A New Year, A New Honor, and A Lot of Thanks

Posted by Molly DiBiancaOn January 8, 2013In: Delaware Specific, YCST

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I took a week off of blogging last week in a largely unsuccessful attempt at vacation. Although my vacation plans did not turn out quite as I'd expected, I did manage to tear myself away from the computer, my smartphone, Twitter, and the Internet as a whole for three entire days. For me, this is no small feat.

The draws of the digital world are many. For me, the strongest pull is the thought of a client trying to reach me. I'm in the service business, after all. So it's my business to make sure my clients are getting the services they need, when they need it.

My three-day reprieve was a reasonable success. I was able to see a few sights, take a few good pictures, and even managed to make some time for a little retail therapy. And, despite my digital absence, no client suffered as a result.

Maintaining a "work-life balance" (whatever that is), has never been my strong suit. But my long weekend has given me a bit of perspective. It's good to get some fresh air once in a while. It's good to get away from the daily grind every so often. And it's really good not to be tied to the iPhone 24-7.

Now, all that being said, I'll finally get to the point of this post. During my brief respite, I learned that this blog was voted into the top spot in the Labor & Employment category of ABA Journal's Top 100 Blawgs. Lest you think that I was anything other than extremely grateful for your votes, I thought it best to let you know why my thanks have been somewhat delayed.

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Delayed or not, my thanks are sincere. I've said it before but I'll say it again--thank you for your support.

For those of you who visit the blog irregularly, consider subscribing via email, which you can do by entering your email address in the box at the top right side of this page. That way, you'll get the day's post delivered before lunch. Seems that email has its advantages after all.

Michigan Enacts Social-Media Privacy Law

Posted by Molly DiBiancaOn December 30, 2012In: Electronic Monitoring, Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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Michigan is the latest State to pass a "Facebook-privacy" law. The law, called the Internet Privacy Protection Act, was signed by Gov. Rick Snyder last Friday. The law prohibits employers and educational institutions from asking applicants, employees, and students for information about the individual's social-media accounts, reports The Detroit News.

The Michigan law contains four important exceptions. Specifically, the law does not apply when:

1. An employee "transfers" (i.e., steals) the employer's "proprietary or confidential information or financial data" to the employee's personal Internet account;

2. The employer is conducting a workplace investigation, provided that the employer has "specific information about activity on the employee's personal internet account;"

3. The employer pays for the device (i.e., computer, smartphone, or tablet), in whole or in part; or

4. The employer is "monitoring, reviewing, or accessing electronic data" traveling through its network.

The enactment of Michigan's Social Network Account Privacy Act makes Michigan the fifth State this year to enact legislation that prohibits employers from requiring or requesting an employee or applicant to disclose a username or password to a personal social-media account. Maryland, Illinois, California, and New Jersey were the first four. California and Delaware passed similar legislation applicable to educational institutions. Notably, new legislation was introduced in California on December 3, which would extend that State's law to public employers.

I continue to believe that these laws are unnecessary and do nothing more than expose employers to legal risk with no real benefit to the citizenry. However, of all of the states to have passed such "internet-password-protection" laws, Michigan's is the first to contain these critically important exceptions. Without them, the laws have the potential to paralyze employers from conducting internal investigations that are necessary to protect both the organization as a whole and individual employees.

Problems With Delaware's Proposed Social-Media Law

Lawfulness of Employers' Demands for Facebook Passwords

Should Employer Cyberscreening Be Legislated?

Employers Who Demand Facebook Passwords from Employees. Oy Vey.

Who Says I'm a Girly Man? Doth Sayeth the EEOC

Posted by Molly DiBiancaOn December 27, 2012In: Discrimination, Discrimination & Harassment, EEOC Suits & Settlements, Gender (Title VII), Harassment, Harassment, Other (Title VII), Harassment, Sexual

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The EEOC has enjoyed several victories in recent months. For example, the EEOC was granted summary judgment in a hostile-environment claim filed on behalf of a class of black construction workers. Even more recently, the EEOC was awarded summary judgment in an age-discrimination lawsuit against the City of Baltimore. But things haven't been all peaches and cream for the EEOC.

In EEOC v. McPherson Cos., Inc., a federal district court in Alabama granted summary judgment to the defendant-employer in a sexual-harassment lawsuit brought by the EEOC on behalf of an unnamed male employee. The employee worked in a warehouse with an all-male workforce.

The EEOC alleged that, after being subject to a constant barrage of "ugly talk," the employee complained to his supervisor about the allegedly hostile work environment. About a year later, the employee confronted his co-workers, who apologized and, thereafter, stopped directing rude comments his way. About a year after that, the employee complained to HR, which investigated the complaint, resulting in discipline for several workers and two supervisors. After this last complaint, the comments ceased.

The court held that the EEOC had failed to establish the existence of an unlawful hostile environment because it had not shown that the rude comments and "ugly talk" were of a sexual nature or that they were made "because of" the employee's gender.

The EEOC argued that the harassment was because of his gender and, specifically, because of his effeminate behavior. This can be a valid cause of action--when a male employee is treated badly because he acts "too girly." But, here, despite the EEOC's argument, the testimony of the employee himself contradicted this argument. Thus, the court dismissed the gender-discrimination and sexual-harassment claims.

The court also dismissed the EEOC's retaliation claim. The employee was terminated, along with 11 other employees, as part of a reduction-in-force 3 months after his complaint to HR. The court expressed that it was "hard to believe" that the EEOC "is seriously arguing that the entire RIF process was a subterfuge for fraud designed for the sole purpose of providing cover for retaliation."

EEOC v. McPherson Cos., Inc., No. 10-cv-2627 (N.D. Ala. Nov. 14, 2012).

Not So Simply Irresistible, Says Iowa Supreme Court

Posted by Molly DiBiancaOn December 26, 2012In: Discrimination, Gender (Title VII), Harassment, Sexual

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I've posted more than my share of stories involving allegations by employees that they were terminated because they were "too sexy" for the job. For example, there was the female banker who sued Citigroup, alleging that she was terminated for being "too sexy for her job." Then there was the data-entry employee who was terminated from her job in a lingerie warehouse for, she alleged, wearing what her employer considered to be clothing that was "too sexy."

Usually, this type of allegation involves at least some level of grandiose delusion and almost always involves the employee's belief that everyone hates her for being so darn good looking. But today's post goes much closer to the realm of the legitimate. Because this post involves an actual court decision. On December 21, the Iowa Supreme Court unanimously ruled that there was no unlawful discrimination where a dentist terminated his dental assistant of 10 years after his wife became jealous.

For his part, the dentist admitted that the assistant was a good employee and wasn't fired for poor performance. Instead, he claimed that her tight clothing was too distracting and felt that he wouldn't be able to resist her charms if she remained in his employ any longer, reports CNN.

In other words, the ruling makes clear that "being irresistible" will not serve as the basis for a gender-discrimination or sexual-harassment claim.

Nelson v. James H. Knight DDS, P.C., No. 11-857 (PDF).

10th Cir. Victory for Employer in Off-the-Clock Claim

Posted by Molly DiBiancaOn December 20, 2012In: Fair Labor Standards Act (FLSA), Wages and Benefits

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Wage-and-hour lawsuits continue to plague employers around the country. Off-the-clock claims are some of the most difficult to defend because, by definition, the employee did not record the time in dispute. Trying to disprove an allegation is about as easy as boxing shadows.

Employers who face these off-the-clock claims are understandably frustrated by the ability of an employee to bring a lawsuit based on the employee's failure to comply with workplace rules. A recent trend has been the application of an affirmative defense similar to the one used in harassment cases. This defense is a very positive development for employers.

A recent decision by the 10th Circuit applied a similar reasoning with a similarly positive result. In Brown v. ScriptPro, LLC, the plaintiff-employee claimed that he'd worked from home during a 4-month period so he could take time off before the birth of his child. Despite the company's policy that required employees to record and submit time worked, the plaintiff claimed that he did not report the time. After he was fired for performance issues a few months later, he filed suit

The district court dismissed the suit, finding that the employee had failed to meet his burden to produce evidence of the overtime he claimed to have worked. He argued that the employer failed to keep the required time records. As a result, he argued, his burden to prove the amount of time worked should be lessened. The 10th Circuit disagreed.

Instead, the court found that the employee not only could have submitted the time he worked from home but, also, that he should have done so as required by the employer's policy. Thus, the employee's failure to record and report all time worked was fatal to his claim.

Brown v. ScriptPro, LLC, No. 11-3293 (10th Cir. Nov. 27, 2012).

DOT Regs vs. Lawful Marijuana Use

Posted by Molly DiBiancaOn December 19, 2012In: Drug Testing, Policies

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Medical-marijuana laws have been passed in several states. Although Delaware passed a law permitting medicinal use of marijuana, implementation was blunted by potential prosecution by the federal government. And, last month, Colorado and Washington voters made recreational use of marijuana legal in those states. Both medical- and recreational-marijuana-use laws raise lots of questions for employers.

One such question is how these laws will impact an employer's ability to drug test employees and applicants. The U.S. Department of Transportation (DOT) requires drug testing for safety-sensitive positions. Applicants must be tested before beginning work. Current employees must be tested in certain circumstances, including following an accident. Marijuana is one of the drugs that must be included in the DOT-required screenings.

In 2009, in response to the passage of medical-marijuana laws in several states, the DOT clarified that marijuana remained unlawful under federal law. The DOT reiterated that medical use of marijuana was still "use" and was still considered a violation of the DOT's regulations.

In response to the Colorado and Washington laws permitting recreational use of marijuana, the DOT has spoken yet again. On December 3, 2012, the U.S. Department of Transportation's (DOT) Office of Drug and Alcohol Policy Compliance issued a Notice to address the recent passage of state initiatives purporting to legalize marijuana use for recreational purposes. Not surprisingly, the DOT's position is unaffected by these State's laws and the prohibition against marijuana use by anyone in a safety-sensitive position remains fully intact.

The conflict between state and federal drug laws will be resolved eventually. But, until then, the questions and contradictions will continue to cause confusion for employers.

A Christmas Miracle? Employer Awarded Costs in FLSA Suit

Posted by Molly DiBiancaOn December 18, 2012In: Fair Labor Standards Act (FLSA), Wages and Benefits

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In Frye v. Baptist Memorial Hospital, the Sixth Circuit upheld the legality of automatically deducting meal breaks. The decision was not the first to hold that an automatic-deduction policy does not constitute a per se violation of the FLSA. Nor will it be the last.

But it is an important one to employers who utilize these policies.

In Frye, the court affirmed the decertification of the collective action. As a result, the opt-in plaintiffs' claims were dismissed. The named plaintiff's claims also were dismissed because he had not filed a notice of consent within the three-year statute of limitations.

With the entire suit dismissed, the employer sought to have its defense costs reimbursed by the plaintiff. And, in what can be described only as a total victory, the employer's request was granted. The Sixth Circuit affirmed the award of more than $55,000.

The court first held that nothing in the FLSA precludes an award of costs to a prevailing defendant. As most employers know, the FLSA specifically provides for an award of costs to a prevailing plaintiff. It does not, however, address prevailing defendants. Nevertheless, the Federal Rules of Civil Procedure does contain such a provision. Rule 54, specifically, provides that a prevailing party may seek to have their costs reimbursed.

Here, the court held, the employer was, indeed, a "prevailing party" because it had been successful in having the class decertified and the named plaintiff's claims dismissed. Thus, the court found, the defendant was entitled to recover the costs expended in defending against the lawsuit.

Could this be the wave of the future? Costs awarded to the defendant employer in claims brought under the FLSA? Ah, to dream a little dream.

[Editor's Note: This post erroneously described the award as including fees and costs, whereas the award represented costs only. The post was modified to correct the error.]

See also,

E.D. Pa. Dismisses Nurse's Claim for Missed Meal Breaks

Thoughts on Writing a Legal Blog

Posted by Molly DiBiancaOn December 17, 2012In: Purely Legal, YCST

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Being selected as a Top 100 Blawg by the ABA Journal again this year is such an honor. What makes this honor even more remarkable is the popularity of our field. According to the State of the AmLaw 200 Blogosphere report, Labor and Employment is the single most popular category for legal blogs among the country's largest law firms. Put that fact together with the fact that we are not a big law firm and I'm even more flattered than I dare express.

For those of you who have already cast your vote for us in the Labor & Employment category, thank you, thank you, thank you. If you haven't yet voted, there's still time--voting closes at the end of this week.

As I've said a number of times, blogging is a real labor of love. It doesn't pay--just the opposite, it takes time that I would otherwise spend doing billable work. So why do it? Honestly, there are more reasons than I could fit in a single post.

If you're considering starting a blog or if you just want to learn more about it, take a stroll around the newest blog written by Ernie Svenson. Ernie is a practicing attorney in New Orleans who also happens to be a prolific blogger. He's written a great new book for the ABA titled, Blogging In One Hour for Lawyers.

Ernie was kind enough to mention me in the book's Acknowledgment and has posted my answers to 5 questions he asked several law bloggers. Check out his blog post to get a sense of why I love blogging and how I got started. While you're there, be sure to check out the answers that other bloggers shared, as well.

And thanks again for your ongoing support of our humble endeavor at the Delaware Employment Law Blog!!

Enforcing an Unwritten Social-Media Policy

Posted by Molly DiBiancaOn December 17, 2012In: Policies, Social Media in the Workplace

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Can an employee be fired for violating a social-media policy that doesn't exist? This is a question that many employers have faced. And, if the NLRB continues to scare employers away from social-media policies, it's a question that will continue to arise.

The answer, simply put, is "yes." Employers need not have express written policies on each and every possible workplace infraction. For example, if an employee decided he would speak only Vulcan at work, he surely could be terminated without legal consequence. Similarly, most employers do not have a policy prohibiting employees from walking around the office on their hands. Yet, terminating an employee for clown-like conduct would not trigger a lawsuit.

The same concept applies when it comes to social media. If an employee posts the employer's confidential information on the employee's Facebook page, the employee can be terminated, right? Whether there is a policy that specifically prohibits employees from leaking confidential information via social media is irrelevant. So long as the adverse action is not being taken for unlawful reasons, a written policy is not necessarily required.

That said, whether an employer can do something is often quite different from whether it should do it. This is particularly true when it comes to social media.

A recent example of this dichotomy involves a meteorologist from Shreveport, Louisiana who was fired for allegedly violating her employer's unwritten social-media policy:

A broadcaster at a news station in Louisiana politely responded to a Facebook comment about her hair. She lost her job over it, via a policy that wasn't codified. Was that legal? Was it fair?

You can read my answer to both questions at Ragan.com.

Wilmington Joins the Ban-the-Box Bandwagon

Posted by Adria B. MartinelliOn December 11, 2012In: Background Checks, Hiring

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Employers' Ban-the-Box initiatives are taking hold in many states and municipalities. The City of Wilmington has joined the ranks of employers no longer requiring information on an applicant's criminal history at the time of job application. Mayor Baker signed an executive order on Monday that removes a question about criminal convictions from city job applications.

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According to Mayor Baker, the city will now conduct criminal background checks only on applicants who have received a conditional job offer. Public safety jobs in the police and fire departments are the only positions excluded from the order.

Mayor Baker's initiative is a good idea for many reasons. According to the article, nearly one in four job applicants has some kind of criminal past. That is a significant portion of the population who could be automatically denied employment, and deprived of the opportunity to be a productive member of society, by employers taking an inflexible position on criminal background. Moreover, the practice of not hiring applicants with a criminal record disproportionately affects certain segments of the population: predominantly Hispanics and blacks. Because of this adverse impact, the EEOC has taken a particular interest in this practice.

In order to exclude applicants based on a criminal record and successfully defend an EEOC inquiry, the employer must prove that the exclusion was "job-related and consistent with business necessity." In other words, the employer should be able to articulate its logic if it denies employment to an applicant based on criminal history. For example an employer hiring a cashier position who learns that an applicant embezzled from a prior employer five years ago passes the smell test for exclusion. On the other hand, it is much harder to justify excluding an applicant who is going to load pallets in the warehouse, because he wrote a bad check once. The severity of the crime, its relationship to the job, how long ago it was committed, are all factors that should be considered with each decision.

In April of last year, the EEOC issued an Enforcement Guidance on the Consideration of Arrest and Conviction Records. The Guidance laid out the statistical case for a heightened scrutiny of criminal background checks. While it does not outright ban asking about criminal history on a job application, it does strongly discourage the practice, and recommends that the employer wait as late as in the hiring process as possible to request this information. By waiting until an employee has been extended a conditional offer of employment, the City of Wilmington has done just what the EEOC advises.

Previous posts on criminal-history checks for potential employees.

Attempted Suicide and the ADA

Posted by Molly DiBiancaOn December 2, 2012In: Disabilities (ADA), Discrimination

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When an employee seeks to return to work following a failed suicide attempt, there can be concerns about safety--both for the employee and for co-workers. At the same time, savvy employers know that the ADA may provide the employee with legal protections. A recent case in the Western District of Pennsylvania, Wolski v. City of Erie, provides an opportunity to review this potential conflict.

The plaintiff-employee, Wolski, who was the City's first female firefighter, began to suffer from panic attacks and severe depression following the death of her mother in 2005. She took sick leave for several months, during which she was prescribed multiple medications by a psychiatrist.

After she failed to return to work as scheduled, she was granted additional time off. During this period of leave, she attempted suicide by disabling the carbon-monoxide and smoke alarms and setting a fire in her home. She survived the attempt and was hospitalized until early 2006. The fire was the subject of a criminal investigation.

In early March, when Wolski asked the Chief when she could return to work, he indicated that she was not likely eligible to return until the conclusion of the investigation. On April 3, Wolski ran out of sick leave and was placed on administrative leave. On April 11, after she was formally cleared in the investigation, Wolski was fired. In the termination letter, the Chief explained that Wolski was being fired as a result of her suicide attempt in December:

. . . you started a fire in your residence, having disconnected the smoke detectors and carbon monoxide detectors, and took an overdose of medication as a suicide attempt. Family members extinguished the fire, but the City firefighting crew was dispatched to your home; and you were taken by helicopter to Pittsburgh for emergency medical treatment to save your life.


This incident renders you presumptively unsuited to be a firefighter, as you pose an ongoing threat to the safety of the public, other firefighters and yourself, having set a fire in a residence . . ..

Wolski filed suit alleging that her termination violated the ADA. The case went to trial but a retrial was ordered based on improper jury instructions, so the court's opinion does not address the question of liability. In the Wolski case, the employer argued, unsuccessfully, that the decision to terminate was not based on the employee's suicide attempt but because of her having set the fire.

But this is not the usual case. More commonly, the employer is worried that the employee will attempt to harm herself again and, in the course of doing so, may harm others. The EEOC addresses this in its Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities:

35. Does an individual who has attempted suicide pose a direct threat when s/he seeks to return to work?


No, in most circumstances. As with other questions of direct threat, an employer must base its determination on an individualized assessment of the person's ability to safely perform job functions when s/he returns to work. Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work. In analyzing direct threat (including the likelihood and imminence of any potential harm), the employer must seek reasonable medical judgments relying on the most current medical knowledge and/or the best available factual evidence concerning the employee.

According to the EEOC's Guidance, the ADA prohibits an employer from terminating an employee because of an attempted suicide. Although the employer's concerns about safety may be well intended, they are not a basis for an adverse employment decision. One purpose of the ADA is to ensure that employers do not substitute their own judgment about "what is best" for an employee and, instead, let the employee and the medical professionals make those determinations.

Wolski v. City of Erie, Case No. 1:08-cv-289-SJM (W.D. Pa. Sept. 28, 2012).

H/T Mitchell Rubinstein at the Adjunct Law Prof Blog

Everybody Loves a Winner

Posted by Molly DiBiancaOn November 30, 2012In: Locally Speaking, YCST

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It's so nice to get a compliment. And when the compliment comes from the ABA Journal for the fourth year in a row, it's really, really, really nice. Yes, that's right, the Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country in the 6th Annual edition of the Top 100. This is the fourth consecutive year in which we've been awarded this incredible honor and, I can assure you, it is no less a surprise or a thrill this year than it was four years ago.

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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 whose posts continue to set a very high bar, thank you.

I share the honor this year with five other employment-law bloggers, each of which does a tremendous job reporting on the various aspects our shared practice area. Most of you likely already read the blogs of my co-winners but, if you don't, you should. Here's the list:


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

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.

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

Discovery of EEOC Claimants' Social-Media Posts

Posted by Molly DiBiancaOn November 27, 2012In: EEOC Suits & Settlements, Social Media in the Workplace

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In my previous post about EEOC v. Original Honeybaked Ham Co. of Ga.,, I described a somewhat ambiguous, if not unusual, procedure for the production and review of individuals' social-media accounts ordered by a Magistrate Judge. In short, the Judge's well-reasoned decision attempted to balance the individual claimants' privacy interests with the defendant-employer's right to broad discovery of potentially relevant information. Faced with these two competing interests, the court crafted a fairly complex, multi-tiered, and dynamic process to collect, review, and produce the information from the former employees' social-media accounts.

The EEOC has filed an Objection to that decision. (An "objection" is, to put it simply, an appeal of a magistrate judge's decision to the trial judge). The objection gives us a bit more insight but a lot more questions.

The EEOC acknowledges in its objection that, since the issuance of the discovery ruling, the Magistrate Judge had revised the procedure--perhaps more than once. This indicates, and the EEOC makes clear, that the court has been and is continuing to be flexible in working with the parties towards a workable procedure. Nevertheless, we do not know what the alterations were.

One of the changes, though, is described in the Objection. Specifically, the EEOC states that the Court eliminated the appointment of a special master and, instead, designated an EEOC employee with computer-forensic qualifications to perform the collection. Under the initial Order, the claims were to turn over their log-in and passwords to their Facebook accounts to the special master, which caused a big stir among commentators. Now that the data will be harvested by EEOC personnel, perhaps the password issue is an issue no more.

But none of this addresses my bigger question--why make the process so complicated? Particularly, I wonder whether it wouldn't have been easier to have the claimants download their account information by using the tool provided by Facebook precisely for that purpose. DIY e-discovery of social-media seems to me to be a better option than the process in this case--at least the version of the process outlined in the Order.

Kansas Lawyer Fired for Profane Tweet

Posted by Molly DiBiancaOn November 27, 2012In: Purely Legal, Social Media in the Workplace

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Lawyers' use and misuse of social media is, as many readers know, a topic that I love. Although it's been a while since I posted about a lawyer's social-media "fail," it certainly isn't because of a lack of potential stories. Here's a recent story that made the headlines of the Huffington Post.

Sarah Peterson Herr was employed as a research attorney for a Kansas Court of Appeals judge when she tweeted about that State's former Attorney General, Phill Kline. At the time of the tweets, Kline was appearing before the Kansas Supreme Court as part of an ethics investigation.

The tweets weren't exactly journalistic in nature. Nor were they very complimentary of the former AG. In one, Herr asked, "Why is Phil Klein (sic) smiling? There is nothing to smile about, douchebag." How charming. In another tweet, Herr predicted that the former AG would be disbarred for seven years for his conduct during investigations of abortion providers.

It's unclear where exactly Herr was when she posted the tweets but it does seem that, if she wasn't actually present at the hearing, she was purporting to be. Either way is problematic. Judicial staff, including staff attorneys, are prohibited from commenting on pending cases, as are the judges to whom they report.

When the story broke, Herr apologized, saying that she "failed to realize her posts were readable by all Twitter readers," reports the Huffington Post. She was suspended with pay on Friday but, by Monday, the Kansas Supreme Court's Chief Justice announced that Herr had been terminated and referred to the appropriate ethics offices.

Employer Can Depose All 94 Claimants In EEOC Lawsuit

Posted by Molly DiBiancaOn November 24, 2012In: Discrimination, EEOC Suits & Settlements, Race (Title VII)

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Litigating against the the EEOC is difficult for several reasons. For one, unlike a lawsuit brought by an individual plaintiff, a suit brought by the EEOC has the resources of the entire federal government behind it. Perhaps because of the agency's bureaucratic structure, negotiating with EEOC counsel can be difficult during litigation, at times resulting in a total breakdown of communication. A recent decision by a federal court in Illinois illustrates what happens when the lawyers in an employment-discrimination lawsuit take the driver's seat to the exclusion of the individuals at the heart of the case.

EEOC v. DHL Express (USA), Inc., was brought by the EEOC on behalf of 94 claimants, alleging that DHL discriminated against its African-American driver/dockworkers based on their race by giving them less desirable, more difficult, and more dangerous route and dock assignments than their Caucasian counterparts and by assigning African-American drivers to routes in predominately African-American areas.

DHL brought a motion to compel the EEOC to produce all of the claimants for deposition after the EEOC provided interrogatory responses that included an unsworn "vignette" for each claimant with the claimants' general allegations of discrimination. DHL argued that individual depositions were required because the vignettes were vague, filled with generalities, and, in several instances, inaccurate. DHL also argued that, because there is no standard as to what constitutes a "more dangerous assignment" and no objective criteria for what constitutes "less desirable," each claimant's individual testimony was necessary to establish its defense.

The court was not impressed by the "vignettes," finding that they failed to give any meaningful detail or specifics about the alleged discriminatory treatment. Instead, the court concluded that the additional 60 depositions (DHL had deposed 34 of the 94 claimants already), were necessary not to evaluate both potential liability and damages.

The lesson to be learned from this decision, in my opinion, relates mostly to litigation strategy. By submitting these "vignettes" in response to the defendant-employer's interrogatories, the EEOC seems to have forgotten about the individual employees whose claims were the basis for the lawsuit. Had the EEOC actually provided the sworn responses of the employees instead, the need for the employer to expend its resources to take an additional 60 depositions would not have been necessary. Or, perhaps, the EEOC should have formulated a clearer understanding of its allegations before filing its Complaint. Ah, a lawyer can dream, can't she?

EEOC v. DHL Express (USA), Inc., No. 10 C 6139 (N.D. Ill. Oct. 31, 2012).