Yelp Fired Manager After He Didn't Take Calls, Check Email 24/7, Lawsuit Claims
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I worked somewhere that "specialized" in hiring younger newish grads from the midwest. They'd bring them out to the Bay Area, pay them way under market. The people would put in a year to two years at $75k working 70 hour weeks before they realized it was an intolerable and nonsustainable situation. The younger people were more excited over the free lunch and pingpong tables to care about comp, let alone making rent.
Indeed unsustainable, but getting that experience and Bay Area connections might quite likely be a rational career choice for these grads
Doing this has facilitated a healthy work life balance and I believe leads to better productivity.
The best thing that ever happened to me was company implementing a lockdown policy so that email/chat/... are only allowed from company assets so I am totally cutoff from work via my phone except through that list and the best part is it by the companies own policy. I only get true emergency calls now.
My favorite move in tabletop strategy when doing disaster recovery is finding the most important person at the table and going 'Bang, you died driving to work, you can stay but you cannot help anyone'
You only get this line if you're a US citizen as justification as to why H1B visa quotas need to be increased. If you're here on an H1B visa, you get reminded daily that your replacement is waiting back in your home country, you can be replaced with a single phone call, and you better have a plan to get all of your things and family back to your home country quickly when you get bounced.
No offense, but that doesn't make any sense. Right now, there's a lot of paperwork and the H1B lottery that means it's non-trivial to get a new H1B worker into the country. Increasing the quota would make it easier for the employer to act like H1B would be replaced on a whim, and actually create the scenario you're complaining about.
> ...and you better have a plan to get all of your things and family back to your home country quickly when you get bounced.
Knowing a lot of H1Bs, this is the real reason H1Bs can be exploited and bullied. Their visa is tied to the employer, which gives that employer way more leverage over the employee than over a citizen or permanent resident.
The real way to fix these problem is to keep the quota, but remove the control the employer has over work visas (by making them easily portable). That way, the employer can get the talent they need if there's really a shortage, but they'll have to pay market salaries and provide reasonable working conditions to the immigrants.
If I had to guess based on my friends/family, first jobs are horribly abusive for 100% of med school graduates, 90% of law graduates, and 20% of software engineers. That 20% is common enough that we hear about it all the time, but it's still much less frequent than other high-paying jobs.
When product managers and CIOs don’t have anything to show, we get tossed under the bus. I’ve never been a fan of the dev unionization movement, but I’m becoming more of a fan it by the day. I think of how I feel after having given my all to my career, and I can’t imagine how young H1B professionals feel when the abuse they put up with is far worse than what I’ve dealt with.
We're expensive, sure. Difficult to replace, absolutely. But you know that sooner or later you will be, and in the meantime you only get limited privileges.
Nobody checking their email or phone after work... Ridiculous.
EDIT: I should say, from the U.S. anyway.
Interestingly, none of them have ever taken me up on that, but it's often lead into productive discussions about how you need at least five people to properly cover a 24x7x365 roster - and that the cost of that is quite reasonable - if you genuinely need 24x7x365 coverage.
I would be giving up time with family, excercise (my health), and my other goals, so I don’t see how a simple 2x would even begin to cover the loss of those.
My numbers are based around super-hard-to-argue-against standard employment law for other professions where I live. If you work as a waiter or a shop assistant that's the sort of overtime deal you get automatically.
When you push that minimum legally required remuneration to its obvious extension if your boss is asking you to be on duty 24x7, it's difficult for them to argue a reasonable case _down_ from having to pay you 8 times as much money.
The primary aim of that line of reasoning is to point out "if you need my job covered 24x7, employing and paying another four people with my skills to make sure it's covered for the 130 hours a week I'm not in the office is a more reasonable and less expensive way of doing it than trying to make it all my problem."
Quite often, in my experience, it's because the boss suddenly has their first customer ever suddenly demanding it, and they've not done the maths already and been immediately able to tell the customer "Sure. That'll cost you about ten times as much as a weekday business hours only support. When would you like us to start billing that? I'll need that in writing, of course."
My religious tradition (reformed evangelical christian) takes the sabbath pretty seriously, as stated in the Westminster Confession of Faith:
> VIII. This Sabbath is to be kept holy unto the Lord when men, after a due preparing of their hearts, and ordering of their common affairs beforehand, do not only observe an holy rest all the day from their own works, words, and thoughts about their worldly employments and recreations, but also are taken up the whole time in the public and private exercises of his worship, and in the duties of necessity and mercy.
Notice the last statement makes an allowance for acts of mercy and duties of necessity, which would certainly include things like being a Doctor or a Policeman, but I've always considered my duties as a Software Engineer being on-call to be borderline on whether or not they meet that standard. Certainly my employer(s) have thought they were necessary... But who are we kidding. Most of this stuff isn't life or death and waiting till Monday to get it fixed probably wouldn't be that big of a deal.
(I should probably mention that although these are the standards of the Church I attend they're rarely enforced in any meaningful sense - being treated more as a matter of personal conscience than of discipline... and particularly when it comes to the Sabbath)
Still I wrestle with it... not having a firm enough conviction to quit a job where I've had to do it, though if it were an every week thing, particularly if I had to regularly miss the Sunday service, I almost certainly would.
If I could make one plea, it would be for tolerance and compromise. I realize religious beliefs can be pretty weird in this day and age, but they're often sincerely held, and there's usually a solution available if the company is willing to consider it. (for example I'm just fine being on-call any other day of the week, and a surprising oddity of the reformed tradition, we don't really have religious holidays: https://heidelblog.net/2017/03/the-westminster-divines-on-ho...)
Or some such?
It was helpful when I had a more structured on-call rotation and once we switched to 3 day shifts I was able to trade off shifts so I almost never was on-call Sunday morning.
Unfortunately I was also team lead on a temperamental system for a while which had many production issues, so despite the on-call rotation, things often escalated. It was not a fun year.
That said it only happened a few times that year, though the constant threat of it wears on you after a while, and it's precisely that issue which lies at the spirit of the Sabbath. It's not really a day off if you're worried about the pager going off all the time and constantly checking slack, even if nothing is happening.
Also apparently being paid > $100k a year is an exception
https://www.flsa.com/coverage.html
California in particular has stricter exception laws
https://www.worklawyers.com/exempt-vs-nonexempt-employees-ca...
Lots of companies have mis-understood this law, thought just claiming "salaried" was enough and were later found in violation.
I'm not sure how I feel about the $100k exemption. One the one hand I hate it. On the other hand I'm being paid $100k+. Seems like a trade off. Like would I rather have $99k + overtime pay or $150k. The advantage to $99 + overtime might be the company manages better since they don't want to pay overtime. On the other hand they could just budget $150k internally and still demand the overtime and maybe end up only spending $130k total or something.
Of course as a programmer I'm already exempt apparently which feels kind of BS, same with artists. But I should probably research any counter arguments.
I'm not making a general-purpose argument against regulating nominally consensual labor agreements, but this specific example is an awfully weird context to decide that people need to be protected from themselves. I've had jobs where the exact hours of oncall rotations weren't explicitly spelled out in the contract, and I made the decision that the oncall rotation was worth the fixed pay. Trading fixed amounts of money for probability distributions is all over the economy (this is what insurance is), and you're the first person I've ever heard suggest that it should be prohibited.
Would you mind elaborating on why you think this is so egregious that people need to be protecting from themselves so they don't engage in it?
People don’t need to be protected from themselves. They need to be protected from employers, who have more power than labor (through at will employment and a lack of collective bargaining). Simply because some are willing to work for free does not mean that technology professionals as a whole should accept such a poor arrangement, because it’s been normalized as such by employees who accept it.
European countries are moving in this direction (prohibiting email access outside of business hours), and I hope to see more progress on this front in the US over time.
So much so that a (US headquartered) multinational I worked for gave up trying to get their EU employees to do weekend on call, as the team didn't want to get treated that way.
I'm pretty sure if you are not an exempt salaried employee or you are hourly then you do in fact have to be paid for the time on call that you are actually working and if you are not that is in fact illegal and wage theft.
Anecdotally I have a friend who works in IT that is on call and does get paid for all the time on call that he is working.
as another response said on call can or can not be exploitative depending on how it's setup but that is a separate issue from whether it's wage theft.
That's actually very common, at least around here outside of the startup scene. There's usually a fixed amount for just being on call, plus an hourly rate (often higher than regular rate) for actually having to do anything.
Last time I managed a team of on-call staff, they all got paid for 2hrs at their regular rate for each weekday and 4hrs for each weekend day they were on call (whether they got called or not), plus time and a half for every hour they worked (rounded up to a minimum of 1hr per incident, so three 5 minute "quick fixes" counted at 3hrs at time and a half, which on a weekend meant 7hrs additional pay). We tried to make sure everyone by default got a rotation of a week of weekdays, a single two day weekend, then a whole week of just office hours. They were free to negotiate swaps amongst themselves as needed (it there was not required payroll adjustment), and to request schedule adjustments as needed (mostly for when the change would need payroll to be informed). We ended up averaging fewer than 10% of on-call shifts getting paged. Everybody was happy enough with that arrangement - it was about as good as any on-call arrangement I've ever been part of.
Taking the shifts was optional and had a similar pay structure.
The thing is, what if I claimed membership in a religion that only allowed me to work 3 days a week? ;)
Your church sometimes enforces its rules about what you do outside of church in a meaningful sense? How does that work?
http://www.pcahistory.org/pca/3-443.html
It mostly applies to leadership, but also members. Possible "censures" include:
- Admonition (ie calling someone out for their behavior) - Suspension from Office (you have to stop being a deacon) - Suspension from the Sacraments (you can't take communion anymore) - Excommunication (you can no longer be a member of the church)
In practice I have only ever seen it done publicly in 3 circumstances:
1) Someone in leadership committed adultery and has to step down 2) An elder was excommunicated after abandoning his wife and children, leaving the church, and pulling a "Leaving Las Vegas" to live a life of total debauchery 3) A church leader was suspended due to abuse of power
Leadership cases are kind of obvious, because the damage they do can be so bad. I mean it's bad enough in a workplace, but it can be devastating in a Church environment, which functions a lot more like a family. The Presbyterian process might seem a bit overblown or silly, but I appreciate the care with which they take these issues.
I think a culture of discipline is generally useful in a Church, at least when it comes to admonition and encouragement. Adultery, drunkenness, gossip, greed, anger, ... all of these things affect others, and church discipline is attempting to admit to that problem rather than simply ignoring it. When it's done in a loving, winsome way, it can be a good thing. I screw up all the time, sometimes without even realizing it, and being called out for it can help me do better.
Though I also recognize disciple can be, and often is abused. It can really turn cultic fast, and I've seen that a little in some communities, especially when it focuses on minor, tangential issues (like the music you listen too, the way you dress, your politics, etc...)
So to recap, in the PCA, I've only really seen it with leadership. In the OPC church I briefly attended, it was suggested that if you were unwilling to baptize your children, or made a habit of working on Sunday, you may not be able to join the church, since that was a clear and important teaching of the church and you would clearly be violating it, hence, discipline.
Missing church every Sunday would be particularly visible, especially in a very small church, so a pastor might want to have a conversation about it.
I suppose most other issues would come about from other members... in the most extreme cases the church should hand the individual over to the civil authorities (a husband beating his wife, a leader molesting children, etc) Sadly that sometimes doesn't happen.
But there are a lot of edge cases and wisdom issues, so generally if there's not a clear teaching, the church will leave it as a matter of conscience.
Either way, Yelp sounds absolutely toxic if they required him to be available like that. Expecting anyone to be available 24/7/365 is absurd. Set up an on-call rotation. Establish escalation chains. Designate backups. These are basic procedures. If this guy was so critical that there was no-one else in the company that could do whatever it was, hire someone else.
This is excluding extreme cases like if someone claimed that their religion has dozens of major holidays a year. To my knowledge, no major religion does that.
Let me speak to you about the Church of the Flying Spaghetti Monster...
(happy Talk Like a Goldfish Day)
Here in Japan Sunday is arguably "Shopping Day". Several areas of the city close one of the major streets from like 12pm to 5pm to pedestrians only for shopping including Shinjuku, Ginza, and Akihabara.
I feel like there should be an "average" compromise and everyone should get the benefit. That way there is no awkward incentive in any direction.
Obviously I don't want to tell other people how to practice their beliefs, but I never understood why, for example, Atheists don't put up memorials to important humanists (or something else meaningful to them) next to the Nativity scenes and Menorahs that people put up in public during the Holidays.
But seriously, if you're on a flight that still has meal service, ordering ahead-of-time the kosher or veg/an option usually means you'll get yours first. :D
> The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.
IANAL, but I believe there is a difference between a person being unavailable due to golfing vs. due to a religious belief, since a person's religious belief is a protected category whereas their sporting activities are not. If it was company policy to shave one's head, but an employee's religion prohibited them from doing so, the company would be discriminating against that person even if they required everyone to shave their heads (caveat: assuming a shaved head was not actually important to the employer's business). Otherwise, a company could "uniformly" apply a rule that "just so happens" to only apply to a specific religion (or gender, or any other protected category), and use that to effectively ban those who fall under that category.
Now, in this specific case, I don't know if he'll be able to show that supporting his beliefs wouldn't have caused Yelp "more than a minimal burden", but I think that's what he's going after.
"Lee also told Weathers, who is pursuing a degree in ministry leadership and has a severely autistic son, that he didn’t care about Weathers’ religious holidays or children, the suit claimed."
Either way, whether religion is involved or not, discriminating or not, from what I've seen so far, Yelp needs to pay.
Just so that it can be a lesson to others.
Several people my wife works with are deliberately scheduled around their weekly religious obligations.
Perhaps an actual lawyer on HN can chime in, or post a helpful link.
Employers must, on request, make reasonable accommodation (one which does not impose an “undue hardship”) for religious practices. [0]
Nothing in the narrative provided (which comes from the lawsuit filed by the fired manager) seems to indicate that an advance request for an accommodation was made.
An employer can fire you for failing to perform job duties due to a religious observance for which you did not ask for an accommodation, as I understand it.
[0] https://www.eeoc.gov/eeoc/newsroom/wysk/workplace_religious_...
If your religion says you can't handle pork and you take a job at a pig slaughterhouse, the employer should not be obliged to pay you to do nothing.
Yelp isn't really a startup by any reasonable standard.
By your argument you could tell a pregnant woman “sorry, you have to work, all the men have to keep working.”
Regardless of what you personally believe that’s likely a losing case in a lawsuit.
Together with religion there isn't possible to have rule or requirement which isn't against someone political or religious view. Anti-discimination laws must therefor limit themselves, often down specific scenarios or looking at the reason why a requirement exist rather than the requirement itself.
For example, if I hold the political view that working more than four days a week is inhumane, that carries just as much as protected class status than if I believed Sundays are declared by god as the day of worship and rest. If a company fired someone for not showing up on the fifth day, they have just as much right to do so as fire someone for not showing up on Sunday if that is what the employment contract says. Local employment laws naturally applies.
It's true that in some jurisdictions (including CA), political affiliation/activity is a protected class, meaning employers cannot discriminate against or refuse to hire people because of these affiliations/activities.
But that doesn't necessarily extend to political beliefs. Otherwise, employees could just say that any of their beliefs (I should have a 2-hr lunch; employers should provide free breakfast/lunch/dinner) are political in nature and then get whatever they want. Unlike religion, which may not be the basis for discrimination and must be reasonably accommodated, I'm not sure that any of the political stuff has to be accommodated. I think employers just can't discriminate on this basis.
I could be wrong here, and am happy to be educated. But I'm a former lawyer and have followed this type of things somewhat during the last decade.
It's literally part of the Griggs v. Duke Power Co decision from which the disparate impact standard arose. The 1991 Civil Rights Act puts on defendants the burden of proving "that the challenged practice is job related for the position in question and consistent with business necessity".
And to the jury, it probably means "You lose; pay the man."
For his own health and well being as a family, he needs to find new employment. Find a job with a more reasonable work/life balance and adapt lifestyle choices to fit the budget.
I know a chaplain that has been at the bedside of many people during their final hours. None ever thought that they should have spent more time at the office.
https://www.workplacefairness.org/religious-discrimination
10. Can my employer prevent me from taking off on religious holidays or my day of worship?
You should start by letting your employer know that there is a conflict between your religious observances and your work schedule. When your employer's workplace policies interfere with your religious practices, you can ask for what is called a "reasonable accommodation": a change in a workplace rule or policy which would allow you to engage in a religious practice without conflicting with your work obligations.
Your employer is required to provide you with such an accommodation unless it would impose an "undue hardship" on the employer's business, defined as an accommodation that is too costly or difficult to provide. The Equal Employment Opportunity Commission (EEOC) who oversees these types of claims, has interpreted an undue hardship to mean anything more than regular administrative costs, anything that reduces workplace efficiency or impairs workplace safety, anything infringing on other employees' job rights or causes those said employees' to carry the accommodated employee's share of burdensome work, or if the proposed accommodation conflicts with another law or regulation. Thus, employers are obligated to try in good faith to resolve the religious conflict, or identify an actual monetary or administrative expense. It is important for you to work closely with your employer to find an appropriate accommodation.
If the accommodation would impose a burden on the employer that cannot be resolved, the employer is not required to allow the accommodation. Many accommodations, however, do not require any monetary or administrative burdens. Whether your employer can accommodate your religious practices will depend upon the nature of the work and the workplace. Usually, your employer can allow you to use lunch or other break times for religious prayer. If you require additional time for prayer, your employer can require you to make up the time.
Employers must give time off for the Sabbath or holy days except in an emergency, unless the employee works in key health and safety occupations or the employee's presence is critical to the company on any given day. This time off does not have to be paid, however. If employees don't come to work, employers may give them leave without pay, may require the amount of time to be made up, or may allow the employee to charge the time against any other leave with pay, except sick pay.
(Link to case https://news.ycombinator.com/item?id=19221564 )
That's bad.
Not a hospital. Nothing was burning down. Not even transportation or infrastructure related.
A review website. 24/7/365. For a review website.
The trouble is that they apparently don’t want to pay for actual 24/7 coverage with a defined on-call schedule. They just try to declare it into existence.
Expecting employees to respond to non-emergencies off hours is an excellent way to get them to become less responsive.
When everything is urgent, nothing is.
Otherwise this is a bit like "unlimited vacation". Yes you can take it, but you never know when they'll come back and say "looks like you're not applying your full potential, so we're gonna go ahead an put you on probation".
> Lee also told Weathers [...] that he didn’t care about Weathers’ religious holidays or children, the suit claimed.
I think this is mostly about naming and shaming. As the lawsuit could involve a discovery phase, Yelp might want to settle to avoid revealing to the whole world their management "culture".
24/7/365 isn't considered "reasonable" outside of the SV bubble. If you need that kind of coverage, you have two or three people available, sometimes on rotation. Even doctors — people who save lives, not tally reviews — aren't on call 24/7/365.
No company should have a single employee that essential. Will Yelp shut down if he gets hit by a bus?
Unless you're paying the person 24/7. Even then, it's absurd.
it seems reasonable to me that there's an
expectation you are 'on-call' outside of
normal work hours for a role like that
If it didn't? Well, if the job advert writer didn't know about it, it's hardly reasonable to think applicants would know.
Same with the IT folk in my company.
However, does the CFO have this same requirement? Couldn't there be some financial-related mishap in the middle of the night? HR? What if an employee, say, assaults some other employee off-site in the middle of the night? Sales guys? ie, one of their customers is irate off-hours. The president?
I've never bothered to ask.
Money
You're correct that any employee who decided to not answer their phone for a period might attract the same displeasure, but we have laws in the US that protect people who are observing religious holidays and he was, in fact, observing one. I guess Yelp could argue that his observation was unreasonably extreme, but that seems unlikely to pass muster.
Do we?
From: https://www.dir.ca.gov/dlse/FAQ_Holidays.htm
> California law does not require that an employer provide its employees with paid holidays, that it close its business on any holiday, or that employees be given the day off for any particular holiday
https://www.eeoc.gov/laws/types/religion.cfm
"The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.
Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices."
No employer is required to approve PTO for religious holidays if something needs to get done.
There are tons of employees who get scheduled to work on Christmas all the time.
It seems pretty clear that if the employer expects response in a certain time frame, the employee is engaged, and there may be issues even for salaried overtime-exempt employees with keeping an employee engaged 24/7/365.
Saying you were observing a religious holiday will definitely earn you sympathy from the public but probably not legal relief from the courts.
https://www.eeoc.gov/eeoc/newsroom/wysk/workplace_religious_...
>Examples of common religious accommodations include:
>a Catholic employee needs a schedule change so that he can attend church services on Good Friday
Is being out of contact for 12 hours on Good Friday an "undue hardship" for the business? I'm not a lawyer but I'm skeptical.
In France it exists since 2001 and had been reinforced by the last labour law. I'm not sure about the actual consequences.
That would make it discrimination. By law, you must recognize and respect a person's religious beliefs in the workplace.
Not caring, is equivalent to saying, "you will be unnecessarily put at a disadvantage at the workplace because of your religious beliefs."
This is incorrect. For example, see title VII of the Civil Rights Act of 1964. Religious practices must be accommodated. There are various exceptions, but this is the general rule. There's an enormous amount of case law supporting this. Telling employees that they must be available 24/7/365 is prima facie violation of this law.
Again, "case law" overwhelmingly favors employers here. Here's the EEOC on the matter:
"The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business."
A minimal burden is an enormously low requirement.
> Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.
Voluntary shift substitutions is a remedy, when combined with other remedies. And even then, it was only held that voluntary shift substitutions aren't solely enough in specific cases and that was decided in January of 2018 in Tabura v. Kellogg.
There is vastly more nuance involved here then "He asked for it off the same day he wanted it off, thus Yelp is in the wrong."
Yelp is a crap company, but that's not the same thing as violating the right to practice religion.
> "Yelp respects religious and personal responsibilities and makes reasonable accommodations when requested" (emphasis added)
I haven't read any court papers. My guess is their defense will hinge on them trying to prove the plaintiff didn't adequate accommodations.
Doesn't pass the smell test if you ask me. If it's important enough to fire somebody over, it's important enough to have a clear escalation strategy in case one person isn't available.
I.e. this wasn't just some random manager, but evidently someone they needed to be available to grant out of hours access to their offices.
One, Yelp is incompetent enough to make it someone's literal job to open the office in a timely manner at all hours without thinking to have a conversation first that establishes an SLA for that.
Two, they did have such an agreement, but the employee is claiming a religious exception supersedes any such agreement.
Both would be interesting to discuss, but the article doesn't have any details.
I don't disagree that more information is often better than less, but you haven't really made the case for overstuffing the headline.
Imagine a potential developer equivalent - "man-tasked-for approving-pull-request" : reads to me like an absurd amount of detail for the title of a general audience news article... even if failing to merge in a PR is 100% the reason said developer was contacted beyond standard office hours in the first place.
I work for large adtech company in France and out here oncall is paid (even if you’re not called) and we never intrude on personal time unless there is a major disaster, and even then there are almost always enough folks being paid to handle the oncall event to take care of things.
We do have R&D offices in the US and I don’t know the specifics of HR policy wrt oncall there, but everyone rolls up to the French HQ so I know it remains human-first.
I remember previous jobs where late night emails demanding edits to someone's slide deck were routine (and anything is not urgent, it is editing some product manager's slide deck). That shit can wait until Monday, and if you are throwing it on me because you procrastinated, that's your problem.
COMES NOW PLAINTIFF MARK WEATHERS for causes of action, and alleges as follows: I. ALLEGATIONS
1. Plaintiff Mark Weathers ("Mr. Weathers" or "Plaintiff") resides in California and is a former employee of Defendant Yelp Inc. At all relevant times herein, Mr. Weathers worked for Defendant in San Francisco.
2. Defendant Yelp Inc. ("Yelp" or "Defendant") hosts an online database of user-generated reviews of local businesses and is headquartered in San Francisco, California.
3. The true names and capacities, whether individual, corporate or otherwise, of DOES 1 through 10 are at this time unknown to Plaintiff, who therefore sues* said Defendants by such fictitious names. Plaintiff will ask leave to amend this complaint for damages to reflect their true names and capacities when* the same have been ascertained. Plaintiff is informed and believes, and thereon alleges, that each of said Defendants is responsible, jointly and severally, for the events and injuries described herein and caused damages thereby as alleged herein.
4. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned herein each and every co-Defendant was and is the predecessor-in-interest, successor-in-interest, agent, counselor, employee, servant, partner, franchisee and/or joint venturer of each of other co Defendant, and in doing the actions hereinafter mentioned, was and/or is acting within the scope of its authority within such agency, employment, counseling, service, partnership, franchise and/or joint venture or single enterprise, and with the permission and consent of each co-Defendant. Plaintiff alleges that each of said Defendants is responsible, jointly and severally, for the events and injuries described herein and caused damages thereby to Plaintiff as alleged herein.
5. In October of 2016, Yelp offered Mr. Weathers the position of Security Manager starting on November 14, 2016, and reporting to the Head of Security Rick Lee.
6. Mr. Weathers' duties included overseeing several site managers located throughout the country. His compensation included an annual salary, an equity award, a relocation bonus, and a benefits package that included health, dental, vision, life insurance, long term disability, and 401(k).
7. At all times, Mr. Weathers fulfilled the expectations of his . position. In January of 2018, Yelp increased Mr. Weathers' compensation and granted him stock.
8. On Saturday, March 31, 2018, which was Easter weekend, Mr. Lee called Mr. Weathers about an email he had sent the previous night (Good Friday) at 11:49 p.m. Mr. Lee wanted to know why Mr. Weathers had not yet responded to an email. Mr. Weathers indicated that he had not checked his email because it was Easter weekend and he was spending time with his family and attending church services. In fact, Mr. Weathers was attending a church-sponsored event when he answered Mr. Lee's phone call. Mr. Lee was upset that no one, including Mr. Weathers, had responded to an employee's ticket request for after-hours access to Yelp's offices in Phoenix the prior evening after normal business hours. Mr. Lee said Mr. Weathers needed to be responsive, even while he was attending church services.
9. At 12:40 p.m. on Easter Sunday, April 1, while Mr. Weathers was attending church services with his family, Mr. Lee emailed Mr. Weathers and the site managers regarding this situation. He instructed Mr. Weathers to contact each of the site managers to find out what had happened with the ticket request and how to prevent the situation from recurring. He demanded that Mr. Weathers provide an "after action review" to him by the close of business the following day, necessitating that Mr. Weathers contact each of his co-workers on Easter Sunday. In addition, Mr. Lee admonished, "Each leader on this email should make a regular practice of checking email and setting cell phones to take inbound calls 24/7/365 ... so that your phone still rings even if you set it to 'do not disturb' mode." Otherwise, he threatened to "make some changes" if employees could not "commit to being attentive to [their] inbound communiques."
10. On April 2, Mr. Weathers timely provided the information that Mr. Lee had requested. As part of this information, Mr. Weathers explained to Mr. Lee that, "I made a choice to focus on Easter Weekend (Good Friday, Easter Sunday), a very important weekend for me ... I did not check email as I usually would on other weekends." Mr. Lee responded, "You should be checking emails and vmails/inbound calls every day (regardless of weekend or holiday). I understand that church services likely require you to turn off devices. However, a 12-hour gap of non-checking is not acceptable. (Recall that I worked on an incident for 4 hours on Christmas Eve when my personal priority was to be with my family.)" Mr. Lee also verbally told Mr. Weathers, "I don't care about your PTO, religious holidays, your kids or your birthday. I expect a response to my emails." He made this statement despite knowing that Mr. Weathers is a person of faith who is pursuing a degree in ministry leadership and whose son is severely autistic.
11. On April 3, Mr. Weathers approached human resources. He told a human resources representative about the incident that had occurred over Easter weekend, and specifically that Mr. Lee demanded that employees be responsive to work issues even during religious and family commitments. Mr. Weathers also conveyed that his direct reports had expressed concerns about being required to work on Easter Sunday or during paid time off. The human resources representative said she would follow up on this issue. She also suggested that he could include this information as part of his feedback in the manager's survey-a companywide anonymous survey completed by all employees, which he did.
12. On May 15, the day after the manager's survey results were published, Mr. Lee met with Mr. Weathers for their quarterly conversation. During this meeting, for the first time, Mr. Lee was critical of Mr. Weathers performance. He accused Mr. Weathers of needing 'recognition." He said that Mr. Weathers' work on a physical security review the previous month had been disappointing, even though at the time, he commended Mr. Weathers for having done a "great" job. When Mr. Weathers pointed this out, Mr. Lee claimed that his earlier positive feedback had been a "miscommunication." Mr. Lee also said that there had been a "ranking meeting" in February of 2018, and that he and Yelp's CFO had ranked Mr. Weathers as "third or fourth" in ''performance and potential." He never mentioned before that such a meeting had taken place, or that supposedly there were issues with Mr. Weathers' performance or career potential. In fact, Mr. Lee previously had been complimentary of Mr. Weathers' performance and told him that the CFO had praised Mr. Weathers for having a "growth mindset." Finally, Mr. Lee said that he did not like Mr. Weathers' response to the situation that had occurred over Easter Weekend-in which Mr. Weathers stated, "I made a choice to focus on Easter Weekend (Good Friday, Easter Sunday), a very important weekend for me ... I did not check email as I usually would on other weekends"-and reiterated that he was not concerned about Mr. Weathers' ::hurch or family obligations.
13. After this meeting, Mr. Lee all but stopped communicating with VJr. Weathers and sidelined Mr. Weathers from participating in work matters.
14. On May 25, 2018, Mr. Lee and the* human resources *epresentative met with Mr. Weathers. Mr. Lee advised Mr. Weathers that he Nas "not a good fit for this role" and presented him with three options: a performance plan, one month's severance, or termination. Mr. Weathers pointed out that Mr. Lee had previously told Mr. Weathers that "people do not survive [performance plans]." In fact, Mr. Lee said this on numerous occasions about various employees. Mr. Weathers pointed out that, in light of this, a performance improvement plan did not seem like a viable option.
15. On May 29, the human resources representative told Mr. Weathers that the company was "concerned" about how Mr. Lee had managed the situation and, therefore, would be investigating whether there was retaliation. She interviewed Mr. Weathers over the next few days, including about Mr. Lee's statements that Mr. Weathers and other employees are required to work during paid time off and regardless of church or family obligations.
16. On May 31, 2018, the human resources representative told Mr. Weathers that she had "looked into" the situation but supposedly determined that Mr. Lee had not said anything illegal.
17. On June 4, 2018, the human resources representative sent Mr. Weathers a meeting request and said that Mr. Lee wanted to present Mr. Weathers with a list of performance issues. Mr. Weathers asked for a copy of the list in advance, so that he could be prepared for their meeting, but no one provided him with a copy.
18. Instead, on June 5, when Mr. Weathers met with the human resources representative, she told him that given the "toxic environment," "it would be better" for Mr. Weathers to leave his employment at Yelp. Yelp terminated Mr. Weathers from his employment effective June 5, 2018.
19. Plaintiff timely exhausted his administrative remedies by filing a :harge of discrimination with the Department of Fair Employment and Housing and obtaining a right to sue.
20. Defendant's actions were undertaken for improper purposes as alleged above and were willful, oppressive and in conscious disregard of Plaintiff's rights, and were designed and intended to cause and did, in fact, cause Plaintiff to suffer severe emotional distress, pain and suffering, and substantial economic damage and, therefore, justify the awarding of exemplary and punitive damages.
WTF?
I'd be interested in the details once everything is decided, but as it stands there just isn't much to do other than speculate....or crack jokes about reviewing Yelp.
Or we could debate the merits of managers and/or company policies requiring "24/7/365" availability, even without enough evidence to make an informed judgment in this particular case.
I personally think it's bullshit.
Other than some quibbles about if money qualifies and if so how much, I don't really expect a lot of argument - even the jerks demanding such availability without caveats tend to only demand it when they are the boss involved.
Edit: Based on the other comments on the story so far...I may be wrong.
I'll give you a preview: This is going to settle very quickly. Yelp probably wins the court case, but there's no way they are letting this type of story stay in the press forever.
This is incorrect. This behavior is illegal according to title VII of the Civil Rights Act of 1964. It is not enough to treat people “equally”, because it is trivially easy to come up with “equal” but discriminatory requirements. Instead, companies are required to reasonably accommodate the religious observations of their employees, unless there is some compelling reason otherwise.
To be clear, I'm not defending Yelp requiring people to be on email/phone 24/7, but his statement makes it very clear that he never made a request for this.
Should he have to? No it's a weekend. But legally they aren't required to. Had he requested, in advance, that he not be contacted on Sunday for religious observation you can bet that would absolutely be public. It'd be a slam dunk case.
So yes, it is perfectly legal to email someone on a religious holiday and expect an answer if they didn't request accommodations ahead of time. There's no court in the country that wouldn't call that unreasonable.
That request is literally the key to all of this. If they don't know he's observing a religious holiday how the hell can they be violating his rights here?
Pretty sure the guy knew of Easter in advance. And while working for Yelp sounds pretty horrible, if he didn't request the day off for religious reasons I find it hard to comprehend how the company is liable for that.
And for the sake of argument, I hope he did and Yelp ends up paying oodles of money for this. But I imagine that would have been very much spewing out of his lawyer's mouth if it were the case.
As for due warning, they were informed of the religious observance at the time (and before Easter Sunday), and proceeded to straight up make policy on the spot that invalidated it and future religious celebrations.
I asked for your qualifications not to be hostile but because legal matters are often - for better and worse - more nuanced than most people's intuition, and I don't think you have adequately addressed either the legal specifics of what constitutes adequate notice, examined Yelp's response to the situation, or how any of this might look to a jury.
Tit for tat.
> As for due warning, they were informed of the religious observance at the time (and before Easter Sunday), and proceeded to straight up make policy on the spot that invalidated it and future religious celebrations.
Yes, the the day before Easter, which he also took off as apparently Easter weekend is a holiday, not just the day.
> I asked for your qualifications not to be hostile but because legal matters are often - for better and worse - more nuanced than most people's intuition, and I don't think you have adequately addressed either the legal specifics of what constitutes adequate notice, examined Yelp's response to the situation, or how any of this might look to a jury.
You asked because it functioned as an ad hominem. You're part of this conversation, and haven't suggested you have any legal qualifications, which we can safely assume it means you don't.
I don't need to address the legal specifics of what constitutes adequate notice, because I'm fairly confident "the day before" isn't going to qualify.
Have you read any case law on the matter? Reasonable accommodations doesn't even require that employers remove the conflict, they just need to accommodate it. The request for this "time off" was made the day he wanted to start taking said time off, for 2 days. Yelp had an "emergency" situation that obligated him be on-call.
Read the standard: "Unless doing so would cause more than a minimal burden on the operations of the employer's business." Minimal burden. Furthermore, the EEOC defines what reasonable accommodations might look like:
"Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practice"
How many of those can be implemented with no notice? None. The very idea that you and others think 0 days notice for religious accommodation is acceptable is so very confusing. The bar to show the request as unreasonable is exceptionally low. Almost anything can be considered more than a minor burden.
No, I asked because of your extreme certainty. Both in this thread and others, you repeatedly use language like "100%!", which I frankly think can only come from someone with deep domain expertise.
Unlike you, I and most others here are certainly not claiming to know beyond a shadow of doubt how a court might rule in this case (not least of which because we don't have all the facts of the case). If you're going to proclaim infallibility I think it's reasonable to have the qualifications to support it : you don't.
> Have you read any case law on the matter
Well, some of it at least. For instance :
https://casetext.com/case/brown-v-polk-county-iowa-2
Of interest in that case -
> "Preliminarily, we reject the defendants' argument that because Mr. Brown never explicitly asked for accommodation for his religious activities, he may not claim the protections of Title VII. An employer need have "only enough information about an employee's religious needs to permit the employer to understand the existence of a conflict between the employee's religious practices and the employer's job requirements." Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir. 1993). Because the first reprimand related directly to religious activities by Mr. Brown, we agree with the district court that the defendants were well aware of the potential for conflict between their expectations and Mr. Brown's religious activities."
I would draw your attention to this part :
> only enough information about an employee's religious needs to permit the employer to understand the existence of a conflict between the employee's religious practices and the employer's job requirements
This is of relevance here, because it seems pretty clear that the terminated manager was outspoken about his religious affiliation.
Also -
> "Religion" includes "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business."
Indicating much of the onus falls on the employer to demonstrate that accommodating religious beliefs presents an undue hardship. In this case, I think Yelp will have a hard time demonstrating that having delegation redundancy twice a year will constitute "undue hardship".
Moreover, it's not enough to merely speculate about the hardship - they [Yelp] have to actually prove it :
https://law.justia.com/cases/federal/district-courts/FSupp/9...
(From a 10th circuit ruling)
> [I]t is certainly conceivable that particular jobs may be completely incompatible with particular religious practices. It would be unfair to require employers faced with such irreconcilable conflicts to attempt futilely to resolve them. Employers faced with such conflicts should be able to meet their burden by showing that no accommodation is possible.
> Although conceivable, such situations will also be rare. We therefore will be "skeptical of hypothetical hardships." [citation omitted] "The employer is on stronger ground when he has attempted various methods of accommodation and can point to hardships that actually resulted."
Clearly, no methods of accommodation have been attempted in this case, since there are quite literally no major religious Christian holidays between easter and June (when the employee in question was eventually terminated)
So in summary, it can fairly be argued that the employer had sufficient contextual knowledge of the employee's religious affiliation to not force them to work on his religion's major holiday, undermining the notion that advance notice is a hard prerequisite to providing accommodation. Yelp will also need to demonstrate that said accommodations (of which there were none) would constitute a non-hypothetical undue hardship (which will be difficult to demonstrate, since no attempts were ever made).
Moreover, Yelp has dug themselves into a complete mess if the communication chain contains lots of juicy tidbits like "I don't care about your religion or children", in addition to establishing a policy of zero-religious-exception as a response to a request for religious accommodation. At that point, they're going to have a tough time falling back on the defense of inadequate notice (which, as shown above, is far from a given), since their response demonstrates precisely 0.0 willingness to even entertain the notion of accommodation.
"Your honor, if we had more time to prepare to give him the middle finger, we would have given him both hands... I mean... wait..."
I can be both absolutely certain and absolutely wrong. That doesn't obligate domain knowledge of any sort.
> Unlike you, I and most others here are certainly not claiming to know beyond a shadow of doubt how a court might rule in this case (not least of which because we don't have all the facts of the case). If you're going to proclaim infallibility I think it's reasonable to have the qualifications to support it : you don't.
Where did I claim infallibility? And how about you stop with the Ad hominems? They are weak. Again, I'm not arguing that I'm infallible, I'm just absolutely certain that there is no reasonable court or jury that would consider a same-day request a reasonable request.
> This is of relevance here, because it seems pretty clear that the terminated manager was outspoken about his religious affiliation.
There is absolutely zero evidence that he was outspoken about his religious affiliation outside of the day he mentioned it, which was also the day he requested it.
And you are drawing an absurd conclusion from that statement. Information about an employee's religious needs is not the same as information about an employee's religious affiliation. Saying your Christian is not enough to automatically get Easter off.
> Indicating much of the onus falls on the employer to demonstrate that accommodating religious beliefs presents an undue hardship.
Finally we agree on something. It's absolutely up to the employer to prove that the request was an undue burden.
> In this case, I think Yelp will have a hard time demonstrating that having delegation redundancy twice a year will constitute "undue hardship".
They don't have to. They only have to prove (A) that a request wasn't made until the day of, thus the undue hardship came from having no time to "fill" this employees duties. The premise of my argument is that if Yelp received zero notice outside of the same day he wanted to start a 2 day religious observance, no court is going to consider the request reasonable.
Obviously, if he had said this well in advance then Yelp is screwed. But I can't fathom why his attorney wouldn't clearly indicate that's the case in his statement. It would make this almost obvious.
> Clearly, no methods of accommodation have been attempted in this case
Stop with the straw men. My argument isn't that Yelp attempted to accommodate, it's that his request came with zero notice, thus wasn't a reasonable request.
> So in summary, it can fairly be argued that the employer had sufficient contextual knowledge of the employee's religious affiliation to not force them to work on his religion's major holiday
I'm going to highlight this part, because you are jumping to an enormous conclusion that's just objectively wrong.
> only enough information about an employee's religious needs to permit the employer to understand the existence of a conflict between the employee's religious practices and the employer's job requirements
Religious needs. This case set case law that employees need not use magic words to request specific religious holidays off, but in no way can this be interpreted to mean anyone simply saying they are Christian is not specifying religious needs it's specifying affiliation.
> undermining the notion that advance notice is a hard prerequisite to providing accommodation.
By your logic simply telling someone in passing that you are going to Church means a business is now required, without notice, to give you every Sunday off. It's absolutely ludicrous.
> Yelp will also need to demonstrate that said accommodations (of which there were none) would constitute a non-hypothetical undue hardship (which will be difficult to demonstrate, since no attempts were ever made).
Of course, your summary relies on a serious misinterpretation of the difference between "religious needs" and "religious affiliation". Feel free to support your argument with case law, stating unequivocally, that simply knowing someone's religious affiliation is enough to accommodate them on all religious holidays that particular religion.
By your logic, the company being aware of his religious affiliation would also obligate them to give him Pentecost off, right?
How about if someone mentions in passing they are Muslim. Do they get to let the business know, the same day, that they need Laylat al-Qadr off? Is the business responsible for accommodating that because "they knew his religious affiliation".
Your entire argument hinges on three absurd theories:
1) He made it clear, in advance, what his religious affiliation is.
2) Knowing the religious affiliation of an employee is enough to obligate the business to provide "reasonable accommodations".
3) "Reasonable accommodations" includes giving all religious holidays off up to and including those requested the same day of the holiday itself.
I'm in no way defending that manager or Yelp. But if any of your assumptions were true there would be mountains of case law supporting these law suits. There aren't.
Everything you've said thus far ignores the "reasonable" part of "reasonable accommodation". There is nothing reasonable, on its face, about requesting two days off for religious reasons, on the same day those two days start. That's the only argument I'm making. And within the boundaries of that argument, I can't find a single case in which a same-day request for religious observance has ever even been filed let alone ruled in favor of. Can you?
> I can't find a single case in which a same-day request for religious observance has ever even been filed
Narrow goal posts much? I had my doubts, but I am now confident you are not having a discussion in good faith. We're done here.
Are you saving it for later? (I joke, but your "common sense" assertion seems like a total non-sequitur to me.)
> If they don't know he's observing a religious holiday how the hell can they be violating his rights here?
He told them, it's right there in the lawsuit.
> And while working for Yelp sounds pretty horrible, if he didn't request the day off for religious reasons I find it hard to comprehend how the company is liable for that.
He had the day off to begin with. Normally you don't have to work during "time off". The company is liable because they fired him rather than make reasonable accommodations as required by law. This is spelled out rather clearly in the lawsuit.
Hilarious.
> He told them, it's right there in the lawsuit.
No, he told them after they attempted to contact him. That's not requesting in advance.
> He had the day off to begin with
Clearly he didn't. Even he says all this managers employees were emailed with the expectation they'd be available via email on weekends. That's horrible and a place I'd never work. But that's not illegal.
> Normally you don't have to work during "time off".
It's not "time off" if they obligate people to be available. It's permanent on-call.
> The company is liable because they fired him rather than make reasonable accommodations as required by law.
And their argument is going to be he didn't request reasonable accommodations because they weren't requested in a reasonable time frame. If he had a request a week in advance this wouldn't even be conversation.