Dive Brief:

• A Mississippi Taco Bell manager will get to go to trial on his claims that he was fired because he refused to lie to get out of jury duty (Simmons v. Pacific Bells, LLC, No. 19-60001 (5th Cir. Sept. 27, 2019)).
• Max Simmons sued Pacific Bells, the franchise operator, after he was fired for alleged tardiness. But Simmons said the reason given was a pretext and that he was fired after a manager told him to "find a way to get out of jury duty." Simmons refused and ending up serving several days of jury duty because he was selected for a trial. When he returned to work, he was let go for being late.
• The district court ruled in favor of Pacific Bells, concluding that the Mississippi law prohibiting employers from retaliating against employees for jury service does not provide a private cause of action. The 5th U.S. Circuit Court of Appeals disagreed and reversed, saying an employee can sue his employer for wrongful discharge because Mississippi law forbids an employer from persuading or attempting to persuade an employee to avoid jury service. Also, an exception to the "employment at will" doctrine protects employees who refuse to participate in an illegal act. The court also said that a jury could conclude for several reasons that Simmons was fired because he refused to lie: Simmons was tardy less often than other employees who were not fired for tardiness, he was never warned about tardiness before he was fired, and the manager who recommended his termination was the one who told him to lie to get out of jury duty.

Dive Insight:

Managers are a leading cause of employment law violations, experts have reported. They often say things that get their employers in legal trouble.

Compliance training is important. Discussing the Family and Medical Leave Act at the Society for Human Resource Management's annual conference last summer, Jeff Nowak, a shareholder at Littler, and Matt Morris, VP of FMLASource at ComPsych, said courts are even mentioning this in their opinions. They are asking employers why managers aren't being trained and awarding double damages in many instances, Nowak said.

The U.S. Equal Employment Opportunity Commission has required employers to agree to provide training on federal employment laws for HR, managers and supervisors in many of the settlements it obtains.

Experts also recommend that managers and supervisors "cut the snark" and keep their emotions in check when employees ask for leave. Managers need to know they should not sigh, swear or otherwise make clear that they're unhappy when they find out about an employee's need for leave, Nowak said, adding that this is a huge problem for employers. To fight this, Nowak suggested that employers give managers and supervisors "canned responses" to use. "Let me know how I can help you" is a good one, he said.

In addition, Morris said, managers shouldn't be emailing HR or other managers, lamenting the effect the leave will have. "Let's not put it into the record," Morris advised.