With Season 4 of Yellowstone in the books, and having time to fully process the impact of the U.S. Supreme Court’s OSHA vaccine mandate decisions, we thought we would kick off the 2022 All Things HR Blog by taking a deeper dive into some of the eye-raising employment practices at the Yellowstone – Dutton Ranch. Warning – Spoilers Ahead!
First, by way of background, Yellowstone is an American show that just finished its fourth season on the Paramount Network that follows the conflicts along the shared borders of a large cattle ranch owned by John Dutton (played by Kevin Costner), a Native reservation, and land developers. The Yellowstone – Dutton Ranch surrounds Yellowstone National Park, and straddles Utah and Montana.
Terminating the Only Female Employee
While there are tons of employment issues at the Yellowstone – Dutton Ranch, the one that inspired this blog was the firing of Teeter, the only female ranch hand at the Yellowstone Ranch (i.e., kicking her out of the bunkhouse because she was a female). Specifically, due to the male ranch hands losing focus and causing friction between the male ranch hands, John Dutton kicked all females out of the bunkhouse, meaning Teeter was fired. The other females kicked out of the bunkhouse were not employees by the Yellowstone, but instead were barrel racers cozying up to Ryan Bingham’s Walker character and Jimmy, the wannabe bull-rider.
There are two issues with Teeter’s termination. First, Montana, where Teeter resides and primarily works, is the only state in the United States that is not completely employment at-will.[1] In an employment at-will state, either the employee or the employer may terminate the employment relationship at any time, for any non-illegal reason, without notice. In Montana, however, employees who have been employed for more than 12 months (and this blog assumes Teeter was employed for more than a year because she was in Season 3, and it felt like it took forever for Season 4 to premiere), the employer must have good cause to terminate the employee. Teeter’s termination would not be deemed “good cause” under Montana law, meaning her firing was a violation of the employment at-will principle in Montana.
Failing to have a Proper Procedure for Handling Employee Romantic Relationships
The second issue is the blatant gender discrimination on the Yellowstone – Dutton Ranch. When questioned about her role in the male bunkhouse quarrels, Teeter was asked whether she had any relations with any of her co-workers. While she did not expressly admit or deny, she did say that “no one told [her] [she] couldn’t,” which is fair since, in all my time watching Yellowstone, I have never seen a labor poster on the walls of the bunkhouse nor seen any employee go through a new-hire orientation. In any event, I would suspect that the Dutton Ranch does not provide its employees proper notices, including how it treats romantic relationships between co-workers.
Montana, like many states, requires that employers provide employees numerous notices of applicable laws, including equal employment opportunity, discrimination, and harassment policies. This is usually done through required labor posters and employee handbook policies. Aside from required notices, Montana, like all other states, also prohibits gender/sex discrimination in the workplace. While it is unclear whether the Yellowstone employs more than 15 employees, which would trigger application of the discrimination laws set forth in the Civil Rights Act of 1964, as amended (“Title VII”), Montana’s state discrimination laws are triggered with employers with just one employee.
On the gender discrimination issue, only Teeter was questioned about her relationship with her co-worker; the male employee was not terminated, questioned, or even mentioned for his role in the relationship, thereby furthering exposing the Yellowstone to another gender discrimination claim.
As for what saved her, Teeter showed John Dutton her Yellowstone brand that Rip Wheeler had burned across the right side of her chest, demonstrating her loyalty to the Yellowstone. Where branding fits in the context of employment law is addressed below.
Branding Employees
Employees deemed worthy and “lifers” are branded with the Yellowstone logo over their hearts. While branding is certainly extreme, and something I have (thankfully) never seen play out in any real-life employment scenarios, there have been issues with employers wanting employees to have security chips implanted into their hands for premises/property access, requiring employees to submit to retinal scans for security access, and, in some cases, to clock in/out.
In response, employees have raised several defenses in opposition to having to submit to such extreme “security” measures. The most widely used argument is an invasion of privacy argument, which primarily arises under state law unless the employer is a public employer triggering the unreasonable search clause of the Fourth Amendment to the United States Constitution. In an invasion of privacy case, the employer must demonstrate that the protective measures are reasonable and necessary for the employer and not unduly burdensome to the employee.
In some cases, employees have even argued that implantation of a security chip amounts to the “mark of the beast” as discussed in Revelations of the New Testament in the Bible, thereby amounting to religious discrimination under Title VII and comparable state laws. In a religious discrimination case, an employee can seek a religious accommodation in response to a workplace requirement that conflicts with the employee’s sincerely held religious belief or observance. The employee may be entitled to a religious accommodation unless it presents an undue burden on the employer. The bar is very low, and an employer only has to show that the accommodation offered presents a de minimis burden on the employer. The religious exemption argument has gained significant popularity in response to the OSHA ETS and various employer-issued vaccine mandates in response to the COVID-19 pandemic. Many employers have found that, in most cases, there are workable accommodations. For example, in the case of microchip implantation or facial recognition security requirements, most courts have found that the employer could have used alternative measures to allow employees to clock in/out via paper tracking or a time clock or to retain their security via access cards or codes without having to subject the employee to the more invasive means.
Violating Disability Laws and Questionable Termination Tactics
One storyline stretching Seasons 3 and 4 focused on Jimmy, one of the ranch hands who, not only was responsible for bringing the barrel racers into the bunkhouse, but also was severely injured in a non-work-related bull riding accident. Notably, this accident occurred after John Dutton told him not to ride bulls anymore. Once Jimmy returned to the Yellowstone after his accident, it was clear that he was still in extreme pain and not thoroughly healed from his injury as he was wearing a neck and full back brace that ran from his thoracic to lumbar spine. So, how did the employees at the Yellowstone handle Jimmy’s disability accommodations needs? Well, much like you might expect from this breakneck bunch, they ridiculed and made fun of him and told him to take off his neck and back brace and get back to work – which he did.
Although Jimmy’s injury was not work-related, meaning it would not have been reportable to workers’ compensation, though it is doubtful that the Yellowstone is properly registered under either the Utah or Montana bureaus of workers’ compensation or properly paid up on its premiums, it still may be covered under the federal Americans with Disabilities Act (ADA) and comparable state disability discrimination and accommodation laws. When an employee presents with an obvious disability, like Jimmy, the employer must engage in the interactive process to determine what, if any, reasonable accommodations the employer may provide to allow the employee to perform the essential functions of the employee’s job. In Jimmy’s case, he was likely prohibited from lifting certain weights, bending down, sitting or standing for long periods, etc. However, none of those considerations were discussed in the context of returning Jimmy to work, and his workload was not restricted in any way. Not only that, but in response to Jimmy returning to work in a disabled condition, or more likely for disobeying John Dutton’s order about what Jimmy did on his own non-work time, Jimmy was transferred out of the Yellowstone ranch.
While we learned later that Jimmy was being sent to the notorious 6666 Ranch in Texas to “learn how to be a cowboy,” at first, there appeared to be no discussion about how much Jimmy would be paid for his work, nor what work he would be required to perform as part of his job duties. In other words, Jimmy was completely uprooted without notice and without any discussion about what he would be doing, where he would be doing it, and how much he would be compensated. Jimmy’s fate was much better than the employee who was terminated and “taken to the train station,” (i.e., shot and thrown off a cliff); nevertheless, the disabilities issues raised in Jimmy’s case are two-fold. First, by failing to engage in the interactive process and/or failing to accommodate an employee’s disability, both federal and state disability laws regarding failure to accommodate were potentially triggered. Second, in transferring Jimmy because of his disability (i.e., taking an adverse employment action against Jimmy because of his disability), the Yellowstone likely violated the non-discrimination disability laws as well.
Questionable Pay Practices (Overtime and Providing Employees Room & Board)
Another issue at Dutton Ranch is its pay practices. In most states, employees must be provided proper notice about how much they are going to be paid and must be paid in line with the federal and state minimum wage/overtime and pay timing laws. It is unclear what the Yellowstone employees are paid, though it appears that they clearly work more than 40 hours in a work-week, and that some of their compensation comes from onsite room and board (i.e., the bunkhouse).
In most employment scenarios, employer-provided room and board can be used as compensation to the employee, including offsetting the required minimum wage based on the “reasonable cost” of the amenities, but they have to be properly documented by the employer and must be properly accounted for, including the value identified and claimed as wages on the employee’s tax return.
As for overtime, the Federal Fair Labor Standard Act and Montana’s comparable state law exempt agriculture employees from overtime requirements so long as all other necessary criteria are met. Thus, the Yellowstone – Dutton Ranch employees likely do not have unpaid overtime to pursue.
Employer Takeaways: As you can see, there are many employment issues in every employment situation, and even more when you employ employees in various states and across state lines. Workplaces, even unconventional ones, are still workplaces, and employment law issues are lurking everywhere, especially if your boss’s Gubernatorial slogan is “Damn right I did it!” which, in and of itself, is arguably an admission of guilt. Be sure to reach out to your employment law attorney before making any employment law decisions or implementing any policies to ensure you stay on the right side of the law.
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About the Author:
Sara H. Jodka (Member, Columbus) is a member of the firm’s labor and employment department and regularly counsels employers and litigates all types of employment-related cases. She has worked closely with business clients regards to COVID-19 employment-related matters since the beginning of the pandemic. Sara is the editor of the firm’s All Things HR Blog and the Chair of the Ohio State Bar Association’s Labor and Employment Section Council. She can be reached at 614-744-2943 or SJodka@dickinsonwright.com. Her biography can be viewed here.
[1] “Employment at-will” is not to be confused with “right to work;” while Montana is not a “right to work” state, it is bordered by right-to-work states, including Idaho, Wyoming, and the Dakotas.