Texting does not make you a bad parent

A day late, but here’s a Fathers’ Day message from Louis C.K. (maybe the funniest human being the planet) that explains how texting while spending time with your kids makes you a good dad:

Louis C.K. on Father’s Day (and, if you’re familiar with Louis, this is from CBS News, and totally safe for work).

Back to more substantive stuff tomorrow.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #131

Each and every week, there seems to be a breaking story that I just can’t get to, and there’s a half-dozen other bloggers who’ve already said all there is to say about it. This week proved no exception. On Wednesday, the Department of Labor issued the second Administrator’s Interpretation from its Wage & Hour Division. This Interpretation concludes that the time spent by employees donning and doffing (that is, putting on and taking off) protective equipment required by law is compensable and must be paid. It also means that an employee’s work day begins with the donning of required protective equipment and ends with its doffing, and all of the time in-between is payable work-time. For more on this important wage and hour issue, please read the thoughts of my fellow bloggers:

• Employees Must Be Paid for Donning, Doffing Required Protective Gear – from Human Resources News

• US DOL Issues New Adminstrator Interpretation – from What’s New in Employment Law?

• Redefining Clothes - DOL Edition – from Philip Miles’s Lawffice Space

• Wage and Hour Division Changes Interpretation of FLSA Clothes-Changing Provision – from Washington Labor & Employment Wire

• DOL redefines “clothes” – from LawMemo Employment Law Blog

• DOL Issues Administrator’s Interpretation on Definition of “Clothes” and Whether Changing Clothes is a Principal Activity – from Texas Employment Law Update

• DOL Issues Administrator Interpretation On The Definition Of “Clothes” – from Laconic Law Blog

Here’s the rest of what I read this week:

Wage & Hour

• Lessons from E. coli: Plan or Perish – from Stephanie Thomas at Compensation Cafe

• Will You Take Back Lunch? – from Workplace Diva

• “Realignment” Of Sales Territory Defeats FMLA Claim – from FMLA Insights

• Important Development in Class Action Law: Indemnification Agreement Upheld – from Wage & Hour - Development & Highlights

Discrimination

• Most Job Discrimination Suits Win, at Best, Small Settlements, Study Says – from ABA Journal Daily News

• Tenth Circuit says position held by a temp is not “vacant” for purposes of the ADA – from Employment Law Matters

• You don’t have to retain insubordinate employees – from Sindy Warren at the Warren & Hays Employment Law Blog

• When employee complaints fall on deaf ears – from HR Cafe

• DeepNet: The Final Frontier for Employment Law? – from The Proactive Employer

• Ban Beauty Bias? (And The Horse It Rhode In On...) – from Discriminations

• Too Sexy for My Bosses: Why lawsuits based on looks discrimination—even good ones—are a bad idea – from Richard Thompson Ford at Slate

Social Networking

• Discovery of Social-Media Profiles – from Molly DiBianca’s Going Paperless

• Social Networking Sites: Savvy Screening Tool or Legal Trap? – from New York Labor & Employment Law Report

• Social Networking Sites and Employment: Watch Out for GINA – from Strategic HR Lawyer

Technology

• Computer Fraud and Abuse Act: Current Developments – from Fitzpatrick on Employment Law

• Computer Forensics and Personal Computers in Business Cases – from Ride The Lightning

Labor Law

• The State of the Employment Law Practice - “Boom Times” for the NLRB – from Dan Schwartz’s Connecticut Employment Law Blog

• EFCA’s Obituary – from EFCA & Labor Law Reform Blog

• Gagging Employers – from The ChamberPost

• Is Obama’s NLRB Looking to Suppress Worker Votes in Union Elections? – from LaborUnionReport.com

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Supreme Court tosses 26 months of NLRB decisions in the rubbish

Today was a busy day at the Supreme Court. In addition to Quon (and three other non-labor and employment cases), it also issued its much anticipated decision in New Process Steel v. NLRB. In that decision, the Court held that the NLRB needs at least three members to act. For the last two-plus years of the Bush administration, the NLRB was acting with only two of its five positions filled. By ruling that the Board needs three members, the Court invalidated the 500+ decisions issued by that two-member board. The practical implications of this decision were not lost on the four-Justice dissent penned by Justice Kennedy:

As of the day this case was argued before the Court, the National Labor Relations Board (Board), constituted as a five-member board, had operated with but two members for more than 26 months. That state of affairs, to say the least, was not ideal. This may be an underlying reason for the Court’s conclusion. Despite the fact that the statute’s plain terms permit a two-member quorum of a properly designated three-member group to issue orders, the Court holds that the two-member quorum lost all authority to act once the third member left the Board. Under the Court’s holding, the Board was unauthorized to resolve the more than 500 cases it addressed during those 26 months….

Indeed, in my view, the objectives of the statute, which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court.

Looks like the NLRB is going to be very busy re-deciding those 500-plus cases. A copy of the New Process Steel opinion is available from the Supreme Court’s website, here.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Quon v. Arch Wireless: If privacy rights fall in the forest and no one chooses to rule on them…

Quon v. Arch Wireless was one the most anticipated cases before the U.S. Supreme Court for employment attorneys. We hoped that the Court would use this case to sort out the issues that arise from the intersection of employment rights, privacy, and technology. Unfortunately for employment lawyers, Quon turned out to be dud. Because the employer was a police department, the Court decided the case on narrow 4th Amendment grounds, and ignored the key employment and privacy issues for which we had held out hope.

Recall that Quon involved a police department’s review of the content of its employee’s sexually explicit text messages sent via his Department-issued pager. The Court held that the search of Quon’s text messages was reasonable and there was no violation of his 4th Amendment rights. Importantly, the court cautioned that employers not read too much into the management-side victory in this case:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency…. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications…. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve….

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.

In other words: the status quo reigns, employers are left with the no more guidance on these emerging issues than before, and the best practice is still a reasonable technology policy that plainly spells out employees’ expectations concerning personal, non-work related use of employer-owned equipment.

A copy of the Quon pinion is available from the Supreme Court’s website, here.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

6th Circuit upholds release of USERRA claim in separation agreement

We employment lawyers love severance agreements. I preach their benefits to my clients for all but the most egregious of for-cause terminations. For some amount of compensation (usually salary and benefit continuation measured in weeks or months), employers can buy off the risk of protracted and expensive litigation. The amount paid in severance will be less than the amount of fees incurred in defending litigation by multiple factors. What a nightmare, then, to have an employee who signed a severance agreement sue you anyway. That is exactly the situation in which IBM found itself in Wysocki v. Intentional Business Machine Corp. (6th Cir. 6/16/10) [pdf].

The facts of Wysocki are relatively simply. After George Wysocki returned from military service in Afghanistan, IBM refused to reinstate him to his pre-leave position. Before Wysocki could assert a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA, the federal statute that guarantees job restoration following a military leave), IBM presented him with a separation agreement, which contained a release of claims. In exchange for $6,000 in severance pay, Wysocki promised not to sue IBM relating to his employment or termination, including claims related to his “veteran status.” Even though Wysocki signed the release, he sued anyway, claiming that USERRA prohibits releases of claims.

This case concerns two specific provisions of USERRA:

• 4302(a), which provides that USERRA will not supersede or nullify any contract or agreement that is more beneficial than rights provided by the statute; and

• 4302(b), which provides that USERRA will supersede any contract or agreement that reduces, limits, or eliminates any right or benefit provided by USERRA.

Wysocki argued that under 4302(b), USERRA superseded the release, because it was a contract that eliminated his rights and benefits under USERRA. The 6th Circuit disagreed:

The Release used clear and unambiguous language and involved a valuable amount of consideration. The Release stated that it covered claims based on “veteran status.” This clear and unambiguous language informed Wysocki that he was waiving his USERRA rights and, in exchange for signing the Release, Wysocki received over $6,000. Under these circumstances, it appears from the record that Wysocki understood that the Release eliminated his USERRA rights, that he signed the Release because he believed that the rights provided in the Release were more beneficial than his USERRA rights and, therefore, that the Release is exempted from the operation of § 4302(b) by § 4302(a).… We also note that Wysocki was encouraged to see a lawyer and had ample time to consider the Release before he signed it. In short, we hold that § 4302 does not invalidate the Release.

As the concurring opinion points out, the enforceability of a waiver of USERRA rights and claims under section 4302 will likely come down to an analysis of four key issues, which you should be considering when drafting an agreement that includes a release of USERRA claims:

1. Does the release unambiguously state an intent to waive USERRA rights? The release in Wysocki used the words “veteran status.” For the sake of clarity, consider mentioning the USERRA statute directly in the release itself.

2. Did the employee receive substantial consideration in return for executing the release?

3. Did the employee sign the release knowingly, voluntarily, and not under duress? As added protection, encourage the employee have an attorney of his or her choice review the release pre-execution.

4. Was the money and other consideration the employee received in exchange for signing the release more beneficial than the USERRA rights he or she waived and released? Note that the majority only required the employee to believe that the consideration was more beneficial than the USERRA rights he was waiving. For an at-will employee, however, I would argue that any consideration paid would be greater than the rights waived, since an employee can be terminated at any time and for any reason.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The art of the apology

Those who’ve been reading for awhile know that I grew up in Philadelphia. I am a proud survivor of the Philadelphia public school system. When I was in 11th grade at George Washington High School, I awoke one winter morning to find 9 inches of snow and ice covering the roads and sidewalks. Anyone who has any experience with any large metropolitan school district knows that they are as likely to close for weather as France is to win a modern war. So, it was no surprise that schools were open for business that morning.

I was none too happy about having to trudge the mile to school, but my parents both taught in the district, and if they had to go to work, I had to go to school. My dad, though, had what appeared to be a brilliant idea. “Why don’t you call the superintendent and let her know your feelings about school being open?” (In retrospect, maybe he was having me do his dirty work for him.) So, I got the White Pages out of the hall closet (no Internet in 1989) and found the number for the office of the superintendent. It being 6:30 in the morning, all I got was her answering machine. Here’s the message I left:

My name is Jonathan Hyman and I am a junior at George Washington High School. I was not happy to learn that schools were open this morning. Busses aren’t running, and the roads are slippery and dangerous. I do not feel that it is safe to go to school. If I get to school and find that none of my teachers are there, I am going to be very pissed off.

Direct, but innocuous enough, I thought. Which is why I was somewhat surprised when the principal pulled me out of my 4th period health class for me to talk to someone from the superintendent’s office demanding justice for my obscenities. I assured the principal that I had not used any obscenities, but one man’s “pissed off” is another’s f-bomb, I suppose. After a rational conversation (from my end), the superintendent’s representative bottom-lined it for me—I could either apologize or face expulsion. I did not think being expelled from school would bode well for my future, so I apologized. The irony of the whole situation was that when I called to apologize, I again got the superintendent’s answering machine. When I finally met her the following year at the seniors’ honors banquet, I was pretty sure she had no idea who I was or what had happened the prior winter.

What, you may be asking yourselves, does this story from my youth have to do with employment law? It’s as simple as this. Sometimes, all someone wants to resolve a problem is an apology. It's easy to dig your heals in and fight, especially when you are being accused of something as insidious as discrimination. Those fights will cost you hundreds of thousands of dollars in legal fees. Most times, those fights are necessary. Sometimes, though, a simple apology will suffice to restore the status quo. 21 years ago, the future lawyer in me felt that my 1st amendment rights were being trampled. But, it was not worth vindicating those rights if it put my chances at college admission in jeopardy. The next time you are dealing with a sensitive situation with an employee, before shifting into battle mode stop and ask yourself whether a sincere apology will solve the problem. It may be one of the hardest, and best, decisions you will ever make.

Do you know? Mandatory union posting for federal contractors

File this story under just because the Employee Free Choice Act is temporarily dead does not mean that the Obama administration cannot impact the rights of labor unions.

If you are a federal contractor with $100,000 or more in federal contracts, or a federal subcontractor with $10,000 or more, a new federal regulation is going to require you to make a pretty scary posting in your workplace.

On January 30, 2009, President Obama signed Executive Order 13496 [pdf], which requires federal contractors to notify their employees of their rights under federal labor laws. The DOL recently issues its regulations implementing this Executive Order [pdf], along with the notice that must be posted. The mandatory notice lists employees’ rights under the National Labor Relations Act to form, join, and support a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board with questions or to file complaints. In other words, it’s a roadmap for how non-union employees can form a union.

The notice must be posted in paper form along with other federal and state employment law postings. It also must be posted electronically if other notices are similarly posted. Electronic posting, however, cannot be used as a substitute for the physical posting. The language of the posting also must be inserted into all federal contracts and subcontracts.

Employees may file complaints with the Department of Labor about contractors and subcontractors who do not comply. Contractors found to be in violation may have existing contracts suspended or cancelled, may be debarred from future federal contracts and subcontracts, and may be included on a list published to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts.

A copy of the required posting is available as a PDF from the Department of Labor. This posting is mandatory for all but the smallest federal contractors beginning on June 21, 2010.

If you are required to make this posting, consider taking the following counterbalancing measures, all of which legally help combat unionizing efforts:

• Examine your wages, benefits, and overall treatment of employees for fairness and competitiveness.

• Review (or implement) a no-solicitation/no-distribution policy.

• Educate employees on the company’s formal position on labor unions, including their right not to form a union.

• Train managers and supervisors on the company’s stance on unions, how to spot potential organizing efforts, and how to respond to employees’ questions and concerns.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Empathy does not require liability

This morning, Judy Greenwald at Business Insurance has an article discussing the recent spate of anti-bullying laws making the rounds in various state legislatures. Over at Minding the Workplace, David Yamada, founder and president of the New Workplace Institute, takes issue with the management-side lawyers quoted by Ms. Greenwald for not understanding the proposed law’s liability threshold, and for not being empathetic towards people who’ve been bullied:

The … article indicates that many management-side lawyers who oppose the Healthy Workplace Bill may not understand the relatively high thresholds imposed for winning a claim, as well as the provisions built into the statute that discourage frivolous claims and provide legal incentives for employers to act preventively and responsively toward bullying at work…. What’s absent from the piece is the most disturbing, namely, the lack of acknowledgement of the destructive effects of abusive treatment on workers’ mental and physical health.

As one of the unsympathetic lawyers Ms. Greenwald quoted, I’d like to respond.

I am not pro-bullying. In fact, I abhor bullying – in the workplace, in the schoolyard, anywhere. Anyone who tells you they are in favor of bullying likely is a bully themselves. I recognize that bullying can have negative effects on the victims. It is not acceptable to bully someone. And, employers who turn a blind eye to bullying—whether by managers, supervisors, and co-workers—are doing their businesses and their employees a disservice.

But, the issue is not whether bullying impacts its victims. We can all agree that it does. The issue is whether we need legislation that has the probability of turning every petty slight and annoyance in the workplace into a lawsuit. To quote Michael Fox on this very issue, “Once an employer has been sued, they have lost.” And that is the point. We can all agree that harassment “because of” [race, sex, religion, disability, etc.] needs some legal teeth behind it to change employers conduct. It’s not bullying for bullying’s sake, but instead bullying because of an inherent characteristic. Indeterminate bullying, though, should be self-regulating, and not a tort that has the likelihood of obliterating at-will employment by hamstringing supervisors and managers from supervising and managing.

So, what can (and should) employers be doing now about workplace bullying?

1. Review current policies. I would imagine that most handbooks already have policies and procedures that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards of conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.

2. Take complaints seriously. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.

To the proponents of the anti-bullying laws: we opponents are not insensitive to the impact bullying can and does have on people. We simply ask that you also look at the flip-side—the impact these laws will have on businesses.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #130

I love vacationing on Hilton Head Island. The beaches are pristine, the seafood’s fresh, the bars and grocery stores stock Yuengling (which, for reasons unknown, we cannot get in Ohio), and the wildlife is abundant. On one morning at the beach, a school of dolphins swam 50 feet offshore beneath a flock gulls diving for fish, while a half-dozen rays brushed my ankles at the shoreline. We also saw this behemoth lounging under a bike-path bridge—which is about as close as I ever want to get to a gator.

Anyhow, here’s what I read this week and last. 

Social Media

• The Nice Things Your Employees Are Saying Can Create Liability – from Minnesota Business

• Jury Instructions on Social Media (And Google Earth!) – from Molly DiBianca’s Going Paperless

• Can Social Recruiting Lead to Discrimination and Equal Opportunity Issues? – from Laurel Clay’s ERE Community Blog

• A Tale of Two Social Media Policies: “Vader’s Death Star” vs. “Don’t Embarrass Your Mom” – from Kris Dunn, The HR Capitalist

• Readers Comment: The Defensible Collection of Social Media Data in E-Discovery – from Ride The Lightning

• OSBA Recommends Judges Limit Jurors' Social Media Access – from Cleveland Law Library Weblog

Workplace Bullying

• Debating Workplace Bullying Legislation – from Workplace Prof Blog

• New York workplace bullying legislation is in the news – from David Yamada’s Minding the Workplace

• Bullying As a Cause of Action - One Large Step Closer – from Michael Fox’s Jottings By An Employer’s Lawyer

Technology

• The World Cup in the Workplace: Opportunities and Distractions – from Dan Schwartz’s Connecticut Employment Law Blog

• Reckless and Grossly Negligent Failure to Preserve Results in Sanctions for Defendant – from Electronic Discovery Law

• Former Employee Emails Linkedin Contacts and is Sued – from San Antonio Employment Law Blog

• $50 Million Connecticut Trade Secrets Award – from Trade Secrets Blog

Wage & Hour

• Passage of the Paycheck Fairness Act Could Legalize Employees’ Discussion and Disclosure of Their Wages with Co-Workers – from Fitzpatrick on Employment Law

• Will Your Company Be the Next Million-Dollar Wage & Hour Lawsuit? – from CPEhr Small Business HR Blog

• Claim or no claim? – from Work Matters

• Ohio H.B. 523 Would Unify Definition of Employee, Make it Easier to Find Misclassification – from Employer Law Report

• Practice Over Policy - Overtime Wages Are Due For All Hours Worked Even If Workers Disregard Company Policies Or Instructions From Supervisors – from Overtime Advisor

• When is Your Annual Salary Not Your Base Salary? – from Compensation Cafe

• Classes and Sub-classes Are Possibilities In FLSA Collective Actions – from Wage & Hour - Development & Highlights

• The Franchise Relationship: A New Front in the Attack on Worker Misclassification? – from GT LE Blog

• Free checklist on independent contractors – from Kiernan’s Corner: Preventive Law for Employers

Discrimination

• Too Hot v. Not – What’s an Iowa Employer to Do? – from Iowa Employer Law Blog

• “Don’t fire me because I’m beautiful” and A retaliation claim in the making: Loranzana’s new employer on thin ice – from Sindy Warren at the Warren & Hays Employment Law Blog

• Seinfeld as Real Life: Too Hot for Work – from Workplace Prof Blog

• The Too-Pretty Protected Class? – from Philip Miles’s Lawffice Space

• Looks in the Workplace – from Mark Toth’s Manpower Employment Blawg

• What Employers Can Learn from the Novartis Lawsuit – from Adria Martinelli at the Delaware Employment Law Blog

• ADA Discrimination: What do you do when performance plummets? – from HR Cafe

• Reacting to an Office Affair? Don't Forget the “Fair” Part – from Mindy Chapman’s Case In Point

Politics & Legislation

• Obama +1 – What’s Changed? – from Tim Eavenson’s Current Employment (welcome back to blogging, Tim)

• Kagan’s Brief on Cat’s Paw – from The Word on Employment Law with John Phillips

• Cy pres bill in Ohio House – from PointOfLaw Forum

• Employers on Strike from The ChamberPost

Labor Relations

• NLRB Explores Electronic Voting – from EFCA & Labor Law Reform Blog

• SEIU Elects New President – from WorkplaceHorizons

• NLRB Rules that Hospital Interns and Residents Are “Employees” With Right to Organize – from Washington D.C. Employment Law Update

• Teaching Assistant Case Headed for NLRB Review – from Labor Relations Today

• EFCA may be “dead” in Congress, but unions are running the NLRB – from LaborUnionReport.com

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

More on discovery of social networks: Subpoenas to websites proving to be difficult

A few weeks ago I discussed the discovery of social networks (Facebook, MySpace, etc.) in employment cases. EEOC v. Simply Storage Management concerned discovery requests by an employer for a claimant’s social network pages. Rebuking any claims of an infringement of the plaintiff’s privacy, the court stated:

The production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings. As one judge observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”

In Crispin v. Christian Audigier, Inc. (C.D. Cal. 5/26/10) [Hat tip to Eric Lipman at Legal Blog Watch, which includes a link to the opinion], a different federal court confronted the issue of the discovery of social networks from the websites themselves via a subpoena. Most of the 37-page opinion deals with the technical issue of whether and to what extent third-party providers such as Facebook are covered by the Stored Communication Act. What is of interest, though, is the distinction drawn by the court based on privacy expectations and privacy settings.

Essentially, social networks offer three possible types of information:

1. Information made public via a social network—such as something posted on one’s Facebook wall or on Twitter).

2. Information not readily available to the general public via option privacy settings.

3. Private messages passed between users of the social networks, with the website used merely as a conduit to facilitate the private communications.

Only the first category may be discoverable via a subpoena, while the latter two may be worthy of protection by the provider:

With respect to webmail and private messaging, the court is satisfied that those forms of communications media are inherently private such that stored messages are not readily accessible to the general public…. Those portions of the … subpoenas that sought private messaging are therefore quashed. With respect to the subpoenas seeking Facebook wall postings and MySpace comments, however, the court concludes that the evidentiary record … is not sufficient to determine whether the subpoenas should be quashed. The only piece of evidence adduced was a Wikipedia article stating that Facebook permits wall messages to “be viewed by anyone with access to the user’s profile page” and that MySpace provides the “same” functionality. This information admits of two possibilities; either the general public had access to plaintiff’s Facebook wall and MySpace comments, or access was limited to a few.

What are the lessons to be learned from this case?

1. This case does not provide much in the way of relief. The prize isn’t information that is already publicly available, since you can just go to Facebook and get that information on your own. The prize is the private information to which you do not have access, and which this court suggests is protected from disclosure.

2. The Stored Communication Act is very technical, and makes it very difficult to obtain any stored information directly from a social network or Internet provider without the users written consent.

3. Provided that you are seeking information about a party to the litigation (for example, the plaintiff), you will be much better served simply asking for it in a Rule 34 document request. If the information is no longer accessible, a court can compel the party to sign a release so that you can seek the information directly from the website without having to worry about the Stored Communication Act. In other words, if the information had been requested directly from the party instead of trying to get it from the website, the Stored Communication Act is not an issue, and this case likely has a different result.

Bottom line – if the lawyers handling your employment case are not on top of these issues, you are missing a valuable piece of the puzzle in putting together your defense.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Double check data before termination to insulate from discrimination exposure

Pattison v. W.W. Grainger, Inc. [pdf], decided last week by the Cuyahoga County Court of Appeals, illustrates the need to analyze, confirm, and verify data before using the information as a justification for a termination decision.

Grainger terminated Wally Pattison (age 51) for allegedly failing to meet sales goals. At the time of his termination, Pattison held the position of Territory Manager, servicing accounts in the Greater Cleveland area. Pattison claimed that shortly after Sam DiMeo became his immediate supervisor, he took numerous adverse employment actions against him, including performance warnings for not meeting sales goals when younger employees who also were not meeting sales goals did not receive performance warnings. Pattison also claimed that DiMeo terminated him despite a significant rise in his performance numbers shortly before his termination, and despite the retention of younger employees with worse performance numbers.

The trial court dismissed Pattison’s age discrimination claim on summary judgment, finding that Grainger terminated Pattison solely for failing to meet legitimate business goals for five consecutive years. The court of appeals, however, in reviewing Pattison’s sales numbers in comparison to the 12 other Territory Managers who worked in the Cleveland district under DiMeo’s supervision, found that one could reasonably conclude that age motivated Grainger’s decision.

• According to DiMeo, the Cleveland district routinely failed to meet sales goals, being below goal for the three years prior to Pattison’s termination, and five out of the previous seven years.

• Despite the subpar performance of the entire Cleveland district, Pattison’s sales numbers consistently ranked in the mid-range of the 13 Territory Managers.

• At least five substantially younger Territory Managers had sales numbers worse than Pattison’s, yet were not terminated.

• One Territory Manager, 20 years Pattison’s junior, was below goal for half the time, but was never even threatened or reprimanded.

• Another Territory Manager, six years younger than Pattison, was promoted even though he had sales numbers four points lower than Pattison.

• Grainger lacked of any written (or even verbal) policies, procedures, or practices covering the number of years a Territory Manager could fail to meet sales goals before being terminated.

Based on this evidence, the court concluded: “Grainger claimed that it fired Pattison because of his poor performance; however, Grainger’s dissimilar treatment of significantly younger employees, whose performance figures were lower than Pattison’s, belies its assertion.”

Data can be very persuasive. The employer in this case, however, is now facing a jury trial because its explanation for the termination conflicted with the underlying numbers. You can almost guarantee that the employee’s attorney, a state or federal EEO investigator, a judge, and a jury will all spend time pulling apart your numbers to see if they jive with your legitimate non-discriminatory reason. Do yourself a favor and double-check for yourself anytime you plan to use the information in a termination decision.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? It is legal to retaliate against an employee for opposing a sex-toy party

At least according to Ohio’s 2nd appellate district in Davenport v. Big Brothers & Big Sisters of the Greater Miami Valley, Inc. (6/4/10) [pdf]:

Davenport asserts on appeal that retaliation against her for opposing the sex-toy party is discrimination on the basis of her sex and religion, bringing her complaint within the scope of R.C. 4112.02. As an initial matter, we note that the private party was hosted by a woman, planned by two women and open to everyone, which militates against an inference of sex discrimination. But more importantly, retaliation against an employee for opposing a sex-toy party simply does not constitute retaliation for opposing unlawful discrimination on the basis of religion or sex. We fail to see how a woman holding a tawdry after-hours party constitutes religious or sexual discrimination against other female employees. In any event, Davenport’s complaint does not allege that she did anything to “oppose” the party. She simply did not attend. … We cannot reasonably construe Davenport’s failure to attend a sex-toy party as opposition to religious or sexual discrimination prohibited by R.C. 4112.02.

Words to live by. Whether your employees should be advertising this type of party at work is an entirely different issue.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Don't put it in writing if you don't want it on the front page of the New York Times (literally)

I’m guessing that when Wal-Mart hired a prominent law firm to examine gender disparities in pay and promotions, along with its vulnerability to a discrimination lawsuit, it did not expect the results to be splashed on the front page on the New York Times business section 15 years later. Given the results, though, maybe it should have expected to be defending a class action sex discrimination case. Quoting Steven Greenhouse from the Times’s article:

The law firm … found widespread gender disparities in pay and promotion at Wal-Mart and Sam’s Club stores and urged the company to take basic steps—like posting every job opening and creating specific goals to promote women and minorities—to avoid liability.

The 1995 report said that women employed by Wal-Mart earned less than men in numerous job categories, with men in salaried jobs earning 19 percent more than women. By one measure, the law firm found, men were five and a half times as likely as women to be promoted into salaried, management positions.

Without significant changes, the lawyers said in their confidential analysis, Wal-Mart “would find it difficult to fashion a persuasive explanation for disproportionate employment patterns.”

It is likely that Wal-Mart and the plaintiffs will wage World War III over the discoverability of this report. If a jury hears that Wal-Mart’s own lawyers agree with the plaintiffs that widespread pay and promotion disparities exist, the plaintiffs will have a much easier liability case. And, if the plaintiffs can further show that that Wal-Mart ignored its lawyers’ advice, we’ll be talking punitive damage numbers that will shake you to your core.

While I traditionally subscribe to the motto, “Don’t put in writing if you don’t want it on the front page of the New York Times,” as an attorney I am deeply troubled by the prospect that confidential advice I provide to my clients could be discovered in a later lawsuit, let alone used at trial. The advice we give our clients should be sanctimonious. If I’m investigating a sexual harassment complaint, I understand that because the company’s response to the complaint is an element of the claim and its defense, my finding will become part of the case. But, if I am asked to perform an independent audit of my client’s HR practices, I have no reason to think that it will ever become part of later litigation. Businesses should have attorneys involved in proactively monitoring their workplace policies and procedures, and should do so without fear that the advice they receive will be used against them.

For more coverage of this story, I recommend Stephanie Thomas’s The Proactive Employer, and Dan Schwartz’s Connecticut Employment Law Blog.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best of… Do you know what to do when your company get sued?

Do you know what to do when your company gets sued in an employment case? “Resist the D.I.Y. urge and lawyer-up as soon as you find out you’ve been sued.” Here’s six more things to consider immediately:

Do you know? What to do when you get sued

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best of… Court sanctions may be opposite effect on employers

Viscerally, I enjoyed reading about the EEOC getting tagged for $4.5 million in sanctions. Yet, I can’t help but see the cloud in this silver lining:

“Sue first” mentality costs EEOC $4.5 million in sanctions, yet I question whether this is a good thing

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best of… Title VII and vulgar language

Take heed—the mere dropping of f-bombs in the workplace will not subject you to harassment liability:

Warning – vulgar language ahead: 11th Circuit decides whether tasteless workplace behavior is actionable as sexual harassment

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best of… Workplace bullying legislation

Last Wednesday, Sarah Needleman at the Wall Street Journal ran a story on New York’s efforts to pass workplace bullying legislation. For my thoughts on the correlation of the anti-bullying movement and the end of at-will employment, check out the following, which I wrote three years ago: Sticks and stones may break my bones...

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #129

Surprise. "What I'm Reading..." is running one day early this week. Tomorrow is a much needed off-day for me, which will be followed by "Best of" all next week. I'll return with brand new content for everyone on June 7.

This week brought us two momentous events – the series finale of the greatest television show of all time (IMHO), Lost, and an employment decision from the U.S. Supreme Court that will impact corporate document retention programs nationwide.

For some analogies between Lost and employment law, I recommend the following:

• LOST and Employment Law: Live Together or Die Alone – from Dan Schwartz’s Connecticut Employment Law Blog

• Lost’s Moments of Clarity and the Prisoners’ Dilemma – from Victoria Pynchon’s Settle It Now Negotiation Blog

• Lessons From LOST – from Mark Toth’s Manpower Employment Blawg

For coverage of Lewis v. City of Chicago, which greatly expanded the statute of limitations for disparate impact discrimination claims, take a look at these blogs:

• Employees can sue over older policies – from Jay Shepherd’s Gruntled Employees

• U.S. Supreme Court Issues Unanimous Opinion Allowing African-American Firefighters To Sue City Of Chicago Asserting Racial Discrimination Disparate Impact Claims – from the Pennsylvania Labor & Employment Blog

• Supreme Court Ruling Expands Statute of Limitations for Title VII Claims – from Human Resources News

• Disparate-Impact Claims Get a Boost in Unanimous Supreme Court Opinion Written by Justice Scalia – from Fitzpatrick on Employment Law

• U.S. Supreme Court on Timeliness of Disparate Impact Claims – from What’s New in Employment Law

• Supreme Court Decides Disparate Impact Case – from Nolo’s Employment Law Blog

• Supreme Court: Disparate Impact Plaintiffs Can Sue Based on the Application of the Discriminatory Practice – from World of Work

• SCOTUS: Firefighters win disparate impact case – from LawMemo

• Supreme Court: Disparate Impact Arises Upon Application of Employment Practice – from Philip Miles’s Lawffice Space

• U.S. Supreme Court Reverses Disparate Impact Win for Employer – from Texas Employment Law Update

• S. CT: Disparate Impact Claims Start To Run When Results of Job Test Applied by Employer – from Paul Secunda at the Workplace Prof Blog

• Important Procedural Decision from the Supreme Court – from Maryland Employment Law Developments

Here's the rest of what I thought was interesting this week:

Social Networking

• 10 Things Every HR Practitioner Should Know About Social Media – from Frank Roche’s KnowHR Blog

• Legal Dangers of Disciplining over Social Media – from HR Daily Advisor

• 11th Cir: Admission of MySpace Evidence Harmless Error – from Molly DiBianca’s Going Paperless

• Opening the Door to Facebook: Severe Emotional Distress May be the Key – from Michael Fox’s Jottings By An Employer’s Lawyer

Discrimination

• The War on Moms – from Chris McKinney’s HR Lawyer’s Blog

• Discrimination in the workplace: Who's most likely to trigger a lawsuit? – from HR Cafe

• In-House Question of the Week: How Do You Make Frivolous Plaintiffs Go Away without Litigation? – from Settle It Now Negotiation Blog

• Bat Fellatio and the Ambiguity of Sexual Harassment – from The Word on Employment Law with John Phillips

• Employers May Be Liable For Violating ADA Based On Vague And Overbroad Medical Questionnaires – from Labor Employment Law Blog

• Employers don’t need to tolerate difficult employees – from Jennifer Hays at the Warren & Hays Employment Law Blog

HR

• Top 10 List: Why Supervisors Do NOT Need Basic Legal Training – from Human Resources News

• An Eye On New York Workplace Bullying Legislation – from New York Labor and Employment Law Report

• Your Least Favorite (or Favorite) Policy – from Evil HR Lady

• HR Summer Checklist – from Where Great Workplaces Start

• When the Star Fires the Boss... – from Kris Dunn, The HR Capitalist

• Zero Tolerance Policies Have Limited Utility – from San Antonio Employment Law Blog

Wage & Hour

• DOL Increases Penalties for Child Labor Violations – from Wage & Hour Counsel

• Telecommuting on the Rise – from Florida Employment Law Blog

• Momentous Development In FLSA Class Action Law – from Wage & Hour - Development & Highlights

• Conducting Internal Audits To Ensure Employees Are Properly Classified – from Hunton Employment & Labor Law Perspectives™

• How Much Should Workers Know About Classification Decisions? – from Fair Labor Standards Act Law

• Tipped Employees: Dual Employment – from Fitzpatrick on Employment Law

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

A weighty lawsuit: Hooters sued for asking waitress to shed a few pounds

Last September I asked whether “fat” was the new protected class. A lawsuit filed earlier this week in Michigan seeks to answer this question in the affirmative. Cassandra Smith—5’8” and 132.5 pounds—claims that Hooters put her on a 30-day “weight probation” as a condition of keeping her employment. That probation followed a performance evaluation counseling her about the fit of her uniform and advising her to join a gym to fit better into the required uniform. The Wall Street Journal Law Blog has the details, along with a copy of the lawsuit.

Unlike Michigan, Ohio’s statute does not include “weight” as a protected class. Nevertheless, decisions based on an employee’s can be discriminatory under the right circumstances. Morbid obesity can be a protected disability if it manifests in or is the result of a physiological condition. Weight could also be categorized as gender discrimination on the basis of sexual stereotyping.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Discovery of social networks in employment disputes

I’ve long preached that employees should not enjoy an expectation of privacy in information they voluntarily place on the Internet, including social networks like Facebook. What they make available for the others to see should be fair game for employers to use in making employment decisions. According to one federal court in Indiana, it is also fair game for employers to use this information in defending against discrimination lawsuits. Because there are so few cases discussing this developing issues of the discoverability of social networking information, this case is helpful in defining the scope of these issues.

EEOC v. Simply Storage Management (S.D. Ind. 5/11/10) concerns two employees’ sexual harassment claims, and in particular their claims of depression, stress, and other psychiatric disorders stemming from the harassment. In discovery, Simply Storage sought the following information from the claimants’ social networking pages on Facebook and MySpace:

• All photographs or videos posted by the claimants or anyone on their behalf on Facebook or MySpace.

• Electronic copies of the claimants’ complete profiles on Facebook and MySpace (including all updates, changes, or modifications to their profiles) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including, but not limited to, “How well do you know me” and the “Naughty Application”).

The EEOC objected to the discovery on the grounds that the requests were not relevant, improperly infringed on the claimants’ privacy, and would harass and embarrass the claimants. Simply Storage claimed that discovery of these matters was proper because the claimants put their emotional health at issue beyond that typically encountered with “garden variety emotional distress claims.”

The court agreed with the employer and ordered the discovery. In doing so, it made four key observations about the discovery of social networking in discrimination cases.

1. Social networking content is not shielded from discovery merely because it is “locked” or protected as “private”.

2. However, all social networking content is not necessarily relevant or discoverable in all cases; the information must still be relevant to a claim or defense in the case. The court used the following example to illustrate this difference: “If a claimant sent a message to a friend saying she always looks forward to going to work, the person to whom she sent the message and the substance of the message are what should be considered to determine whether the message is relevant…. But the mere fact that the claimant has made a communication is not relevant because it is not probative of a claim or defense in this litigation.”

3. Allegations of depression, stress disorders, and similar injuries will manifest themselves in some social networking content. An examination of that content might reveal whether and when onset occurred, the degree of distress, and other stressors that could have produced the alleged emotional distress.

4. Because discovery is meant to be liberal, the producing party should err in favor of production if there is any doubt over the arguable relevance of social networking information.

The court also specifically addressed the employees’ privacy concerns:

The court agrees with the EEOC that broad discovery of the claimants’ SNS could reveal private information that may embarrass them. Other courts have observed, however, that this is the inevitable result of alleging these sorts of injuries. Further, the court finds that this concern is outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings. As one judge observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”

In other words, if it is fit to share with your Facebook friends, it is fit to be disclosed in discovery (as long as it’s relevant). As these issues become more prevalent in litigation, these guideposts will become more fleshed out. In the meantime, consider including requests for social networking information in all employment disputes.

[Hat tip: Fitzpatrick on Employment Law]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.