Management Update

White Female Dog-Walker Alleges Race and Gender Discrimination, Defamation by Former Employer

By Fred Preis, Rachael Jeanfreau, and Philip Giorlando

In a case that highlights the many challenges faced by employers, the white female dog-walker, who called police on a black male bird-watcher during a dispute in New York’s Central Park, has sued her former employer and the company’s CEO in federal court. On May 25, 2020—the same day as George Floyd’s death that sparked nationwide protests—Amy Cooper and Christian Cooper (unrelated) locked horns about Ms. Cooper’s failure to leash her dog in violation of Park rules. Video footage taken by Mr. Cooper showed Ms. Cooper saying, "I'm going to tell them there's an African American man threatening my life” and other similar statements. The Manhattan District Attorney later filed a criminal charge against Ms. Cooper for falsely reporting an incident, which charge was ultimately dismissed after she completed five psychoeducation and therapy sessions on racial equity and biases.

On the next day, May 26, Ms. Cooper’s employer, financial services company Franklin Templeton, said on Twitter that the company had performed an internal review of the incident and terminated her employment. The company’s announcement further stated that it does not tolerate racism of any kind. Cooper’s lawsuit also alleges that the company’s CEO Jenny Johnson gave multiple interviews suggesting that it had performed a full and fair investigation and that the facts were undisputed. As a result of these statements, Cooper claims that she received “countless phone calls” and text messages on her personal cell phone from people threatening and harassing her and that the public obtained her personal phone number from the company’s telephone system. Cooper claims the Company’s public statements about her discharge implied that she “was a racist” and led to her characterization in the media “as a privileged white female ‘Karen.’”

Cooper alleges that because of her race and gender, the company failed to properly investigate the incident and terminated her employment. She claims that the company sought to communicate with her about the incident on the day it occurred, while she was “palpably distraught and fearful of her safety” and that the company did not attempt to interview anyone, obtain her 911 calls, or investigate previous incidents she claims occurred between Mr. Cooper and other dog-owners, including an alleged incident between Mr. Cooper and a black dog-owner.

Ms. Cooper also claims that the company discriminated against her because she is female and pointed to Chuck Johnson, who in 2002 while serving as co-president of the company under his father, then-CEO Charles B. Johnson, “slammed his wife into a kitchen stove hard enough to break the bones of her face.” Despite his conviction and two-month incarceration following the incident, Cooper's lawsuit states that the younger Johnson joined the company’s board of directors in 2013.

As employers know, companies face many challenges when responding to complaints of bullying, harassment, and discrimination occurring inside and outside of the workplace. To reduce the risk of successful claims/charges/lawsuits, employers should conduct thorough, impartial, and timely investigations of all complaints before acting against an employee.

Employers can also minimize the risk of successful defamation lawsuits and other claims by revisiting their handbooks and personnel policies, including social media policies. Further, statements about current and former employees must be carefully crafted and reviewed before they are issued.

Last, this case is a good reminder that the conduct of company leadership—including conduct by the board of directors, officers, managers, and supervisors—may be subject to widespread public scrutiny. To avoid these pitfalls, employers should thoroughly review all aspects of their organizations so that any issues can be addressed.

Three Spring Cleaning Tips for Employers

By Fred Preis, Rachael Jeanfreau, and Philip Giorlando

When it comes to preventive maintenance, employers can surely relate to Joan Rivers who once said, “I hate housework. You make the beds, you wash the dishes-- and six months later you have to start all over again.” To make things easier, here are three tips to help employers “get their houses in order” this spring and summer:

1. Employee Handbook & Personnel Policies

With ever-changing Federal, State, and local laws, handbooks and personnel policies should be reviewed for compliance with all applicable laws—no small feat, especially for multi-State employers and/or those with remote employees. Drug testing and leaves of absence are especially tricky in light of new state laws on marijuana use and leaves of absence for sickness and pregnancy. And to keep up with changes coming from Washington, employers should revisit their social media, dress code, and grooming policies—to name a few.

2. Background Check Policies & Procedures

Employers conducting background checks—or those who use third-party providers to conduct such checks for them—also face challenges. The Federal Fair Credit Reporting Act imposes strict notice and disclosure requirements on employers conducting background checks, and there are stiff penalties for violations of the law (up to $1,000), as well as exposure for class action lawsuits. In February 2021, a Federal court in California approved a settlement of almost $175,000 in a class action lawsuit alleging FCRA violations.

Some states and localities mandate additional requirements on employers’ use of background checks that go beyond the Federal requirements and impose added penalties.

Employers who outsource this work to third-party providers should remember they are not immune from liability and may be held ultimately responsible for any violations of Federal, State, and local background check laws by their provider.

3. Job Descriptions & Internal Audits

Employers should also review job descriptions to ensure they are up-to-date and accurately reflect employees’ actual duties. Job descriptions help employers to set employee expectations, effectively handle accommodation requests, and ensure that employees are paid properly.

Updated job descriptions are helpful when conducting at least two major types of internal pay audits. First, employers should review which employees have been classified as salaried exempt to confirm that the employees have been classified properly and are not, in fact, entitled to overtime pay and/or minimum wage. In addition to protecting the company, this helps to avoid potential personal liability for supervisors and managers under wage and hour law. Second, employers should internally audit employee compensation to identify possible red flags—such as pay differences among employees performing the same or similar types of work. Given the current Administration’s call for increased Union organizing, as well as an increase in wage and hour litigation, it is more important than ever for employers to self-audit, identify red flags related to employee compensation, and fix anything that needs to be fixed.

Many employers are just like Joan Rivers and let their preventative maintenance “housework” pile up. There is no time like the present to roll up sleeves, grab a broom and dustpan, and get to work to ensure legal compliance and reduce exposure to the company, managers, and supervisors.

The CDC Opens Things Up!

By Jerry L. Stovall, Jr.

On May 13, the CDC issued a new guidance regarding the COVID-19 precautions that fully vaccinated persons in non-healthcare settings may now follow.

The CDC stated that fully vaccinated people in non-healthcare settings can:

Resume activities in any setting without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance
Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel
Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States
Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings, such as if experiencing symptoms or testing positive within the preceding 10 days.
Refrain from quarantine following a known exposure if asymptomatic
Refrain from routine screening testing if feasible
For now, fully vaccinated people should continue to:
Get tested if experiencing COVID-19 symptoms
Follow CDC and health department travel requirements and recommendations
Not visit public or private settings if they have tested positive in the prior 10 days or are experiencing symptoms

You can read the full CDC recommendation here: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

As you may recall, late last month our Governor lifted our statewide mask mandate and required that masks be worn on public transit, in state government buildings, schools, and healthcare facilities. Significantly, the Governor stated that “Mask policies in Louisiana will be set by local leaders and business owners.” This, coupled with the CDC’s guidance that masks must be worn if required by “local business and workplace guidance” would seem to indicate that the CDC and Louisiana still require masks if business owners or employers require them. This probably means that employers should revise their own written policies if they are going to remove the mask mandate.

Many employers are asking how these new guidances will impact the application of Louisiana’s Limitation of Liability for COVID-19 (LSA-RS 9:2800.25). This statute generally provides that if a person or entity substantially complies with applicable COVID-19 procedures established by applicable federal, state or local agencies, it will not be liable for damages due to exposure to COVID-19 in the operation of its business.

Governor Edward’s April guidance specifically states that “Lifting of the mask mandate does not affect the COVID-19 liability protections that were enacted by the Louisiana Legislature which require businesses and schools to follow the recommendations of state and federal health authorities, all of which recommend continued mask-wearing.”

To confuse the issue further, we can’t forget OSHA. OSHA still has guidance on its website stating that employers should not make distinctions between fully vaccinated employees and those who are not.

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because, at this time, there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

OSHA’s position is a bit dated and in conflict with the CDC’s guidance, but it is still there, at least for now.

So, even though it appears as if our Governor and the CDC have significantly eased their mask requirements, we urge businesses to slow down and exercise caution. It is very likely that state and federal guidance will evolve quickly over the next few weeks, providing employers with some clarity on this issue.

If You Are a Fan of Paid Leave, This Is the Year for You

By Jerry L. Stovall, Jr.

In his recent address to Congress, President Biden touted two plans that would require employers to provide employees with paid leave. Here are the highlights:

American Families Plan

You can read the entire Plan summary here. The section addressing the paid leave provisions can be found on pages 8 and 9.

If the plan passes, when it is fully phased in employees would be entitled to take up to 12 weeks of paid leave per year for several reasons:

The employee's own illness
The illness of a family member
A new child
Military deployment of a family member
Treatment for or recovery from sexual assault, stalking, or domestic violence
Bereavement

Sounds a lot like paid FMLA leave to me. We do not yet know how the AFP will impact the FMLA.

The Plan is not clear about how much an employee would be paid. Right now, it appears as if employees would receive between 66% and 80% of their average weekly wages, with a maximum of $4,000 per month.

This Plan is likely to cost in excess of $500 Billion over 10 years.

This Plan will almost certainly pass if the Democrats are able to introduce it using the budget reconciliation process, which only requires a simple majority to pass the Senate. If they cannot use the budget reconciliation process, it is not as likely to pass in its current form.

Healthy Families Act

The HFA would require employers with 15 or more employees to provide employees with seven days of paid sick leave per year for specific reasons:

Physical or mental illness, injury, or medical condition
Obtaining a diagnosis, care, or preventive care
Attendance at required meetings at a school which the employee's child is attending because of a medical condition or disability
Obtaining various types of assistance related to sexual assault, stalking, or domestic violence

You can read the entire 48 page Bill here.

Employer take away: Neither the American Families Plan nor the Healthy Families Act are yet law, so you do not have to take any immediate action. But, keep an eye out for further updates as they each make their way through the legislative process. If either of them pass in any form, it will require us to quickly revise our forms and practices.