Facebook Threats Constitute Legitimate Grounds for Termination

Posted by Molly DiBiancaOn December 4, 2014In: Policies, Public Sector, Social Media in the Workplace

Email This Post | Print this Post

Earlier this week, I wrote about the issue of threats made via Facebook constitute constitutionally protected speech.  Today’s post also is about threats made via Facebook but in the context of the workplace.  The case, decided by the Court of Appeals of Ohio, is timed perfectly for my road trip tomorrow to Ohio.  social media letterpress

In Ames v. Ohio Department of Rehabilitation & Correction, an employee, a Senior Parole Officer, was sent for an independent medical exam after she posted a Facebook comment that her employer believed to be a threat.  The comment was in reference to shooting parolees.  The employee claimed that the comment was a joke.  The psychologist who conducted the exam cleared her to return to work, finding no evidence of depression, anxiety, or mood disturbance.

A few months later, the employer received an “anonymous” complaint that the employee was using her state-issued computer for non-work purposes.  It turned out that the complaint actually was made by the new partner of the employee’s ex-girlfriend.  The new partner, of course, was a co-worker. There was an investigation and the employee was issued a written reprimand.

A few months later, the co-worker (partner of employee’s ex), files an incident report alleging that the employee had sent a threatening text message to the co-worker and the ex.  A few weeks later, the employee filed an incident report against the co-worker, alleging that the co-worker had used a state computer for, you guessed it, non-work-related purposes. An investigation was begun.

Days later, the co-worker notified the employer that the ex had filed for an order of protection against the employee.  In the motion, the ex claimed that, two years earlier, the employee had held a gun to her head.  The employee denied that any such incident had occurred.

In any event, the employer sent the employee off for a second IME, this time to discover whether she had a “propensity for violence.”  Now, I’m no psychologist, but I’m pretty sure that there’s no widely accepted methodology for determining whether a person has a “propensity for violence.”  Apparently, the psychologist who conducted the IME had similar doubts and gave an inconclusive report, failing to address whether the employee had any such “propensity.”  So the employer sent her off for a third IME, this time specifically asking the examiner to make such a conclusion.

The examiner declined to make such a finding, explaining that there is (as I believe I may have mentioned) no reliable way to make such a determination.  Nevertheless, a few months later, the employee posted a threatening message on Yahoo! Messenger to the ex.  She denied sending the message but resisted the employer’s attempts to determine if the account had been hacked.  As a result, she was terminated for the threat and for failing to cooperate in an investigation.

The employee sued under the disabilities laws, claiming she’d really been terminated because the employer perceived her to be disabled.  The employee lost, appealed, and lost again.

So, what are the lessons to be learned here?  Oh, my, there are so many.  Too many to discuss in full so I’ll give you the redux in bullet points:

1.  Love triangles in the workplace usually end badly. 

2.  Threats of violence made via Facebook can serve as grounds for discipline.

3.  Failure to cooperate in an investigation constitutes grounds for discipline.

Ames v. Ohio Dep’t of Rehab. & Correction, 2014-Ohio-4774 (Oct. 28, 2014).

Issue of Threats via Facebook Heads to the Supreme Court

Posted by Molly DiBiancaOn December 1, 2014In: Public Sector, Social Media in the Workplace, U.S. Supreme Court Decisions

Email This Post | Print this Post

The intersection of Facebook use and Free Speech is complicated.  Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United StatesFacebook threat as free speech

The basic legal principle at issue is what constitutes a “true threat.”  It is a crime to use the phone or Internet to make a “threat to injure” another person.  And “true threats” are not protected as speech under the First Amendment.  So, “true threats” to injure another made via Facebook can be punishable as crimes.  Otherwise, the speech would be protected by the constitution and could not be considered criminal.

But what’s a “true threat?”  Is that question to be answered by the “reasonable person” who would be subject to the threat?  Or does the speaker have to have intended his words as a threat to constitute a criminal act?

In Elonis, the defendant was arrested after making violent threats directed to his ex-wife (and others).  At trial, he testified that he did not intend to frighten anyone and compared his posts to rap lyrics.  The jury didn’t buy it and found that a reasonable person would have viewed the posts as “true threats.”  So now the Supreme Court will decide what the “true test” for “true threats” should be. 

The legal issue may appear easier than it is.  The facts of the case may make the speech and speaker less sympathetic.  For example, his Facebook comments included the following about his wife, after she left with their two children:

If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder.

He later posted, "I'm not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.”  And, when a court issued the wife a protective order, Elonis posted whether it was “thick enough to stop a bullet.”  He also threatened to kill an FBI agent and to slaughter a class of kindergarten students, reports the LA Times.

If You Need Me, I Will Be In the Hall of Fame

Posted by Molly DiBiancaOn November 25, 2014In: Delaware Specific, YCST

Email This Post | Print this Post

Well, it’s happened again. The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country by the ABA Journal Magazine.  Because this is my fifth year as an honoree, I’ve been inducted into the magazine’s Hall of Fame, where I join my friend Dan Schwartz, whose Connecticut Employment Law Blog was inducted in 2013.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again. It is, as the saying goes, truly an embarrassment of riches.

ABA Journal Top Blawg 100

To those who nominated us for the award, thank you.  To all of our readers, thank you. And to all of the many, many, many employment law bloggers who continue to set an incredibly high standard for the rest of us, thank you.

I share the honor this year with seven other employment-law bloggers, each of who does a tremendous job reporting on the various aspects our shared practice area. Many of you already read the blogs of my co-winners but, if you don't, you should.  I continue to be humbled by the company I have been permitted to keep.

Writing a legal blog is a labor of love. And, by that, I mean that it doesn't pay the bills. To consistently put up quality posts that are original and interesting to readers is no easy feat--especially when the demands of our day jobs can be, well, demanding. To be recognized for the hard work that goes into writing a legal blog really does mean so much. Almost as much as knowing that our readers find value in the content that we generate.

You can vote for your favorite in the employment-law category at the ABA Journal site . . . but no pressure, really.  Voting is open through December 11.  You can find all of the Top 100 bloggers on Twitter through the ABA Journal's list.

So, as Frank and Ed used to say in those classic Bartles & James commercials, "Thank you for your support."

3 Tips for Harassment Investigations

Posted by Molly DiBiancaOn November 10, 2014In: Harassment, Interviewing

Email This Post | Print this Post

Investigating complaints of inappropriate workplace conduct is a difficult challenge for any number of reasons. But conducting an immediate and thorough investigation is critical to both preventing lawsuits and to avoiding liability should a lawsuit arise. Human-resource professionals often ask for tips in handling this challenge. Here are three. male female sign

First, don’t be shy. An investigation of workplace harassment is not the time to be timid. Ask the tough questions and be direct. Don’t mince words or dance around the questions. Consider writing out the questions that you need answers to and actually check them off your list. If you don’t ask a straight question, you’ll never get a straight answer.

Second, don’t decide anything in advance. This is important because, if you’ve already made your mind up before you ask the question, you’ve already failed as an investigator. In order to get the information that you need, you must truly listen. And the interviewee will know if you’re not listening. So keep an open mind and don’t jump to conclusions.

Third, remember that there may be more than one version of the “truth.” It’s rare that I am presented with a complaining witness who I think is actually “lying.” It’s far, far more common that the complainant misunderstood the events or misinterpreted the meaning. And, frequently, for one reason or another, the complainant has repeated the story so many times in his or head that the story has become the truth. In other words, the complainant truly believes that the events occurred the way that he or she is describing them.

There is a tremendous body of social-science research about this third item. Eye-witness accounts can be, well, dead wrong. If you think you’re the exception, or, if you just want to see how differently people can see the same event, you may want to take a look at the "selective attention test" by Daniel Simons and Christopher Chabris.  Watch the video and see how many passes you count and then compare your answer to others . . . and then consider how certain you should be about the observations of the employees you’re interviewing.

Three Tips for Protecting Your Electronically Stored Confidential Information

Posted by Molly DiBiancaOn November 3, 2014In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

Email This Post | Print this Post

Employers, do you know what apps your employees are using?  That’s the question posed by a recent article in the WSJ.  (See Companies Don’t Know What Apps Their Employees Are Using).  My guess is that the answer to this important question is, “No.”  Here are my top tips for how not to be the employer discussed in the WSJ article.  employee cloud storage

First, have a policy about employees’ use of cloud-based apps to save work-related documents.  Consider prohibiting employees from saving work documents to cloud-based storage accounts such as Dropbox, SkyDrive, and Box.net.  Also consider prohibiting employees from backing up the contents of their work laptops to cloud-based back-up accounts, such as Mozy and Carbonite.

Second, communicate your policy to all affected employees.  If employees don’t know about the prohibitions, your policy is unlikely to have the desired deterrent factor.  This means that your policy needs to be written in plain English and that it should be publicized to employees in a way that will actually be heard.

Third, enforce the policy.  Don’t make exceptions.  If an employee violates the policy, the employee should be disciplined accordingly.  Even if the employee is your favorite employee.  And even if the employee complains a lot about the policy—and claims that he or she needs the online storage and/or back-up accounts.  The answer is “no.”  And that answer must be consistent, regardless of how loudly an employee complains.

As a bonus point, I’ll note that employers should consider having all employees execute a confidentiality agreement.  The agreement can be very brief—a paragraph long does the trick, most of the time.  But the key is to have all employees execute the document.  And, ideally, have the employees reaffirm their adherence to the confidentiality agreement on a yearly basis.

A lot of additional work?   Yes.  But, if you have an employee who defects to a competitor and takes with him several gigabytes worth of your confidential data, the extra “work” will be worthwhile.  You’ll be glad you have taken these steps—and don’t hesitate to thank me for the great suggestions. 

A Perk of BYOD Policies at Work

Posted by Molly DiBiancaOn October 20, 2014In: Non-Compete Agreements, Policies, Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

Email This Post | Print this Post

Employers face a serious challenge when trying to prevent employees from taking confidential and proprietary information with them when they leave to join a new employer—particularly when the new employer is a competitor.   When an employer becomes suspicious about an ex-employee’s activities prior to his or her last day of work, there are a limited number of safe avenues for the employer to pursue.  privacy policy with green folder

Generally, an employer should not review the employee’s personal emails or text messages if they were sent or received outside the employer’s network.  But what if the employee turns over his personal emails or text messages without realizing it?  The answer is, as always, “it depends.”  A recent case from a federal court in California addresses the issue in a limited context.

After the employee resigned, the employer sued him for misappropriating trade secrets.  He filed counterclaims, accusing the employer of violating the federal Wiretap Act, the Stored Communications Act (SCA), and state privacy laws.  The employee alleged that the employer had reviewed his text personal text messages on the iPhone issued to him by the former employer after he’d returned it but before he unlinked his Apple account from the phone.

All of the employee’s counter-claims were dismissed by the court.  The court found that the Wiretap Act claim failed because there was no allegation that the employer had intentionally intercepted any messages.  The SCA claims failed because there was no allegation that the employer had accessed any messages.  And, perhaps most obviously, the privacy claims failed because the employee could not have had a reasonable expectation of privacy.

The court specifically found that the employee had “failed to comport himself in a manner consistent with objectively reasonable expectation of privacy” by failing to unlink his old phone from his Apple account, which is what caused the transmission of his text messages to his former employer.

Sunbelt Rentals, Inc. v. Victor, No. C 13-4240-SBA (N.D. Cal. Aug. 28, 2014).

See also

Too Creepy to Win: Employer Access to Employee Emails

Traveling for Work and Late-Night Emails

Lawful Employer Investigations of Facebook . . . Sort Of

Employers, Facebook, and the SCA Do Not a Love Triangle Make

Keeping Secrets on Social Media: Part II

Posted by Molly DiBiancaOn September 30, 2014In: Social Media in the Workplace

Email This Post | Print this Post

Employees telling secrets online was the subject of yesterday's post, Keeping Secrets on Social Media.  Today's post--a continuation of the theme from yesterday--is about "auto-expire" apps. 

telling secrets

An "auto-expire" app is an app that enables users to set an automatic expiration date and time for social-media or other online content.  There are lots of reasons one would use an auto-expire app but the three that come immediately to mind are regret, efficiency, and secrecy.

Social-media regret is nothing new.  Just last summer, I wrote a post about social-media regret syndrome.  Auto-expire apps like Xpire, for example, allow users to set expiring posts for Facebook, Twitter, and Tumbler. 

Efficiency also is a reason to consider these apps. You don't need to keep (or have others keep) the series of text messages exchanged about where to meet for lunch. 

But secrecy, in my opinion, is the most prominent reason for the increased interest in these auto-expire apps.  In the employment context, there may be security reasons for having highly confidential discussions automatically deleted forever.  Apps like Wickr (branded as "a top-secret messenger), are targeted to businesses for exactly that reason.  Wickr advertises that messages sent through the app contain no geolocation data and are not tracked or monitored--what's yours is yours and cannot be accessed by the host site.

Be careful, though, about what you send through these apps--people are often surprised by the utility of having access to evidence in the form of contemporaneous posts and conversations.  But, for certain exchanges, you can imagine the equally powerful utility of having an untraceable and permanently deleted line of communications.

Keeping Secrets on Social Media

Posted by Molly DiBiancaOn September 29, 2014In: Social Media in the Workplace

Email This Post | Print this Post

The title of this post is a bit laughable, isn’t it?  I mean, really, it’s almost an oxymoron.  Keeping secrets on social media?  What’s the point?  The very existence of social media is dependent upon sharing—not secret-keeping.  But the two are intersecting more and more.  Which is why I am writing a short series of posts about the topic.  Beginning today with a post about “anonymous” apps. telling secrets

Back in February, fellow employment lawyers, Adam S. Forman and Dan Schwartz, and I were interviewed for an article in Law360, titled, “What Employers Need to Know About the New Social Media.”  In that article, I discussed what I think is the wave of the future in social media for employers—apps focused on secrecy.

For example, one app, Secret, allows users to share anonymous messages with anyon3e in their contacts who also uses the app.  Employers in the tech industry, where these apps are particularly popular, are struggling with how to deal with (and, preferably, prevent), the loss of confidential company information. 

For example, an employee hears through the grapevine that the Vice-President of R & D has taken a job with a competing firm.  Employee posts that hot tidbit on Secret, where all of his work colleagues (who also have the app, of course), will see it.  The firm can be seriously disadvantaged by uncontrolled leaks of information.  And, when the app is designed specifically for that very purpose, it is hard to address with any meaningful result. 

As a side note, educators are struggling with a related problem.  Students bullying other students via these anonymous apps is a serious problem that many school districts are trying to manage.

So what should employers be doing?  Well, to start, they should be reading this blog post.  If they do, at least they’ll know about the existence of these “anonymous” social-media apps and about the potential issues the employer may be facing already because of them.  Next, employers should consider investigating for themselves. Have an individual from HR subscribe to the service and see what, if anything, is posted about the company.  Although it may hurt to find out, it’s better that you know so you can make a rational decision about how, if at all, to address it.

In the next post in this series, I’ll discuss “auto-expire” apps that enable users to set an expiration date on their posts and messages.  Stay tuned.

How to Apologize At Work

Posted by Molly DiBiancaOn September 15, 2014In: Jerks at Work

Email This Post | Print this Post

Humility is a virtue.  And, for most of us, it doesn’t come easily.  Particularly for those of us who want to be good at our jobs and to please to whom we report, owning up to a mistake at work can be a difficult task.  Management professor Robert Sutton offers advice about how to deliver a truly effective apology in his book, Good Boss, Bad Boss.  A recent article about Sutton’s advice summarizes it in three steps.  I'm sorry

1. Own It

When you make a mistake at work, own your actions.  And own them completely.  Don’t combine your apology with an excuse.  Omit the word “but” from every apology.  For example:

Do:  “I apologize.  I sent the shipment sooner than I should have.”

Don’t:  “I apologize.  I thought you said to send it out yesterday.”

The second example sounds more like blame shifting than an apology.  Own up to the error fully.

2.  Don’t Overdo It

The apology should be commensurate with the mistake.  If you miss a big meeting, you should make your apology in person.  If you are 15 minutes late to the meeting, a less formal face-to-face is probably required. 

3.  Offer a Solution

Employees who offer a solution for the problem that they’ve caused come out looking like problem solvers—a positive attribute in any workplace.  Can’t solve the problem?  Then explain what steps you’ve taken to try to solve it.  Just dumping the problem onto another person (particularly your boss) is not a good idea.  At the same time, make it clear that you intend to ensure that the problem not occur again.  Be clear that you won’t make the same mistake twice.

Traveling for Work and Late-Night Emails

Posted by Molly DiBiancaOn September 10, 2014In: Women, Wellness, & Work-Life Balance

Email This Post | Print this Post

Traveling for work has its pros and cons.  I spent the last two weeks in sunny Santa Monica, California.  I was there to take multiple depositions in an expedited proceeding, which meant that I escaped my hotel room / conference room for a combined total of approximately 4 hours over a 14-day period.  In fact, I didn’t leave my hotel room or the conference room from which we were working at all until Day 4, when I took the extreme liberty of walking to the beach and back.  (Picture below).  I was out of the room for about 10 minutes—I didn’t even put my toes in the sand for fear that I’d never return to the room.

Two weeks felt like a long time to be away from home.  But it also felt like a long time to be away from my regular work routine.  In particular, my email Inbox expanded beyond my normal comfort level, as I prioritized the case that required my attention the most. Sunny Santa Monica

It wasn’t until late in the evening that I was able to make meager headway in responding to emails I’d received for other matters.  But, had it not been for those late-night (and, sometimes, very early morning) email binges, I would never have been able to get caught up upon my return.  I also would have had some very unhappy clients, who require their lawyer’s prompt attention to deal with emergency issues as they arise. 

So I have to question the premise of a recent opinion piece in the NYT, titled, End the Tyranny of 24/7 Email.  The piece features companies, such as Daimler, the German automaker, that sets limits on when employees can send and receive emails.  According to the article, “limiting workplace email seems radical, but it’s a trend in Germany,” where some companies have “adopted policies that limit work-related email to some employees on evenings and weekends.”

On the one hand, putting technical barriers and/or policies in place that restrict certain employees can have its benefits.  In particular, it limits the risks associated with non-exempt employees who send emails during off-hours and who must be paid for that time as time worked.  But it also seems to have some less-than-ideal outcomes.  Specifically, as we move more and more towards a flexible work schedule in an increasingly mobile society, the ability to respond to emails when and where we want can be very important.  And limitations on that ability may not be all its cracked up to be. 

Alas, the work-life balance continues to be more of a juggling act than a graceful performance on a balancing bar. Either way, it’s good to be home. 

Understanding Gender-Identity Discrimination

Posted by Molly DiBiancaOn August 26, 2014In: Gender (Title VII)

Email This Post | Print this Post

This article was written by Lauren Moak Russell. I’m in California for two weeks, taking depositions, and am very thankful for the contribution in my absence.

This has been a month of major changes in the employment law landscape in Delaware. In addition to the Supreme Court’s three major decisions affecting employment law (addressing retaliation and harassment under Title VII, and the constitutionality of the federal Defense of Marriage Act) and the legalization of gay marriage, Delaware also passed a law prohibiting employment and other types of discrimination on the basis of an individual’s gender identity. Here is what Delaware employers need to know about the new statute.

What Is Gender Identity?

Gender identity is a concept that many individuals outside the transgender community struggle to understand. Gender identity is not the same as sexual orientation (being gay or straight) and it is not simply a matter of wearing clothes commonly associated with the opposite sex. Instead, an individual’s gender identity relates to his or her internal sense of self as male or female, as well as an outward presentation and behavior related to that internal sense of self. Developing from that concept, an individual may be described as transgender when his or her gender identity does not match his or her biological sex at birth. Because gender identity is based on what an individual feels inside, when addressing transgender employees, employers should be guided by the employee’s description of his or her gender, not outward appearance.

Protection Against Gender-Identity Discrimination

On June 19, 2013, the Delaware Discrimination in Employment Act (“DDEA”) was amended to prohibit employment discrimination on the basis of gender identity. The statute defines “gender identity” to mean “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.” The statute further provides that “[g]ender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose.”

The DDEA provides the same protection from discrimination based on gender identity as it does for all other protected classifications. In other words, it is unlawful for an employer to discriminate against an employee in any term or condition of employment on the basis of the employee’s gender identity. Only employers with four or more employees are subject to the provisions of the DDEA.

How to Prepare for the Change in Law

In light of the amendments to the DDEA, which are currently in effect, employers should begin educating employees about gender identity, and their non-discrimination obligations. While more than fifteen states currently have laws that prohibit gender-identity discrimination, it is still a concept that is frequently misunderstood. Outlining for employees and managers the differences between sex, gender, and sexual orientation will help individuals to better understand their workplace obligations with respect to the new law.

Employers should also be alert to workplace conduct that may implicate this new protected classification. Common issues implicating gender-identity include “joking” about an individual’s external appearance (e.g. dress, facial hair, or physical build; the use of proper gender pronouns to refer to a transgender individual; and the use of communal bathrooms that are designated for use by gender. While there are no hard and fast rules in addressing these issues, employers should be guided by the transgender employee’s personal preferences, whenever possible.

Bottom Line

Delaware law now protects employees from discrimination on the basis of their gender identity. When preparing for this change, employers should make sure that their employees (managers and subordinates, alike) have a basic understanding of the concept of gender identity, and that they following basic workplace standards of respect. If conflicts or misunderstandings arise, employers should take their lead from the transgender employee—wherever reasonable—in how best to treat the employee with respect.

Delaware Employers Have New Recordkeeping Obligations

Posted by Molly DiBiancaOn August 18, 2014In: Privacy Rights of Employees

Email This Post | Print this Post

Delaware’s Governor has signed legislation related to the safe destruction of documents containing personal identifying information. The bill is effective January 1, 2015, and requires that commercial entities take all reasonable steps to destroy a consumer’s personal identifying information within the business’s custody and control, when the information is no longer to be retained. Destruction includes shredding, erasing, or otherwise destroying or modifying the personal identifying information to make it entirely unreadable or indecipherable through any means.crumbled paper trash

Personal identifying information includes, but is not limited to, a consumer’s first name or first initial and last name in combination with any one of the following: a signature; date of birth; social security number; passport number; driver’s license number, insurance policy number; or financial information (such as a credit card number).

There are exceptions for federally regulated financial institutions, healthcare organizations subject to HIPAA, consumer reporting agencies subject to the FCRA, and governmental bodies.

Violation of the statute carries stiff penalties, including treble damages.

The legislation is not a model of clarity, and leaves a lot of questions as to how it will be applied to Delaware businesses. Until the courts provide additional guidance, Delaware businesses are well advised to carefully review their document security.

Rebranding Employee Communications, Courtesy of Delta Airlines

Posted by Molly DiBiancaOn August 1, 2014In: Just for Fun

Email This Post | Print this Post

Communication is key to success. The better employees understand the objective and the rules for achieving the objective, the more productive they are and the more likely it is that the objective will be achieved.  But communication isn’t easy.  In fact, I’d venture to guess that most of us have been in a workplace where the communication was kept to an inner circle,  where the message seemed to be ever-changing, or where the higher-ups didn’t seem to understand how important communication really is.

Yet, the quest for better internal communication seems to be never ending.  Sometimes, the way to tackle a difficult problem is to start over.  Taking a fresh look at an old problem can remind us that simpler is better.  Speak a language that people understand.  Corporate-speak is just plain alienating to most humans. 

Delta offers a great example of the idea that speaking the language of your intended audience is the key to successful communications.  As a tribute to Delta’s first safety video, which premiered in the 1980s, Delta released an 80s-themed safety videos.  The video’s description explains the idea behind a truly entertaining safety video—”to reward even the most frequent of frequent flyers for paying attention.”

Take a look at the video and ask yourself how you can rebrand your message so that your intended audience actually pays attention. 

Have a terrific weekend and happy August!

How NOT to Produce Facebook Evidence

Posted by Molly DiBiancaOn July 23, 2014In: Purely Legal, Social Media in the Workplace

Email This Post | Print this Post

Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is. ESI Discovery

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it.  I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it.  Ummmm, no. 

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI).  In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in “native format.”  (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . . :

printed out responsive emails and provided photocopies of certain portions of those emails to defendants. Additionally, [one plaintiff] provided the content of several text message exchanges and Facebook posts by transcribing those messages on loose-leaf paper.

The Court granted the motion to compel. 

Initially, I assumed that the producing parties must have been acting pro se (without counsel) because there is just no way that a lawyer would produce text messages and Facebook posts that were “transcribed” on “loose-leaf paper.”  Upon closer review of the opinion, though, it appears that all parties were represented.  Clearly, I am missing something about the course of events that led a party to produce ESI in this “format” (is loose-leaf paper even considered a “format”?). 

What matters, though, is that employers and their counsel be diligent in their efforts to preserve all potentially relevant evidence, including text messages and social-media content, and to preserve it in its original form (native format).  Preservation is the first step.  Maybe we can work on our production skills after that.  I’ll keep my fingers crossed.

Wellin v. Wellin, No. 2:13-cv-1831-DCN, 2014 U.S. Dist. LEXIS 95027 (D.S.C. July 14, 2014).

A Reminder About Comp Time

Posted by Molly DiBiancaOn July 15, 2014In: Fair Labor Standards Act (FLSA), Wages and Benefits

Email This Post | Print this Post

It’s summer and that means it’s time for summer vacations.  Some employers are unaware of the law regarding when an employee may be paid “comp time” instead of wages.  So here’s a brief recap of what you should know. Comp Time Recap

Rule #1

Absent an exemption (see below), all employees must be paid at an overtime rate of 1.5 times the normal hourly rate for all hours worked in excess of 40.

This means that an employee who earns $20/hr. must be paid $30/hr for each hour worked over 40.

If the employee works 40 hours, he is paid $20 x 40 = $800.  If he works 42 hours, he is paid $20 x 40 ($800) plus $30 x 2 ($60) as overtime compensation.

But he may not be paid his regular rate for the first 40 hours ($800) plus 2 hours of “comp time.”  No, no, no.  All time in excess of 40 must be paid (money in an amount equal to) 1.5 times the normal hourly rate. 

Rule #2

Provided the employer complies with Rule #1, the employer may offer comp time as a supplemental form of wages.

One common example of this is paying comp time for hours 35-40.  So, in addition to his regular wage of $800, the employee may also be paid 5 hours in comp time as an incentive or reward for working those last five hours.  Similarly, some employers offer comp time for premium shifts. 

Both scenarios are totally kosher, so long as the employee is receiving his regular wage.  Comp time is a supplement not a substitute.

Rule #3

As with any rule, there are exceptions.

But, with comp time, the exceptions are few.  An employer may pay an employee comp time in lieu of  wages in certain situations.  First, exempt employees (those who are not entitled to overtime in the first instance) can be paid comp time for time worked in excess of 40 in a week.

Second, certain public-sector employees may be paid comp time, including state and local government employers.  In the public sector, under certain conditions, employees may receive compensatory time off at a rate of 1.5 hours for each overtime worked, instead of cash overtime pay. 

Law enforcement, fire protection, and emergency response personnel and employees engaged in seasonal activities may accrue up to 480 hours of comp time; all other state and local government employees may accrue up to 240 hours.

Recap

There are exceptions to every rule.  For example, some states do not permit the use of comp time or limit accrual to a lesser number than provided by federal law.  Before you implement a comp-time system in your workplace, you should consider having it reviewed with legal counsel.  And, if you have a comp-time system in place for non-exempt employees as a substitute for overtime pay, you should consider consulting with your employment lawyer to determine whether the system violates state or federal wage payment laws.

See also U.S. DOL Fact Sheet #7 State & Local Governments Under the FLSA

Other FLSA posts