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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? 

December 13, 2010

Linking to WikiLeaks Could Cost You a Job, Universities Warn Students

Last week, the federal government warned its employees that the trove of diplomatic cables and other intelligence documents posted on WikiLeaks are still considered classified until they are officially declassified by an appropriate government agency. Employees and contractors who do business with the federal government were told that accessing this information on their work computers, personal computers, or portable devices was forbidden. When asked whether this meant employees would be fired for viewing the documents, a spokesperson for the Office of Management and Budget (OMB) ominously told CNN that such "breaches of protocols governing access to classified material are subject to applicable sanctions under long-standing and existing law."

The OMB warning didn't tell agencies to block employee access to the WikiLeaks site or other sites that posted the documents. But the Library of Congress did so anyway: Neither its employees nor its patrons may access the WikiLeaks site, according to the New York Times

Now, the warning has been extended to those who aren't federal employees or contractors, but one day hope to be: Students at the Columbia School of International and Public Affairs, for example, were sent an email message from the career counseling office, informing that that an alumnus working in the State Department recommended "that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government." (Check the whole message out here.) According to CNN, students at Georgetown and Boston University received similar messages.

These warnings have led to a lot of lively online discussion about free speech and the importance of allowing open debate of ideas, particularly in an academic setting. They've also led to some talk about how private employers might treat the same issue, particularly whether an employer might be legally justified in firing or refusing to hire someone who posted links to WikiLeaks or supported the group's policies on social networking sites. 

My two cents is that even though such a rule might be legal, it's tough to see why a company would want to go this route, given the resulting bad publicity and poor morale that would almost certainly result. Contrary to popular belief, the First Amendment protects us from governmental action or restriction only: It doesn't prohibit private employers from putting limits on speech. Other laws might, however. As I posted recently, the NLRB has said that private employers can't restrict employees from communicating with each other about the terms and conditions of employment, even if that communication takes place on a public website. And some states prohibit employers from taking action against employees based on their political beliefs, or on any legal activities they choose to engage in during their private time. In these states, a "no posting about WikiLeaks" rule wouldn't pass legal muster.  


August 17, 2010

Librarian Fired for Refusing to Reveal Her Weight

Apparently, there's one fact that even those who specialize in providing information to others would rather keep to themselves: their weight. As reported in the Des Moines Register, Iowa librarian Lisa Bonifas refused to provide her weight (or her height) to be listed on a new identification card required by the city of Urbandale, along with her name, title, birth date, and fingerprints. The city said it got the idea from FEMA guidelines, and the information will help in identifying employees in case of emergency. Bonifas refused to provide the information, saying that it was an invasion of her privacy. The city suspended her, then fired her, for refusing to comply.

Many have commented that Bonifas's firing seems unfair, given her highly rated performance and the fact that her objection to stating her weight is widely shared. Whether you agree or disagree with the decision, however, it's hard to see any legal claims Bonifas could make here. Bonifas's objection to the requirement is based on privacy. Historically, however, weight has not been protected as a private fact: Mine is listed on my driver's license, as are the weights of people in many other states. Many commentators have pointed out that requiring people to list their weight is not that useful as a means of identification, as people lie about their weight, weight fluctuates over a person's life, and it's kind of tough to tell what a person weighs just by looking at them. All valid objections, but not the sort that can underpin a wrongful termination case for an at-will employee.

What about discrimination claims? Although obesity and its health effects may constitute a disability in some circumstances, Bonifas is not obese. If the city were making decisions based on weight, there might conceivably be a discrimination claim if that requirement screened out disproportionate numbers of employees in a protected class. According to recent data from the Centers for Disease Control, there is a racial disparity in obesity rates. If a weight requirement caused a similar disparity in job decisions and there was no legitimate business justification for the requirement, an attorney might be willing to argue over it. But again, Bonifas is not obese -- and the city wanted to list everyone's weight, not make it the basis for job decisions.

Which is not to say there's no evidence of different treatment in the way the story has been reported: Bonifas's gender -- and stereotypes about women and weight -- have featured prominently. I offer you the Des Moines Register ("I bet such a policy would never be written by a woman"), radio station KTAR ("Women are known to lie about their age or just keep it a mystery. How much they weigh can be a closely guarded secret as well"); and Inc. magazine ("Politeness dictates that you never ask a woman her weight").

 

  

August 11, 2010

Flight Attendant Freakout: A Sign of the Times?

By now, you may have heard about Steven Slater, the Jet Blue flight attendant who reportedly called a passenger a "f---ing a--hole" over the plane's public address system, grabbed some beer from the beverage cart, then deplaned via the emergency chute. (Slater's attorney said Slater had been hit in the head by a piece of luggage as two passengers were fighting over space in the overhead bin, then one of the passengers cursed him out once the plane had landed at JFK Airport in New York.)

This could have been just another case of "take his job and shove it," except that Slater has apparently become a hero to many -- and some say it's because all of us are working long hours, for less pay, and often at jobs that we don't really want. Economist Joel Naroff, cited in a USA Today article, says that businesses should see the Slater incident as a warning sign: Although many workers feel they must stay at their jobs now, despite layoff threats, pay cuts, and the rest, once the economy picks up, "it's going to be payback time." CNBC reports that it's "no surprise" Slater has become a hero, given that so many workers these days "are overworked and underpaid -- and they can't even threaten to quit or go somewhere else."  

July 22, 2010

Checking Credit Reports? Check Your State Law First

If you review applicant or employee credit reports, you're undoubtedly already familiar with the Fair Credit Reporting Act (FCRA). Among other things, this federal law requires employers to get the consent of the employee or applicant before pulling credit and other consumer reports, to give notice if the information in the report might lead you to take adverse action (such as denying the applicant a job or denying the employee a promotion), and to give notice -- again -- if you do ultimately take the adverse action.

As long as you follow the rules above, the FCRA allows you to use credit reports for employment purposes, including to decide whether to hire, promote, or even fire. That's the federal law, however; some states see things differently. The economic downturn of the last few years -- and the resulting damage to credit reports and scores -- have led many politicians to reconsider whether it's really appropriate for employers to use credit reports in making job decisions. At least three states (Hawaii, Oregon, and Washington) have passed laws prohibiting employers from considering credit reports in most circumstances. According to the National Conference of State Legislatures, about 20 states are currently considering similar legislation. (See their detailed chart here.)  

March 23, 2010

Virtual Doesn't Mean Invisible

Almost every week, I'm surprised -- again! -- by a story about online posting gone wrong. But never as surprised as the subjects of these stories, who invariably claim to be shocked that other people actually saw the sexual photos, references to binge drinking and drug use, bathroom humor, snarking, venting, and otherwise not ready for prime time content that they posted on the Internet. This is one of my hobby horses, I know. And I promise to stop talking about it just as soon as it stops happening. But for now, I just keep wondering why people don't get that the content they post publicly will in fact be viewed by . . . the public.

This week's story? Well, there were a few. Most cringe-worthy to me was the engaged couple profiled in the New York Times who like to fight on Facebook, because, as the soon-to-be Mrs. said, "A lot of people aren't with us if we have a fight at home . . . [This way] all of our friends can kind of comment on it." Has the couple considered how all their online sniping looks to readers beyond their social circle? I would guess not, judging from the fact that even their friends think the online fighting is inappropriate. (One bridesmaid complained to the Times about having to spend hundreds of dollars getting ready to be in the wedding when "their whole relationship is falling apart on Facebook.")

Or how about the three prison guards in Nebraska, fired after one said on Facebook that he enjoyed smashing an inmate's face into the ground, and the other two posted supportive comments? The British travel agent fired after complaining about a coworker on Facebook, saying "I swear I will smack the brown-nosing cow in the face before the end of my shift!"? 

Then, there was a conversation I had with a friend who conducts sexual harassment prevention training, who told me that she is routinely met with audience surprise when she points out that harassment and inappropriate behavior can take place via social networking sites. The surprise isn't that there's sexually explicit or biased content on these sites, but that it could get you in trouble at work. These sites are widely seen as part of our private lives, not our professional lives. Even if you're the boss and you've "friended" your reports and coworkers, who are now all invited to view your X-rated photos. Even if you're job hunting and employers Google your name (according to a recent Wall Street Journal column, 85% of hiring managers do), only to find your sexually explicit posts. Even if your company has its own Facebook or MySpace page or Twitter account, and individual employees have joined as fans, friends, or followers -- which means corporate customers can click on over to employee posts (that weren't intended to represent the company). 

What interests me most about these situations is the simultaneous desire to be seen (isn't that the purpose of posting online?) and surprise when it happens, at least beyond the intended audience. I'm using the term "surprise" as a stand-in for what is usually a stronger response: Often, someone whose online post comes back to bite the poster in the posterior expresses anger, affront, even a sense of unfairness or violation that content posted for  friends and like-thinkers was viewed differently -- and maybe used as a basis for judgment --by outsiders and authority figures. The affront seems to come from the lack of control over how posted content is interpreted. The poster wanted others to think he or she was funny, clever, or cool, and is offended to have instead been found crude, insensitive, or mean.

Despite George W. Bush's malaprop references to "the Internets," there's only one -- and I think that might be at the root of the problem. On the Internet, many find a creative outlet, a place to express themselves and engage with a like-minded community. But it's also a tool for job hunting and recruitment, research, shopping, advertising, dating, propaganda, law enforcement, you name it. Our friends can read what we post, but so can our employers, our customers, the cops, our mother's book group, our wedding party, our local prisoners' rights organization, and that brown-nosing cow. So let's be careful out there, people.   

March 15, 2010

Personal Liability for FMLA Violations

Yet another federal court has found that an employee may sue not only the company but also individual managers -- and even an HR representative -- for violating the FMLA. As reported here in the Legal Intelligencer, a federal district court judge for the Eastern District of Pennsylvania ruled (in the case of Narodetsky v. Cardone Industries, Inc., et al.) that a fired employee's lawsuit may go forward against the former employer and five individual defendants, including the plant manager and the human resources manager, director, and representative. (The individual defendants filed a motion to dismiss the allegations against them, which the judge denied.)

The employee who was fired, Dmitry Narodestsky, claimed that the day after his wife told the company he would need leave for surgery, the defendants searched his computer looking for a reason to fire him. Narodestsky was fired about two weeks later for forwarding an email to another employee. Several of the individual defendants were present at the termination meeting.

The judge refused to dismiss the claims against the individual defendants based on the language of the FMLA regulations, which state that "any person who acts directly or indirectly in the interest of an employer to any of the employees of such employer" may qualify as an employer under the law. The judge also found that the individual defendants exercised some control over Narodetsky's employment, in that they participated in the decision to fire him and the termination meeting.

This decision is only the latest in a long line of cases that have upheld FMLA claims against individual managers and officers who have played a role in denying an employee's FMLA rights. To make sure your company is in compliance, pick up a copy of Nolo's The Essential Guide to Family and Medical Leave (full disclosure: I'm the coauthor). The most recent edition covers the 2008 revision of the FMLA regulations, recent provisions relating to leave for military family members, and the new forms and notice requirements.

 

March 9, 2010

COBRA Subsidy Extended -- and Expanded

After the Senate finally convinced Senator Jim Bunning to stand down his one-man protest (covered in my previous post), Congress passed -- and the President signed -- an extension of the COBRA subsidy last week. (You can find the bill, called "The Temporary Extension Act of 2010," here.) The extension is clearly a stopgap measure: It lasts only until the end of this month (March), by which time Congress hopes to have passed a more comprehensive jobs bill that will keep the subsidy in effect through the end of this year.

But the one-month extension of the subsidy wasn't the only COBRA news in the Temporary Extension Act: The bill also expands eligibility for the subsidy to those who initially lose their health insurance coverage due to a reduction in work hours, then are laid off. This is a small but vitally important change: Many businesses have tried to weather the current economic storm by cutting back on hours worked (and how much employees are paid for those hours). The most recent figures from the Bureau of Labor Statistics (for February 2010) show that more than six million people are involuntarily working part time due to business conditions or lack of work. Unfortunately, given the current economic climate, many of these businesses will ultimately have to make deeper cuts -- and many of these involuntary part-timers will eventually lose their jobs altogether.  

The new law gives these employees another opportunity to elect COBRA coverage once they are terminated -- and, therefore, become eligible for the subsidy. A cut in hours that makes an employee ineligible for group health insurance through the employer's plan is already a COBRA qualifying event, and the new law doesn't change that. Nor does the law make employees who are still working at reduced hours eligible for the subsidy. What the law does is provide an additional election period to these employees if they subsequently lose their jobs and become eligible for the subsidy. If an employee initially declined coverage or elected coverage but let it lapse, the new law gives that employee another chance to elect coverage after a job loss.   

February 10, 2010

Victorious Supreme Court Plaintiff Wins $1.5 Million Verdict

About a year ago, the Supreme Court found in favor of an employee, Vicky Crawford, who was fired after she participated in an investigation of workplace sexual harassment. (The case was Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee; you can read my previous post about it here.) The Court held that Crawford could sue for retaliation; Crawford's employer had argued that, because Crawford was only a witness in the investigation and not the person who had originally complained of harassment, she was not protected from retaliation. After the Supreme Court's decision kept Crawford's claim alive, the case went back to the federal district court for a trial on the facts.

A couple of weeks ago, the jury reached a verdict: Crawford was awarded $1.5 million in damages. After losing its legal argument that Crawford couldn't bring a retaliation claim, the employer tried a different tack: It argued that Crawford wasn't fired for participating in the harassment case, but for performance problems. The employer said Crawford was once a good employee, but her performance had been slipping; when an audit revealed problems in the payroll department, including checks that were never deposited, she was ultimately fired.

Of course, we can only know the facts that were recounted in news articles or court decisions about the case. Based on the information I've seen, I think there are a few lessons employers can take from what happened in this case:

  • Timing is everything. Retaliation cases are all about timing, more specifically how much time passed between the employee's protected activity and the employer's alleged retaliation. The shorter the time period, the more it looks like retaliation. Here, the HR person who conducted the harassment investigation reported possible problems in the payroll department on the same day she filed her report in the harassment case. Same day plus same person involved in both issues equals huge mountain for the employer to climb to refute a retaliation claim.
  • Can I get a witness? You don't necessarily need one to decide that harassment took place. It looks like another big problem for the employer in this case was that it fired three employees who participated in the investigation -- in which pretty bad behavior was alleged. Crawford said that the harasser pulled her head into his crotch, asked to see her breasts, and grabbed his own crotch, saying "you know what's up." Two other employees also said that they were harassed, and were also fired. Yet, the employer argued that it couldn't discipline the harasser because there were no witnesses to the behavior. Again, I've got no inside line on what "really" happened, but if three employees all allege that they were harassed, that's ample reason to take action. Often, there are no witnesses to harassment other than the harasser and the harassee. That doesn't relieve employers of their obligation to take action to stop harassment.
  • The work environment affects performance. Here, the employer said Crawford was once a good employee, but her performance declined. We don't know the source of Crawford's performance problems, but in a situation like this, employers should consider whether poor performance might be explained, at least in part, by the harassment. Employees who have been harassed might have higher absentee rates, problems concentrating, and other performance issues. If the problems are attributable to the harassment, the employer should deal with the underlying issue, then work with the employee to help her get back on track.  
December 21, 2009

Congress Extends COBRA Subsidy

Over the weekend, the Senate passed a defense spending bill that included -- among many other things -- an extension of the COBRA premium subsidy provision that's about to expire. (You can find the entire bill at the website of the Library of Congress; search for the bill number, H.R. 3326, then skip ahead to Section 1010). The House already passed the bill, and it's been sent to the President for signing.

Currently, the COBRA subsidy allows those who are involuntarily terminated from September 1, 2008, through December 31, 2009 to receive a subsidy of 65% of their COBRA premium payments for up to nine months. The subsidy went into effect on March 1, 2009, which means that the first group of eligible folks -- those who had already lost their jobs and have been receiving the subsidy since the effective date of March 1 -- used up their nine months of subsidy coverage on November 30.

The extension would:

  • allow those who are involuntarily through February 28, 2010, to receive the COBRA subsidy, and
  • extend the subsidy period from nine months to a total of 15 months.

The extension to 15 months of subsidy eligibility also applies to those who have already used up their original nine months. For example, someone who was laid off and began receiving the COBRA subsidy on March 1, 2009, would have used up the nine months of subsidized coverage a few weeks ago. Now, that person will be eligible for an additional six months of subsidy payments. And, this coverage can be retroactive: That is, if an employee's subsidy ran out, and the employee didn't pay the full cost of COBRA coverage for December, the employee will have an opportunity to pay the lower amount to receive retroactive continuation coverage.