January 2010 Archives

January 29, 2010

When One Business Sexually Harasses Another

A few weeks ago, an appeals court in New Jersey decided, in J.T.'s Tire Service v. United Rentals North America, that one business can sue another business for quid pro quo sexual harassment. If you're wondering how one business might make sexual advances toward another, the answer is: the old-fashioned way, with wandering hands and unwanted sexual propositions.

The facts of the case allege that Harold, the manager of an equipment rental company, stopped buying tires from Eileen, owner of a tire service, after she refused his sexual advances. She had been selling to the company for almost ten years, earning about $29,000 monthly from the account. After she rejected Harold's advances, he kissed and groped her, delayed payments to her company, and then stopped doing business with her altogether.

She (and her business) sued under a section of New Jersey's nondiscrimination law that makes it illegal to refuse to contract or do business with any person on the basis of a protected characteristic, including gender. The court found that Eileen faced quid pro quo sexual harassment, a form of gender discrimination that violated the statute. The court added that allowing such conduct would create barriers to a woman's ability to run a business on an equal footing with men, and was therefore exactly what the legislature was trying to get at when it passed this antidiscrimination provision.

To learn more about sexual harassment in the workplace, see Nolo's Preventing Employment Discrimination & Sexual Harassment area.

January 19, 2010

Facebook, MySpace, and Twitter (Oh, My)

There have been a number of legal developments involving Facebook, MySpace, and Twitter lately, all demonstrating that the intersection of traditional employment law and social networking sites has yet to be fully mapped.

Part of the problem seems to be that users of these sites believe themselves to be invisible, at least to their employers. For example, according to an article on Workforce Management (you may have to register to view it), investigators looking into employee workers' compensation claims search social networking sites for photos of employees engaged in activities that are incompatible with their claimed injuries -- such as bowling a perfect game, taking judo classes, or riding a bucking bronco. Then, there's the recently reported case filed by a Canadian woman, who says that her sick leave insurance benefits for depression were improperly cut off after an agent for the insurance company found photos of her on Facebook vacationing and taking in a show at Chippendales.

Even employees who take precautions to make sure employers can't view their posts are finding that management has its ways. In a recent case in the District Court of New Jersey, for example, some employees at Houston's restaurant created a group on MySpace for the stated purpose of venting about their jobs. The group was private and could be joined only by invitation. However, an employee member of the group showed it to a manager (she testified that she felt pressured to do so), a number of managers read it, and the employees who set it up were fired. The court recently upheld the jury's verdict in favor of the employees.

Some companies are so concerned about what employees -- or even the friends of employees -- might be saying about them online that they have instituted content rules or outright bans on social networking. According to an article in the National Law Journal, more than half of the companies responding a survey said that they prohibit employees from visiting social networking sites while on the clock. And, some companies have adopted rules about the content of employee posts. The Associated Press, for example, is reported to have not only set strict rules for employee pages (including that they should not express political affiliations or take a stand on contentious issues, even if their pages are restricted only to friends), but also asked employees to police the content others post on their pages. (You can find an article from Wired about it -- including a link to the actual policy -- here.) 

To learn more about why your company needs a policy on employee use of blogs and social networking sites, read Nolo's article Employee Posts on Facebook, MySpace, Twitter, and Blogs.

January 12, 2010

The Year to Come: How Will Employment Law Change in 2010?

My last post covered some of the many employment law developments of 2009, but what about the future? This could be another big year in the field, mainly because of the recent retirement announcements by Senator Dodd and Senator Dorgan, both Democrats. This means 2010 could be the swan song of the 60-vote Democrat (and Independent) filibuster-proof majority, giving some extra urgency to some of the labor and employee protective measures under consideration, such as:

  • The Employment Nondiscrimination Act (ENDA), which would add sexual orientation and gender identity to the list of protected characteristics under Title VII. I'm putting it first because I think it's most likely to pass. There, I said it.  
  • The Employee Free Choice Act, with or without the card check provision. This bill would increase penalties for labor law violations and require quicker elections, among other things. As currently written, it also requires the NLRB to certify a union if a majority of employees in the bargaining unit sign cards authorizing the union to represent them -- this is the card check provision. Last year, Democrats in the Senate indicated that they were willing to drop this most controversial part of the bill (perhaps in exchange for other rights, such as requiring employers to allow union organizers on company property). Now that unions feel that they are being asked to take the tax hit on their "cadillac" health care plans, however, they might feel they are owed a bit more from the Democrats.  
  • Leave provisions. There are a number of bills that expand employee rights to take leave, including the Healthy Families Act, which would require paid sick leave. There are some changes to the FMLA under consideration (including adding domestic partners, grandparents, siblings, and others as family members and undoing some of the recent revisions to the regulations). And then there's the bill to require time off for swine flu (it's not clear how long the shelf life is on this one).
  • The Civil Rights Act of 2010. OK, so no such bill has been introduced, but there has been enough grumbling about certain Supreme Court cases, including the Ricci case, the Gross case, and the Hulteen case, to make it a possibility.

Then, there are a few Supreme Court cases that should be interesting, including the Quon text messaging case, a case on whether two members of the NLRB have the right to issue decisions, and a disparate impact case on when a claim accrues. The court is also considering whether to hear a case on third-party retaliation, in which a man claims he was fired because his fiance filed a charge of discrimination against their employer with the EEOC.

Put all this together with the grand plans from the regulatory agenda I recently wrote about, and it adds up to another potential blockbuster year.  

January 4, 2010

2009: The Year in Employment Law

Last year was quite eventful when it comes to employment issues: Congress, the Supreme Court, and the crummy economy all did their part to keep things hopping. Here are some of the highlights:

And 2010 could be another big year: In my next post, I'll talk about some of the changes that might be in the pipeline. Stay tuned.