Court concludes that “common slang” does not violate non-disparagement clause in severance agreement

I’ve seldom, if ever, negotiated a separation or settled an employment dispute for an employer without insisting that a non-disparagement clause be part of the signed agreement. The reasoning is simple—it’s not in a company’s best interest to have an ex-employee running around bad-mouthing it or trashing its reputation. The reality, however, is that a clause in a contract is only as good as one’s ability to enforce it when breached. In Ohio Education Assn. v. Lopez (10/19/2010) [pdf], one Ohio appellate court has removed a good deal of the bite from this class of clauses in separation and settlement agreements.

The facts of Lopez are straight-forward. In connection with the resignation of its assistant executive director and general counsel, the Ohio Education Association presented Lopez with a severance agreement. The agreement contained the following non-disparagement language, which is similar to that which you will find in most such agreements:

Employee further agrees not to at any time disparage, defame, or otherwise derogate Employer’s Officers, Executive, Committee Members, employees or agents.

OEA sued Lopez for an alleged breach of that clause by leaving the following voicemail for its outside counsel:

Davey, you never call me anymore. This is el jeffe. Call me sometime. I’m all settled with the OEA so you don’t have to worry about this gag order and all this s___ that slimebag Reardon said to you. So call me…. Bye.

The court of appeals concluded that while the voicemail did breach the non-disparagement clause, the breach was immaterial and therefore not actionable:

Here, the purpose of the separation agreement was to end the employment relationship and resolve all disputes. The nondisparagement provision was a negotiated term of the agreement. The provision OEA alleged Lopez breached uses the terms “disparage, defame, or otherwise derogate.” All of these terms connote harming a person’s reputation or causing one to seem inferior. The term “slimebag” is a common slang expression meaning “[a] despicable person, usually a male.” McGraw-Hill Dictionary of American Slang and Colloquial Expressions (4th ed.2006), 323…. This kind of trifling figure of speech is of so little consequence it cannot be said to be material and should be disregarded…. [T]he slang expression is such a part of modern casual speech as to be almost meaningless. OEA could not demonstrate that the message caused any damage to OEA or Reardon.

Because this case requires a showing of actual harm to prove a material breach of a non-disparagement clause, it will make it that much more difficult to enforce these provisions. Nevertheless, they remain an important part of any severance or settlement agreement because: 1) they establish the expectation that ex-employees are to act professionally and business-like when talking about your organization, and 2) protect your business from the malicious speech intended to cause real harm.

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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? The DOL is encouraging employee covert ops in your business

Six months ago, I wrote about the Department of Labor’s Wage & Hour Division’s launch of a one-stop web portal, We Can Help. Its stated purpose is to provide employees with information about their rights under federal wage and hour laws. At the time, I noted my concern that the most prominent part of this website is a section entitled, “How to File a Complaint.”

While trolling the We Can Help website over the weekend (yes, I know, the exciting life of an employment lawyer-cum-blogger), I came across a Work Hours Calendar [pdf]. The calendar encourages employees to track their arrival and leave times, start and stop times, meal breaks, and other breaks on a daily basis. The distinctions drawn between arrival versus start times and stop versus leave times suggests that the DOL is trolling for potential off-the-clock claims against employers. The calendar’s instructions shed some light on the DOL’s other goals, and lends further support to my belief that the DOL is prioritizing off-the-clock claims.

It is recommended that you keep all your pay stubs, information your employer gives you or tells you about your pay rate, how many hours you worked, including overtime, and other information on your employer’s pay practices. This work hours calendar should help you keep as much information as possible.

Employers must pay employees for all the time worked in a workday. “Workday,” in general, means all of the hours between the time an employee begins work and ends work on a particular day. Sometimes the workday extends beyond a worker’s scheduled shift or normal hours, and when this happens the employer is responsible for paying for the extra time. Usually, workers have to be paid for all the time that they work, including:

• Waiting for repairs to equipment necessary for work
• Time spent traveling between worksites during the workday
• Time spent waiting for materials during the workday
• Breaks less than 20 minutes long
• Time spent completing unfinished work after a shift

The form ends with the following ominous statement:

You work hard, and you have the right to be paid fairly. It is a serious problem when workers in this country are not being paid every cent they earn. All services are free and confidential, whether you are documented or not. Please remember that your employer cannot terminate you or in any other manner discriminate against you for filing a complaint with WHD.

Still think you can afford to put off that wage and hour audit?

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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.

Court compels production of social networking user names, logins, and passwords, and dispels any notions of personal privacy

As I’ve recently discussed (Discovey of Social Networks in Employment Disputes and More on the Lack of Privacy in Social Media), social networking profiles and posts have become fertile ground for the formal discovery of information about litigants. Last month, one Pennsylvania trial court took this discovery one step further, and ordered the production of a plaintiff’s social networking user names and passwords.

In McMillen v. Hummingbird Speedway, Inc. (Pa. Ct. of Common Pleas 9/9/10), the plaintiff filed suit to recover damages for substatial injuries he allegedly sustained during a stock car race. The defendant asked in discovery for the names of any social networking sites to which the plaintiff belonged, along with users names, logins, passwords. The plaintiff objected, claiming that his Facebook and MySpace user names and login information were confidential. The trial court disagreed, and ordered the production: “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, … access to those sites should be freely granted.” It relied, in part, on Facebook’s terms and conditions, which the court concluded dispelled any notion that information one posts on Facebook is private:

Yet reading their terms and privacy policies should dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else…. Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion. Implicit in those disclaimers, moreover, is that whomever else a user may or may not share certain information with, Facebook’s operators have access to every post….

The court also found that the relevancy of social networking information outweighed the potential of harm from the disclosure of that information.

Furthermore, whatever relational harm may be realized by social network computer site users is undoubtedly outweighed by the benefit of correctly disposing of litigation. As a general matter, a user knows that even if he attempts to communicate privately, his posts may be shared with strangers as a result of his friends’ selected privacy settings. The Court thus sees little or no detriment to allowing that other strangers, i.e., litigants, may become privy to those communications through discovery….

Millions of people join Facebook, MySpace, and other social network sites, and as various news accounts have attested, more than a few use those sites indiscreetly…. When they do and their indiscretions are pertinent to issues raised in a lawsuit in which they have been named, the search for truth should prevail to bright to light relevant information that may not otherwise have been known.

In last Sunday’s New York Times Magazine, Walter Kirn made the following observation about the intersection between social networking and the loss of personal privacy:

As the Internet proves every day, it isn’t some stern and monolithic Big Brother that we have to reckon with as we go about our daily lives, it’s a vast cohort of prankish Little Brothers equipped with devices that Orwell, writing 60 years ago, never dreamed of and who are loyal to no organized authority. The invasion of privacy—of others’ privacy but also our own, as we turn our lenses on ourselves in the quest for attention by any means—has been democratized.

As McMillen illustrates, by choosing to sacrifice our personal privacy through social interactions on social websites, we are also choosing to sacrifice our right to protect those interactions from discovery. 

[Hat tip: Delaware 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.

WIRTW #149 (the work / family edition)

October is National Work & Family Month. In it’s honor, I bring you three posts I read this week celebrating this cause:

• European MPs Vote to Extend Maternity Leave – from Workplace Prof Blog

• The Top Five Issues Affecting Working Families Today – from Work and Family Blog

• Is There More to the Story About the New Mom Who Quit Her Job Because She Was Denied Access to a Lactation Room? – from Patrick Smith’s Iowa Employment Law Blog

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

Discrimination

• EEOC Holds Public Hearing on Use of Credit Reports for Hiring – from Dan Schwartz’s Connecticut Employment Law Blog

• Employment Credit Reports Have Value: I Hope the EEOC Listened – from employeescreenIQ Blog

• Credit Checks: Yes or No? – from Michael Haberman’s HR Observations

• Extraterrestrial Employment Law – from Stephanie Thomas’s The Proactive Employer

• ADA accommodation: How supervisors can navigate the gray zone – from Stephen Meyer’s HR Cafe

• Recent Lawsuit Reminds Employers: You May Be Liable For Non-Employee Harassment – from Hunton Employment & Labor Law Perspectives™

• Meet GINA Before You're Introduced in Court – from Employment Essentials

• Religious Discrimination Complaints On the Rise at Work – from Courtney Rubin at Inc.com

• Obesity Under the ADA - EEOC Files Suit – from Philip Miles’s Lawffice Space

Workplace Technology & Social Networking

• Controlling Workplace Language is a Real Concern – from Digital Workplace Blog

• Too Much Information: When Social Media Spills Into The Workplace – from Lance Haun at TLNT

• Legal Ethics and The Social Network – from Social Media Law Update

• Take-Aways from the Navy’s Social-Media Handbook – from Molly DiBianca at the Delaware Employment Law Blog

• Social Media Update II from Fitzpatrick on Employment Law

• Seven Steps to Managing Your Online Reputation – from You’re the Boss Blog

• Fullbright’s 7th Annual Litigation Trends Survey – from Sharon Nelson’s Ride The Lightning

• Your touchscreen phone is a petri dish – from Boy Genius Report

• New Jersey Appellate Court: Lawyers Can Google Jurors – from Molly DiBianca’s Going Paperless

• Workers hogging bandwidth for personal use – from Barry Shlachter at the Columbus Dispatch

Wage & Hour

• A Brief Refresher on the Reemployment Rights of Veterans Under USERRA – from WorkplaceHorizons

• Coffee Breaks? Meal Breaks? Smoke breaks? What Is Required By Law? – from Minnesota Labor & Employment Law Blog

• Personal Liability Under The FLSA: The Issue Of Contro – from Wage & Hour - Development & Highlights

• Happy 72nd Birthday, FLSA - Time For An Overhaul – from Jennifer Gokenbach’s Colorado Employer's Law Blog

• Argument Recap: Court seeks clarity on what counts as a “complaint” under the Fair Labor Standards Act – from SCOTUSblog

• Conflicting Fitness for Duty Reports Preclude Retaliation Claim from FMLA Insights

HR & Employee Relations

• Putting Me and Other Employer’s Lawyers Out of Work – from Michael Fox’s Jottings By An Employer’s Lawyer

• What if we applied the Golden Rule at work? – from David Yamada’s Minding the Workplace

• Poppy seed bagels and false positive drug tests – from Walter Olson’s Overlawyered

• Getting a sense of a corporation’s culture: the job of every investigator (or, ruminations during a 7 hour layover in Dallas) – from Sindy Warren at the Warren & Hays Employment Law Blog

• Evidence Employees Are MORE SATISFIED With Their Bosses: Why It May Be So – from Bob Sutton

• Suggestions and Links for Creating or Updating Employee Handbooks – from George's Employment Blawg

• Dogs at Work – from Nolo’s Employment Law Blog

• Is a Policy Still a Policy if It's Not in Writing? – from Mindy Chapman’s Case In Point

Labor Relations

• “Card Checkmate” – from The ChamberPost

• Company Needs vs. Employee Wants—Guess Who Wins? – from RJ Morris at Fistful of Talent

• Unions, Recognition and Employee Engagement – from Derek Irvine at Compensation Cafe

Non-Competes & Trade Secrets

• Reducing the Risk of Litigation When Hiring Employees with Non-Compete Agreements – from Delaware Non-Compete Law Blog

• Jasmine v. Marvell: Remember To Hang Up Your Telephone After You Leave A Voicemail Message (Oh, And Don't Admit IP Theft Over The Telephone Either) – from Trading Secrets

• Hiring From the Competition – from Trade Secret / Noncompete Blog

• Conspiracy Theory: Employees Conspire to Breach Non-Competes or Steal Trade Secrets – from Trade Secrets & Non-Compete 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.

EEOC holds public hearing on credit histories and employee selection criteria

Yesterday, the EEOC held a public hearing on the use of credit histories as selection criteria in employment. It heard testimony from representatives of the National Consumer Law Center, Lawyers’ Committee for Civil Rights Under Law, the National Council of Negro Women, the U.S. Chamber of Commerce, and the Society of Human Resources Management, in addition to lawyers and psychologists. Following the hearing, the EEOC posted a press release summarizing the testimony. It has also posted the prepared remarks of the people testifying. 
Kudos to the EEOC for presenting a balanced panel of representatives of both employee interests and business interests, even though it is trying to further an agenda against the use of credit histories in employment. Sara Murray, reporting at the Wall Street Journal, synthesizes the core debate between employee advocates the business advocates on this issue:

The underlying concern is that poor credit could become a barrier to landing a job. Employers contend credit checks help them evaluate candidates and protect against fraud. Another concern is the potential discriminatory impact on hiring…. Opponents of the practice cite studies showing that African-Americans and Latinos tend to have lower credit scores. They also dispute whether credit reports are an accurate way to measure an employee’s qualifications.
Proponents of credit checks, which include fraud examiners and credit-reporting groups as well as employers, contend the histories are an important screening tool for employers and tend to be used sparingly…. Michael Eastman, an executive director at the U.S. Chamber of Commerce, told the EEOC that employers take individuals’ circumstances into account. Many at the hearing stressed that employers look for a pattern of careless financial behavior, not one-time events. “It’s very easy for the best, well-intentioned people to have very difficult times,” he said. “Employers recognize that.” Credit checks can also be used as a tool to protect businesses against fraud, supporters argue.

Blanket prohibitions on any practice are usually not a good idea. In this area, there are good reasons to allow the use of credit checks for job candidates. Consider the following, cited during yesterday’s EEOC testimony by Christine Walters of the Society for Human Resource Management and Pamela Devata of Seyfarth Shaw:

• While 60% of employers use credit checks to vet job candidates, only 7.8% use them for all candidates.
  
• Employers generally conduct credit checks when the information is relevant to the particular position: jobs with financial or fiduciary responsibilities (91% of employers), senior executives (46%), and jobs with access to confidential employee information (34%).
  
• Employers do not use credit checks to screen out applicants before they can even get in the door. 57% of businesses only initiate credit checks after a contingent offer, and another 30% only after the job interview.
  
• Credit checks can help protect against employee theft and fraud. In 44.7% of cases of employee fraud, the perpetrators were experiencing financial difficulties, and in 44.6% of cases they were living beyond their means.
  
• According to credit report provider Experian, employers never see credit scores. However, most of the research on the disparities in credit histories between racial groups is based on those scores. It is unfair to hold employers accountable for the scores they never see.
  

Additionally, it is not as if employees are without protections when employers seek to use credit histories in employment decisions. There is an entire federal statute— the Fair Credit Reporting Act—that provides myriad hoops for employers to jump through before and after using credit information. It also requires that employees give their consent before an employer can even request a credit history. And, Title VII prohibits the discriminatory use of credit histories. To per se prohibit employers from using information that is relevant to many positions simply does not make sense from a business perspective, and HR perspective, or an EEO perspective.

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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.

I wonder if these kids will need extra harassment training when they grow up?

Seen yesterday at AT&T Park, as photographed by The700Level.com:

Better sign these kids up now for the anti-harassment power course when they enter the workforce.

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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? Litigating disputes in court does not always make business sense

I believe that litigation is the worst possible way to settle disputes. This may come as a shock, considering that I am a litigator and trial lawyer. Consider, however, that when you decide to litigate, you resolve to pay me six figures for the following: to prepare and respond to discovery requests, produce and review documents, prepare for, take, and defend depositions, draft and respond to motions, and prepare for a trial that has less than a 5% chance of ever occurring. You also resolve to have years of your life and the lives of your employees sucked up by document productions, depositions, reviews of letters, pleadings, and motions, and court appearances. All the while, I’m also dealing with obstreperous opposing counsel (which drives up your cost even more) and an over-taxed court system that likely lacks the time, resources, and manpower your case deserves. In other words, in many cases you are tossing good money after bad. It’s my job to appropriately counsel you so that does not happen.

There are lots of cases that have to be litigated to be resolved. A (small) percentage of them will even need the wisdom of a jury of our peers to conclude. When a plaintiff makes a settlement demand many times in excess of what it will cost you defend the case, litigation makes sense. When the future of your business hinges on an outcome (such as a key employee’s theft of trade secrets), litigation makes sense. When an employee did something horrifically wrong causing the termination, and you cannot in good judgment pay that employee any amount of money, litigation makes sense.

Litigating on principle, though, is not preferred. When ex-employee accuses you of bigotry by suing you for discrimination, your natural inclination is to roll up your sleeves and fight to defend your name. In many cases, that inclination is wrong. You are running a business, and litigation should be treated as a business decision, not an emotional decision. Emotional decisions cost money, and end up as headlines in your local newspaper.

Steve Strauss, writing at USAToday.com, offers businesses this advice: “Not every dispute is a litigation-worthy dispute. Even in the best of cases, you should think that your odds of winning are 50-50. The judge may say yes, or she may say no. The jury may find in your favor, or not. It's 50-50. Of course some suits are better than others, but you just never know what a judge or jury will do.” He is right when he says when you litigate “you are playing with fire and if you are not careful, you will get burned.” Keep these ideas in mind in your next employment dispute. They will lead to a reasoned business decision, not an emotional one.

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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.

Interesting data in latest litigation trends survey

Law firm Fulbright & Jaworski has released its 6th annual Litigation Trends survey (you can also read my thoughts on the 2009 survey and 2008 survey). This year's survey of 275 U.S. companies of various sizes and industries has some interesting findings:

• More than 25% of those surveyed expect the number of disputes their companies face to increase in the next 12 months, while only 6% foresee a decrease.
• 40% of U.S. respondents cite the poor economy as the reason for the expected increase in litigation next year.
• 49% of respondents had labor and employment litigation pending in 2010, up from 45% in 2009.
• Yet, employment cases of various types either increased at a slower pace in 2010 as compared to 2009.

These statistics are the opposite of what one would expect in a down economy that is trying to rebound. Race, sex, age, disability, and religious discrimination cases all slowed in 2010. Yet, most respondents expect discrimination cases to increase in 2011. 

It's hard to know what to make of these results. On the one hand, one would expect the pace of employment litigation to pick up in a down economy. On the other hand, it could simply be that the economy, and its effect on jobs, was worse last year than this year. Or, maybe 275 companies is too small of a sample to be truly predictive of what's happening in corporate America. Regardless, it is foreboding that businesses almost unanimously see the pace of litigation either quickening or staying the same in 2011. In other words, I'm sure I'll have plenty to write about in the coming year.

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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 #148 (the “people sue for the darndest things” edition

Three stories caught my eye this week: Lawsuit of the Day: Pass the Wooden Dildo, Please (via Abovethelaw.com), Gay Skydiving Instructor Sues Over Firing (via Legal Blog Watch), and “Chocolate Delicious” and Man-on-Man Harassment (via Philip Miles’s Lawffice Space). If those headlines don’t garner clicks, none will.

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

SCOTUS

• Supreme Court Watch: Part 1, Part 2, and Part 3 – from Maribeth Minella at the Delaware Employment Law Blog

• SCOTUS: Is an oral complaint protected conduct under FLSA’s anti-retaliation provision? – from LawMemo Employment Law Blog

• Argument preview: The Fair Labor Standards Act and oral complaints – from SCOTUSblog

• Supreme Court to Hear Three Employment Cases This Term – from Patrick Smith’s Iowa Employment Law Blog

• U.S. Supreme Court Refuses to Hear Donning and Doffing Case – from Wage & Hour Counsel

Family Responsibility

• Being a great dad – it’s all in the definition – from Rob Schwartz’s Fairness Matters

• Employee Entitled to Maintain Lawsuit for Interference with FMLA Rights Even though Employer Granted All FMLA Leave Requested – from The FMLA Blog

• How Employers Can Minimize the Risk of Family Responsibilities Discrimination (FRD): Developing a Prevention Plan – from George Lenard’s George’s Employment Blawg

• Family Friendly Workplace? When the Sh!t Hits The Fan – from Tanya Barham at Fistful of Talent

• FMLA FAQ - Can an employee fill out his own medical certification? – from FMLA Insights

• Deathbed Emails - Is There a “Sick Day” Double Standard? – from Wayne Turmel at bnet

Discrimination

• The “Commonsense” Bill and Its Nonsensical Implications – from Stephanie Thomas’s Compensation Cafe

• Steps an employer should take to reduce the possibility of sexual harassment occurring in their workplace – from Employment Law Bits

• Drunk — and Disabled? – from The Word on Employment Law with John Phillips

• EEOC to Hold Meeting on the Use of Credit History as Employment Screening Device from Washington D.C. Employment Law Update

• Obesity - Physical characteristic or physical impairment – from GT LE Blog

• $2 Million Jury Verdict Against a Wisconsin School District For Violating the ADAAA – from Minnesota Labor & Employment Law Blog

• Record ADA claims should wake up employers – from Jane Lewis Volk at the Pittsburgh Post-Gazette

Litigation

• Sleight of hand and litigation statistics – from Walter Olson’s Overlawyered

• 2010 Fulbright Litigation Trends Survey Shows Increase In Employment Litigation – from Laconic Law Blog

• “The onslaught of wage and hour litigation continues unabated” – how will you protect yourself? – from CPEhr’s Small Biz HR Blog

Trade Secrets & Non-Competes

• Coaches & Non-Competes – from Rob Radcliff’s Smooth Transitions

• Blog post violated nonsolicitation clause in Amway agreement – from Evan Brown’s Internet Cases

• Garden Leave as Consideration for a Non-Compete? – from Trade Secrets & Non-Compete Blog

• Bank of America Sues Ex-Programmer for Trade Secret Theft – from Trade Secrets Blog

• To Poach or Not to Poach: Now a Federal Question? – from Trade Secret / Noncompete Blog

HR

• How Not to RIF – from Workplace Prof Blog

• 20 Common HR Metrics & Their Formulas – from Where Great Workplaces Start

• Interviewing the hostile witness – from Stephen Meyer’s HR Cafe

• Low-Tech Monitoring of Employees Can Result In Employer Liability from Employer Law Report

Miscellaneous

• Social Media Now More Popular E-Mail on Mobile Devices vmashable.com

• NLRB ABCs – from Manpower Employment Blawg

• Employers should confirm their I-9 verification policies and systems are working properly – from Ryan Rivchun’s Business, Employment and Real Estate Law in Ohio

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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.

Does FLSA’s anti-retaliation provision cover oral complaints? The Kasten v. Saint-Gobain oral argument

Yesterday, the U.S. Supreme Court heard oral argument in Kasten v. Saint-Gobain Performance Plastics (transcript available from Supreme Court’s website), which asks the following question: Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?

By way of background, the 7th Circuit held that the FLSA’s anti-retaliation provision—which provides that an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint”—covers intra-company complaints, but they must be in writing: “[T]he natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer….” In comparison to Title VII’s anti-retaliation provision—which broadly covers any employee who “opposed” any unlawful practice—the FLSA narrowly requires that employees file a complaint for coverage. Thus, Kasten will likely come down to the issue of whether making an oral complaint is considered a filing.

The plaintiffs’ bar may hold out hope that the Roberts Court, which has favored retaliation claims in the past, will extend the FLSA’s narrow language to cover oral complaints. Based on yesterday’s oral argument, I would not hold out much hope for a reversal. The liberal wing of the Court was concerned about the ability of immigrants and low-wage workers to enforce their rights through effective written complaints. But, even Justices Breyer and Sotomayor expressed concerned about an employee who, at a cocktail party, sees a supervisor and complains of a wage-and-hour violation.

The following exchange (which was the best of the argument), likely is the lynchpin to the decision:

     Justice Scalia: My problem is, I cannot decide on -- on the question of whether filing means filing only in writing or also includes verbal filing, without resolving that other question. That is to say, if indeed the complaint has to be quote, “filed” with the government, I’m inclined to think that an oral complaint pursuant to procedures established by the agency which permit an oral complaint, even a complaint by telephone that would be okay.

     But my goodness, if it applies to private employers as well including employers that have no grievance procedures, including employers who have employees who go to cocktail parties, I am -- I am very disinclined to think that it -- that it could mean an oral complaint in -- in that context….

     Justice Sotomayor: What does file -- what is the meaning of “filed”?

     A: It means to submit or lodge.

     Justice Scalia: So you are filing your argument right now. Now come on, people don't talk like that…. That -- that -- that is absurd. You are not filing an argument right now. Nobody uses the language that way….

     Justice Kennedy: I would like to go back to the question Justice Scalia filed just earlier.

Reading the tea leaves, I predict a win for the employer based on the narrow language of the FLSA’s anti-retaliation provision. I also expect a strongly-worded dissent based on the policy implications for workers incapable of making effective written complaints.

For more coverage of the Kasten oral argument, I recommend the insightful thoughts of Paul Secunda at the Workplace Prof 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.

A trial lawyer’s worst nightmare: a story from the trenches

I was defending a contentious age discrimination case. At trial, the plaintiff called as her first witness the president of the small non-profit defendant. For more than three hours, he took what can only be described as a verbal beating. The cross-examination ended with this bang:

  Q: And you admit that you take age into account in every employment decision you make at the foundation?

  A: Yes.

The admission was shocking because the question had not been previously asked in any deposition. The plaintiff’s lawyer took a flyer, but must have felt he had softened the witness up enough after three-plus hours. The damning admission hung in the courtroom for a week until I had the chance to try to rehabilitate my client as part of my case. By that point, no one cared that he was trying to answer the question honestly—that this 70-year-old man equated age with experience, and usually tried to hire older. While the jury returned a big number (the worst defeat of my career), it was half of the plaintiff’s final settlement demand (which I call a win nonetheless).

I was reminded of this story earlier this week by reading a two-part series in BLR’s HR Daily Advisor, 9 Things You Don't Want to Have to Admit in Court (part 1 and part 2). No amount of preparation could have stopped my witnesses from making the admission he made. Nevertheless, the takeaway from these stories is that preparation is the key to any successful testimony.

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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? Ten tips for effective litigation holds

The purpose of a litigation hold is to stop the destruction of potentially relevant or discoverable documents and information pursuant to a retention policy or otherwise. With the advent of electronic discovery, it is incumbent upon litigants to employ litigation holds as soon as claim or potential claim is reasonably clear. Otherwise, relevant documents might be destroyed, leading to sanctions such as adverse inferences, dismissal of claims, or default judgments. In other words, failing to implement a litigation hold is a quick way focus your case away from the law and the facts and on to discovery issues.

The following is a list of 10 practical tips for implementing a meaningful litigation hold during active or pending litigation:

1. Describe the pending claim.

2. Identify the recipient of the hold letter as someone who may have personal knowledge regarding the matter, or who may be in possession of or have access to information or documents potentially relevant to the matter.

3. Order the suspension of any deletion, overwriting, or any other destruction of electronic information relevant to the matter that is under the recipient’s control. This task will be much more daunting for an IT manager than an individual employee’s work station.

4. Broadly define the scope of covered information to include all documents, records or data of every kind residing or recorded (intentionally or unintentionally) in any medium or location other than within a person’s memory: paper, magnetic tape, photographs, maps, diagrams, applications, databases, microfilm, microfiche, emails, intranet, instant messages, blogs, voicemails, metadata, and any other electronic means of communication that are created, stored or received on the company’s computers or network systems or any other devices (phones, PDAs, applications or storage devices) or systems capable of storing electronic information.

5. Instruct that the recipient search all information for anything relevant or potentially relevant to the claim. Emails and other electronic information should be segregated in a PC or Outlook folder, and all paper documents in a hard file.

6. Hoarding is not a bad thing. Tell recipients to err on the side of over-saving.

7. Designate one company employee as the point person for any questions about the litigation hold and employees’ duties to preserve information and documents.

8. Alert recipients about the to the risk to the company and its employee for failing to heed the litigation hold request.

9. Ensure that the recipient signs a verification signifying the receipt the litigation hold.

10. Periodically recalculate the litigation hold to ensure continuing compliance.

A lesson from Columbus Day

When I took the dog out for her morning walk, I noticed a newspaper in my driveway. You might not think that is all that remarkable, but when you only have weekend delivery, a Monday newspaper means one of two things: either the delivery person screwed up, or today’s a holiday. That is how I remembered that today is Columbus Day. No banks, no mail, no courts, but a Plain Dealer in my driveway. (Apologies to my wife for not bringing the paper in – lost in my own thoughts walking back into the house).

Christopher Columbus set out for Asia, and ended up discovering the Americas. Here’s where I bring this around to employment law. Where you start a case may not be where you end up. You might think you have the greatest defense since the ‘85 Bears, until the decision maker royally screws up his deposition. Or, you could have a serendipitous moment when you discover during the plaintiff’s deposition that he lied on his job application and never even graduated from high school (yes, this once happened to me). Few employment cases end up where you think they will when you start. The ability to course-correct is the hallmark of a winning case.

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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.

ADA podcast is now available from The Proactive Employer

Last Friday, I had the privilege of participating in a roundtable discussion on disability discrimination, hosted by Stephanie Thomas as part of her weekly Proactive Employer podcast series. I appeared with Cari Dominguez, the Former Chair of the U.S. Equal Employment Commission, Sheridan Walker, the president of HR consulting firm HirePotential, Kevin Bradley, the Director of Diversity for McDonald’s, and James Rodriguez, the Strategic Military Talent Manager for BAE Systems, Inc. We had an engaging discussion about the recruiting, hiring, and employment of disabled workers.

Stephanie recorded the conversation as a special one-hour installment of her weekly podcast. It is now available for download from Stephanie’s website. If you have an iPod or iPhone, you also subscribe to the podcast (on which I’ve now been a guest three times) via iTunes.

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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 #147 (the SCOTUS preview edition)

This week marked the beginning of the Supreme Court’s October 2010 term, which has three important employment cases on its docket.

• Kasten v. Saint-Gobain Performance Plastics, which will decide whether an oral complaint of a violation of the Fair Labor Standards Act qualifies for protection under that law’s anti-retaliation provision.

• Staub v. Proctor Hospital, which will decide the viability of the “cat’s paw” in discrimination cases—when may an employer be held liable based on the unlawful intent of employees who caused or influenced, but did not make, the ultimate employment decision.

• Thompson v. North American Stainless, which will decide the legal viability of “associational retaliation”—retaliation against one who engaged in no protected activity but is closely related to one who did.

The hyperlinks will take you to my previous thoughts on each of these cases. I’ve had a lot to say about Thompson, since it was a 6th Circuit case. I’ll have more to say on all of these cases after they are argued later this fall, and again after they are decided next year.

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

Discrimination & Litigation

• Bad Math = Bad Policy – from Stephanie Thomas’s The Proactive Employer

• A SAD Story In So Many Very Different Ways – from Michael Fox’s Jottings By An Employer’s Lawyer

• Why Men Matter in the Work-Life Debate – from The Glass Hammer

• Complaints about management style are not protected activity, per Sixth Circuit – from Sindy Warren at the Warren & Hays Employment Law Blog

• EEOC sues on obesity-as-disability theory – from Walter Olson’s Overlawyered

• One-third of U.S. Workers Still Have A Problem With Their Gay Co-workers – from Workplace Diva

• Prompt Action by Employer Nixes Racial Harassment Claim – from The Word on Employment Law with John Phillips

• Failure-to-Promote Not Covered by Ledbetter FPA - New Third Circuit Decision – from Philip Miles’s Lawffice Space

• Employment Discrimination Potpourri: It’s Hard Out Here for New Mothers and Large Women – from Abovethelaw

• EEOC Must Attempt Conciliation of Class-Wide Claims Before Litigating Them – from Employment Class Action Blog

• The Many Flavors of Retaliation – from Maryland Employment Law Developments

Social Networking & Technology

• Will Facebook’s New Download Feature Change E-Discovery on Social Networks? – from Daniel Schwartz’s Connecticut Employment Law Blog

• Lawyers: Gather Ye Text Messages While Ye May – from Law.com’s Inside Opinions: Legal Blogs

• Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery – from Electronic Discovery Law

• Materials from Social Media Policies – from Compliance Building

• Here’s Why You Don’t Really Need A Social Media Policy – from Lance Haun at TLNT

• N.Y. Ethics Opinion re: Social Networking – from Molly DiBianca’s Going Paperless

• Discretion Is the Better Part of Valor (and Cell Phone Usage) – from Adria Martinelli at the Delaware Employment Law Blog

• LinkedIn: A Violation of Your Employee’s Non-Compete? – from Trade Secrets & Non-Compete Blog

• First Step? Hire a Computer Forensics Expert – from Trade Secret / Noncompete Blog

• HR Tech 2010: “Social” Is Now HR’s Baby (Sorry, Marketing Department!) – from Fistful of Talent

• Don’t Facebook Me: Why You Shouldn’t Google During the Recruiting Process – from Laurie Ruettimann at TLNT

Privacy

• Do You Know Your HIPAA? – from CPEhr

• U.S. Supreme Court’s Decision in NASA Case Could Have Significant Implications for Private Employers – from Workplace Privacy Counsel

• Supreme Court Set to Hear NASA Background Check Case – from employeescreenIQ Blog

Trade Secrets & Non-Competes

• Maintaining Trade Secret Status For Customer Lists: Five Steps Every Company Can Take to Protect Customer Information – from Trade Secrets & Non-Compete Blog

• Top 5 Defenses to Non-Competes – from Rob Radcliff’s Smooth Transitions

• Trade Secrets of Pharmacies Allegedly Misappropriated By CVS Caremark – from Trade Secrets Blog

Wage & Hour

• Class Certification Denied Due to Dissimilarity In Putative “Class” The Way To Go! – from Wage & Hour - Development & Highlights

• Sixth Circuit’s FMLA Employer Reminders, Part One: Send the “Rights and Responsibilities” Notice – from Iowa Employer Law Blog

• Just Because You Sent a Message Does Not Excuse Your Lateness – from Michael Haberman’s HR Observations

Labor

• Non-Union Employee Has Standing to Seek Injunction Against Employer and Union Under Labor Management Relations Act – from Hunton Employment & Labor Law Perspectives™

• Pro-Company – from hrwhiz.com

• NLRB Acting General Counsel Announces Effort to Enhance Pursuit of 10(j) Injunctions in Discharge Cases – from Labor Relations Today

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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.

Firing by voicemail isn’t illegal, but…

Joyce Gaskins sued The Mentor Network-REM following her termination. REM’s cardinal sin that led to the filing of this lawsuit was that it notified Gaskins of her termination by voicemail. In short order, the court of appeals affirmed the trial court’s dismissal of Gaskins’s claim for intentional infliction of emotional distress:

Gaskins’s intentional infliction of emotional distress claim is based on the fact that REM terminated her via voicemail, which she argues is not standard procedure. This is simply not the sort of outrageous or egregious behavior contemplated for this intentional tort.

As this opinion illustrates, there is nothing illegal about terminating an employee by voicemail, email, text message, Facebook, Twitter, or the like. But, as this case also illustrates, employers nevertheless often pay a price for not treating terminated employees with decency. No matter the ills that led to Gaskins’s termination, she deserved to be told of her fate in person. Treating an employee poorly at termination might not be illegal, but it may lead to the bad feelings that cause lawsuits to be filed. It is not unheard of for a company to pay upwards of $50,000 to have even the most meritless employment disputes dismissed. How much is it worth to you to avoid the uncomfortableness of a face-to-face termination?

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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.

Shifting reasons for terminations could leave your business all wet

It only took the U.S. Ryder Cup team a few holes in the pouring rain Friday to realize that their rain suits were not as water-tight as they had hoped. Cold and wet, they had to resort to new gear bought off the rack from the merchandise tent. Thankfully for his team, Corey Pavin was able to take a do-over.

When you terminate an employee, though, you only get one shot. The reason you provide at the time of termination—whether communicated to the employee or merely internally documented—is the only reason that will matter in a subsequent discrimination lawsuit. If you try to change that reason down the road, you will open yourself up to a claim of pretext that could doom your defense.

For a textbook example of how shifting or changing rationales can sink your defense, I’ll leave you with Cicero v. Borg-Warner Automotive, Inc. (6th Cir. 2002). In that case, the employer provided three different reasons for the plaintiff’s termination—one at the time of firing, another in answering interrogatories, and yet another in responding to Cicero’s summary judgment motion. The court concluded that the changing explanations provided sufficient evidence of pretext from which a jury could infer discrimination:

An employer’s changing rationale for making an adverse employment decision can be evidence of pretext…. Shifting justifications over time calls the credibility of those justifications into question. By showing that the defendants’ justification for firing him changed over time, Cicero shows a genuine issue of fact that the defendants’ proffered reason was not only false, but that the falsity was a pretext for discrimination….

While the Court does not question business decisions, the Court does question a defendant’s proffered justification when it shifts over time. When the justification for an adverse employment action changes during litigation, that inconsistency raises an issue whether the proffered reason truly motivated the defendants’ 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? Expanded ADA may now cover obesity discrimination

The EEOC has sued a Pennsylvania-based nonprofit, claiming that its termination of a severely obese employee violated the ADA. Traditionally, obesity, in and of itself, is not a protected disability. I've previously discussed this issue. See Is “fat” the new protected class? The ADA, however, not only protected those with actual physical or mental impairments, but also those who are “regarded as” having a physical or mental impairment. Moreover, with the ADA’s recent amendments, one can qualify under the definition of “regarded as” disabled whether or not one’s real or perceived impairment actually limits or is perceived to limit a major life activity.

This story illustrates two important points for businesses:

1. The current iteration of the EEOC is aggressively pursuing judicial expansion of the employment discrimination laws. Grooming and dress policies, criminal background and credit checks, and expansive definitions of disabilities are all on the EEOC’s hit list. HR policies and practices that tread in these dangerous waters risk drowning in a sea of EEOC enforcement actions.

2. The ADA is now so broad that a fired employee may be able to make out a claim of disability discrimination based on obesity. Indeed, I predict that five years from now, businesses will be faced with a wealth of case law recognizing a host of non-traditional disabilities under the ADA. Every physical or mental impairment that a court recognizes as an ADA-protected disability is another impairment for which businesses much provide a reasonable accommodation. I believe, though, the the broader the ADA becomes, the more watered-down its message also becomes. Expanding the ADA to cover non-traditional disabilities undermines the important policy the ADA is meant to further—leveling the employment playing field for those with with real and legitimate substantially limiting impairments.

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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.

Off to see the Chamber, the wonderful Chamber of Commerce

Today, I am traveling to Columbus for the Ohio Chamber of Commerce’s Employment Law Committee meeting. For the uninitiated, the Ohio Chamber is our state’s voice for businesses and their policy interests. The Employment Law Committee tracks, dissects, and lobbies regarding employment-related legislation pending at the Statehouse. According to the agenda for our meeting [available as a pdf] we will discuss the following legislation:

• Protect the rights of employees to decide whether to be represented by a collective bargaining unit through a private ballot process.

• Reduce inconsistencies and duplication between state and federal employment laws.

• Push for a law that allows an employer to offer the existence of an anti-discrimination policy as an affirmative defense to a discrimination claim.

• Maintain the solvency of the state’s unemployment compensation trust fund by promoting measures that return unemployed workers to the workforce.

• Advance legislation that models the federal process for claims filed at the Ohio Civil Rights Commission.

Later this week, I’ll report specific items of interest discussed at the meeting.

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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 #146 (the trendy edition)

True confession time. I never really considered myself hip. In fact, if you knew me in high school (the bastion of all things hip), you would have probably labeled me a dork. And, it was probably warranted, with the debate team, and Model U.N., and the mock trial team. It’s okay. I came to terms with it a long time ago. All in all, I’d say my life worked out just fine. I have a beautiful wife, two adorable kids in whose eyes I can do no wrong, and I am a successful attorney. Nevertheless, I was happy to see that, at least according to the Wall Street Journal Law Blog (as reported by the Chamber Post), I have finally achieved that which every 16 year old strives for—trendiness:

In one area of litigation, there’s no debate: employment discrimination claims. A lot of folks have been fired, and many of them are are claiming that they were let go because of their race, age, gender, or because of a disability. Job bias claims, to put it mildly, are through the roof… In other words, young lawyers, forget bankruptcy law. That’s so 2009. Employment litigation is where it’s at.

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

Social Networking

• Labor Disputes Arising out of Social Media – from Seth Borden at The National Law Journal

• Unions May Turn To Facebook To Find Unfair Labor Practices – from Hunton Employment & Labor Law Perspectives™

• The Future Of Blogging Might Surprise You – from Six Pixels of Separation

• Who Owns Your Social Media Relationships? What To Do When Your “Social” Employees Move On – from Jessica Lee at Fistful of Talent

• Creepy Start-Up Or Sign Of The Times? – from Nathan Vardi at The Jungle (Forbes.com)

• Why Every Business Should Have A Social Media Policy – from Social Media Law Update

• Court: privacy on social networking sites is wishful thinking – from Evan Brown’s Internet Cases

Discrimination

• Obsession with Nurse and EAP Recommendation not “Regarded As” Disability – from Philip Miles’s Lawffice Space

• The Bermuda Triangle: Age, Earnings and Productivity – from Stephanie Thomas at Compensation Cafe

• Michael Vick Rebounds: Becomes Model Employee After Conviction? – from Nick Fishman at employeescreenIQ Blog

• Beware seemingly innocent age-related comments vSindy Warren at the Warren & Hays Employment Law Blog

• How To Request Job Accommodations From Your Boss By Using the ADA – from UndercoverLawyer

• Mad Men, Madder Women: Have Roles Really Changed in the Workplace? – from Workplace Fairness

• Can America Meet the Challenge of Muslim integration? – from Abigail Esman at Pen & Sword (Forbes.com)

• Twisting and Turning towards Summary Judgment – from Workplace Prof Blog

• Wal-Mart Gets Backing From 19 Companies at U.S. Supreme Court - Bloomberg – from bloomberg.com

• In a Recession, you have a choice: (1) Hire Boomers, or (2) Get Your Squeak On – from What About Clients?

• When HR Is Harassed: What Then? – from Michael Haberman’s HR Observations

• Don’t Cry for Me Connecticut: Court Says Mere Factual Disagreements Not Necessarily Probative of Age Discrimination – from Daniel Schwartz’s Connecticut Employment Law Blog

Wage & Hour

• Where, and Where Not To Get FMLA Information from FMLA Insights

• Working Families Flexibility Act Proposed in Senate from Delaware Employment Law Blog

• FMLA: Verbal Notice Trumps Employer Policy from The Word on Employment Law with John Phillips

• Support Grows For Overhauling FLSA’s Principles from Wage and Hour Laws Blog

Non-Competes

• Top Ten Things to Consider When Drafting A Non-Compete Agreement from Trade Secrets & Non-Compete Blog

• Double Take - Tech giants agree to poach employees from Rob Radcliff’s Smooth Transitions

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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.