes or sent items boxes are active. The backup tape is kept for one year. Then it is overwritten. The backup tape is fragmented, meaning the data is virtually unsearchable. This makes sense, because the backup tapes are kept for use only in case of catastrophic data loss. Putting the backup data back on the system would be expensive and time consuming, but in the case of catastrophic loss that wouldn’t really matter.

Six months after the complaint is filed the plaintiff’s lawyer serves three requests for production of documents. One asks for her personnel file and any other regular files concerning her. The second asks for all records of the sales performance of all sales associates in the region. The third asks for all internal correspondence, including specifically digitally stored data and emails, which mention or concern the plaintiff. The plaintiff’s lawyer giggles a bit as he signs the requests for production.

The lawyer hired by the company to defend the case receives the requests. She pulls out a copy of the letter she sent to the company when the case was assigned to her. That letter reminds the company of its obligation to advise everyone reasonably expected to have evidence relevant to the sales associates’ claims to preserve the data, including emails and other digital data, and specifically mentions emails. When the lawyer confirms she sent the letter she sighs softly and her thoughts turn to the possibility the data has been preserved. Most unlikely, most unlikely indeed, she concludes.

She meets the Associate General Counsel, the Director of Human Resources and the Assistant Information Technology Director to discuss responding to the production requests. The IT fellow explains: “Nope, no emails. We delete all of them and don’t want them archived, that would clog the system. Backups? We got ‘em, but there is a lot they don’t catch and to read them we would have to rebuild the hardware and relicense the software, and then do manual searches that would take 8 to 12 hours each. And even then, it only goes back a year. No, we didn’t suspend our document destruction policy as it applies to digital data, I thought that applied only to paper. Sure we reconfigured the gal’s hard drive, no one told us not to and we always do. Are you guys nuts? You’re talking about days of work here and tens of thousands of dollars.” The HR Director observes “Nobody keeps this stuff, it would be impossible as a practical matter. And besides, what difference does it make, she was fired for not meeting sales quotas and everyone knows it.” The Associate General Counsel sits quietly, sinking slowly in his chair. He is thinking: “This is not good. This is not good. I don’t have a memo from me telling everyone to preserve the evidence and suspend the document destruction policy.”

The lawyer defending the case is thinking about the elected state court judge with the decidedly pro-employee bent who is presiding over the case. She is thinking: “If we answer this by telling them we don’t have the documents, then they will argue we should not be permitted to offer a defense, or at the least that there should be an instruction to the jury that they should presume the documents would create evidence that favors the plaintiff. That letter with the draft complaint could be enough to sink us. This case has no merit at all, but we might just get hammered because we didn’t comply with the duty to preserve evidence. Maybe we can use the backups?”

This story is going to play itself out countless times over the next few years. Digital data storage presents issues fundamentally different from paper data storage. Email was never intended to be used to store data, it was intended to substitute for the phone call. People write things in email they would never put on regular paper. It is easy, fast and fun. But one email is like the broom in The Sorcerer’s Apprentice, it multiples effortlessly and exponentially. Digital data is not stored by subject matter, usually, and is not readily searchable unless specifically designed that way. Backup tapes were never intended to be used in the ordinary course of business. They were intended to be used only in the event of a catastrophe.

There are a bunch of classes being taught around the country about discovery of electronic data. Almost all of them are teaching lawyers how to demand electronic records and where to look for them. Virtually none are addressing the reality that most of corporate America does not have any workable mechanism for sorting, retaining and retrieving digital data that is relevant to legal claims and defenses. People are not making this a priority. Every day we read about another legal scandal involving someone destroying evidence. Think about it, the plaintiffs’ lawyer is already disposed to think evil of others, as are significant parts of the general public.

Discovery of digital data poses unique challenges. If employers do not make a high priority of training managers, supervisors and perhaps employees about preserving relevant evidence, then employers may lose lawsuits they should win. The price of settlement will be dramatically increased. Please understand, this is not hype or an effort to scare people. This is going to happen over the next five to 10 years as judges, lawyers and parties to litigation try to sort this process out. Begin now. Gather your Human Resources, Information Technology and Legal people together to explore these issues and how to respond.

You heard it here first. OK, maybe second.

Zan Blue (Nashville, TN) practices in the areas of employment litigation prevention and defense, and union relations.

 FROM THE EDITOR’S DESK:
WHY EMPLOYERS LOSE LAWSUITS

In a case decided about a year ago, an employer lost a sex harassment suit filed by a male employee who alleged that he had been subjected to repeated sexual comments and touched in a sexual manner by a female co-worker. He also alleged that when he complained to his supervisor, the supervisor made light of the situation and compared him to a eunuch.

The employer defended the suit with a vigorous defense, asserting that the employee had unreasonably failed to file an internal harassment complaint with the Company's Human Resources Department, and therefore should not be entitled to prevail against the employer. Under Farragher, an employer will not be liable for sex harassment if the employer has used reasonable care to prevent and correct harassment. The elements of this defense are that the employer has a strong sex harassment policy which has been effectively communicated to employees; the employer has trained supervisors and managers about harassment; the employer has promptly investigated complaints of harassment and taken corrective action; and/or that the employee unreasonably failed to use the employer's internal harassment policy.

In the harassment case described above, the employer lost even though it had a strong sex harassment policy which stated that complaints of harassment should be communicated to the Company's Human Resources Department. However, it also had posters on Company bulletin boards stating that complaints of harassment could be filed with "a supervisor." However, when the employee complained to his supervisor, he ran into a brick wall and his complaint was not resolved.

This seemingly small error on the part of the employer, i.e., referring complaints in the harassment policy to Human Resources and referring complaints in the harassment poster to a supervisor, caused that employer to lose that lawsuit. A jury, which is made up of employees, spouses of employees, parents of employees, and children of employees, frequently will suspect an employer's motives from the outset. In order to win at trial, the employer not only has to convince the jury that the employee was not discriminated against or harassed, but it also has to convince the jury that nothing was amiss in the process. By and large, employers do not lose employment suits because they intended to discriminate against employees. They lose employment lawsuits because of seemingly small mistakes (like the mistake in this case) that permit a jury to think the worst of the employer. The burden and the goal for human resources professionals and company management is to strive not only for equity and fairness and positive employee relations, but to also strive for perfection in the process in order to win those suits that are filed.

CORPORATE COUNSEL ADVISORY!

Are you attending the Association of Corporate Counsel’s Annual Conference this fall? We are! The Conference is set for October 25-27, 2004, at the Sheraton Chicago. Our firm will be hosting a dinner at one of the city’s great restaurants, so if you plan to go to the conference (or are even remotely considering it), please notify us. We want to be sure you get an invitation.

E-mail vwhitaker@constangy.com

GETTING TO KNOW US
DANIEL P. MURPHY “MURPH” (Atlanta, GA, traditional labor law) received his bachelor’s degree in economics from St. Norbert College with a minor in theology and his law degree from the University of Wisconsin, where he was on the Dean’s List. Before attending law school, Mr. Murphy spent three years as seminarian studying for priesthood, and two years as an infantry officer in the United States Army Infantry Office in Korea with the 7th Infantry Division. Murph also served as city attorney and then school board attorney in Neenah, WI. When he is not practicing law, Mr. Murphy enjoys golf, weightlifting, running and reading. He has two grown children, Shannon (31) and Allison(28).

F. DAMON KITCHEN (Jacksonville, FL, employment discrimination litigation, wage and hour and traditional labor) received his bachelor’s degree in history from Wake Forest University and his law degree from Mercer University. Damon is also chair-elect of the Labor and Employment Law Section of the Florida Bar; Board Certified to Practice Labor and Employment Law by the Florida Bar; AV Rated by the Martindale-Hubbell Lawyer Directory; and a Past President of the Jacksonville Chapter of the Federal Bar Association. He has also co-written the “Employment Discrimination” survey article for the Mercer Law Review. In his spare time, Damon enjoys reading, fishing, swimming and anything having to do with NASCAR. He and his wife, Susie, have 2 boys, Drew and Brian.

ABRAHAM “ABE” FREDERIC BARKER (Nashville, TN, litigation, affirmative action) received his bachelor’s degree in political science from San Francisco State University and his law degree, with High Distinction, from Ohio Northern University. Abe has written several articles on the utilization of a contingent workforce, Employer’s Practice Liability Insurance and arbitration of employment related disputes. When he is not practicing law, Abe enjoys playing baseball, writing short stories and collecting vintage sports memorabilia. He and his wife, Jamie, have two sons, Gabriel (3) and Quentin (5 months).

JEFFREY “JEFF” L. THOMPSON (Macon, GA, employment litigation, wage and hour and union avoidance) received both his bachelor’s degree in sociology and his law degree form Mercer University. Before attending law school, Jeff was a private investigator for three years. Jeff is vice-chairman of the Consumer Credit Counseling Service, Inc. When he is not practicing law, Jeff enjoys spending time with his wife, Madeline, and their son, Will, playing golf and woodworking.

MARGARET “MEG” P. ZABIJAKA (Jacksonville, FL, employment litigation, wage and hour, traditional labor) received her bachelor’s degree in political science and public administration summa cum laude from the University of North Florida and her law degree with honors from the University of Florida. Meg also serves as vice president of membership of the Federal Bar Association (Jacksonville Chapter) and trustee of the Jacksonville Chamber of Commerce. When she is not practicing law, Meg enjoys boating, water sports, music and travel with her husband, George.

 I’M A FEDERAL CONTRACTOR—SAME OLD, SAME OLD?
The OFCCP’s Year In Review and the Year to Come
by Kristine M. Howard

The Office of Federal Contract Compliance Programs (“OFCCP”) is not the same organization that it used to be. Gone are the days when no compensation analysis was necessary and reviews were few and far between. Under the direction of Charles James, the OFCCP has undergone significant changes in the way it conducts business —and reviews your business.

In making these changes, the OFCCP has attempted to clarify several matters for employers. As highlighted in Constangy, Brooks & Smith’s March 23 and April 19, 2004 Affirmative Action Alerts (both Alerts are available online by going to Publications at www.constangy.com), several government agencies, including the OFCCP, issued proposed guidance to employers in determining who is an “applicant” when individuals use online methods to apply for a job. Additionally, the Agency clarified what constitutes the “current” affirmative action plan for desk audit purpose. When submitting an affirmative action plan in response to a compliance review (a.k.a. thirty-day letter), the employer should submit to the OFCCP the plan which is in effect and current as of the date the employer receives the compliance review letter. However, if the letter is received within thirty days of the contractor’s annual update, the employer may, at is own option, submit the updated AAP for desk audit purposes.

While some of the changes by the OFCCP have been codified, others have not, but still could potentially change the way employers prepare for on-site reviews and prepare their annual affirmative action plans. One recent push by the OFCCP has been to get “more bang for its buck.” No longer conducting on-sites to “check another one off its list,” the Agency is focusing its efforts on employers whose numbers show the potential for systemic discrimination. Its highest priority: apparent disparity in hiring for lower, entry-level positions. The OFCCP is, in essence, becoming a better-educated, large class-action plaintiff firm. The Agency is pursuing cases of systemic discrimination, where data indicates that minorities and/or females applicants were hired at a disproportionately low rate as compared to non-minorities and/or males. With the new focus on systemic discrimination, the substance of affirmative action has taken a lower priority during plan reviews.

Perhaps the biggest shift in the area of affirmative action has been the Agency’s recent focus on, and use of, statistical analyses. The OFCCP is hiring expert statisticians who will be advising Compliance Officers and who are charged with the task of determining whether cases are statistically sound enough to be referred to the Solicitor’s office for civil enforcement.

Additionally, the Agency is shifting its method of analyzing compensation systems away from the DuBray method towards a more statistically defensible model in light of existing case law. While the OFCCP has not yet informed government contractors exactly how it will perform this new compensation analysis, employers should expect to begin using either a cohort or regression analysis. These two types of analyses take into account various employment-related factors (such as length of service, experience, and time in job) that the DuBray method does not.

But, as the saying goes, “the more things change, the more they stay the same.” While the Agency continues to become more sophisticated, employers will benefit from continuing some very simple habits to lead to the successful closure of any OFCCP review. Employers should (1) maintain their logs accurately and on a timely basis (employers should not wait to complete their flow logs, especially the applicant flow log because this is almost impossible to recreate.); (2) update their affirmative action plans annually; (3) identify and address potential problems in the affirmative action plan such as goals underutilization or adverse impact and monitor these areas throughout the plan year; (4) conduct an adverse impact analysis semiannually or quarterly – not just when updating the annual affirmative plan; and (5) conduct a detailed compensation analysis, being mindful of the company’s compensation structure when making hires or promoting individuals. While all contractors are subject to receiving a thirty-day letter, companies that provide inaccurate data or show unexplained fluctuations in workplace demographics either on their EEO-1 reports or in response to an EO Survey can expect to be a target for review.

Kristine Howard (Winston-Salem, NC) practices in the areas of litigation prevention and defense, and affirmative action.

 AFFIRMATIVE ACTION IN ACTION!
Constangy, Brooks & Smith was proud to be a sponsor of the 22nd Annual Industry Liaison Group National Conference in St. Louis, Missouri in August of this year. Members of our Affirmative Action Practice Group attended the Conference and learned valuable and timely information directly from officials with the Office of Federal Contract Compliance Programs.

Deputy Assistant Secretary Charles James opened the Conference, announcing that OFCCP has resumed issuing scheduling letters for compliance reviews and expects to conduct 3,500 desk audits in the next 12 months. The Agency is using a new method to select contractors for review, the “Westat” selection method, which is purported to identify “new indicators of systemic discrimination.” Those contractors ranked the lowest by Westat will be selected for a compliance review. Mr. James did state, however, that multi-establishment employers should be notified before the scheduling letters are issued to allow more time to prepare their own internal analyses.

Also hot on OFCCP’s agenda is the hiring of statisticians to help in assessing cases and contractors' defenses.

The Director of Statistical Analysis, Michael Sinclair, has already been hired for the national office, and two Regions have also hired statisticians. The Agency’s goal is to have a resident statistician in each region. Dr. Sinclair provided some insight into the statistical analysis that OFCCP will begin using to analyze compensation information from contractors, but did not give a time frame on when to expect the Agency to completely abandon the Dubray analysis. Agency officials were similarly mum on the timing of the final regulations on the “definition of an applicant” issue and the changes to the EEO-1 Report. Due to the election year, any action before November is unlikely.

Constangy attorneys and Affirmative Action Specialists are up-to-date on all the latest OFCCP actions and are ready to assist federal contractors in preparing or updating their Affirmative Action Plans, preparing for a compliance review, or just staying abreast of all the changes. Please contact any member of our practice group with questions or for assistance.

QUARTERLY QUIZ
An employee failed to appear for a scheduled shift and his spouse called in to say that he had been involuntarily committed to a hospital. We later learned that the employee was on methadone, causing us to believe that his involuntary hospital-ization was due to heroin use, and we fired him as a result. Have we violated the FMLA or ADA?

ANSWER:
The answer to this may depend on the reason he was given for his termination. If he was terminated for failure to appear for a scheduled shift, and his failure to appear was due to his hospitalization, there is probably an FMLA violation. Because he was admitted to a hospital, the employee had a serious medical condition under the FMLA. On the other hand, if we knew (rather than merely suspected) that he missed a shift because of heroin use and based the termination of employment on that fact, there would not be an FMLA violation because the current use of illegal drugs is not a serious medical condition protected by FMLA. Similarly, the current use of illegal drugs is not protected by the ADA.

 REASON PREVAILS… AND REASON FLAILS…
A Federal District Court in Connecticut refused to enjoin the Connecticut Department of Corrections from disciplining law enforcement officers for their involvement in a motorcycle gang that is reputed to be a major drug trafficker and whose members engage in violence, associate with white supremacists, and sell stolen motorcycle parts.A former golf pro sued for marital status discrimination when he was fired after having an affair and bringing his girlfriend to country club events. We reported in a prior edition of L&EI that the trial court granted summary judgment to the country club. Now, the Michigan Court of Appeals has reversed, ruling that if the employee was fired because of his pending divorce rather than his adulterous affair, he would have a claim for marital status discrimination.

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