2. You are being fired because you . . . 
Insert whatever you want. Your boss can say this even if you didn’t do whatever it is that you are alleged to have done. 

3. After giving your two-weeks, your boss says I am accepting your resignation effective immediately.
Your boss or employer can do this. It is there prerogative to hire and fire employees when they want.  You may be eligible for unemployment, (case law in Michigan says you would, but you may have to fight for more than six months to get it), but you are getting a little unpaid vacation before you start your next job. 

In Michigan, unless otherwise stated you are an at-will employee. So, you can be fired or any reason, no reason, or anything in between. While I would not recommend a business do any of the above, because of the needless exposure to liability, the examples by themselves are not illegal terminations. (By needless liability, I refer to the fact that Courts have concluded that termination reasons that are pretext can be circumstantial evidence of an illegal reason.)

As an employee, you should be looking for the REAL reason you are being terminated. If it is because your boss is a jerk, there is nothing you can do about it. However, if it is because you made a report of illegal activity, refused to violate the law, complained of sexual harassment, or were treated differently because of your race, gender, religion, or national origin then you should talk to an attorney or file with the EEOC. 

Employees rights are limited, and regardless of the hype there is not a plethora of frivolous lawsuits being filed. 

Employment Law Links 

FMLA 
What to do if you suspect employee is not medically able to return to work from FMLA Insights
Bibbidy Bobbidy Boo or how there are no magic words to invoke FMLA from the Ohio Employer's Law Blog

ADA
Be careful about determining what is and isn't a reasonable accommodation at Employment Law Daily
Is your Wellness Program illegal from the Ohio Employer's Law Blog

GINA
Pop Quiz - Which of the following are illegal questions from the Employment and Labor insider.  
GINA and Angelina Jolie - a connection that could only be made on an employment law blog from the Ohio Employer's Law Blog 

Social Media and Employment Law
Facebook and Teachers don't mix at the Michigan Employment Law Connection. 
Could social networking at work actually make for more productive workers from the employment law daily.
What happens when Linkedin still says your former employee works for you at Social Media Employment Law Blog. Oregon the latest social media law passed at the Employer Handbook.
Washington too at the Employment Law Daily. 

General 
How bad is bad enough to terminate from Labor and Employment Update
Wal-Mart sues union organizers for trespass from Employment Law Daily
What happens when they treat you like Milton from Office Space from the Employer Handbook
The Reigning Champion of What I read Blog postings from the Ohio Employer's Law Blog

Everything Else
Other Law 
Michigan Death Penalty Case from the 6th Circuit Appellate Blog.
Malpractice actually makes for better medicine from Verdict with a link to the New York Times. 

Better Blogging 
Quora? Good or Bad for lawyers at Real Lawyers Have Blogs.
Top Ten Law Blogs at Real Lawyers Have Blogs.
Nine Ways to Write Better Blogs from Real Lawyers Have Blogs.

Words
What you should say instead of "sustained injuries" by Bryan Garnder at Law Prose's blog

While not granting cert in a case has no actual legal effect, it may have some practical effect. This case was prime for the Supreme Court to hear. it was an en banc hearing that overturned previous Seventh Circuit case law. The holding of the Seventh Circuit puts it at odds with at least one other Circuit. SO, if the Supreme Court had disagreed (or more properly four judges voted to hear) then this would be a prime case to resolve splits in the circuit. 

The District Court dismissed based on EEOC v. Humistgon-Keeling, 227 F.3d 1024 (7th Cir. 2000) The EEOC argued to the Seventh Circuit Court of Appeals that in light of U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), the Court should reconsider the position it took in Humistgon-Keeling. The Court sitting en banc eventually did just that did exactly that. And just the other day, the Supreme Court denied certiorari.  

The issue in the case was whether a disabled employee seeking an accommodation should be given a preference. In Barnet, the Supreme Court looked at that question in terms of a seniority system. The Court held that the employer did not have to give a preference in a seniority system, but was clear it was not a per se rule. Plaintiffs are free to show that a requested accommodation is reasonable on the particular facts. Furthermore, not all nondiscriminatory criteria will be sufficient to make an accommodation unreasonable.  

In EEOC v. United Airlines, the question was whether the policy violated the ADA. The Court held it did. The Court held that it was not a per se rule that a job should not go to the employee requesting the accommodation. However, whether the EEOC prevailed in this case will be left to the District Court who must determine if a request for reassignment would be reasonable. If mandatory reassignment is not ordinarily a reasonable accommodation, the EEOC can still prevail if they show that it would be reasonable in this particular case. 

If nothing more, this reaffirms that when determining what is and is not a reasonable accommodation employers need to look at specific situations. Employers should not rely on large sweeping generalities about what is or isn’t reasonable. 

The ADA is being interpreted more broadly in light of the Amendments, and this case again illustrates that purpose of the law is to provide disabled employees not only a discrimination free workplace, but also the opportunity to work if a reasonable accommodation is possible and not an undue hardship. 

The Court appears to have gone too far. With the result of the second in a trilogy of cases, the Michigan Supreme Court has rebuffed the Court of Appeals overly narrow definition of the law. First, was Debano-Griffin v Lake Co, 493 MIch 167 (2013). (See previous post here.) This case reverses Whitman v City of Burton, 293 Mich App 220 (2011). The final case (The Retunr of the Jedi case) in the trilogy is Hayes v. Lutheran Social Services (See J. Shinn's post here.)

In Whitman, the Court of Appeals had held that the Plaintiff was not motivated by a need to inform the public, but by his own self-serving motives. And that the WPA did not protect workers who blew the whistle for self-serving reasons. The Court had relied on Shallal v. Catholic Social Servs of Wayne County, 455 Mich 604 (1997). The Michigan Supreme Court pointed out that the portion relied on by the Court of Appeals was dicta and disavowed that Michigan Supreme Court had held that an employee’s primary motivation was a necessary element in the claim.

This case goes further to help plaintiff’s bring a claim under the WPA. Michigan’s Whistleblowers’ statute was drafted more broadly than most other states. (See the about to report portion of the law) Yet, the Court of Appeals had recently sought to narrow the definition. With these unpublished opinions, Defense Attorneys had been able to beat up on Plaintiffs. Hopefully, by the time the trilogy is complete the purpose of the statute – to protect whistleblowers – is restored.

In conclusion, Whitman can easily be understood by reading two sentences near the end of the opinion. “In sum, and contrary to the Court of Appeals majority’s interpretation, Shallal does not hold that an employee’s motivation is a factor in determining whether the employee was engaged in protected activity. Indeed, it bears repeating that having specific primary motivation is neither a prerequisite for bringing a WPA claim nor a factor to be considered in determining whether a plaintiff had engaged in protected conduct.” 

On March 20, 2013, Judge William J. Hayes, Jr. of The United States District Court for the Middle District of Tennessee, Nashville Division issued an opinion about Facebook and discovery. See Potts v. Dollar Tree Stores, Inc., 2013 U.S. LEXIS 38795 (M.D. Tenn. March 20, 2013) Facebook discovery is on the cutting edge of the law right now because the courts are trying to keep up with the changing technologies and people’s habits.

This case was brought as a Title VII claim, and the Defendant's request was for Facebook or other social media data. The Plaintiff balked at the request for complete disclosure. The Court agreed. The Court held ”[t]he Defendant lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence.”  

Individuals in litigation should take a couple of things from this case. First, Facebook discovery should not be automatically granted. Second, the Plaintiff was required to turn over a large amount of documents beside the Facebook. So, discovery is broad, but not limitless. 

If you are making a claim for employment discrimination, your Facebook page and other social media could be discoverable. Everyone, but especially individuals filing suit, could benefit from a little discretion in what they post on social media sites. If you consider your information to be private, you better have set your privacy settings on social media pages to reflect that expectation of privacy. However, if the Defendant has evidence that there is likely discoverable information on your social media, privacy settings alone will not protect your information. The best advice - for everyone - came from my father: "think before you speak." Or to translate for this generation, Think before you post. 

(h/t to the Bow Tie Law's blog. He also has a much more thorough review of the case here.)

Ms. Shepard had sought a leave of absence.  She thought it was granted.  It wasn’t.  She was fired.  She sought unemployment.  She was denied based on misconduct.  After a hearing, the ALJ found she was not eligible based on misconduct, since she did not receive authorization for her leave and took it.  To summarize, everyone has found that Ms. Shepard was ineligible because she committed misconduct when she failed to come to work.  The MCAC concluded that misconduct did not apply, but she was ineligible because she voluntarily left work.  Then a Circuit Court affirmed that she had in fact voluntarily left work.  The Court of Appeals reversed.

The Court of Appeals found that a voluntary departure is an intentional act.  Furthermore, there is no such doctrine in Michigan Unemployment Jurisprudence such as a constructive voluntary leaving.  The Court held that Mejier’s terminated her employment, thus it can not be a voluntary quit.   

There is a provision in the statute that provides an individual who is absent from work for a period of 3 consecutive days or more without contacting the employer (in the proper method) is considered to have voluntarily quit, without good cause attributable to her employer.  

The Court of Appeals analysis is correct.  It also provides elucidation to the recent run by the Michigan Compensation Appellate Commission decisions.  Recently, the MCAC has (anecdotally) issued more opinions then previously that are very similar to these facts.  An ALJ will make findings in line with the UIA decisions and the parties arguments, only to have the MCAC go off in a different direction, especially in finding voluntary quits.  Hopefully, this decision will restore balance to the unemployment universe.  

In addition to reaffirming the use of circumstantial evidence, the Court limited the application of the Business Judgment Rule.  The Business Judgment rule has become all the rage amongst Defense Attorneys.  The Rule has been applied way too much, without enough thought or legal analysis.  It was applied like a get-out-of-jail-free card in Monopoly.  In this case, as in a few other cases, it is pointed out correctly that when the Rule is fully analyzed the rule has a very narrow application.  

In the law, people often speak of trends as being the pendulum swinging back and fourth.  The Michigan Court of Appeals has been very tough on employment cases for the last couple of years.  And extremely tough on the WPA.  This decision is a nice respite from the assault on employment litigation, but the question remains whether this is a change in direction.  Whitman v. City of Burton should provide more information to allow use to determine which way the wind is blowing.  

A link to another article providing coverage of this decision by John Holmquist at the Michigan Employment Law Connection.

In Keith v. County of Oakland, 2013 U.S. App. LEXIS 595 (6th Cir. January 10, 2013), the United States Court of Appeals for the Sixth Circuit found that the Americans with Disabilities Act protected a deaf individual who had applied for a job as a lifeguard at a wave pool in Oakland County.  The district court had originally dismissed the case by granting the Defendant’s motion for summary judgment.  It is actually quite interesting to look at the facts as laid out by the District Court and its conclusions along side those of the Six Circuit and wonder how the District Court concluded there was no factual question.  See Nicholas v. Oakland County, 2011 U.S. Dist. LEXIS 98498 (E.D. Mich. September 1, 2011) (J. Zatkoff) 

Beyond the facts, this case covers some important areas of the law and provides excellent insight into questions that had previously been unclear.  The case dealt with many of the important portions of the ADA including, individual inquiry, otherwise qualified, reasonable accommodations, and the interactive process. 

As a starting point, the case deals with whether an individual inquiry was made.  In the case, the Plaintiff went through training by the Defendant, was sent to a doctor, but also the Defendant had a couple of agency’s review the material.  The Court recognizes found trouble understanding how an individual could have passed the lifeguard training done by the County, yet denied employment based on a cursory physical exam and input from people who had never met him or observed his work.  

The Court also dealt with the idea of “otherwise qualified.”  The court provided the factors to consider whether a function is essential and factors to determine whether the function is essential to a specific position,  but the Court noted that “Whether a job function is essential is a question of fact that is typically not suitable for resolution on a motion for summary judgment.”  Previously, the Courts had provided too much deference to the employer’s discretion even when it lacked factual support.  Additionally important to this analysis, the Court found the expert’s testimony of whether Keith was otherwise qualified to be compelling.  Thus, allowing evidence that was not in the possession of the Employer at the time the decision was made to be compelling for determining whether he was otherwise qualified.  

The Court addressed the phrase “with or without reasonable accommodation.”  The Court noted that the reasonableness of a requested accommodation is generally a question of fact.  The Court also noted that job restructuring is among the enumeration of reasonable accommodations found in the law.  

Finally, the Court dealt with the interactive process.  Courts have often ignored the requirement, as had the District Court in this case.  The Court said: 

The Keith case represents a respite from the otherwise dreary state of employee rights in Michigan state and federal courts.  It clearly delineates several areas that had been previously vague, and those vagaries had been used to dismiss cases at the summary judgment stage.