Know Your Rights:
Annual Round-Up of The Year's Topics

By JAMES A. BROWN

Labor Day's arrival earlier this month signified summer's decline and fall's impending presence. For me, the national holiday recognizing worker rights also marks this column's anniversary and my annual review of its recently reported topics.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

When this column debuted in September 2001, I focused on the basics. I examined general legal concepts and identified statutes which protect employees. Clearly, employees benefit from understanding civil service, anti-discrimination and whistleblower statutes and such concepts as "hostile work environment," "protected class status," "employment-at-will," "unlawful retaliation" and "damages."

Having explained many of the basics, I now find myself relying more on recent court decisions for column topics. This past 12-month period bears this out.

Supreme Court Decisions

In the last 12 months, I reported on a Supreme Court decision permitting employees to file retaliation claims under 42 U.S.C. § 1981, a post-Civil War-era statute prohibiting racial discrimination. I noted the popularity of retaliation claims and compared Section 1981 to Title VII of the Civil Rights Act of 1964, which also prohibits racial discrimination in the workplace. I observed that Section 1981 claims, unlike Title VII claims, do not have to be filed first with the Equal Employment Opportunity Commission and have a longer statute of limitations (four years).

This past year, the Supreme Court also made it easier for employees to satisfy the requirements for filing EEOC Charges of Discrimination. An employee's failure to file a formal EEOC Charge will no longer be deemed fatal provided his or her written submission to the EEOC satisfies certain prerequisites, including identifying the employer and expressly requesting that the EEOC take action to vindicate the employee's rights.

Unequal Protection

Unfortunately, the Supreme Court was not always so employee-friendly. In another reported decision, the Court sharply limited public employee Equal Protection rights. The Court did this by eliminating so-called "class of one" claims. Under the "class of one" theory, public employees could claim they were being treated differently from similarly situated employees without having to claim discrimination based on age, race, gender, religion, disability, etc. The employee would claim he or she was treated differently for "arbitrary, vindictive, and malicious reasons." As one Supreme Court Justice observed, the high court, by eliminating "class of one" claims, effectively took a "meat axe" to public employee Equal Protection rights.

This past year, I also examined how off-duty conduct can result in disciplinary charges. I made clear that any off-duty conduct involving "moral turpitude" (violating "the moral sentiment or accepted standards of the community") is subject to disciplinary charges. So too are off-duty acts deemed to have a "nexus" to an employee's job duties. Typically, employees who work with children, or in safety-sensitive positions, or in jobs involving the exchange of financial or confidential information, are more likely to be disciplined for off-duty misconduct.

I highlighted one Federal appeals court decision which found that certain off-duty membership in an organization was not even protected by the First Amendment's "right to associate." In the reported case, three Connecticut Correction Officers were terminated because they belonged to the "Outlaws Motorcycle Club." Ultimately, the court determined that the Correction Department's interest in maintaining "efficient operations" outweighed the officers' (very limited) constitutional right to associate with persons of their choice outside of the workplace.

Computer Misuse

I examined other sanctionable conduct as well, namely unauthorized use of the office computer. I explained that your limited constitutional protection against unreasonable workplace searches will not shield you from your employer's "reasonable" decision to search your office computer's hard drive. Because personal use of the office computer is sanctionable, you must determine what your employer's "computer use" policies are and whether there exists an "incidental use" rule which permits limited non-business-related use.

Finally, there were other columns covering a range of topics from "front pay" damages (as distinct from the better-known back pay) to a reminder that denied promotions are difficult to remedy because of the civil service "one-in-three" rule. I also advised victims of domestic violence that a New York City law entitles them to certain reasonable accommodations permitting them to take time off from work.

Please know that this newspaper now makes all of these past columns available on its Web site.