A Really Bad Boss and a Really Awful Invasion of Privacy

Posted by Molly DiBiancaOn October 21, 2012In: Jerks at Work, Privacy In the Workplace, Privacy Rights of Employees

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This lawsuit, which we'll file in the category of "Ultimate Jerks at Work," was reported by Kashmir Hill on Forbes.com. Here's the story, as alleged in the lawsuit.

Jonathan Bruns was working for a staffing agency when he was placed with a company in Houston, Texas. According to the complaint, Bruns asked if he could charge his cellphone in a wall outlet. His supervisor, Pete Offenhauser, obliged.

Apparently, after Offenhauser approved the request, he unplugged the phone from the wall and into his laptop. Once the phone was connected, Offenhauser had access to the pictures Bruns had stored on his phone. Among them were photos of Bruns' fiancee.

In the photos, Bruns' fiancee was, er, uh, nude.

What did Offenhauser do next? Oh, come on, I think we all know. He called everyone in the office over to his laptop. Once the whole group was gathered 'round, he showed them Bruns' photos. Bruns walked in and saw the goings on. When he asked what all the excitement was about, he was greeted with "laughs and inappropriate comments," many of which were made by his boss.

Bruns and his fiancee filed suit against the company, alleging invasion of privacy. This is not exactly a surprise, I'd say. But why not sue the supervisor, Offenhauser, individually? Well, presumably, because he was acting in his capacity as a supervisor at the time of the alleged conduct. But the alleged acts were, after all, tortious in nature, so there would likely be a claim against him, as well as against the company. The company, however, is more likely to have the money to pay.

And that, dear readers, is how the pixels crumble.

Learning How to Say "No" and Mean It

Posted by Molly DiBiancaOn October 19, 2012In: Employee Engagement

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I am writing this post from a train on Amtrak's Northeast Regional line. The train's next stop is Bridgeport. But that is not my stop. I am heading all the way to New London, Connecticut. For those of you lucky enough not to have the train schedule memorized, my destination means I'll have been onboard for about 5 hours by the time I depart.

I really hate riding the train. Yes, I know, "hate" is a strong word and, perhaps, too strong in this context. But I really dislike taking the train. I get lo-grade motion sickness--just enough to drain my energy but not enough that I could justify not taking the train for certain trips.

I don't like co-passengers who ever-so-slowly eat tuna-salad sandwiches that they brought with them. I don't like Amtrak's promises of "Wi-Fi Hot Spot," which is repeated on stickers plastered all over the interior of the train but which must have been intended as a joke because I have yet to get an Internet connection that lasted for more than 30 seconds. I don't like mean women in the Quiet Car, who "shhhhhh" and wag their fingers at any passenger who dares to so much as cough.

And I really don't like that I have get back on this train tomorrow and do it all over again, just heading in the opposite direction.

So why, then, am I on the train? Because I can't say "no." Well, that's not entirely true. I can't say "no" to people I like. Which is why, when my boss "suggested" that I should accept a speaking engagement in Connecticut in late October because it would be "great exposure for the firm," and I "suggested" that I probably shouldn't due the already dizzying number of commitments I had in late October, and he continued to "suggest," and I continued to "suggest," eventually, I was the first to abandon my suggestion and accept the gig.

As I boarded the train this morning, miserable utterances just waiting to be uttered, I had to remember that I was the only one to blame. Had I stuck to my initial answer, which I knew was the right one, I wouldn't be spending 11 hours in 2 days on this train with lo-grade motion sickness.

But I didn't stick with it. I caved. I said "yes," when I knew that "no" was the right answer. And I am the only fool to blame. Learning when to say "no" and how to actually stick with it are important skills. And, for me anyway, they're learned skills that take lots of practice, apparently. I'm still hoping that I'll figure it out one of these days.

In the meantime, though, I know that, once I de-board, free of the smell of tunafish, I will have a great time in Connecticut. And I'm sure that the event will be a hit, that I'll meet at least a few new people, probably see at least one person I already know. And the post-presentation seminar high that I will surely have will make at least part of the train ride home tomorrow less nauseating.

Here's to hoping!

An HR Lesson from the Presidential Debate

Posted by Molly DiBiancaOn October 17, 2012In: Performance Evaluations, Reduction in Force (RIF), Terminations & Layoffs

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I never discuss politics. Never. I don't have the stomach for it, to be honest, and I avoid the subject like the plague. That said, I did manage to watch part of the Presidential Debate on Tuesday night. There are ample pundits who surely have more insightful (i.e., political) commentary than what I can offer. So I'll gladly leave the politics to others and stick with what I know--employment law. Here's one HR-related lesson that I took away from the debate.

One of the hottest topics of post- debate discussion was Mitt Romney's comment about "binders full of women." I'll admit--when I heard him say that, I cringed. It just sounded so wrong.

But I'll admit that I cringed for another reason. I assume Mr. Romney did not actually plan to say that he'd looked at "binders full of women." Surely he meant to say that he'd reviewed binders full of resumes of female candidates. But, alas, those were not the words that he said. And now he's stuck with the ones he did say.

And that's the lesson for HR professionals. Be careful with your words--they're hard to get rid of once they've been said and even more difficult to escape once they've been committed to paper.

I used to teach a seminar called, "Help Me Help You." The theme of the seminar was effective documentation for supervisors and HR professionals. My slide deck consisted of real-life examples of documentation "done wrong." One slide, for example, showed an excerpt of hand-written notes taken by a supervisor who later became the alleged wrongdoer in an age-discrimination case. He'd taken the notes during a pitch presentation by an outside vendor and had written, "would be good work for young project managers."

What he meant, he explained at his deposition, was that the work offered good opportunities for junior project managers--not necessarily young ones. I have no doubt that his explanation was an honest one. But that didn't make it any less uncomfortable when asked about it by the EEOC attorney who was deposing him.

There are more stories like this than I can possibly recount--although someday I may try if I ever getting around to writing my memoir of life as an employment lawyer. The point, though, is this: Words are cheap. Their consequences can be very, very costly. So choose wisely.

FLSA Victory: Class Certification Denied

Posted by Molly DiBiancaOn October 17, 2012In: Fair Labor Standards Act (FLSA), Wages and Benefits

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Ask any employment lawyer what the worst employment law is and I'd be willing to bet the overwhelming majority would answer, "the FLSA." Although the Fair Labor Standards Act (FLSA) was written with the right idea in mind--to ensure employees are paid for the work that they perform--the law is sorely out of date and subject to gross abuse by employees and employees' lawyers. Most of the FLSA cases I see look more like extortion than enforcement actions.

Despite the law's rampant abuse, the number of suits filed under the FLSA continue to increase. There are any number of reasons for this. One (big) reason is the potential recovery for the plaintiffs' lawyers. A victorious plaintiff in an FLSA claim is entitled to recover all of his reasonable attorney's fees and costs. When the parties reach a settlement--which is overwhelmingly the case--the employees' lawyer usually gets one-third of his clients' recovery, often resulting in a disproportionately large payday for the lawyer even when his client receives a small sum.

Another reason for the popularity of FLSA claims is the easy standard for conditional certification. The burden is very, very low for a plaintiff seeking to conditionally certify a class of employees. And, once certification is granted, the likelihood of settlement increases exponentially.

Which is why I get particularly excited when I read about a decision denying conditional certification of a collective action under the FLSA. One such decision, Pennington v. Integrity Communications, LLC, was issued by a federal court in Missouri on October 11, 2012.

In Pennington, the two plaintiffs worked as cable installers. They alleged that they were improperly classified as independent contractors. They contended that they should have been classified as employees and, consequently, were owed back-pay overtime and other damages. The plaintiffs moved to conditionally certify a class of similiarly situated individuals and notify potential class members.

The court reiterated that the burden on the plaintiffs at this stage is low, explaining that, typically a motion for conditional certification is decided only on the plaintiffs' affidavits. Here, the plaintiffs had, indeed, submitted affidavits, in which they averred that they regularly worked more than 40 hours per week--specifically, they averred that they worked, on average between 50 and "at least" 70 hours per week. The plaintiffs also averred that they were aware of other cable installers, who similarly worked more than 40 hours per week.

What the plaintiffs did not aver, however, was that those other installers weren't paid at an overtime rate for those hours worked over 40 in a workweek. Because of this omission, the court denied the plaintiffs' motion for conditional certification, finding that they'd failed to meet their burden to point to similarly situated individuals. As a result, the court denied the motion to certify a class.

And that is good news for employers. But there's bad news, too. The decision is not a total victory for the employer. The plaintiffs will get another bite at the proverbial apple and are entitled to re-file their motion with revised affidavits. Nevertheless, every small win under the FLSA is an important one. And it's important that the court adhered to the proper standard, instead of granting the motion in a rubber-stamp manner.

Pennington v. Integrity Commun's, LLC, No. 1:12-cv-5 SNLJ, 2012 U.S. Dist. LEXIS 146296 (E.D. Mo. Oct. 11, 2012).

See also
The Legality of Automatically Deducting Meal Breaks
Here's to [My] Job Security
The FLSA Is Legal Extortion of Employers
Top 10 FLSA Blogs

National Disability Employment Awareness Month

Posted by Molly DiBiancaOn October 15, 2012In: Alternative Work Schedules, Flextime, Internet Resources, Resources, Women, Wellness, & Work-Life Balance

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Earlier this month, the President proclaimed October 2012 National Disability Employment Awareness Month (NDEAM). The observance is intended to raise awareness about disability employment issues and to celebrate the contributions of our country's workers with disabilities. This year's theme is "A Strong Workforce is an Inclusive Workforce: What Can YOU Do?"

In conjunction with NDEAM, he U.S. Department of Labor has launched an online Workplace Flexibility Toolkit to "provide employees, job seekers, employers, policymakers and researchers with information, resources and a unique approach to workplace flexibility."

According to the U.S. DOL, the toolkit "points visitors to case studies, fact and tip sheets, issue briefs, reports, articles, websites with additional information, other related toolkits and a list of frequently asked questions. It is searchable by type of resource, target audience and types of workplace flexibility, including place, time and task."

When Employers Talk Politics

Posted by Molly DiBiancaOn October 15, 2012In: Discrimination & Harassment

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Should an employer take a stance on political issues? This is a complicated question. On one hand, consider the negative publicity Chick-Fil-A received when the franchisor confirmed that it opposed same-sex marriage. The ripple effects were far reaching. Franchisees, who had not voice a position, faced protests and boycotts. One supporter of same-sex marriage took his opposition to YouTube and found himself out of a job as a result. Although there also those who lauded Chick-Fil-A for taking its position public, most of the publicity was not positive.

Chick-Fil-A's message was directed to the public, generally, but what about an employer who takes its position to another level? Take Nordstrom, for example. The Seattle-based company sent an email to its 56,000 employees, voicing support for same-sex marriage. The letter was signed by Nordstrom executives and brothers Blake, Pete, and Erik Nordstrom, making clear that the position was an official one.

The message stated, "it is our belief that our gay and lesbian employees are entitled to the same rights and protections marriage provides under the law as all other employees." The email comes in advance of Referendum 74, which will ask voters to either approve or reject a law passed earlier this year allowing gay marriage in Washington state.

And Nordstrom is not the only company in the Pacific Northwest to speak out in support of same-sex marriage. Amazon, Microsoft Corp., Starbucks Corp. and Nike, Inc., have also voiced support of similar laws.

So, is this type of top-down showing of support for a particular political position a good thing or a bad idea? On one hand, if the employer voluntarily prohibits sexual-orientation discrimination, supporting same-sex marriage certainly is not a far leap.

On the other hand, what about an employer who takes the opposing position and, like Chick-Fil-A, is a vocal opponent of same-sex marriage? If the company operates in jurisdictions (like Delaware) that prohibit employment discrimination based on sexual orientation, it would seem to be putting itself at legal risk. After all, wouldn't this be excellent evidence in support of a work environment hostile towards gay and lesbian employees? Maybe it would not be admissible. But, maybe it would be.

Social-Media Round Up (and other miscellany)

Posted by Molly DiBiancaOn October 12, 2012In: Non-Compete Agreements, Social Media in the Workplace

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Discovery of Social-Media Evidence is the topic that I'll be presenting today at the annual Office & Trial Practice seminar. Despite my far-reaching popularity (kidding, just kidding), the real celebrity at today's event will be U.S. Supreme Court Justice Scalia. Because I probably should be practicing my presentation instead of writing a blog post today, I'll try to keep this brief, adopting the weekly-round-up approach used by Jon Hyman.

In Jon's honor, we'll start the list with one of his posts from this week. Yesterday, Jon wrote about a case from the Central District of Illinois, in which the plaintiff claimed he had not been hired due to his age. The twist, though, was that the plaintiff claimed that his employer must have learned the plaintiff's age by looking at his LinkedIn profile, which included the year he'd graduated from college. Before you run for the hills, bear in mind that the plaintiff was proceeding pro se, meaning without a lawyer. The allegations are weak, at best, but they were sufficient to survive a motion to dismiss. However, pro se plaintiffs are given a lot of leeway in their pleadings, so the ruling doesn't surprise me too terribly much. The case is Nieman v. Grange Mut. Casualty Co., No. 11-3404 (C.D. Ill. Apr. 26, 2012).

Next up on the list is an update to a case I wrote about earlier this week, Acordia of Ohio, LLC v. Fishel. In that case, decided in May, the Ohio Supreme Court held that the surviving employer in a merger or sale could not enforce its predecessor's employees' noncompete agreements as if it had stepped into the predecessor's shoes--unless the agreement expressly provided otherwise.

Kevin Griffith of Porter Wright's Employer Law Report reported that, yesterday, the court reversed that part of its decision, finding that the successor entity may enforce such noncompete agreements, even though it was not the original contracting party. The court limited this holding, though, explaining that employees could challenge the validity of the agreement based on whether the merger(s) "created additional obligations or duties so that the agreements should not be enforced on their original terms."

And, finally, Venkat Balasubramani writes about a new case from Texas, which seems to confirm what should be obvious--viewing comments posted to social-media sites cannot give rise to a claim for invasion of privacy. Why? Because, in short, sharing with one is, under traditional privacy concepts, sharing with all. Once you share information with anyone, you lose any reasonable expectation you may have had that the information will be kept private from others. Of course, there are a few, very limited exceptions, or "privileges," such as attorney-client and doctor-patient situations, but none that would apply to Facebook posts.

And that, actually, brings me back to where I started. In the limited number of cases that have been decided on the question of discovery of social-networking information, comments, and other content, the courts have unanimously declined to find any type of social-media privilege or special privacy right. Although that does not mean that Facebook contents are there for the taking, either.

But more on that after I wow the crowd at today's seminar. (Again, just kidding, really). Have a great weekend!

The Legality of Automatically Deducting Meal Breaks

Posted by Molly DiBiancaOn October 10, 2012In: Fair Labor Standards Act (FLSA), Wages and Benefits

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Many employers automatically deduct thirty minutes for employees' meal breaks. The employer's policy provides that an employee must take their allotted 30-minute break unless a supervisor authorizes the employee to work through the break. And, in the unusual case when the employee does have to miss her break, she must report it to ensure she gets paid.

There are several reasons to have an automatic-deduction policy. For example, for employees who spend most of the workday out of the office without access to a time clock, an automatic-deduction policy can be the only realistic option for timekeeping purposes. It also means less administrative work and room for error when employees forget to clock back in after a break. Auto-deduct policies are very common in hospitals and other health-care facilities.

But this type of meal-break policy isn't popular only with employers; plaintiff's counsel have taken a liking to it, as well. Over the last few years, numerous suits have been filed as class actions under the state and federal (FLSA) wage laws. The suits allege that the employees did not get the benefit of the full meal break but were not paid for the time because of the automatic-deduction policy. As with any class or collective action, meal-break suits can mean big costs for employers.

But the news isn't all bad. Several opinions have been issued recently finding against plaintiffs in automatic-deduction cases. A case issued last week by a court in the Northern District of Illinois is yet another indication that the tides may have turned in favor of employers. In Camilotes v. Resurrection Health Care Corp., No. 1:10-cv-00366 (N.D. Ill. Oct. 4, 2012), the court decertified the FLSA collective action, finding that the claims and defenses were too individualized to justify proceeding as a class.

Specifically the court pointed to the fact that the plaintiffs worked different shifts and reported to many different supervisors, each of whom enforced the meal-break policy differently. The court also looked to the fact that the plaintiffs alleged different numbers of missed breaks whether those missed breaks actually caused the plaintiffs to have worked overtime.

Although the case is a victory for the employer, it was a victory hard fought, as the employer had to get through the costly discovery process before succeeding on decertification.

E.D. Pa. Rules on Ownership of LinkedIn Account in Eagle v. Morgan

Posted by Molly DiBiancaOn October 9, 2012In: Privacy In the Workplace, Social Media in the Workplace

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Ownership of employees' social-media accounts was my pick for "hottest topic facing employers in the next 12 months" when I spoke to the Labor & Employment Section of the Delaware Bar Association back in April. A decision issued by the Eastern District of Pennsylvania last week on this issue is proving me right. And, if I say so myself, it is nice to be right every once in a rare while.

The plaintiff, Dr. Linda Eagle, co-founded Defendant EdComm, Inc., in 1987. The company was purchased in 2010 and Dr. Eagle was terminate shortly thereafter. Prior to the purchase, EdComm's CEO encouraged all EdComm employees to create a profile on LinkedIn listing EdCommas their current employer.

Dr. Eagle, with the help of a designated EdComm employee, followed the suggestion and set up a LinkedIn account and profile. The company had a policy that required employees to use their company e-mail address in their LinkedIn profile and to set up their profiles using a company-created template. Once the account had been created, EdComm kept a copy of the account's password on file.

It was the company's general policy that, when an employee separated from EdComm, the company "would effectively 'own' the LinkedIn account and could 'mine' the information and incoming traffic, so long as it did not steal that former employee's identity."

The same day she was fired, Dr. Eagle attempted to log into her LinkedIn account but was not able to do so. The next day, the company announced its new executive management team, including Dr. Eagle's replacement. Using Dr. Eagle's password, EdComm accessed her account and changed the password, thereby precluding her from future access. It also changed the account profile to display the successor's name and photograph. Dr. Eagle's honors, awards, recommendations, and connections, however, were unchanged.

Dr. Eagle filed suit asserted numerous state and federal statutory and common-law causes of action. Thereafter, she was able to regain access to her account, although she was not able to retrieve messages sent to and from the account for some additional period of time. The company asserted various counter-claims, which Dr. Eagle moved to dismiss. In December, the court denied the motion to dismiss, finding that the "connections" had value for the company.

The parties completed discovery and Defendant moved for summary judgment. In an opinion dated October 4, 2012, Judge Buckwalter dismissed Dr. Eagle's federal claims but declined to dismiss her state-law claims. With just two weeks remaining before trial and Defendant's several state-law claims having survived the earlier motion to dismiss, the court ordered the case to proceed.

Dr. Eagle was acting pro se and it showed. Both of her federal claims--brought under the Computer Fraud and Abuse Act and the Lanham Act--were not litigated in a way that they could have survived summary judgment. For more specifics about the dismissal of these claims, see Venkat Balasubramani's post on Eric Goldman's Technology and Marketing Blog.

Whether either claim would have stood a more reasonable chance had she been represented by counsel is anyone's guess but I suspect it's at least in the realm of the possible. But she wasn't. And, as a result, the court's decision is likely to have limited impact on similar disputes over the ownership of social-media accounts.

So what's the real lesson to be learned from this case, if it's not about the application of the CFAA to LinkedIn accounts? I have to agree with Venkat on this one--employers who encourage (or require) employees to create or use a social-media account for work should get the ownership rights in writing before they find themselves litigating against a pro se plaintiff with two weeks to go before a full trial on the merits.

Eagle v. Morgan, No. 11-4303 (E.D. Pa. Oct. 4, 2012).
H/T to Francis Pileggi, who writes the Delaware Corporate and Commercial Litigation Blog.

Enforceability of Noncompete Agreements Post-Merger

Posted by Molly DiBiancaOn October 9, 2012In: Non-Compete Agreements

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The enforceability of a noncompete agreement can vary greatly by State. When drafting a noncompete agreement or restrictive covenant, a critical decision will be which State's law should apply in an enforcement dispute. Delaware employers have very favorable law on their side, as noncompete agreements are enforced here to a much greater extent than many others. Here's an example.

noncompete agreement

In May, the Ohio Supreme Court considered the enforceability of a non-compete agreement by a successor of the original contracting employer. In other words, can a non-compete agreement be enforced after the original employer is acquired in a sale or merger. In Acordia of Ohio v. Fishel, four employees signed non-compete agreements with their employer. The agreements provided that the employees would not compete with the employer for two years following termination. The agreements did not contain language that would extend the prohibitions to the employer's successors or assigns.

In 2001, the employer merged with Acordia of Ohio, LLC. Following the merger, only Acordia survived. The four employees continued to work for the new entity until August 2005, when, you guessed it, they went to work for a competitor. Within six months of their resignations, they'd managed to recruit 19 customers worth about $1 million to the competitor.

Acordia sued the former employees and their new employer, seeking to enforce the terms of the noncompete. The court denied the motion and dismissed the case. Acordia appeal but the decision was affirmed. Relying on the State's merger statute, the Ohio Supreme Court found that, following the 2001 merger, the new employer could enforce the terms of the agreements--but only under the agreement's original terms.
Technically, the merger had terminated the employees' employment with the original employer because the employer ceased to exist. Thus, their obligations under the noncompete agreement had ended in 2003--two years after the merger. By the time they went to work for the competitor in late 2005, their noncompete period had expired and they were free to compete.

There is an important lesson to be learned from this case for any counsel charged with drafting a non-competition agreement or other restrictive covenant: non-compete agreements that will be construed under Ohio law must expressly provide for the possibility of a merger or acquisition in order to be enforced by a successor employer. That is not the case in every State, though. In Florida, for example, the issue remains unsettled, although a decision from an appellate court in August found that a covenant not to compete could be assigned in DePuy Orthopaedics, Inc. v. Waxman (Fla. 1st DCA Aug. 3, 2012). In Delaware, though, the issue has been decided.

In January 2010, the Delaware Court of Chancery determined that restrictive covenants contained in an employment agreement lacking an assignability clause are enforceable by a successor company that has purchased substantially all of the original employer's assets. In Great American Opportunities, Inc. v. Cherrydale Fundraising, LLC, No. 3718-VCP (Del. Ch. Jan. 29, 2010), Vice Chancellor Parsons explained that noncompete agreements and other restrictive covenants "exist for the benefit of the business and not the individual parties.

Thus, the business, whether as assignee or assignor, should enjoy that benefit by having the power to enforce such restrictive covenants." The court went on to hold that absent specific language prohibiting assignment, noncompete covenants "remain enforceable by an assignee when transferred to the assignee as part of a sale or transfer of business assets regardless of whether the employment contract contains a clause expressly authorizing such assignability, so long as the assignee engages in the same business as the assignor."

Thus, whereas in Ohio, a noncompete agreement does not transfer to a successor entity unless there is specific language that provides for such transfer, in Delaware, the successor entity gets all of the rights of the original employer unless there is specific language in the agreement that prohibits it. Yet another reason to consider drafting noncompete agreements and restrictive covenants to apply Delaware law.

See also Delaware Noncompete Law Blog

The State of the Social-Media Mess in Public Schools

Posted by Molly DiBiancaOn October 7, 2012In: Public Sector, Social Media in the Workplace

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Teachers and social media. If you're in the business of writing news stories about poor judgment, this is the gift that just keeps giving. If, however, you're an educator, a school administrator, or a parent, this is a combination with potentially grave consequences. Here's yet another shocking example of a teacher who seemingly lost all perspective when she posted about her students on her Facebook page.
teachers social media

As reported by the N.Y. Post, here are a sampling of the comments, Patricia Dawson, a "highly-regarded English teacher" posted:

  • she described one of her 11th-grade classes as "suicide-inducing;"
  • she dreaded upcoming presentations by two students--who she named in the post--saying, "I will be quietly imploring anyone to end my life . . . and no one will be there to supply a gun;"
  • she described one of her students as the "WORST be (sic) he's unteachable and the weirdest human being EVER!"
  • she wrote, "I consider all immigrants as potential gun carriers;" and
  • she asked, "What bad can happen when young people invest in high-powered firearms? Nothing. . . . nothing at all."
Charming. Just charming.

As a quick aside, I'll just note that it seems that it's the high-school English teacher who makes the offensive Facebook comments about current students. (See, for example, these two prior posts: Blogging Teacher Returns to Work After Suspension for Posting About Students and N.Y. Teacher's Firing Overturned Despite Facebook Wish that Students Drown). Why is that?

Now, if you thought her comments were shocking, I've got a few more even more shocking facts for you to ponder.

First, the teacher was Facebook friends with several of her students. In my opinion, this is a per se bad idea. Teachers should not be Facebook friends with any student in their school who is not the teacher's child. Period. That's it. No discussion. To me, it demonstrates not only bad judgment on behalf of the teacher to be friends with these students but then to post about other students and think her posts wouldn't make it back to the kids she was talking about.

Second, the teacher also was Facebook friends with the President of the PTA. If the kids didn't report her, didn't she think that the PTA President would?

Third, and most disappointing, even if not the most shocking, this teacher was terminated after her online rant in January 2011. Her tenured status, though, meant she had the ability to appeal the decision, which, you may imagine, she did. The arbitrator who decided her appeal, concluded that the teacher "horribly abused her position of trust" with her "cruel andemeaning" Facebook posts. However he also found that she was a "dedicated teacher" and was "not irredeemable." He ordered her to pay a fine in the amount of $15,000 and take a course on "appropriate boundaries and relationships between teachers and students."

That was last June. The DOE, though, has not yet reinstated the teacher, although she remains on the payroll.

I don't know what the solution is to this problem. Suspending the teacher in this case seems necessary, doesn't it? If you were the parent of one of the students named in her online rant, would you be happy about her return? I wouldn't. I could imagine the disruption that her return would cause--if not an outright riot.

But, at the same time, who benefits by keeping her on the payroll and expending the district's already stretched-thin resources while she sits at home, educating no one? No one. If judges and arbitrators are going to let teachers who publicly exhibit "cruel and demeaning" behavior towards the students they teach return to the classroom, schools need to take a different tactical approach. It seems to me that training teachers before they exercise poor judgment is absolutely critical if schools stand a chance in preventing these stories from continuing to make headlines.

See also
Students, Teachers, and Social Media
No 1st Am. Protection for Teacher's Facebook Posts
Court Denies Reinstatement to Teacher Fired for Facebook Posts
Social-Media Woes for School Districts
More Social-Media Woes for School Districts

Let's Talk About What Your Body Language Is Telling Me

Posted by Molly DiBiancaOn October 4, 2012In: Employee Engagement

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A post on the Harvard Business Review blog, titled, "Your Body Language Speaks For You In Meetings," caught my eye immediately. Several years ago, I brought this very issue to the attention of one of our senior paralegals. The paralegal was a critical player on our team--well respected by everyone and for good reason. During meetings, she had a place at the table equal to the most senior partner present. If she doubted a particular strategy, you could bet that we'd go a different direction.

Being the oddball that I am, I was often the one offering an out-of-the-box idea. I held the paralegal in the highest regard, so it really hurt when she was disapproving or skeptical of my ideas. Finally, I decided to deal with the issue head on. Leaving the conference room after a meeting one day, I asked her why she was always so critical of my ideas.

She looked at me, shocked, "Huh?" I looked back, equally shocked. She really had no idea what I was talking about. I took a deep breath and said, "You never like my ideas. You always look so critical when I offer a suggestion."

It was clear--very clear--that she had no idea that she had been communicating this message and certainly had not intended to do so. We had a quick talk about it and agreed that we'd pay more attention to the signals we were sending at future meetings.

At the next meeting, though, I was disappointed that my idea was met with the same familiar hostility as before. After the meeting, I called her aside and asked her, "What happened to our truce?" Again, she gave me that same shocked look. "I was totally receptive and positive! Didn't you hear my comments?!"

As it turned out, I hadn't. I hadn't heard anything. It's what I'd seen that had me so convinced she was not going to support my idea. I explained that, when I started to speak at the meeting, the paralegal had turned sideways in her chair, slung her arm over the back of it, and looked at me over the top rims of her reading glasses. As soon as she "got into position," I would pretty much shut down.

It didn't take long before we realized that our troubles were a result of the messages she had been sending unintentionally with her body language. So, being two reasonable adults in search of a solution to our miscommunication missteps, we did what anyone would do--we googled it. And here are some of the tips we found:

  • sit facing the table squarely, instead of turning to the side;
  • put both feet flat on the floor; and
  • keep your hands in view and in front of you.

At the next meeting, the paralegal sat down in a chair across the table, looked at me, and, slowly adjusted her hands on the tabletop, squared her shoulders towards me, and smiled a huge grin, telling me--without words--that she was applying the tips we found online. And that conscious effort, followed by the big smile, was all the body language I needed to get the message loud and clear--she wanted to support me and was signaling that she was darn sure going to try.

I can't imagine my job without her support over these past many years. I am eternally thankful that she was so open to trying a different approach, despite not having any reason to, other than being a really good team player.

Fighting Back: Bullies and Obesity

Posted by Molly DiBiancaOn October 3, 2012In: Disabilities (ADA), EEOC Suits & Settlements, Hiring, Jerks at Work, Off-Duty Conduct

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Some people are real jerks. Anyone who deals with the general public for a living knows that this is an indisputable fact. For those who work in sales or service positions know that the theory "the customer is always right" can be a bitter pill to swallow. Every waiter, store clerk, and receptionist has had a moment where they had to swallow very hard to resist firing back at an irate and/or irrational customer who's decided to take out his or her frustrations on whoever happens to be in their line of vision. Most of the time, it is not possible or not wise to fight back.

But, sometimes, it is.

Take, for example, Jennifer Livingston, a TV news anchor in LaCrosse, Wisconsin. A viewer with, apparently, way too much time on his hands, took it upon himself to write Ms. Livingston a note to express his displeasure with her weight. "Obesity is one of the worst choices a person can make and one of the most dangerous habits to maintain," wrote the viewer. "I leave you this note hoping that you'll reconsider your responsibility as a local public personality to present and promote a healthy lifestyle."

I think it's fair to say that Ms. Livingston didn't find the viewer's "concern" all that heartwarming. Heck, it may have even hurt her feelings. But, instead of hiding her pain, she elected to take a different approach and responded to the comments on the air. Her response took the form of an articulate call to arms in which she accused the viewer of being a bully.

I think the story is inspiring for a number of reasons but it also highlights a few different current issues in employment law.

First, there's the continuing discussion surrounding bullies in the workplace or, as I like to call them, "jerks at work." Legislation has been introduced in numerous states over the past five or so years that would, in short, make it unlawful to be a jerk at work. I think there are obvious problems with trying to legislate "jerkiness" but I also recognize the high costs that jerks can have on workforce morale, creativity, and overall productivity. This post at Above the Law provides a recent summary of the various legislative efforts.

Second, there's the as-yet-unresolved question of whether obesity is a disability under the Americans With Disabilities Act (ADA). Historically, courts have been unwilling to include obesity as a protected disability. With this precedent in mind, some employers have refused to hire applicants who are obese and charge higher health-care premiums for overweight employees. But the EEOC has said that the ADA does protect individuals who are morbidly obese. A case filed last year by the EEOC asserting that "severe" obesity was a protected disability under the ADA, recently resulted in a $55,000 settlement for the employee. And a recent decision by the Montana Supreme Court seems to further support that the trend has shifted towards protecting obesity as a disability.

NLRB Upholds Legality of Facebook Firing

Posted by Molly DiBiancaOn October 1, 2012In: Social Media in the Workplace, Union and Labor Issues

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The NLRB issued its decision today in Karl Knauz Motors, Inc. Readers will recall that the employee at Knauz's BMW dealership filed a charge alleging that he had been unlawfully terminated for engaging in NLRA-protected activity when he was fired for comments he'd made on his Facebook page. The employee-salesman first posted critical comments about the dealership's plans for a big sales event. Shortly thereafter, the employee posted pictures of a small vehicle accident involving a customer at the Range Rover dealership next door, which was also owned by Karl Knauz. The employer fired the salesman when a competitor reported the photographs.

An ALJ determined that the employee had engaged in protected concerted activity when he posted about the sales event. He was not engaged in protected activity when he posted the accident pictures because, "It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent and had no connection to any of the employees' terms and conditions of employment."

The Board's decision, dated September 28 and released today, found that the termination did not violate the NLRA because the activity was not concerted or protected. This is a small victory for employers--but a victory, nonetheless. There has been a great deal of activity at the NLRB in the recent weeks and we can expect more in the weeks to come.

A Good Week for California's Pro-Labor Movement

Posted by Molly DiBiancaOn October 1, 2012In: Legislative Update, Social Media in the Workplace, Union and Labor Issues

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Last week was a busy one at the Governor's office, where Governor Jerry Brown signed into law no less than three new laws with a pro-labor, pro-employee theme. The first two laws were a package deal, making California is the first State to enact legislation that prohibits employers and educators from requesting employees' and students' social-networking passwords. Gov. Brown announced that he'd signed the twin bills into law via a Twitter post on Thursday.
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California is the second State after Delaware to prohibit universities and colleges from requiring students to turn over their passwords to their social-networking accounts. It is the third State, following Maryland and Illinois, to enact similar legislation providing these privacy protections to employees and applicants. And similar legislation is pending in several States. New Jersey's version of the Facebook-privacy law was released by a Senate committee at the end of September.

The day after Gov. Brown signed the bills into law, he signed a third bill, which declared May to be Labor History Month. What, you ask, does this actually mean? Well, it means that school districts in the State will commemorate the month with educational exercises intended to teach students about the role of the labor movement in California and across the country.

The bill extends Labor History Week into a full month and moves the observation from the first week of April to the month of May. According to the Sacramento Bee, many of California's school districts are on spring break the first week of April, and supporters of the bill said the rest of the month is busy for students because they are preparing for statewide tests.

I think it's safe to say that last week was a good week for the pro-labor movement in California.