Issues in Employment Law

March 2002

A pattern of actions by an employer that collectively ensures an employee is poorly-trained and under-worked could be the basis for a discriminatory wrongful discharge claim when the employee is subsequently terminated.

The D.C. Court of Appeals in Freedman v. MCI Telecommunications Corp., No. 00-7238 (July 6, 2001) held that an Orthodox Jewish employee failed to establish any adverse action taken by his employer or other discrimination claim. The employee cited a transfer to the night shift, insufficient training and mentoring, a forced sharing of computers and tools, assignments to undesirable tasks, incomplete evaluations, and a nasty attitude by his supervisor as discriminatory adverse actions. The Court acknowledged that these actions could constitute adverse actions for purposes of retaliation or discrimination, but in each of these instances the employee failed to show how they impacted the terms and conditions of employment. For the nasty attitude, the Court said it must be pervasive and constant. The Court suggests that it could consider the "totality of the adverse actions" to find that an employee was wrongfully terminated if these actions resulted in him being poorly trained as to be ripe for termination.

"Adverse employment actions" occur if they result in materially adverse consequences affecting the terms, conditions, or privileges of employment.

We advise that employers follow their policies, make sure employees are fairly and equally trained and mentored, and be wary of the impact of any reassignments or other actions taken on employees. Please consult with us if you are unsure whether adverse consequences will result.

Federal law requires that non-union employees be allowed to demand the presence of co-workers at any investigatory proceeding that may result in disciplinary action.

The National Labor Relations Board ("NLRB") originally interpreted the National Labor Relations Act to allow a unionized worker to request the presence of a union representative at an investigatory proceeding, and the Supreme Court upheld this interpretation. Later, the NLRB extended the same right to non-union employees and co-workers. The D.C. Circuit Court of Appeals in Epilepsy Foundation of Northeast Ohio v. NLRB, No. 00-1332 (Nov. 2001) upheld this interpretation by the NLRB, but declined to retroactively apply it in that case. The Court said that the presence of a co-worker during an investigatory interview is a concerted activity for mutual aid and protection because the co-worker can act as a potential witness, advisor, and advocate against unjust punishment.

There is no obligation for an employer to tell employees that they have this right to demand co-workers, but if they request co-workers' presence, the employer must allow it before beginning the proceeding.