E.D. Pa. Dismisses Nurses' Claims for Missed Meal Breaks

Posted by Molly DiBiancaOn August 9, 2012In: Fair Labor Standards Act (FLSA), Wages and Benefits

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Essentially, the FLSA contains just two requirements for non-exempt employees: (1) that the employees be paid minimum wage; and (2) that they are compensated at a rate at least one and one-half times the regular rate for all time worked in excess of 40 hours in a workweek.

"Gap time" is not covered by the FLSA. Gap time is time worked but not paid. To qualify as gap time, the time worked must not: (1) put the employee in the over-40-hours-in-a-week category, which would trigger the overtime requirement; or (2) bring the employee's hourly rate below the minimum wage.
Gap Time FLSA
An example.

Assume Employee X's regular rate of pay is $20 per hour. Also assume that she worked 38 hours but was paid for only 36 hours in a given workweek. Thus, the employee was paid $720 ($20 x 36) but should have been paid $760 ($20 x 38).

The 2 hours unpaid constitutes "gap time." The employee may have a state-law claim to recover the unpaid $40 but the FLSA would not apply because the 2 hours would not put the employee over 40 hours and, even when the 2 hours are included, her regular rate is more than minimum wage ($720 / 38 = $18.95 per hour).

Gap-Time Claims and the FLSA

The issue of gap time is common in cases involving missed or interrupted meal breaks and in cases of pre- and post-shift work performed before or after the employee clocks in or out. Where an employee alleges that her time was deducted to account for a break but that she did not actually take the break, she is likely to have nor more than a couple of hours a week of unpaid time. And, many times, these 2 or 3 hours is not sufficient to bump the employee into overtime. Thus, they are gap-time claims not properly brought under the FLSA.

In a decision issued yesterday by the Eastern District of Pennsylvania, the court dismissed six related collective action lawsuits brought by registered nurses who alleged they had not been properly paid for training, pre- and post-shift work, and missed meal breaks.

In the order, the court explained that, since the nurses were suing under the overtime provisions of the FLSA, they had to allege that they had worked more than 40 hours in a workweek and that they had not been paid for that time. Instead, the nurses had alleged only that they had worked and not been paid--but failed to allege that the additional time worked put them into the over-40-hours-in-a-week category. In other words, the nurses had alleged only a claim for gap time, which was not a proper claim under the FLSA.

Lynn v. Jefferson Health Sys., Inc., No. 2:09-cv-05549 (E.D. Pa. Aug. 8, 2012)

When the EEOC Goes Too Far--Part II

Posted by Molly DiBiancaOn August 8, 2012In: EEOC Suits & Settlements

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In my post, When the EEOC Goes Too Far, I wrote about an opinion from the Middle District of North Carolina, issued in June. In that case, EEOC v. PBM Graphics, Inc., the court found that the EEOC had caused an unreasonable delay in pursuing its claims, based on a 5+-year-long investigation and seemingly superficial conciliation efforts. The court ordered the parties to engage in limited discovery to determine whether the EEOC's delay had prejudiced the defendant-employer. If so, the court ruled, the employer would be entitled to have the complaint dismissed in accordance with the doctrine of laches.

A laches defense to overzealous claims by the EEOC seems to be gaining traction. A decision issued yesterday by the Western District of North Carolina went farther than the PBM Graphics decision and actually dismissed the case based on this defense.

The facts are similar in both cases. Like the complaint in PBM Graphics, the claims asserted in Propak Logistics were based on the employer's alleged practice of hiring Hispanics and refusing to hire non-Hispanic persons for non-management positions. Similar to the multi-year delay in PBM Graphics, there was a nearly seven-year delay between the time of the initial Charge and the filing of the Complaint. A few other important, albeit unsettling facts, include:

  • the EEOC did not interview the Charging Party until six months after he'd filed his Charge and did not interview him for a response to the employer's position statement until a year after it had been submitted;
  • the EEOC referred the Charge to the DOJ, which initiated and completed its investigation in less than a year, resulting in a No-Cause Finding;
  • there was a four-and-a-half-year delay between the Charge filing and the EEOC's attempt to conduct additional interviews of the relevant decisionmakers;
  • the Charging Party's federal lawsuit was dismissed with prejudice two months before the EEOC issued its Cause Finding;
  • the Charging Party requested a Right-to-Sue-Letter no less than four times;
  • there was a two-year delay between the time the EEOC designated the Charge as a class claim and the first interview of a potential class member;
  • the employer's VP of HR was deposed more than eight years after the Charge was filed; and
  • the facility at which the Charging Party had worked (for all of two months) closed in 2008.
And, as in PBM Graphics, here the employer also filed a motion to dismiss on several grounds, including on the defense of laches. The court denied the motion to dismiss based on failure to state a claim and gave the parties three options: (1) agree to proceed with discovery; (2) have the court consider the motion as a motion for summary judgment; or (3) submit additional briefing and evidence.

The EEOC apparently conceded that there had been a delay. (Indeed!!) This is where we left off in PBM Graphics--the court ordered the parties to engage in limited discovery on this issue. Here, though, the court found that the record contained sufficient evidence to answer the question.

The court explained that, for the purpose of laches, evidence of prejudice may include unavailability of witnesses, change in personnel, and the loss of pertinent records. The court also pointed out that there were periods when the EEOC "took little or no action toward completing the investigation," during which the "back pay meter has been running" as the defendant-employer could be liable for that period. Because back pay is an equitable remedy within the court's discretion, though, the court considered this to be further evidence of potential prejudice.

Finding that the employer had established its laches defense by proving that it "suffered material prejudice as a result of the EEOC's unreasonably lengthy delay," the court explained:

The fact remains, however, that Propak no longer conducts business at the facility at which the alleged discrimination occurred. The purported class of individuals allegedly discriminated against last existed in 2004 and it is uncertain that these individuals could even be identified at this late date. Meanwhile, for the last eight years, Propak has been embroiled in both the EEOC investigation and two lawsuits stemming therefrom, during which time it has continuously incurred attorney's fees. The interests in vindicating Propak's conduct has been served while it appears to be impossible to vindicate the private interests of unidentified and unavailable class members.

Legal music to my ears. The case is a stellar example of a victory of common sense and fairness. It seems that the employer had excellent legal representation, who continued to assert the company's defenses instead of throwing in the towel and being cooperative to a fault. And that was rewarded by the court, which recognized that there are limits to the EEOC's power--i.e., there is a difference between an investigation and a persecution.

I have no doubt that many employers will find this to be an important and valuable resource in their arsenals to defend against the EEOC when it goes too far.

As a side note, the court found that the EEOC's failure to provide its damages calculations to the employer was evidence of an unreasonable delay. This appears to support the use of a laches defense where a defense of failure to conciliate may not be successful, particularly in jurisdictions like the Fourth Circuit that require only the most minimal effort by the EEOC to meet its statutory burden to conciliate in good faith.

EEOC v. Propak Logistics, Inc., No. 1:09cv311 (W.D.N.C. Aug. 7, 2012).

Judge's Facebook "Like" Leads to Ethics Complaint

Posted by Molly DiBiancaOn August 7, 2012In: Social Media in the Workplace

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Many states have addressed the issue of whether a judge may be Facebook friends, or otherwise connect via social-networking site, with lawyers who may appear before them. But, as social media continues to develop, the questions relating to its use continue to evolve. The latest twist in this issue comes out of Kansas.

Judge Jan Satterfield of El Dorado, Kansas, clicked the "like" button on a post by Sheriff Kelly Herzet. The post was a plea to Sheriff Herzet's friends and followers to "like" Herzet's campaign fan page, reports the Augusta Gazette.

A former resident, Lee White, who now lives in California but who, apparently, feels very strongly about the ongoings in his former State of residence, filed a complaint with the Kansas Commission of Judicial Qualifications. White says that he filed the complaint because he believes it violates the canons of ethics that prevent a judge from publicly endorsing or opposing another candidate for any public office." It may not surprise you to learn that White has publicly supported Herzet's opponent in the Sheriff's race.

This is yet another iteration of the protected nature of "speech" as it relates to social-networking posts and comments. And, surely, it is not the last.

When the EEOC Goes Too Far

Posted by Molly DiBiancaOn July 30, 2012In: EEOC Suits & Settlements

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What is an employer to do when an EEOC investigation goes beyond the bounds of reasonableness? Or when the EEOC's "conciliation" efforts seem more like a joke that a good-faith effort to resolve the claims. There have been a smattering of decisions in the past few years by courts across the country answering this question in a variety of different ways--some more favorable to the EEOC and others strongly in favor of the employer. For an excellent overview of this line of cases, see this post at the Hunton Employment and Labor Perspectives Blog.

A recent decision from the Middle District of North Carolina addressed a case involving a particularly disturbing set of facts. The timeline is complicated and, frankly, a bit depressing, so I'll summarize to spare you the gory detail.

While investigating a temporary staffing agency used by the employer, the EEOC came across what it contended was evidence that the employer favored Hispanic over non-Hispanic employees in its hiring decisions.

The EEOC filed a charge and initiated its own investigation (there was no Charging Party as is the norm). The investigation went on for more than four years, during which time the employer cooperated in full with the many, many requests for information propounded by the EEOC. To give you some perspective on the scope of the requests, the EEOC asked for and received so much data about the employer's workforce that it actually created its own database to house all of that information.

Ugh.

Finally, after years of investigation stops and starts, the EEOC issued a Letter of Determination in which it found that there was cause to believe that the employer had engaged in unlawful discrimination. The Letter, however, contained no explanation of the reasons for the EEOC's determinations.

Yikes.

The parties scheduled to meet for the mandatory conciliation but the EEOC canceled it when it was unable to provide the employer with any kind of damages calculation--kind of a necessary element for any productive settlement discussion. The EEOC eventually rescheduled the meeting but still could not produce the numbers requested by the employer or even identify all of the employees it contended had been affected by the allegedly discriminatory practices.

You'd think that, with that big 'ole database that it created, this wouldn't be such a difficult task!

The story goes on but, as promised, I'll spare you the rest. Needless to say, the EEOC was not deterred and eventually filed a complaint in federal court.

The employer moved to dismiss the complaint on several grounds. The court rejected most of the employer's arguments but did limit the size of the potential class. More interesting, though, was the court's discussion of the employer's motion for summary judgment, which was brought pursuant to the doctrine of laches.

This particular defense permits dismissal of a claim where the plaintiff unreasonably delayed in bringing its claim and where the delay prejudiced the defendant. Here, the court agreed that the EEOC had, indeed, been unreasonable in pursuing its claim. (Amen!) But the court found that there was not enough of a record to determine whether the employer had been prejudiced because of the delay.

I'm sure that there is not an employer in this country who would reach the same conclusion after reading the facts of the case but, putting that aside, . . . I'll turn to the good news. The court ordered the parties to engage in limited discovery only on the issue of prejudice. Once discovery on that issue is complete, the employer will have the opportunity to renew its motion seeking dismissal under the doctrine of laches. I'll be interested to see whether the case makes it to that stage--but I'd be willing to wage that it does. The EEOC tends not to let go once it gets its teeth sunk in. Still, I'll keep my fingers crossed that the employer makes out better on its renewed motion and maybe, if all goes really well, that it is awarded fees for its troubles.

EEOC v. PBM Graphics, Inc., No. 1:11-cv-805 (M.D.N.C. June 28, 2012).

Delaware Adds Public Shame to Its Arsenal of Weapons to Fight Misclassification

Posted by Adria B. MartinelliOn July 26, 2012In: Delaware Specific, Independent Contractors

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Employers in the construction industry should, by now, be painfully aware of the Delaware Workplace Fraud Act, signed into law in 2009. The Act imposes stiff penalties on construction-services employers who misclassify employees as "independent contractors."
Delaware Misclassification

As a result of amendments signed into law on July 12, 2012 (HB 222.pdf), the General Assembly has added more teeth to the law, in the form of public shame. Now, the name of any employer that has violated the Workplace Fraud Act will be posted on the Department of Labor's website for a period of 3 years from the date of the final determination.

The DDOL will maintain something akin to a sex offender registry for misclassification--or affix the offending contractor with a Scarlet "M"--to use a more literary analogy. Regardless of how you may feel about this new penalty or its effectiveness as a deterrent, it makes clear that this issue remains a top priority for legislators. So far, Delaware's attempts to expand this law to other industries have not succeeded but, if Delaware follows the national trend, this won't last long. All Delaware companies would be well advised to ensure that they are not wrongfully labeling employees as "independent contractors," in light of the state and national focus on this issue.

You Can Leave the Light On . . . But Be Sure to Log Out

Posted by Molly DiBiancaOn July 25, 2012In: Electronic Monitoring, Privacy In the Workplace, Privacy Rights of Employees

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You can, according to Joe Cocker, leave a light on. But, if you want a second opinion, I'd suggest that you be sure you log out before you leave the computer room. The case of discussion in today's post, Marcus v. Rogers, was brought by a group of New Jersey public-school teachers. The District made computers with Internet access available for teachers to use during breaks. One of the teachers was in the "computer lab" (my phrase) to check his email when he bumped the mouse connected to the computer next to the one he was using, turning off the screensaver. On the screen, the teacher saw the Yahoo! inbox of a colleague, who had, apparently, failed to log out of her email account before she left.

The teacher recognized his own name in the subject lines of several of the emails. Too curious to resist the temptation, he opened, read, and printed the emails that made reference to him planning to use them at an upcoming staff meeting.

When his colleague learned that her emails had been discovered, she filed suit. The case was tried before a jury, who found in favor of the nosy teacher-defendant. The colleague-plaintiff appealed the decision. On appeal, the question before the court was whether the defendant was acting "without authorization" or whether his access of the emails had "exceeded [his] authorization."

On the first question, the court held that the defendant was not "without authorization" when he accessed the emails because the emails in the inbox were available for anyone to see, since the colleague had failed to log out of her account.

The court upheld the jury's decision on the second question, as well. Specifically, the court found that the defendant had not exceed his authorization because his colleague had "tacitly" authorized the access when she failed to log out.

This is an interesting case that provides some good news for employers. Some good news--but not much. The question of whether an employer can access an employee's personal email account that the employee accessed through the employer's equipment is far from settled. The answer is very fact specific. For example, the answer may be different where, like here, the employee fails to log out when she leaves the computer, versus where the employer uses software to discover the employee's password and then uses the password to access the account.

The answer also can change depending on the jurisdiction. New Jersey has been an outlier in several of the employee-email cases and employers in other states should be cautious about relying on this decision for much more than its interesting set of facts.

[H/T Evan Brown, Internet Cases, which I first heard him discuss on a recent edition of This Week In Law]

Marcus v. Rogers, 2012 WL 2428046 (N.J.Super.A.D. June 28, 2012).

A True Story about Discovery of Old Tweets In Litigation

Posted by Molly DiBiancaOn July 25, 2012In: Social Media in the Workplace

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I solemnly swear that the story you are about to read is the truth and nothing but the truth. So help me, Las Vegas.

A few years ago, I went to Sin City for a quick trip to watch the "big football game" with friends. On Monday, I was standing in line to cash out my winnings from the craps table. There were several people in each of the several lines open at the cashier's window. Next to cashier's station was a large temporary sign that instructed patrons that football tickets could be redeemed only in the Sports Book--not in the casino.

In the line to my left were four men. I would have guessed them to be in their late 40s or early 50s. They each were dressed in a Hawaiian shirt, jeans, and loafers. They'd had a bit too much to drink and were a bit louder than was necessary. A couple of them were smoking cigars. They were, as my father would say "feeling their oats."

When they got to the front of the line, one of the men set a stack of football tickets on the counter. By this point, I almost expected the other men in the group, who were half-crazed with testosterone and alcohol, to join arms and begin to dance a jig in celebration of their coolness.

The female cashier on the other side of the window looked up slowly. Seeing the stack of football tickets in front of her, she pointed calmly towards the sign. The sign, you will recall, plainly stated that all football bets had to be redeemed in the Sports Book. In other words, she was saying, without saying a word, "Guys, you're in the wrong line. Turn around and head back to the Sports Book." .

One of the men, finally understanding the message, replied, "That's not an MP. That's a YP."

The cashier raised an eyebrow, as if to say, "What are you talking about, you fool?"

The man went on, "That's not my problem, that's your problem. T

The other three men giggled like school girls, positively giddy over their friend's hilarious retort.

The cashier said nothing. Slowly, she bent down, reaching under the counter. Slowly, she lifted up a small plastic sign and set it on the counter in front of her. Slowly, she looked up and stared, unflinching, at the male patron. The sign said, "Window Closed."

next window sign.jpg

The men, stunned and silent for a quick second, realized they'd been kicked out of line and had failed in their mission. Wild with fury, they proceeded to stomp their feet and through their hands in the air, much like the oomp-a-loompas in Willy Wonka's chocolate factory.

The cashier was, of course, unaffected. Cool as a cucumber, she stood there, behind her sign, staring at them blankly. Unable to get a reaction, the men gave up and stormed off towards the Sports Book.

And the crowd . . . went . . wild.

That may have been one of the funniest, most satisfying things I have ever witnessed. Really. Truly. It was, absolutely, that funny.

Now, you ask, what exactly does this story have to do with litigation, discovery, and Twitter? According to the NYT's Bits blog, Twitter is working on a feature that would enable users to download their entire personal archive--all of their tweets for the entire life of their account.

If the feature is released, discovery of a litigant's Twitter account would become far easier--a party would no longer need to subpoena Twitter to produce a user's past tweets. Instead, the party would make a document request to the other side and, to the extent the tweets are relevant, the litigant receiving the request would be obligated to produce them. The tweets would be, because of the new feature, in the litigant's "custody, control, or possession."

To put it differently, the production of past tweets would no longer be an "MP" but, instead, would become a "YP." Sounds just fine to me.

Delaware Law Protects Privacy of Student Facebook Posts

Posted by Molly DiBiancaOn July 24, 2012In: Privacy In the Workplace, Social Media in the Workplace

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Delaware's Workplace Privacy Act (H.B. 308), died with the end of the legislative session. As readers know from my several prior posts, I won't exactly be mourning the loss. The Bill's companion legislation, H.B. 309, did survive, however, passed by the State Senate during its final session. Although my attention has been focused on H.B. 308, which would have affected all employers operating in the State, H.B. 309 is worthy of discussion, as well.

If signed by Gov. Markell, H.B. 309 will prohibit post-secondary schools in Delaware from certain practices relating to student's social-media accounts. Specifically, the Bill will prohibit colleges and universities from:


  • requiring a student to turn over his or her Facebook username or password as a condition of obtaining or keeping a scholarship;

  • requiring a student to install social-media-monitoring software onto his or her personal phone or computer; and

  • requiring a student to accept a Facebook friend request from a school employee or other agent of the school.

Delaware is the first state in the country to pass such a law, although several similar Bills have been introduced in several states, as well as on Capital Hill. So what motivated this legislative initiative? Lest I not pretend to understand the political machine, I'll venture a general guess. Over the past few years, it has become increasingly common for schools to require students on athletic scholarships to be Facebook friends with their coaches, presumably so the coach can monitor the student's Facebook page.

For what exactly, I'm not entirely sure but I would guess that "scandalous" photos would be at the top of the list. How "scandalous" is defined, surely, varies by coach and school. I've also heard of this practice being adopted by high schools for their student athletes.

In April, I was invited to speak to a class of students at the University of Pennsylvania's Wharton School of Business. As I have in years past, I asked them whether the practice of "mandatory friending" was something they'd seen for student athletes. To my surprise, they said that mandatory friending was commonplace--and it was not limited to students on scholarship. Several members of the school's swim team were present and said that all swim-team members had to be Facebook friends with their coach, regardless of whether they were scholarship recipients.

I asked them whether they were offended by the practice or felt that it was an invasion of privacy. Again to my surprise, the answer was a resounding, "no." They said that they understood that the practice had a legitimate purpose--to prevent scandal to the swim team that could embarrass the school or, worse, cause the team to lose funding or other support. They also said that they didn't mind because they had nothing to be embarrassed about in the first place. They didn't engage in scandalous behavior and certainly didn't post any scandalous pictures of themselves on their social-networking profiles.

How mature, I thought.

So, if signed, how will the new law affect Delaware students? I have never heard reports of any of our State's post-secondary institutions engaging in either of the first two prohibited acts--demanding a student turn over his password or requiring that students install monitoring software. The third prohibited practice, though, mandatory friending, will have to cease to the extent it goes on in the first place.

And what will be the impact of this prohibition? According to the Wharton students, it would be detrimental only to the students. Here's the example they gave:

Student X, a member of the track team, sells anabolic steroids and "advertises" his conduct via Facebook. If the student-player is required to be Facebook friends with the team's coach, such conduct could be quickly detected and turned over to law enforcement. Without the watchful eyes of a school authority, it would be up to fellow students and team members to turn over the student to police or school authorities. Although it's nice to think that this would happen, I think it's fair to say that there's hardly any guarantees.

If, however, the student is arrested and a public scandal ensues, the team loses credibility and support from the university community, fellow students, and from donors. The loss of donor support can result in decreased funding to the program, which can, in turn, translate into less scholarship money. Which harms--not helps--student athletes.

Although I think the law has far fewer negative implications than H.B. 308 would have had, if it had been passed, I tend to think that they two Bills share at least one unfortunate similarity--both are the result of over-zealous legislative efforts. Contrary to the claims of the Bill's drafters, it seems to me that this is another example of legislating a problem that does not exist.

I suppose there is one problem that this law will correct, though. If you are a student at a Delaware college or university and want to do bad things and post about them on your Facebook page without consequence from your authority figures, this law will probably fix that problem. Congratulations, wrongdoers--you can count H.B. 309 as a big "W" in your Win column.

Separating Personal and Professional: There's an App for That

Posted by Molly DiBiancaOn July 22, 2012In: Electronic Monitoring, Policies, Privacy In the Workplace

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BYOD (short for "bring your own device"), is all the rage these days. Well, at least you'd think so based on all of the on-line talk about it. See, e.g., this post on the WSJ Blog, CIO Report. The basic idea is that employees are using their own electronic devices, such as smartphones and laptops, for work-related purposes. The causes of the BYOD movement are not entirely clear but one explanation is that employees are dissatisfied with the technology provided by their employer, so they just "bring their own" technology with them.

In any event, the reality is that, even in workplaces where no one brings their own device to work, many of us bring our employer-provided devices home with us. For example, it's not uncommon for an employee to have just one smartphone, through which he access both his personal and work email accounts. If the employer pays for or subsidizes the cost of the device and/or the monthly charges, there is an argument to be made that the employer may have some rights to access all data stored on the phone. Divid App.jpg

So what's an employee to do? Heaven forbid we had to carry around two phones everywhere we went. (This would particularly disastrous for airheads like me, who can barely remember to bring one cellphone with us when we leave the house). Well, according to the tech blog, Chip Chick, there is now, officially, an app for that. At least for Android users, anyway.

According to Chip Chick, the aptly named app, Device, "allows you to have your personal device and work device all in one." Users can keep the work side of the device encrypted and secure. If you're a really outstanding [read: show-off] employee, you can even limit the apps that will function on the work side to "business-oriented" apps. And, if you lose your phone (which I do no more than twice a year, I swear), Divide allows you to remotely wipe everything on the work side.

Delaware Employer Honored for Its Support of Military Employees

Posted by Molly DiBiancaOn July 19, 2012In: Delaware Specific, Uniformed Services (USERRA)

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Siemens Corporation was selected to receive the 2012 Secretary of Defense Employer Support Freedom Award.  The company was nominated by an Army Reservist with Siemens Healthcare Diagnostics of Glasgow, Delaware.  Only 15 employers nationwide will be honored with the award, the DoD’s highest recognition given to employers for exceptional support of Guard and Reserve employees.  The company was selected from more than 3,000 nominees. DoD

The employee who nominated Siemens reported that the company started an online Veteran’s Network to share job information and advice with military employees.  The company also partnered with the U.S. Army to allow soldiers to be stationed at Siemens facilities for training.  When Guard and Reserve members are deployed, supervisors maintain contact with them, and the company supports their families whenever they need assistance. In 2011, Siemens pledged to hire 600 veterans - actually hiring 631 in just 3 months. The company has pledged to hire 300 more veterans in 2012.

This year’s honorees will be recognized at an event in Washington, D.C. on September 20.  To learn more about the Freedom Award and this year’s recipients, visit the Freedom Award’s website.

The importance of our country’s military service members cannot be understated. As many service members are returning home, employers also should be particularly mindful of their reemployment and reinstatement obligations pursuant to USERRA.

See also

Two Delaware Employers Selected as Freedom Award Finalists

USERRA’s Statute of Limitations

Facebook Post Leads to Material-Witness Subpoena

Posted by Molly DiBiancaOn July 19, 2012In: Social Media in the Workplace

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Sean O’Sullivan of The News Journal alerted me to a dramatic story that unfolded in a Delaware courtroom yesterday.  A homicide trial was scheduled to begin yesterday in Superior Court but the jury had not been brought into the courtroom when the prosecutor stated that he needed to serve a subpoena on a material witness—who was in the courtroom, seated in the galley behind the defendant.  The prosecutor informed the judge that the witness would likely be hostile, so the State would require him to post a $1,000 bail to ensure his appearance, according to O’Sullivan.

Although this Perry-Mason-like moment is interesting in and of itself, I’m particularly fascinated by the next part of the story.  According to the O’Sullivan’s account of the events from yesterday, the prosecutor told the judge that the State’s interest in the witness was a result of two Facebook posts he’d made in which he referenced the defendant. Apparently, the witness called the defendant by a nickname that eye-witnesses had used to identify the shooter.  Those eyewitnesses did not know the real name of the perpetrator—only the nickname.  The State apparently believes that it may be able to tie the defendant to the crime with the help of those Facebook posts. 

The material witness was led out of the courtroom and the jury brought in. And so it goes, another day, another story of social-media in the courts.

Delaware to Get Its Very Own Background-Check Center

Posted by Molly DiBiancaOn July 18, 2012In: Background Checks, Delaware Specific, Legislative Update

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Delaware employers in the long-term- and community-care industries are subject to new background-check requirements.  The Delaware Code as amended by S.B. 216 to establish an electronic web-based “background check center” for employment in long-term care or community settings.  S.B. 216 was signed by Gov. Markell on July 5, 2012. 

Creation of a Background Check Center

The biggest change is the creation of a new “Background Check Center.”  The stated purpose of the Center is to “consolidate various data streams” from inside and outside the State of Delaware, as necessary to conduct a proper background search. 

In short, it requires covered employers to use the Center to perform mandatory criminal background checks for new employees.  Nursing or similar facilities, hospice, home-health, and home-care agencies are subject to the law. 

There will be a fee for the background check, which is subject to change each year based on the Center’s operating costs. The statute specifically provides that applicants will be provided with “due process protections of notice and opportunity to be heard,” as well as the right to appeal.

Criminal-History Checks

S.B. 216 also amended the law relating to criminal-history checks performed by employers operating long-term-care facilities.  For example, these employers are now required to use the Background Check Centers, as described above.  Some other key changes for employers include:

  • An applicant may be “conditionally hired” for 60 days but only if the employer has first received verification that the applicant has been fingerprinted by the State Bureau of Identification
  • Criminal histories are to be treated as “strictly confidential” and must be stored in manner that maintains such confidentiality.

Employers aren’t the only ones with new obligations, though.  Employees who were grandfathered in under the original version of the statute have 120 days from the date the Background Check Center is implemented to submit to fingerprinting and a criminal background check. 

Applicants have some new obligations, too.  They are required to execute a release that allows the employer to obtain a criminal history before the time of hire and post-hire for the purpose of updating the history during employment. 

Failure to comply will be costly.  Employers and applicants who fail to comply will be subject to a civil penalty of between $1,000 and $5,000 for each violation.

Key Take-Aways for Delaware Employers

The changes to the law is significant—but only for employers and potential employees in the long-term-care industry.  Employers in other industries are not affected and should be aware of the national trend away from the use of criminal histories as part of the hiring process.  However, for covered employers, the changes are many take effect immediately following the creation of the State’s Background Check Center, so be sure to consult with your employment law counsel about the steps you should be taking to prepare.

See also:

EEOC Publishes Guidance on Consideration of Arrest and Conviction Records

5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit

New Philly Law Limits Use of Criminal-Background Checks

Discovery of Plaintiff's Social-Networking Profile

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

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An employer facing litigation brought by a current or former employee often has good reason to seek discovery of the plaintiff-employee's Facebook posts. For example, an employee who alleges that she was subject to an unlawful hostile work environment in violation of Title VII must show not only that the allegedly harassing conduct was objectively severe or pervasive but also that she subjectively believed it to be so.

I'll use myself as an example. I tend not to be easily offended. In fact, I'm usually the one who has to watch her comments so as not to offend others. If I were to claim that I was subject to unlawful harassment based on my gender, I would first have to point to comments or conduct that a reasonable woman in my position would find offensive--the objective component. But the inquiry does not end there. I would also have to show that I found the comments or conduct to be offensive--the subjective component.

A plaintiff who says that she was not adversely affected by the conduct defeats her own claim. In other words, plaintiffs are not doing themselves any favors when they respond that they were "tough" or "didn't let the conduct bother [them]." Instead, the plaintiff must point to some evidence tending to show that she was affected by the conduct--so much so that the nature of the workplace itself was transformed (negatively) by the allegedly unlawful conduct.

This evidence can take the form of depression, inability to sleep, weight loss or gain, anxiety, etc. And that is precisely why posts on social-networking sites, such as Facebook, can be so critical to the defense of these claims. A harassment claim can be defeated by the plaintiff-employee's Facebook posts that reflect a happy, not-anxious state of mind.

But getting access to a plaintiff's social-networking profile is easier said than done, as many defense lawyers have learned already. A recent decision from a federal court in Nevada grants broad access to this content but doe so in a fairly unusual manner.

In Thompson v. Autoliv ASP, Inc., the plaintiff alleged personal-injury and product-liability claims, arising from an automobile accident in April 2007. The plaintiff alleged that she sustained significant injuries due to a defective seat belt and airbag. Before making a formal discovery request, the defendant obtained posts and photos from the plaintiff's publicly available Facebook profile, which, according to the defendant, constituted evidence of her "post-accident social activities, mental state, relationship history, living arrangements, and rehabilitative progress," all of which were relevant to the underlying claims and defenses.

Thereafter, though, the plaintiff changed the privacy settings on the account so that the information was no longer publicly available. In response, the defendant sought to compel a complete copy of all of the plaintiff's social-networking accounts from the date of the accident to present. the plaintiff objected, arguing that the request was a mere fishing expedition.

The court granted the defendant's motion--with some unusual conditions. Recognizing that "litigation does not permit a complete and open public display of Plaintiff's life," the court ordered the plaintiff to upload onto an external storage device "all information from her Facebook and MySpace accounts" from the date of the accident to the present and to provide defense counsel with an "index of redacted social networking site communications." Once received, counsel was to review the content--but was ordered not to share the content with anyone other than support staff.

Venkat Balasubramani posted about the case at Eric Goldman's Technology & Marketing Law Blog and, as usual, takes an interesting perspective on the practical implications of the court's order. He raises questions that I had, as well, such as: (1) what is an "index;" and (2) why would there be any redacted communications if the plaintiff is required to produce all contents.

Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-CVF, 2012 U.S. Dist. LEXIS 85143, 2012 WL 2342928 (D. Nev. June 20, 2012).

See also:
Access to Party's Facebook Account During Discovery
Facebook Message Leads to Disability Claim
Employee's Facebook Posts Protected by First Amendment

Stop Workplace Negativity With Email Surveillance. . . . Huh?

Posted by Molly DiBiancaOn July 15, 2012In: Electronic Monitoring, Privacy In the Workplace

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FDA officials developed "a wide-ranging surveillance operation" against a group of its own employees, according to the N.Y. Times. The federal agency is said to have surreptitiously captured "thousands of emails" that disgruntled employee-scientists sent to members of Congress, lawyers, labor officials, and journalists.

The surveillance began as a workplace investigation of a possible leak of confidential information. The investigation was limited to five scientists. But it developed into a far broader-ranging endeavor, eventually culminating in 80,000 pages of documents. The massive surveillance was an effort to curb the "collaboration" of the agency's opponents, according to the report.

This story is interesting on several levels. First, on the most basic level, the idea that an employer the size of the FDA determined that a massive surveillance endeavor was the best way to stop what it perceived to be disparaging or antagonist commentary between employees and outsiders. I don't know what the culture has to be or what the level of negative murmurs has to be to prompt an employer to consider this type of effort in the first instance, nevertheless what it takes to push it to cross that line.

Second, the nature of the communications that were monitored is particularly striking. According to the NY Times report, the emails "were collated without regard to the identify of the individuals with whom the user may have been corresponding. Although the law is not particularly well settled on this issue, there are cases that have upheld significant consequences for employers who monitor, intercept, and/or access emails between an employee and his attorney. Thus, it seems potentially risky for the agency to have disregarded "the individuals with whom the user may have been corresponding."

There are potential consequences beyond the issue of attorney-client privilege, though. We'll have to wait to see what the legal consequences are, if any. I don't suppose we'll ever know what the real impact is on morale, although I can imagine only that it won't be a very positive one.

Here's to All the Lovey-Dovey Lawyers!

Posted by Molly DiBiancaOn July 12, 2012In: Hiring

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Charlie Plumb, Oklahoma's super-star employment lawyer of the year, ECN rock star, and, according to Jon Hyman, the "world's nicest guy," wrote a great post on his firm's Employer LINC blog yesterday about a Philadelphia case straight from the we-can't-make-this-stuff-up department. In shortened form, the story goes as follows:

Customer goes to KFC for a bucket of chicken and is pistol whipped by a gun-toting employee working behind the counter. What incited the employee to violence? Apparently, Customer took too long to choose which of the mouth-watering sides he wanted with his chicken. And, because nobody likes to get pistol whipped--not even for a bucket of the Colonel's finest--the customer sued the restaurant chain, alleging negligent retention based on its failure to conduct a background search on the pistol-packing employee, who, you may not be surprised to learn, did in fact have a criminal history.

Being the all-around funny man that he is, Charlie tells this saga in a very funny way. But, rightly so, he emphasizes out the importance of the court's decision dismissing the customer's claims. If the court had ruled differently, it could have set precedent that employers must, as a matter of law, conduct a criminal background search on every potential employee, regardless of position.

Now, if I can just figure out how the guy from Tulsa beat me to such a great story in my own backyard . . .

Regarding Jon Hyman's complimentary description of Charlie Plumb, I suppose it would be appropriate to say, "it takes one to know one." On his Ohio Employer Law Blog this week, Jon wrote a great post about the TLC employers should give to new employees during the onboarding process.

And, sticking with the lovey-dovey theme, I'll point you to Dan Schwartz's post from Wednesday, in which he tosses a whole bunch of kudos all around the blogosphere, calling particular attention to 10 of his favorite employment-law bloggers--including me and Jon--thanks, Dan.

Now, one for the haters. Admittedly, there is a time and a place for all of this warm and fuzziness. And that place is not always the workplace. A post on MSNBC.com highlights the problem of the awkward office hug. The post quotes various professionals who lament the awkward moment when they went in for the hug only to realize, mid-embrace, that a handshake definitely would have been the better choice.

Awwwwkward!

I've had this discussion with female colleagues on many occasions but have never seen any kind of consensus. I tend to just do whatever I'm inclined to do at the moment--I certainly don't give any kind of advance thought to whether I'm going to greet a coworker or client with a handshake, hug, or cheek kiss. I suppose I'm more casual about these interactions than some of my friends. But maybe that's because I've not yet had the unfortunate experience of the awkward office hug.

Here's to hoping you have absolutely no awkward encounters this weekend and that you meet lots of kind and heartwarming folks, including a lawyer or two.