June 9, 2011

We've Moved!

Our new home is http://blog.nolo.com/employment.
June 1, 2011

Summer Jobs, Sexual Harassment

June is here, and it's time for teenagers everywhere to don their uniforms, paper hats, and  flair for their summer jobs (if they've been lucky enough to land one). But be careful out there kids: Sexual harassment of teens is a big problem, particularly for girls. Just yesterday, the EEOC announced that it had settled a case for $290,000 against a Dunkin' Donuts franchise, in which a manager had repeatedly touched, hugged, and made lewd comments to female teenage employees.

Although the EEOC keeps statistics on sexual harassment charges, the agency doesn't provide the age of the complaining employee. And of course, just like adults, many girls choose not to complain or file a charge. According to one study cited in the PBS program "Is Your Daughter Safe at Work," 200,000 girls are assaulted in the workplace every year. A 2005 study showed that almost half of the teenage girls surveyed had been harassed at their jobs.

These numbers are high, but unfortunately not that surprising. Egregious sexual harassers are predators, and predators choose their prey with care. Teenage girls are targeted precisely because they are the least experienced, least powerful, and least likely to complain. To help combat the problem, the EEOC has set up its Youth at Work website, which informs teens of their rights and responsibilities under the laws that prohibit harassment and discrimination. 
May 26, 2011

Supreme Court Upholds Arizona Immigration Law

This morning, the Supreme Court announced its decision in Chamber of Commerce v. Whiting, a case challenging Arizona's immigration law. The law imposes strict sanctions --  the suspension or revocation of business licenses -- on employers who intentionally or knowingly hire unauthorized workers. It also requires Arizona businesses to use the federal government's electronic system for verifying work authorization, E-Verify

A group of business and civl rights organizations challenged the law, claiming that it was preempted by the federal Immigration Reform and Control Act (IRCA). The Supreme Court disagreed. Although IRCA does preempt many types of state laws that attempt to control illegal immigration, it includes an exception that allows states to pass and enforce licensing and similar laws. Because the Arizona law imposes its sanctions through the suspension and revocation of business licenses, it falls into this exception and can coexist with IRCA. The Court also noted that Arizona took pains to bring its sanctions scheme into harmony with IRCA by, for example, using the federal definition of "unauthorized alien" and deferring to the federal government's determination of an employee's authorization to work in the U.S. 

The Court also upheld the requirement that Arizona employers use E-Verify to check on work authorization. Although the statute authorizing the E-Verify program prohibits the Secretary of Homeland Security from requiring any employer outside the federal government to use E-Verify (unless the employer has already violated the law), it doesn't impose any limits on state laws mandating use of E-Verify. 

Several other states have passed laws similar to Arizona's, and others are likely to follow on the heels of the Court's opinion today. 



May 12, 2011

Wage and Hour App Lets Workers Track Hours on Their Phones

Earlier this week, the federal Department of Labor (DOL) announced the release of its first smartphone application: a timesheet that allows employees to keep track of their work hours and calculate how much they are owed, in straight wages and overtime. (I learned about it over at the Workplace Prof Blog.) The DOL says it hopes to provide updates to the free app that allow employees to keep track of bonuses, commissions, tips, holiday pay, and more. 

As the DOL press release says, the information this app helps employees track "could prove invaluable" in a Wage and Hour Investigation. Here's why: If an employer fails to keep accurate records of hours worked by its employees (as required by the Fair Labor Standards Act), then the DOL will presume that any records the employees can produce are correct. The employer can try to overcome this presumption, but without proper wage and hour records -- and facing employees who have tracked their hours in real time on their smartphones, using an app created by the government agency conducting the investigation -- it's going to be a steep uphill battle. 


May 3, 2011

Twitter Dispute at Reuters Is Resolved

A few days ago, Thomson Reuters reached a tentative contract with the Newspaper Guild (the union that represents hundreds of its employees). According to an article by Steven Greenhouse in the New York Times, the deal finally came -- settling a dispute that's gone on for more than two years -- at the end of a 21-hour negotiating session. The deal settles a number of contested issues, including raises, payments to employees to cover wages lost while there was no contract, benefits, and scheduling. 

And then there's that Twitter complaint: As I posted last month, the National Labor Relations Board confirmed that it was considering bringing a complaint against Reuters over many issues in the ongoing dispute, including the company's apparent reprimand of an employee for Tweeting a criticism of its dealings with the union. This was just the latest indication of the NLRB's interest in social media -- and more particularly, whether employer efforts to police what employees say online about the company are violating employee rights to communicate and act collectively. 

As part of the tentative deal, Reuters has agreed to negotiate a new policy on social media, which will explicitly protect the rights of employees to engage in protected concerted activities: to speak about, and take action regarding, the terms and conditions of their jobs. Reuters has its current policy and guidelines for reporters on use of social media (part of its Handbook of Journalism) posted on its website. I really hope the company also posts its new policy, once it's available. That would be a huge help to employers trying to navigate this developing area of law and commerce. 
April 25, 2011

Supreme Court Refuses to Step in on Healthcare Reform . . . for Now

This morning, the Supreme Court denied the state of Virginia's request to hear a case on the constitutionality of the healthcare reform law. (You can read about this morning's decision, and find the briefs and order in the case, at scotusblog.) This isn't the end of the issue: Virginia asked the Supreme Court to allow it to jump the usual line of appellate review and go straight from the district (trial) court to the Supreme Court, without waiting for the federal Court of Appeals to hear the case and issue its own decision. In today's order, the Supreme Court declined to hear the case before the Court of Appeals had a chance to deal with it. After the Court of Appeals issues a judgment, however, either party could once again ask the Supreme Court to hear the case. 

There have been a handful of cases around the country challenging the constitutionality of various parts of the healthcare reform law, and these decisions conflict with each other. In the Virginia case, the district court found that the "minimum essential coverage provision" -- the individual mandate, which requires everyone to have health insurance by 2014 or pay a penalty -- was unconstitutional. The Obama administration argued that Congress had the right to enact this provision by virtue of the Commerce Clause, which gives Congress the right to regulate commerce among the states. Ultimately, the district court sided with Virginia on this claim, finding that Congress's right to regulate existing commerce did not confer the right to force people to engage in commerce (by requiring them to purchase health insurance). 

The federal Court of Appeal for the Fourth Circuit is scheduled to hear the Virginia case next month, and the other cases that have challenged the law across the country are also finding their way to other circuit courts. As these appeals are decided -- and we march inexorably toward the effective dates of the most controversial parts of the healthcare reform law -- the Supreme Court will undoubtedly be asked again to decide whether the law is constitutional. 


April 14, 2011

Labor Department Regulations on Tip Credits and More

Last week, the federal Department of Labor (DOL) issued its final "clean-up" regulations, tweaking a number of existing rules to bring them in line with laws that have passed and court cases that were decided since the regulations were last reviewed. Although the proposed regulations (issued during the Bush Administration) included several changes that generated a lot of discussion, the final regulations are more scaled back. 

The most significant discussion in the final regulations involves tip credits. Under the Fair Labor Standards Act (FLSA), employers may pay tipped employees less than the minimum wage -- down to a floor of $2.13 an hour -- as long as employees make enough in tips to bring their earnings up to at least the minimum hourly wage. If there is a shortfall, the employer must make up the difference. (Some states do not allow employers to take a tip credit; in these states, which include California, employers must pay service employees the full minimum wage for every hour worked.) This has long been the law, but the final regulations clarify a few points:

  • Whether or not an employer takes a tip credit, all tips an employee earns belong to that employee, except for any amount the employee is required to "tip out" (contribute to a legitimate tip pool). Employers aren't entitled to any part of the tip pool. At least one court had held that an employer who doesn't take a tip credit need not let employees keep their tips, as long as the employees were left with at least the minimum wage. The regulations specifically dispute the holding of this case. 
  • Only employees who regularly and customarily receive tips can participate in the tip pool -- and again, this rule applies whether or not the employer takes a tip credit. Employees who don't typically receive tips, such as cooks and dishwashers, may not participate in the pool. The final regulations don't set a limit on how much of their tips employees may be required to put in the pool; in fact, they state explicitly that the law "does not impose a maximum contribution percentage." Previous guidance documents and opinion letters from the DOL had put a maximum on the amount employees could be required to contribute, or said that employees could not be required to contribute more than was customary in their industry, but these limits did not make it into the final regulations. Once the employer comes up with an amount, however, it is required to notify employees how much they will be required to contribute to the pool.
  • Employees are entitled to notice if the employer will take a tip credit. This notice must include: (1) the hourly cash wage the employer will pay the employee; (2) the amount of tips that the employer will take as a tip credit (that is, the employer will count that amount toward the employee's wages, to meet the minimum wage requirement); (3) that the employee is entitled to retain all tips received except any amount the employee is required to contribute to a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and (4) that the tip credit shall not apply to any employee who has not been informed of these requirements. The final regulations do not require this notice to be in writing; employers may inform employees orally, if they wish. As a practical matter, however, employers who plan to take a tip credit should provide written notice, so they can later prove that they properly notified employees, if necessary. 
Some other changes included in the final regulations exclude stock options from an employee's regular rate of pay (used to determine overtime), clarify the exemptions for firefighters and salesmen, partsmen, and mechanics of certain vehicles; exclude volunteers at private nonprofit food banks from the definition of an "employee" covered by the FLSA, even if those volunteers receive groceries from the bank; and clarify that time an employee spends commuting in a company car doesn't count as compensable work time. 

The biggest change the regulations ultimately didn't make had to do with fluctuating workweeks, in which a nonexempt employee receives a fixed salary that is understood to compensate the employee for all hours worked during the week. If the employee works more than 40 hours in a week, the salary is divided by the number of hours worked that week to come up with an hourly wage, and the employee is entitled to half of that amount for every hour worked over 40 as an overtime premium. The proposed regulations sought to explicitly allow employers to pay these employees bonuses, commissions, and other types of compensation in addition to their set salary, without running afoul of the rule and without having to count those amounts toward the employee's hourly pay. Ultimately, the final regulations didn't allow this; in its comments, the DOL reasoned that this would give employers an incentive to reduce set salaries and move that money to bonuses and other types of excluded compensation, to minimize their overtime obligations. 

 
April 8, 2011

Twitter Post Reprimand May Lead to Labor Complaint

A reporter for Thomson Reuters says that she was reprimanded for a Tweet -- and the National Labor Relations Board (NLRB) is ready to make a federal case out of it. According to the New York Times, a supervisor at Reuters invited employees to send posts to a company Twitter address, giving their views on how to make Reuters the best place to work. Deborah Zabarenko, an environmental reporter and the head of the Newspaper Guild at Reuters, sent this post: "One way to make this the best place to work is to deal honestly with Guild members." (The Guild is the union that represents journalists at Reuters.)

Apparently the company didn't intend for employees to be quite so frank. Zabarenko said that her bureau chief called her at home the next day and informed her that "Reuters had a policy that we were not supposed to say something that would damage the reputation of Reuters News or Thomson Reuters." 

The NLRB apparently plans to file a complaint against the company, alleging that it violated employees' rights to engage in protected, concerted activity to improve the terms and conditions of employment -- in other words, that it committed an unfair labor practice. Based on the Times article, Reuters sounds fairly surprised by the allegation, partly because its social media policies are similar to those at many other companies.

But the NLRB action isn't such a surprise, given the agency's apparent interest in employee use of social media to air complaints about their employers. Just a few months ago, the NLRB filed its first complaint involving social media, against a company that fired a worker for criticizing her supervisor on Facebook. In that case, the agency's complaint went further than the treatment of the employee to allege that the company's policies on blogging and Internet posts were improper, because they were so broad as to prohibit protected employee activity. (The case settled, and the company agreed to revise its policies to make sure employees wouldn't be disciplined for protected posts.) 

It seems more than a little strange that Reuters would invite comments on how the company could improve if it didn't expect to hear any criticism. And Zabarenko's comment, though it implies that the company isn't dealing fairly with the union, is at least polite and restrained, more than can be said for much of what ends up on social networking pages. Ultimately, if a company reprimands an employee for expressing support for a union and criticizing the way management is dealing with that union, it should probably not be that surprised to hear from the NLRB. 



March 28, 2011

Final ADAAA Regulations Issued

Last Friday, the EEOC issued its long-awaited final regulations interpreting the Americans with Disabilities Act Amendments Act (ADAAA). The Commission released proposed regulations interpreting the ADAAA and asking for public comment about a year and a half ago. After reading the more than 600 comments that were submitted in response to the proposed regs, the EEOC made some key changes and additions. (You can read my previous post on the proposed regs here.)

Here are a handful of the changes I found interesting:

List of disabilities. Actually, I don't think this is much of a change, although others disagree. The proposed regulations included a list of impairments that "will consistently meet the definition of disability." Previously, courts had interpreted the ADA to require an individual assessment of the way a particular impairment affected a particular employee. Many commentators objected to the proposed list, arguing that the regulations should still require an individual analysis. The final regulations changed the wording -- in a way that many employer advocacy groups applaud -- but to me, it looks like the effect will still be the same. Rather than saying these impairments will "consistently meet" the definition, the final regulations say that they will, "as a factual matter, virtually always be found" to be disabilities, which means that "the necessary individualized assessment should be particularly simple and straightforward." Then, the final regulations list the exact same impairments that appeared in the proposed regulations.

"Regarded as" disability claims. An employee can be protected by the ADA because the employee has a disability (termed "actual disability" cases by the final regs); because the employee has a record of disability, or because the employer incorrectly regards the employee as having a disability. The ADAAA clarified that an employee making a "regarded as" claim isn't entitled to a reasonable accommodation (which makes sense, as the employee isn't claiming to have a disability), but also need not prove that the employer regarded him or her as having a disability as defined by the ADA -- that is, an impairment that substantially limits a major life activity. The final regulations state that an employee who doesn't need a reasonable accommodation and isn't challenging the employer's failure to provide such an accommodation can proceed under the rules for "regarded as" claims. In other words, an employee who is claiming discrimination (rather than failure to accommodate) doesn't have to prove that he or she has a disability.

Substantially limits. In keeping with the ADAAA directive that the EEOC should redefine "subtantially limits" in favor of broader coverage, the final regulations state that the term is "not meant to be a demanding standard." They also clarify that a person can be substantially limited in performing a major life activity even if that person is not prevented, or significantly restricted, from performing that activity. The final regulations indicate that the condition, manner, and duration of the person's performance of the activity should be examined. For example, can the person perform the activity only for a brief period? Must the person expend significant effort to perform the activity? Is it painful or otherwise difficult for the person to perform the activity? Do the side effects of medication or other treatment make it harder for the person to perform the activity?  

Transitory and minor impairments. The ADAAA states that an employee may not make a "regarded as" disability claim based on transitory and minor impairments. The final regulations clarify that this is an affirmative defense, to be proved by the employer, which must show that the impairment is both minor and transitory, in fact. It's not enough to show that it's either minor or transitory, nor that the employer mistakenly believed it to be minor and transitory.

Working as a major life activity. The proposed regulations included a lengthy discussion of the major life activity of working. This section was unpopular with employer advocacy groups -- and was removed from the final regulations. It's still discussed in the Appendix to the regulations, but in abbreviated form. (Many examples that appeared in the proposed regs were similarly consigned to the Appendix in the final version.)

March 24, 2011

Supreme Court: Oral Complaints Trigger Retaliation Protection

In yet another win for an employee claiming retaliation, the Supreme Court decided this week that an employee's oral complaints of violations of the Fair Labor Standards Act could protect that employee from employer retaliation. (The case is called Kasten v. Saint-Gobain Performance Plastics Corporation.)

Kevin Kasten claimed that he had made numerous oral complaints within the company -- to his supervisor, his lead operator, the operations manager, and human resources personnel -- about the location of the company's time clocks, which were situated between where the employees had to don their protective gear and where the employees actually had to work. This meant that employees were not paid for the time they spend putting on their gear at the beginning of their shift and taking it off at the end, in violation of the Fair Labor Standards Act (FLSA). 

In a separate lawsuit, a federal court found in Kasten's favor on the underlying complaint about the time clocks. The lawsuit that made it to the Supreme Court was about Kasten's retaliation claim: He alleged that he was disciplined and ultimately fired because of his complaints to the company. The company countered that Kasten was fired because he refused to use the time clocks. It also argued that Kasten couldn't claim retaliation, because the FLSA protects only employees who "file" a complaint, which must be done in writing. 

The Supreme Court found for Kasten. Consulting the dictionary, other provisions of the statute, and other sources, the Court found that the term "file" doesn't necessarily require a document. The Court also found that requiring employees to put complaints in writing would thwart the statute's protective purpose by discouraging complaints from those who are less educated, illiterate, or simply overworked. On the other hand, the Court agreed with the employer that the employee's complaint had to be sufficient to put the company on notice of the problem in order to trigger the law's retaliation provisions. So the Court came up with this standard:

To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.  

In an odd twist, the Court explicitly declined to address whether the employee must make a complaint to a governmental agency to be protected, even though the case involved an employee who complained only to the employer. (In other words, if the employee must complain to an agency, Kasten doesn't have a retaliation claim.) Apparently, the employer hadn't kept this argument alive properly on appeal, so the Court wasn't required to consider it. And in the majority opinion, Justice Breyer argued that there was no need for the Court to resolve this question, because it wasn't necessary to the Court's decision in the case. Still, it's a fairly large issue to leave undecided, especially when the claims of the actual employee in the case depend on how it's resolved. 

March 14, 2011

Department of Labor Program Connects Employees to Lawyer Referral Service

A few months ago, the federal Department of Labor (DOL) began its Bridge to Justice program. This program refers certain employees who have filed complaints with the DOL to the American Bar Association's attorney referral service. These complaints involve alleged violations of the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). 

Once an employee files a complaint, the DOL may attempt to settle the employee's claim, conduct an investigation, and even pursue litigation against the employer. However, due to limited resources, the DOL can't investigate and resolve every one of the more than 35,000 complaints it receives each year. And, the DOL has its own enforcement priorities, areas in which it is more likely to be aggressive in pursuing complaints. Right now, those priorities are heavily focused on contingent workforce issues: nontraditional work relationships, including employee leasing, use of independent contractors, and franchising, which can create confusion about the nature of the employment relationship, the identity of the employer, and what rights employees in these arrangements are owed. 

The DOL has said that it might inform an employee about the ABA referral system immediately after the employee files a complaint, if the employee indicates a desire to pursue a private cause of action against the employer. The DOL might also refer the employee at any point when the agency decides not to continue its efforts at conciliation, investigation, or litigation on the employee's behalf. Once this decision is made, the DOL will send the employee a letter with contact information for the referral system. Along with the letter, the employee will receive a form to request certain documents from the DOL's file, including documents the employee has provided, the employee's own statement to the DOL, and the DOL's calculation of back wages owed the employee, if applicable. An employee who wants other documents from the DOL's file must file a request under the Freedom of Information Act (FOIA). 

Employers will be informed if the DOL decides not to pursue an employee's claims further, but will not be specifically told that the DOL has given the employee information on the referral service. Employers are not entitled to receive the documents available to employees absent a FOIA request. 

This program is brand new, so it remains to be seen what effect it will have on FMLA and wage and hour litigation. Presumably, the DOL decides not to pursue at least some of these cases because the employee's claims are weak, which means a lawyer is likely to decline the case as well. Also, employees don't have to take their claims to the DOL in the first place. Because there's no "exhaustion" requirement under the FMLA or FLSA, employees can bypass the agency and go straight to a lawyer if they believe their rights have been violated -- and many employees with strong claims do. I'll be interested to see statistics, once they are available, on whether this program increases the number of FMLA and FLSA cases filed -- and won -- by employees who have been through the DOL process. 
March 4, 2011

Do You Check Facebook When Hiring?

Do you check Facebook or other social networking sites for information about job applicants? If so, you're not alone: A survey by Jobvite Inc. shows that more than 80% of companies do. But there are legal risks to using social networking sites as a screening tool. 

As a recent column in Fortune points out, using Facebook and other social networking sites in hiring can lead to discrimination claims. When you view someone's page and posts, you may well see information that you are not allowed to consider in hiring, such as race, religious or political beliefs, and so on. (The column uses the great example of discovering that an applicant belongs to a number of groups for expectant mothers.) If you decide not to hire that person, you may be accused of basing your decision on this information that you would otherwise not be privy to or allowed to use in the hiring process.

The article also discusses the possibility of disparate impact discrimination claims, based on the fact that Latinos and African Americans are disproportionately represented on LinkedIn, the job networking site most commonly consulted by hiring managers. 

Employees and job seekers who use social networks are routinely told to mind those privacy settings. In other words, if you want to keep your online persona personal, use privacy controls to make sure that your information can be seen only by those you have approved. But even this may not be enough to ward off prying potential employer eyes: In an incident publicized a few weeks ago by the ACLU of Maryland, Robert Collins was asked, during a recertification interview for his job at the Maryland Department of Corrections, to provide his Facebook user name and password. Then Collins got to sit and wait while his interviewer read his page and all of the posts by his friends and family. 

Regular readers of this blog know of my ongoing fascination with the breakdown of public and private lives enacted by social networking sites -- and particularly, the large numbers of people to whom the public nature of their posts becomes clear only after it's too late. (Examples from the recent news are people whose posts become evidence in criminal proceedings, including a woman who had a Facebook fight with a friend over a $20 loan for baby formula and diapers, which escalated to online threats and homicide, and a suspected bank robber who jumped to the top of the most wanted list when he found some time while on the lam to log on to MySpace and post, "on tha run for robbin a bank.")

But if someone takes the time and trouble to try to limit their social networking to their actual social network -- their family and friends -- there could be a better privacy argument to be made. Depending on the site's privacy controls and the care the user takes to limit access to personal information, there may well be a stronger expectation of privacy in what's posted on these pages. We'll have to see where courts come down on this issue. 
March 2, 2011

Supreme Court Victory for Employees in Discrimination Case

Yesterday, the Supreme Court issued its much-anticipated decision in Staub v. Proctor Hospital, in which an employee claimed that he was discriminated against because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). This case has been dubbed the "cat's paw" case, after an Aesop's fable. (Justice Scalia's opinion recounts the narrative details, if you're interested; they involve a cat, a monkey, some roasting chestnuts, and a moral about princes and kings). The upshot in these cases is that one person has the intent to discriminate, but another person -- without a discriminatory motive -- ultimately makes the decision to fire the employee. In this situation, courts have split on whether the employer is liable for discrimination. 

In the Staub case, the evidence showed that Staub's immediate supervisor and her supervisor were hostile to his service obligations as a member of the Army Reserves. Both had made negative comments about it and were described as "out to get" Staub. Staub was written up for violating a rule about leaving his work area; he claimed that there was no such rule and, at any rate, he had not left his work area. As part of the disciplinary action, Staub was required to check in with a supervisor whenever he left his work area. Several months later, one of the hostile supervisors reported to Buck, the vice president of HR, that Staub had violated this directive by leaving his work area without checking in; Staub again denied the accusation. Buck fired Staub for violating the requirement.  

A jury found in Staub's favor, but the federal Court of Appeals reversed this victory. The Court found that Buck wasn't motivated by discrimination. In this situation, the company could be held liable for discrimination based on the hostile motives of the supervisors only if Buck "blindly relied" on their information in firing Staub. Because Buck looked into the facts a bit before making her decision ( the Court of Appeal admitted that her "investigation" wasn't very thorough) and wasn't "wholly dependent" on the recommendations of the hostile supervisors, the Court of Appeals found that the company wasn't liable. 

The Supreme Court overruled this decision. It found that an employer is liable if:
  • a supervisor takes action, motivated by discriminatory bias, intending to cause an adverse employment action against the employee, and
  • the supervisor's action is a proximate cause of the action against the employee. 
Because Buck relied on the hostile supervisors' disciplinary write-up and version of the facts in deciding to fire Staub, rather than independently examining those facts -- and Staub's allegation that they were false and motivated by discrimination -- in making her decision, the company was liable. 

This is a big win for employees, not least because the language of USERRA also appears in Title VII and other laws prohibiting discrimination, so the effect of the case is likely to be far-reaching. Here are a few takeaways for employers looking to avoid cat's paw liability:
  • Investigate! Cat's paw liability depends on causation -- in other words, the person with the discriminatory motive must have some effect on the decision. If the decision maker independently examines the facts, the causal chain is broken. Presumably, the decision maker will uncover the discriminatory bias (and therefore decide not to take action against the employee at all). It wouldn't have been hard in the Staub case, in which these supervisors were apparently willing to tell everyone how they felt about Staub's military obligations.  
  • Train managers. In the Staub case, two supervisors appear to have had an ongoing campaign against an employee for wholly inappropriate and discriminatory reasons. A little training could have gone a long way here. If supervisors aren't making discriminatory statements and decisions in the first place, they won't be creating liability for the company. 
  • Think about settlement. For the unhappy employers that find themselves on the wrong end of a valid cat's paw claim, the Supreme Court's decision virtually guarantees that the case won't end early. Questions of motive (in a cat's paw case, the motives of at least two people: the allegedly discriminatory supervisor and the ultimate decision maker), cause, and the effectiveness of an investigation can be answered only by examining the underlying facts. If those facts are in dispute, the employer won't be able to end the case by winning a motion for summary judgment. Instead, the case will go to trial, where a jury will have to ultimately decide where the truth lies. 


February 17, 2011

Discrimination Against the Unemployed?

Yesterday, the Equal Employment Opportunity Commission (EEOC) held a meeting and heard testimony on whether employers are unfairly screening out the unemployed in hiring. (See the EEOC's press release on the hearing here.) Speakers pointed to job postings that explicitly limit the applicant pool to those who already have a job (as reported in the Huffington Post, among other places); in other words, those who are out of work need not apply. 

Employment status isn't a protected category, like race, age, or gender. But that doesn't mean this practice won't lead to discrimination claims. A disparate treatment charge -- alleging that the employer intentionally discriminated against members of a protected group -- could be brought against an employer who uses current employment as a factor in hiring only against certain applicants. For example, an employer who doesn't consider whether male applicants are currently employed but does look at job status for female applicants is discriminating based on gender. 

A disparate impact charge -- alleging that an employer's apparently neutral selection practice has a disproportionately negative effect on protected applicants -- could also be brought against an employer who screens out those who are currently out of work. Even if the employer applies this factor consistently to screen all applicants, it could result in discrimination because unemployment rates are higher for African Americans, Native Americans, and Latinos. One speaker also testified that this type of practice could disproportionately exclude older women. 

This hearing is another example of the EEOC's interest in exploring how the rough job market and economic climate of the past few years might be resulting in unfair employment practices. In the last few months, the EEOC has also heard testimony -- and filed a lawsuit -- about the potential discriminatory impact of screening out applicants with poor credit histories (read my post about it here) and about the effect of the economic crisis on older workers

February 15, 2011

Attorney-Client Privilege and Company Email

Last month, the California Court of Appeals ruled against an employee (Gina Holmes) who claimed that she was harassed because of her pregnancy; subjected to emotional distress and invasion of privacy when her boss (Paul Petrovich) shared information about her pregnancy with others at the company; and constructively discharged. Based on the information in the Court's decision, each party had some facts in its favor. Petrovich, apparently feeling that Holmes had been less than honest about the length and timing of her planned pregnancy leave, made some inappropriate comments; Holmes rushed out the door on her way to a constructive discharge claim, having not yet suffered the kind of offense necessary to support her case. 

So far, nothing new. What makes the case interesting is all of the email. Petrovich's comments to Holmes took place via email, he shared what she told him about her pregnancy with others via email, and Holmes contacted and communicated with a lawyer about suing the company . . . using the company's email system. Her lawyer told her to delete the messages, but we all know how effective that is. The company found them while preparing for trial and used them as evidence, over Holmes's objections that they were protected by the attorney-client privilege. 

The company had a written policy stating that its email system was for business use only, that employee messages could be monitored at any time, and that employee messages were not private. Holmes argued that her communications with her attorney were nonetheless privileged because she wasn't aware of the company ever actually reading employee email. In other words, although the company reserved the right to monitor, she didn't know of any instance in which it had actually done so. The court didn't find this persuasive, however. Because she was on notice that her email messages weren't private, she couldn't prove that she had communicated with her attorney in a confidential manner. The court compared her email exchanges to consulting with her attorney "in her employer's conference room, in a loud voice, with the door open." In other words, given the company's policy, she should have known that her conversation could be disclosed. 

This isn't the first case that has ruled against the privilege-claiming employee. For example, one New York court found that a doctor who sent email to his lawyer on his employer's system had waived the attorney-client privilege because the employer's policy prohibited personal use of the system and told employees that it monitored employee email. (Scott v. Beth Israel Medical Center, 847 N.Y.S. 3d 436 (N.Y. Sup. 2007).) On the other hand, several courts have found that an employee who uses a personal email account for legal correspondence, even if using a company computer, has not waived the privilege, regardless of the employer's monitoring practices and policies. (Stengart v. Loving Care Agency Inc., 990 A.2d 650 (2010); Curto v. Medical World Communications, Inc., 2006 WL 1318387 (E.D. NY 2006).

Here are a couple of takeaways from this case: 
  • Policies are important. Employees, read your company's policies and act accordingly. If your company prohibits personal use of the email system, just don't do it. Don't get lulled into a false sense of security by lax enforcement, because you can bet that the company will enforce that policy once it has a reason to. Employers, if you ever anticipate you might have to read employee email, adopt a policy, ask employees to sign a form acknowledging that they have received and read it, and enforce it consistently.
  • Take a deep breath and count to ten. You can send an email message in a moment, but that doesn't mean you should. A little patience would have served everyone well in this case, including: (1) Petrovich, who responded to Holmes's message about her pregnancy leave "a short time later" with the comment, "I need some honesty. How pregnant were you when you interviewed with me?" (2) Holmes, who began her email reply to this message by saying that she thought the conversation should be conducted in person, "but here it goes anyway . . . " (3) Holmes again, who first emailed her attorney, from work, at 3:30 in the afternoon. You couldn't wait a couple of hours and email from home, or maybe just call her on your cell phone?