February 2011 Archives

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? 

February 9, 2011

Facebook Firing Case Settles

A few months ago, the National Labor Relations Board (NLRB) filed an unfair labor practice complaint against American Medical Response, challenging its decision to fire an employee based on her Facebook comments criticizing a supervisor. (My previous post about the case is here.) After she was denied the right to have a union representative help her respond to a customer complaint, Dawnmarie Souza went home, logged on to her Facebook page, and compared her supervisor to a psychiatric patient. Other employee responded, and Souza posted additional critical comments. Then she was fired. 

The NLRB's complaint challenged not only the company's decision to fire Souza but also its policies on blogging and Internet posts, which prohibit "disparaging, discriminatory, or defamatory comments" about the company, coworkers, or customers. (It also challenged the company's refusal to allow her union representation.) The NLRB alleged that these policies were too broad, and infringed on employees' rights to engage in protected concerted activity by communicating with each other about the terms and conditions of employment. 

From the sound of the official release about the settlement, the NLRB got what it wanted: The company "agreed to revise its overly broad rules" to make sure that employees are not prevented from discussing the terms and conditions of employment and to refrain from disciplining employees for such discussions going forward. The company also agreed to grant employee requests for union representation in the future. (Ms. Souza's future at the company isn't clear; the press release indicates that her claims against the company were settled in a separate, private agreement.)