December 2011 Archives

More Social-Media Woes for School Districts

Posted by Molly DiBiancaOn December 20, 2011In: Public Sector, Social Media in the Workplace

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Continuing the theme from yesterday, here is another story of the impact social media is having on educators. This story is a follow-up to the post written last month by Michael Stafford, No First Amendment Protection for Teacher's Facebook Posts. By way of recap, Jennifer O'Brien was a first-grade teacher in a largely black and Latino school in Paterson, New Jersey, posted on Facebook that she felt like a "warden for future criminals," as reported by NPR.

O'Brien was terminated and subsequently filed suit alleging the district had violated her First Amendment rights. When the suit was later dismissed, O'Brien's lawyer defended her client's Facebook comment, syaing that it was not a reflection of how O'Brien felt about her students. Instead, claimed the lawyer, the comment had been a mere expression of frustration made at the end of a tough day.

I find that defense a bit difficult to buy, frankly. It requires us to disregard what a teacher writes because she "didn't really mean it"? In other words, "Do what I say and not what I do." That sounds like a bad idea for anyone but particularly for a teacher, who is supposed to serve as a role model for the children she teaches.

See also, Social-Media Woes for School Districts

Social-Media Woes for School Districts

Posted by Molly DiBiancaOn December 16, 2011In: Public Sector, Social Media in the Workplace

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Teachers' use of social media continues to make headlines. NPR reported on a recent incident in New Jersey, involving Union High School teacher, Viki Knox. Knox was suspended in response to outrage surrounding comments she'd posted on her Facebook page.

It started with her post that the school's gay-history exhibit should be removed. She later urged her friends to pray and called homosexuality a "perverted sin," according to NPR. After parents complained about the comments, the school district began an investigation. Later, Knox's supporters and those demanding her resignation faced off in a protest at a school-board meeting.

As I've previously explained, a three-step test is used to determine whether a public employer, including school districts, may discipline an employee due to the employee's speech. First, the court will ask whether the employee was speaking as a citizen or as an employee. Here, that question could be answered either way. Assuming the exhibit was not related to Knox's job duties, it is reasonable to conclude that her Facebook comment was made in her capacity as a citizen, in which case the speech would be protected in the first stage of the analysis.

In the second stage, the court asks whether the speech was on a matter of public concern. Let's again assume that Knox's comment meets the test. If that's the case, the court turns to the final stage of its analysis and asks whether the employer's interest in maintaing an efficient and effective workplace outweighs the employee's interest in free speech.

Here's where Knox's claim would likely fail. The school district would be able to show both actual disruption and the potential for disruption. The protests and complaints received by parents shows that the employee's speech was disruptive to the district's operations.

The school district also would be able to show that there was a potential disruption in the form of loss of trust and respect by parents and students. To the extent that Knox's comments about the "sinful" nature of homosexuality contradicts the district's stated values of tolerance and diversity and that contradiction potentially could result in the inability of Knox to effectively connect with students and parents, the district would be able to discipline her for her speech without violating the free speech protections of the First Amendment.

Initial Discovery Protocols for Employment-Discrimination Cases

Posted by Molly DiBiancaOn December 7, 2011In: Purely Legal

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The exchange of initial disclosures between parties in a lawsuit brought in federal court is not generally considered the most useful endeavor. The parties have to exchange a few pieces of information but, for the most part, expect to get into the substance of the case only after formal discovery has begun in earnest.

Some practitioners and scholars believe that this early period of initial discovery is a time that could be better spent through the mandatory exchange of more meaningful information. To that end, the Federal Judicial Center has released its Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action.

What are the Protocols?
The purpose of the Protocols is to "encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery." Judges in federal District Courts will pilot test the Protocols and report back to the Federal Judicial Center.

The Protocols are designed to replace initial disclosures with initial discovery specific to employment cases alleging adverse action. The discovery would be provided automatically by both sides within 30 days of the defendant's responsive pleading or motion.

In Which Cases Would the Protocols Be Used?
The Protocols would be used in all employment-discrimination cases except the following:

  • Failure to hire;

  • Harassment / hostile work environment;

  • FLSA;

  • ADAAA failure to accommodate;

  • FMLA;

  • ERISA; and

  • Class actions

What Documents and Information Must Be Supplied?

Both the plaintiff and the defendant in the case would be required to provide certain documents and information going back three years before the date of the alleged adverse action, unless an earlier period is provided.

Documents to be produced by Plaintiff

The plaintiff-employee would be required to produce to the defendant-employer the following documents and information without waiting for a formal discovery request:

  • All relevant communications between the plaintiff and defendant;

  • "Claims, lawsuits, administrative charges, and complaints by the plaintiff" that rely on any of the same factual allegations or claims at issue in the present lawsuit;

  • All documents concerning the formation and termination of the employment relationship, irrespective of the relevant time period;

  • Documents concerning the terms and conditions of the employment relationship;

  • Diary, journal, and calendar entries maintained by the plaintiff relating to the allegations or claims at issue;

  • Plaintiff's current resume;

  • Documents relating to unemployment benefits that are "in the possession of the plaintiff;"

  • Documents relating to the plaintiff's job-search efforts, including communications with potential employers; offer(s) of employment, job description, and income and benefits information;

  • Documents relating to the termination of any subsequent employment; and

  • Any other documents upon which the plaintiff relies to support his or her claim.

One of the most interesting items on the list is the second-to-last--documents relating to the termination of any job held by the plaintiff after his or her employment with the defendant. This category of document is not one that plaintiffs usually want to turn over, so the Protocols would eliminate any potential dispute about the discoverability. As a safeguard, though, the Protocols do provide that the defendant may not contact or subpoena a prospective or current employer without giving the plaintiff 30 days' notice and an opportunity to file a motion for a protective order or motion to quash.

The plaintiff also must provide the defendant with certain information, including the identity of "persons with knowledge," which also is required under the current standard for initial disclosures. Additionally, the plaintiff must describe the categories of damages claimed and disclose whether he or she has applied for disability and/or social-security disability benefits after the alleged adverse action, whether any such application has been granted and, if so, the nature of the award if any.

Documents to be produced by Defendant
The defendant must produce the same types of documents as the plaintiff, as well as the following additional types of documents:

  • Relevant communications "among or between" the plaintiff's managers, supervisors, and/or the defendant's human-resources personnel;

  • Responses to any claims, lawsuits, administrative charges, and complaints by the plaintiff that are based on the same allegations or claims at issue in the present lawsuit;

  • The plaintiff's complete personnel file (both the official version and any "unofficial" versions maintained by a supervisor), irrespective of the relevant time period;

  • Documents used in making the disputed employment decision;

  • Workplace policies or guidelines relevant to the adverse action;

  • Table of contents and index of any employee handbook or manual in effect at the time of the allegedly adverse action;

  • Job description(s) for the position(s) held by the plaintiff; and

  • Documents showing the plaintiff's compensation and benefits, such as retirement plan benefits, fringe benefits, employee benefit summary plan descriptions, and summaries of compensation.

The defendant must provide the same information required of the plaintiff, as well as the identity of:


  • the plaintiff's supervisor(s) and/or manager(s); and

  • the person(s) who were involved in the adverse decision.


What Does the Model Order Protect?

In addition to the Protocols themselves, there also is a model standing order for use by the implementing judges and a model protective order that counsel and the judge can use as a basis for discussion. The model protective order contains important provisions, including:


  • Counsel may designate documents or information as confidential when necessary "to protect the interests of the client;"

  • Confidential information disclosed will be used only in connection with the case;

  • In the event of a challenge to the confidentiality designation, counsel must make a good-faith effort to resolve the dispute before seeking the court's assistance;

  • Production of confidential document or information does not constitute an admission that the document or information is relevant or admissible;

  • Any document or information may be designated as confidential up to the latter of 14 days after the close of discovery or 14 days after production; and

  • At the conclusion of the litigation, within 30 days after the entry of final judgment, all copies of confidential information must be returned to the producing party or certified as destroyed
  • Pilot Project Initial Discovery in Employment Discrimination Cases.pdf (PDF)

Will Delaware's Medical Marijuana Law Go Up In Smoke?

Posted by William W. BowserOn December 6, 2011In: Drug Testing

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Delaware legalized marijuana for medicinal uses in May 2010. The law provides that Delaware residents with certain specific medical conditions will be able to legally purchase marijuana at "compassion centers" in the State. While the law is now technically in effect, there are no compassion centers to make a purchase. That's because the Delaware Department of Health and Social Services has not yet issued the needed regulations. The law requires the DHSS to issue the regulations by July 1, 2012.

Even when the regulations are issued, the future of medical marijuana in Delaware will remain hazy.

Marijuana is currently classified as a "Schedule 1" controlled substance under federal law. That's the same category as heroin and LSD. According to the federal government, there is "no currently accepted medical use in treatment in the United States" for a Schedule 1 drug.

According to a recent article in the New York Times, federal agencies have moved to block state efforts to expand the use of medical marijuana. For example, in response to an bill passed by the State of Washington Legislature to legalize and regulate marijuana dispensaries and growers, the U.S. Justice Department warned that growing and distributing marijuana was still against federal law, and said that "state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability." The warning caused Washington Governor Christine Gregoire to veto the bill.

Similar actions froze Rhode Island plans, to permit state-regulated marijuana dispensaries. Federal prosecutors warned Rhode Island Governor Lincoln Chafee that the dispensaries could be targets of prosecution.

As Delaware moves forward with its plans to permit use of medical marijuana, a similar federal response seems possible, if not likely. Whether such actions will stomp out Delaware efforts remains to be seen.

Fitness Instructor Fired for Big Mac Tweet

Posted by Molly DiBiancaOn December 5, 2011In: Social Media in the Workplace

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Some employees take their work more seriously than others. Take Grant Hill, for example. Hill worked as a cycling instructor at Life Time Fitness in Rockville, Maryland, one day a week, according to the Washington Post's Capital Business Blog. On November 6, after arriving at the gym, Hill saw a coworker preparing to eat lunch. Although a workday meal is not usually a particularly interesting event, Hill was particularly interested in this lunch because it came from fast-food restaurant, McDonald's.

Apparently perturbed by his co-worker's lunch choice, Hill tweeted a picture of the McDonald's to-go bag as it sat on his co-worker's desk. The tweet stated:

A McDonald's bag sits on an employees desk @lifetimefitness aka "the healthy way of life company." Ah the irony.

As you may have guessed, Hill's employer was about as thrilled with Hill's tweet as Hill was with his coworker's Big Mac. According to the Capital Business blog, management demanded that the tweet be deleted but Hill refused unless he was permitted to write an article about the health risks of fast food to be published in Life Time's wisely distributed magazine. Hill was fired a few weeks later.

A spokesperson for Life Time said that the termination was not a result of the tweet but for Hill's second job, which Life Time deemed to be a competing personal-fitness business.

Hill stands by his tweet and is quoted as saying that he "directed at [his employer] hoping to engage in dialogue socially." For my two cents, tweeting a sarcasm-laden comment doesn't seem like the most "social" way to go about starting a dialogue of any kind. Instead, it seems to be more like a stab in the back, or a nasty quip said just loud enough to be heard by the intended recipient.

On the other hand, because the tweet relates to the "mission" of Hill's employer, it seems like the kind of commentary that the NLRB would argue constitutes protected activity under the National Labor Relations Act.