Fifth Avenue Forum

thought this was interesting

Ohio university to pay professor $400K after disciplining him for refusing to use a transgender student’s pronouns

https://kesq.com/news/2022/04/18/ohio-u ... 20attorney.

my question on this: if this professor kept referring to a black student as the n-word, he would almost certainly be fired right? not that I’m comparing them one to one, but at what point does the professor’s conduct become punishable?

It depends.

That is the creditable response.

It depends.

on what?

On a two-factor test where the second part is itself a multi-factor balancing test. The threshold part asks whether a public employee spoke on a matter of public concern defined as a matter of larger societal significance or importance. If a public employee was disciplined for expression that is characterized as more of a private grievance than a matter of greater concern, then the public employer prevails.

If, however, a public employee spoke on a matter of impacting or addressing a public concern, then the court proceeds to the Pickering-Connick balancing test, where the court must consider factors that include (not are not necessarily limited to): (a) whether the speech would impact harmony among coworkers or the employee's immediate superior's ability to maintain discipline; (b) whether the speech is directed toward someone with whom the employee would typically be in contact during his daily work; (c) whether the nature of the employment relationship between the employee and the person toward whom the speech is directed is so close that personal loyalty and confidence are critical to their proper functioning; (d) whether the employee's speech (which may be false) was based on inside information accessible to the employee; (e) flexibility for employers to terminate an employee whose speech hampers the effective performance of such an employee; (f) the employee's interest in commenting on matters of public concern and the public's interest in free and unhindered debate on matters of public importance; (g) the fact that public employees are more likely than the general citizenry to have informed and definite opinions about the matter in question; (h) the ease with which the employer could rebut the content of the employee's statement if false; (i) whether there is evidence that the speech actually had an adverse impact on the employer's proper functioning; (j) the time, place and manner of the speech; and (k) the context within which the underlying dispute arose.

I shouldn’t have opened the ark. My brain can’t comprehend that explanation

Sorry.

To make it possibly even worse, a "pronoun" issue could also raise a question of compelled speech, which is its own whole kettle of fish under the 1A. For example, let's say a public university is ordering its professors, "You must use whatever pronouns a student tells you to use," a professor refuses and keeps using "he" for someone who requested "xir" or something like that, and the professor is punished for that. That punishment would arguably be for two things: (1) saying "he" over the student's objections; and (2) not saying "xir" as demanded by the student (and the school, which has ordered professors to use preferred pronouns). The first is the more typical "Can public employees be punished for what they say?" issue that falls under all of the stuff above. The second is a question of compelled speech, which involves its own factors, such as: (1) whether the speech protected under the First Amendment (false, misleading, or promoting illegal activities is unprotected), (2) whether the government has a “substantial interest” justifying the compulsion of speech, (3) whether the law/rule/whatever directly advances this substantial interest, and (4) whether the law is any more extensive than necessary to achieve the substantial interest.

Posting in here for maybe better context.

So my wife's been going through a lot at work, while not even there. She (the sole HR generalist) was called 1 week into maternity leave about an HR deartment realignment that left her with a new job title to return to, as well as reduced responsibilities (which were sold to her as "more focused" responsibilities).

In the meantime, 3 employees, also in her department, were left go because of "outsourced job functions".

Fast forward to today, the woman who was brought on as a temporary person to be a stop gap while she was on maternity leave, the same person my wife trained on her duties for 3 weeks prior to maternity leave, has now been hired on full time with my wife's old title and job responsibilities.

I'm fully expecting her to go back to a firing notice of some sort, and we're preparing either way because of how terribly this has all been handled.

It would seem that if she was fired, there would likely be legal recourse to take against the company. But my question is also, even in the lack of firing, is there any legal recourse that can be done? I don't want to waste an attorneys time on this if not, but if the answer is "absolutely" or "most likely" then we will go that route.

I'm seeing mixed things about essentially "you can be let go in the event of a realignment or lack of work, but if you're replaced because your maternity leave puts added work onto your boss until you return, then it's discrimination".

Either way this is a crap situation that we're trying to get her out of on HER terms, but I'm also trying to keep her from painting herself into a corner.

Isn't FMLA supposed to protect against some of that conduct? It is especially bell ringy to me that they hired your wife's cover temp to Mrs Mac's old position/title and responsibilities; an employer is supposed to protect a job (or one no less favorable) for an employee on maternity leave. Is your wife on company maternity leave or FMLA time? I'm curious if there's a paperwork/admin hurdle to triggering those protections.

Isn't FMLA supposed to protect against some of that conduct? It is especially bell ringy to me that they hired your wife's cover temp to Mrs Mac's old position/title and responsibilities; an employer is supposed to protect a job (or one no less favorable) for an employee on maternity leave. Is your wife on company maternity leave or FMLA time? I'm curious if there's a paperwork/admin hurdle to triggering those protections.

She started on short term disability for 6 weeks. Then FMLA for 6 more. I don't know if all 12 is considered FMLA, and just half of it is paid. That's the only difference; the short term was paid, FMLA was unpaid.

I guess it comes down to how you define "one no less favorable". Does this just mean the same pay? The same exempt (salary) status? Because that all is the same. But it does seem like it will stunt her career growth, as her title went from HR Generalist to Recruiter and Trainer. She had expressed those concerns after the meeting her boss and director called her into, 7 days after giving birth, and has that in written form, including a response from her boss's boss.

I guess they can say they "outsourced" her job function too - that's what they did to the other 3 who were fired. They "changed" their job function, then outsourced it immediately. It seems shady, but could be legal? One of them is apparently bringing a suit for other reasons (she took occasional FMLA and asked for accommodations for some disability). But the fact that they didnt actually outsource what she did prior to FMLA, rather they gave it to someone who wasn't on FMLA, seems like a pretty open-and-shut case to me.

There are 2 really important laws in the US in regards to maternity leave.
The Pregnancy Discrimination Act of 1976
-and-
The Family Medical Leave Act.

The short answer is that no, they cannot fire her for simply being pregnant.

The PDA is for companies with 15 or more people. This law states that pregnant people should be treated with the same rights as anyone else coming back from a disability leave. It also states that you are guaranteed job security while on any leave that is provided and that you are not forced to take a maternity leave if you so choose not to.

FMLA applies to companies with 50 or more people. This law expands those rights to specify that when returning from leave, you must be given a job equal to the one held prior to the leave (though not necessarily the same role).

you may have state laws that expand these basic protections

**A short anecdote from my personal situation** When my daughter was born in 2004, my wife was working for a small call center with 4 employees and a husband/wife owner pair. She was dismissed from her role upon returning because they did, in fact, have to get someone else to do her work while she was out. because the company had so few employees, we had no recourse to fight the termination.

As I understand it, I believe the phrase is "substantially the same". So effectively the same title, function and responsibilities, compensation, seniority, benefits, etc. Any changes to that stuff has to be more form over function. Like " We've consolidated the Manager 1 and Manager 2 titles; when you return your title will be Senior Manager", that would be okay. But if they convert 25% of the job's compensation from salary to stock options, I don't think that's kosher.

What I'm saying is, it's good she's documenting this stuff and that the official response is documented as well.

I find the concept of "serving the papers" very interesting. I understand that sometimes it is very difficult to catch someone. But - are there really no legal limits to where the papers can be served?

Say, what if she (Olivia Wilde) stumbled in her speech, and claimed that a a result, the exchange had a negative effect on her reputation, earning potential, etc.? Can she go after the "paper server"?

https://www.tmz.com/2022/05/02/olivia-w ... -on-video/

Most likely not. There's no recognized cause of action that I can think would apply.

States vary, but here in Pennsylvania process is served by the local county Sheriff. Good luck suing the police for negative reputation.

Most likely not. There's no recognized cause of action that I can think would apply.

States vary, but here in Pennsylvania process is served by the local county Sheriff. Good luck suing the police for negative reputation.

Thanks!! So I can be literally in the middle of an important business meeting, and the "paper server" (or whatever the title of that person is) can interrupt it - even if I have no prior history of evading the responsibility?

Most likely not. There's no recognized cause of action that I can think would apply.

States vary, but here in Pennsylvania process is served by the local county Sheriff. Good luck suing the police for negative reputation.

Thanks!! So I can be literally in the middle of an important business meeting, and the "paper server" (or whatever the title of that person is) can interrupt it - even if I have no prior history of evading the responsibility?

I think if you are in a public space they can do it.

The process server must be authorized to be wherever it is they effect service, right? So public sure. But Munn got served on stage at a restricted entry fan convention; as long as the process server was permitted through the doors (e.g. bought a ticket), and that entry allowed them to be in that auditorium at that time, and they were permitted to approach the stage, etc.

I think in CA process can be served by anyone 18+ who isn't a party to the action. It's fun when you work at a place with a reception desk, because some people will try to serve the receptionist when the named party is an employee, if not the company itself.

Here in PA, the Sheriff certainly isn't going to chase anyone to any sort of event. Persons are generally served at home, and businesses are served at their offices. The only county that doesn't require the Sheriff to serve is Philadelphia, which also authorizes the use of process servers.

My local bar association has a new CLE coming up:

"I Don't Belong" - The Imposter Syndrome in the Legal Profession
1 Ethics Credit

“What am I doing here? I don’t belong.”

“I’m a total fraud and, sooner or later, everyone’s going to find out.”

Imposter syndrome, also called perceived fraudulence, involves feelings of self-doubt and personal incompetence that persist despite your education, experience, and accomplishments. While early studies focused on highly successful women, it is now clear that it can affect anyone in the legal profession – from law students to Big Law executives.

Living in constant fear of discovery, you strive for perfection in everything you do. You might feel guilty or worthless when you can’t achieve it, not to mention burned out and overwhelmed by your continued efforts. The results can be devastating.

Why are they attacking me?

this is insane to me: https://www.fox2detroit.com/news/jeep-o ... 20happened.


guy drops Jeep off at dealership for oil change. 19 year old mechanic, who doesn't have a license, starts the Jeep, removes his foot from the clutch and then hits and kills another mechanic

based on the law, the victim's attorney is suing the owner of the vehicle rather than the business that hired a 19 year old mechanic who isn't even legally allowed to drive

Looks like the deepest pockets available belong to the owner's insurance company.
I say 'available' because of that interesting quirk about not being able to sue a business when there is an incident between two employees.

100% certain Lehto will do an episode on this, I'll pass it along when he does.

I say 'available' because of that interesting quirk about not being able to sue a business when there is an incident between two employees.

do you know why this exists? it seems like such a terrible loophole. The business is 1000000000% at fault for employing someone who shouldn't be employed imo

also, what's that podcast? is it anything like Abbe Lowell's segments on the TK Show? those are honestly my favorite segments because Abbe is very good at breaking down cases

Taking a stab, but my guess is that you don't want a restaurant owner being liable when a bartender beats up a waitress, for instance. In this case the recklessness of the 19-year-old killed the other guy. It's not like the owner of the business did it.

That said I'm at a complete loss as to why the owner isn't responsible here, the employees were working and performing tasks consistent with their job functions. There is a concept in this area of law called 'respondeat superior' and it nearly always directs liability to the business for stuff like this. There must be some statute or goofy case law in Michigan that goes against that doctrine.

also, what's that podcast? is it anything like Abbe Lowell's segments on the TK Show? those are honestly my favorite segments because Abbe is very good at breaking down cases

Lehto's Law. It's a daily ad-free 10 to 15-minute-long podcast done by a consumer protection attorney. He tackles everything from lemon law, qualified immunity, civil asset forfeiture, bad judges/attorneys, etc. He used to do a radio show about the same kind of stuff so his production value is very good for a one man show.