Delaware Employment Law Blog

Many employers continued to face financial challenges in 2011. But business is booming for at least one group. The EEOC received a record number of complaints last year--almost 100,000 in all.

Almost half (40%) of the complaints alleged unlawful retaliation, making it the most "popular" type of claim. Race- and sex-discrimination claims ranked second and third highest.

The newest law on the EEOC's enforcement task list is GINA, the Genetic Nondiscrimination Act. As expected, there were few GINA complaints filed--only 245 in 2011.

There could be any number of reasons for the increasing amount of discrimination complaints filed with the EEOC. Unfortunately, though, it doesn't seem that this trend is likely to slow any time soon.

Can an individual supervisor be held liable when an employee files suit? Well, like all legal questions, it depends. The Third Circuit Court of Appeals issued an opinion yesterday expanding the instances when the answer to this question is yes in Haybarger v. Lawrence County Adult Probation & Parole, No. 10-3916 (3d Cir. Jan. 31, 2012).

Background
The plaintiff, Debra Haybarger, was the office manager for Lawrence County Adult Probation and Parole, an agency of the Lawrence County of Court of Common Pleas. Haybarger reported to Director William Mancino who, turn, reported to Court Adminstrator Michael Occhibone. Occhibone reported to the President Judge of the Court, Judge Dominick Motto.

Hayberger missed a lot of work due to various illnesses. Her boss, Mancino, was "displeased" by the absences, writing on her performance evaluations that she needed to "improve her overall health and cut down on the days she misses due to illness." He also commented about her health and suggested that she need to "start taking better care of [her]self." Yikes.

Mancino put Haybarger on a six-month probation, which required weekly progress reports and formal monthly meetings. In a disciplinary letter, he wrote that Haybarger's "conduct, work ethic and behavior [were] non-conducive to the Adult Probation Office." He also wrote that she demonstrated a "lack of leadership," and "no clear understanding of the subordinate positions" that she supervised. Gulp.

At the end of the six months, Mancino told his superiors that Haybarger's performance had not improved and recommended that she be terminated. They followed his recommendation.

The Suit
Haybarger sued the agency, the county, and Mancino under the ADA, Rehabilitation Act, Pennsylvania's state discrimination statute, and the FMLA. Initially, the District Court dismissed all of the claims except for the Rehabilitation Act claim against the agency and the FMLA and state-law claims against Mancino.

After limited discovery, the agency moved for summary judgment, alleging it was immune from suit pursuant to the 11th Amendment. The motion was denied and the Third Circuit affirmed.

On remand, the agency again moved for summary judgment, as did Mancino. The agency's motion was denied but the parties subsequently settled, leaving only the FMLA claim against Mancino in his individual capacity.

The District Court held that, while the FMLA permits individual liability against supervisors at public agencies, the plaintiff failed to show that Mancino had "sufficient control over [her] conditions and terms of employment" because he did not have authority to hire and fire and, therefore, was not a supervisor.

The Holding
The Third Circuit determined, as a matter of first impression, that supervisors at public agencies are subject to liability under the FMLA was one of first impression. The court then went on to find that Mancino could be considered a supervisor and, in turn, an "employer" for purposes of the FMLA.

In its first finding, the court rejected the positions of the 6th and 11th Circuits, both of which have found that the FMLA does not provide for individual liability for supervisors and, instead, adopting the reasoning of the 5th Circuit. This conclusion was based on the determination that the language of the FMLA and its implementing regulations are more like the FLSA, which permits individual liability, rather than Title VII, which does not.

The court then turned to the facts that could support a finding that Mancino could be considered to be an "employer" for the purposes of the FMLA. In sum, the court explained, "an individual is subject to FMLA liability when he or she exercises 'supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation' while acting in the employer's interest."

The Impact on Supervisors
There are several lessons to be learned from this case--some more obvious than others. First, do not comment (or care) about the reasons for an employee's absence. If an employee is absent and is permitted to be absent--because of your leave policy, because of the FMLA, or otherwise--then the reason(s) for the absence is irrelevant. Do not care and do not comment about why an employee is taking leave when she is permitted to do so.

Second, learn how to write a better performance evaluation. Ambiguous comments like, "employee demonstrates poor leadership skills" do not help the employee improve because they do not identify the underlying conduct that you want her to change. Give an example of how she fails to be a good leader. If you cannot articulate a specific example of what you consider to be poor performance, it is not poor performance under the law.

Third, to avoid being held individually liable under the law, supervisors are best advised to let HR do what they do best--including administering FMLA leave. Simply turn it over to HR and then get the pros involved when writing performance evaluations and considering disciplinary action for any employee who has been approved for FMLA leave. This stuff isn't easy--get help from the pros.

The Delaware Court of Chancery has issued Guidelines to Help Lawyers Practicing before the Court. Chancery Court Guidelines.pdf This guidance may be particularly helpful to attorneys unfamiliar with the level of civility expected of the Delaware Bar. The guidelines also include advice on "best practice, which are informative even for seasoned practioners. Here are some excerpts from the new guidelines:

• All cellphones and PDAs are strictly prohibited in the courtroom, even if silenced. Failure to comply with this rule may result in confiscation of the device and/or sanctions.
• Plans for the use of technology during a hearing or trial should be made approximately one week before the proceeding.
• Where Delaware attorneys are acting as local counsel, letters to the Court from lead counsel should not be forwarded to the Court under a cover letter saying, in substance, "Here is a letter from my co-counsel."
• Letters to the Court should be short. If a letter exceeds 5 pages, double-spaced, counsel should consider whether a motion is more appropriate. Submissions of up to 15 pages may be filed as speaking motions. Submissions longer than 15 pages should be submitted as motions with supporting briefs.
• Parties should include in their standard interrogatories a request that the other party(ies) identify prospective trial witnesses. If a party fails to include such an interrogatory, the Court will not look favorably on complaints of unfairness when counsel is unable to depose all trial witnesses before the close of discovery.
• Answers should repeat the allegations of the Complaint and then set forth the response below, mirroring the practice used in discovery responses.
• The Court takes issue with parties (1) aggressively denying basic facts without a good faith basis to do so, and (2) reciting a laundry list of affirmative defenses without consideration of the applicability of each defense to the case.

Delaware Court of Chancery Guidelines

A decision from the Pennsylvania Court of Common Pleas seems to hold that a judge who is Facebook friends with a party in a matter before him must recuse himself as a matter of course; failure to do so, in this particular case, resulted in the judge's decision being overturned. Does this mean that Pennsylvania judges will be subject to a new, lower standard for recusal?

On May 1, 2011, Pennsylvania State Representative Cherelle Parker was arrested for drunk driving. During a hearing in November 2011, the presiding judge, the Honorable Charles Hayden suppressed the testimony of the arresting officers, finding that, due to conflicting evidence, the officers' testimony was "impossible" to believe.

After the Court issued its decision, the Attorney General became aware that Judge Hayden was Facebook "friends" with Representative Parker. Judge Hayden refused to recuse himself and the Attorney General appealed the case to the Pennsylvania Common Pleas Court. In January 2012, the Court issued an order reversing Judge Hayden's ruling and ordering that he recuse himself from the case.

The basis for the Court's order was its determination that Judge Hayden had abused his discretion by not recusing himself from the case, reports WHYY's Newsworks. (Note: As of this post, we've been unable to locate a copy of the court's order. Thus, our information is limited to the news reports. If you have a copy of the order, we'd appreciate having a look at it.)

This approach, however, seems likely to cause problems. Take this case for example: Judge Hayden has more than 1,500 Facebook "friends," and Representative Parker has more than 4,500 Facebook "friends." Moreover, Pennsylvania judges are elected, making them politicians of a sort. In this day and age, it is not unusual for politicians to have aids manage their social media accounts, especially when they are used for professional rather than personal purposes. Finally, most people with Facebook accounts will readily acknowledge that there is a real difference between a friend and a Facebook "friend." Indeed, Representative Parker's attorney asserts that she and Judge Hayden had no personal connection beyond their Facebook accounts.

Editor's Comments by Molly DiBianca

Social-media activity by judges is an issue not likely to go away any time soon. Although many, if not most, judges do not use social-media sites like Facebook for personal use, it seems inevitable that this statistic will change and the number of judges who engage in social media will increase. This raises at least two questions. First, how, if at all, does the use of social media (and, particularly, social-networking sites), by judges affect their ability and/or perceived ability to remain impartial when an online "friend" is before them in the courtroom? Second, should bar associations opine about and/or take a formal position with respect to this question?

Ethics committees in at least five states have issued advisory opinions regarding online friending of attorneys by judges. All but one of the states to have addressed the question has come out on the side that friending an attorney who may appear in the judge's courtroom is not, per se, impermissible, provided that the judge complies with the rules of ethics in all other respects, including impartiality. (Committees in Ohio South Carolina, and North Carolina have issued advisory opinions that permit judge-attorney friending; Florida's ethics body concluded that such friendships were not appropriate).

But the story addressed in Lauren's post, above, deals with a separate issue--specifically, whether the existence of a Facebook friendship between a judge and a party requires the judge recuse himself as a matter of course. Although the Pennyslvania court seems to have decided the answer to this query is "yes," I am not convinced that it is quite that simple.

We would love to hear your thoughts on the issue--can a judge who is Facebook friends with a party (plaintiff or defendant) remain impartial or should he be required to recuse himself because of that online connection?

Criminal background checks of job applicants seems to have reached a tipping point as a topic in employment-law circles. So, what are the key components leading to this perfect storm of EEO laws?

1. Most Employers Consider Criminal History
According to a 2010 study conducted by SHRM, more than 9 out of 10 employers polled conducted criminal background checks on some or all job candidates as part of the pre-employment screening process. The study found that 73% of employers conduct these checks for all candidates, while 19% used them only for selected positions.

2. More Adults Have Criminal Records
According to a March 2011 study by the National Employment Law Project, more than 1 in every 4 adults are estimated to have a criminal record. Thus, the use of criminal-background checks in the job-screening process affects more than one-quarter of all potential applicants. See 65 Million "Need Not Apply" (PDF)

3. EEOC's Public Meeting
In July 2011, the EEOC held a public meeting to "Examine Arrest and Conviction Records as Hiring Barrier," focusing on the use of criminal records by employers for employment screening background checks. The purpose of the meeting was to identify the ways in which criminal histories are being used, how they can be used appropriately, the legal guidelines for doing so.

4. Ban-the-Box Movement--Nationally and Locally
Around the country, cities, counties, and municipalities are adopting laws and ordinances known as "ban-the-box" laws. The reference is to remove from job applications the box that an applicant is asked to check to indicate that he or she has a criminal history. By removing the "box" question, the idea is that an applicant will not be automatically excluded from consideration as a result of criminal background.

Philadelphia is one of the latest cities to join this movement. The Fair Criminal Record Screening Standards Act, which was signed in April 2011, took effect on Friday, January 13, 2012. As detailed in this earlier post, the Act prohibits employers from inquiring during the fir initial interview about a candidate's arrest history.

5. EEOC Settles Lawsuit for $3M
The most recent development has been the settlement of a lawsuit brought by the EEOC against Pepsi Beverages Company ("Pepsi"), in which Pepsi agreed to pay $3.13 million as a result of its policy, which was revised during the EEOC's investigation, and which prohibited the employment of applicants with an arrest history, regardless of whether the arrest had led to a conviction. The payment will be split among more than 300 applicants who, according to the terms of the conciliation agreement, were adversely affected by the policy between 2006 and 2010. A portion of the sum will be allocated for the administration of the claims process. The suit alleged that the employer's criminal background-check policy violated Title VII's prohibition against race-based discrimination.

How can an employer avoid the perfect storm? There are two keys. First, and most important, do not use criminal histories as a per se bar to employment. Second, use the EEOC's suggested best practices to determine whether a particular candidate's criminal history should be considered and, if so, how to do so in a legally sound way. For more information on this process, see these earlier posts:
How Considering a Candidate's Arrest History Could Land You In EEOC Jail
Research Puts 5-Year Expiration Date on Criminal Records Used for Background Checks
Is Creditworthiness a Protected Characteristic? Yes, says EEOC

You may recall our previous post about a young lawyer who sued his former employer. The lawyer, Gregory Berry, had sent an email to the firm's partners, in which he stated, "it has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing, and a superior legal mind to most I have met." Not surprisingly, Mr. Berry's arrogance was not well received, and he lost his job. He then sued his former employer, seeking over $75 million in damages.

Mr. Berry must have been stunned, then, when his lawsuit was dismissed earlier this week. The court dismissed the suit on the grounds that Mr. Berry had executed a valid release of his claims in exchange for a $27,000 severance payment. Consequently, his claims were barred. The court rejected Mr. Berry's argument that he signed the "unconscionable" agreement under economic duress.

But this story isn't over! In keeping with the self-aggrandizing attitude evident in Mr. Berry's email, he left the Courtroom before the Judge had finished issuing her ruling. She has now ordered the parties to attend a hearing on January 24, for purposes of considering a contempt ruling against Mr. Berry, reports Above the Law.

So what is the lesson to be learned for employers? Well, I suppose there's the idea that there's no way to guarantee you won't get sued. Despite the existence of a valid severance agreement and a substantial cash payent, the law firm still got hit with a lawsuit--and the aggravation and expense that goes with it. If there is a lesson here, it may be that you can never be too selective in your hiring decisions.

"More job-seekers are facing an added requirement: no smoking -- at work or anytime." That is the opening line of an article on USA Today's Money website. I will defer to the news organization and the author of the piece but, to be frank, I have doubts about the objective veracity of that statement. I am certain, however, that this story is not a new one.

In October of last year, for example, we noted that Texas' Baylor Health Care System had elected to implement a ban hiring smokers. This does support the USA Today's claim that health-care employers are leading the way in this trend. We also wrote about this trend nearly a year ago in February of 2011 in a post, called Health-Care Employers Who Don't Hire Smokers, in which we discussed a similar article in the New York Times.

The underlying question in these and similar articles is whether it is a good idea for employers to discriminate against individuals who use tobacco. Without coming out and saying so, both articles seem to conclude that the answer to this question is "yes." As you can read in my previous posts, I tend to be less convinced. Primarily, my concerns are as follows:

1. I don't believe that the best way to address productivity is through a ban on employing smokers. The better way to handle this is through better management. Simply implement a ban on workday smoke breaks; and

2. Tobacco use is a legal activity (at least for now). There are countless other legal activities that endanger the health of employees--obesity in particular. However, it would be a tremendously bad PR move to stop hiring the morbidly obese. We can refuse hiring smokers because smokers are an unpopular group in today's society. Being a defense lawyer, I hesitate to endorse what can seem like picking on an already marginalized group.

That being said, I also recognize that health and wellness are good things. And I would readily support an employer whose real objective is to give its workforce the tools to lead healthier and, in turn, more productive lives. I just tend to think that this should not be limited to bans on smokers.

See also:
Health vs. Privacy: Employers Continue to Juggle Both;
How Far Should Employers Go When It Comes to Employees' Health?;
Not Everyone Is Fired Up About Smoking Ban;
Employer Quits Its Smoking-Penalty Policy;
A Whirlpool of Excitement about Rights of Employees Who Smoke

Employers and social media--boy oh boy, new problems seem to crop up daily. One of the more recent problems is ownership of social-media accounts. The decisions are mixed. For example, one court ordered an employee to return social-media log-in and password information to his employer. But when an employee files suit against his employer for using a social-media account that the employee claims for his own, the tables can turn.

The defendants were an interior-design firm and its owner. The plaintiff, Jill Maremont, worked for the firm as its Director of Marketing, Public Relations, and E-commerce. During her employment, Maremont became well known in the local design community and developed a substantial "personal" Twitter following.

As part of the firm's social-media marketing campaign, Maremont created a blog, which was hosted on the firm's website. She also created a Twitter account using the firm's computer at the firm's office. For reasons that were not explained by the court's opinion, the parties apparently did not dispute that Maremont's "personal Twitter and Facebook accounts were not for the [firm's] benefit." The parties also did not dispute that Maremont created a "personal following on Twitter and Facebook for her own economic benefit and also because, if she left her employment at [the firm], she would promote another employer with her Facebook and Twitter followers."

Maremont filed a complaint alleging four counts: (a) Lanham Act; (b) Stored Communications Act; (c) a state statutory privacy claim; and (d) a state common-law privacy claim.

Subsequently, Maremont was seriously injured in a car accident. While hospitalized, she learned that the firm had updated Maremont's Facebook page and that some of the posts promoted the firm. She also learned that the firm had accessed her Twitter account and used it to post promotional tweets. She asked the firm's owner to refrain from posting updates to Maremont's Twitter and Facebook accounts but the updates continued. Maremont and her husband later changed the password for her Twitter account. Maremont was able to return to work but only for a brief period of time. She left work and did not return.

The court looked first at the false-association or false-endorsement claim brought under the Lanham Act. False endorsement occurs when "a person's identity is connected with a product or service in such a way that consumers are likely to be misled about that person's sponsorship or approval of the product or service." The court let this claim proceed.

The court then turned to the SCA claim. Maremont claimed that the defendants had accessed her personal Twitter account without her permission or authorization. The SCA provides for a cause of action for unauthorized, intentional access to communications held in electronic storage. The defendants admitted that they sent 17 tweets from Maremont's account while she was hospitalized and not at work. Therefore, the court held that the SCA claim could proceed because there were disputed issues of fact as to whether the firm was authorized to access Maremont's personal accounts.

The court dismissed the final two claims, finding that there could be no invasion of privacy for public information and that the defendant had not purported to be Maremont and, as a result, had not misappropriated Maremont's image on the firm's behalf.

Without a doubt, the key lesson from this case for employers is this: when you want to use social media for marketing or promotional purposes, do so with the same rules you would apply to any other business venture. Social-media accounts should be treated like any other company property. Implement rules for their use, just like you would for a company vehicle or credit card. Communicate those rules and enforce them when broken.

Maremont v. Susan Friedman Design Group, LTD, No. 10-07811 (N.D. Ill. Dec. 7, 2011) (PDF).

(H/T to Social Media Employment Law Blog).

See also:
Ex-Employee Must Return Social-Media Account Info to Employer
Who Owns Your Company's Twitter Account?

Employers have more resources than ever when it comes to employment-related questions. The Internet is chock full of fantastic references for all things employment law. This blog was selected as one of the best in the country by the ABA Journal for the third time this year (thanks, ABA Journal!!), along with several other terrific employment-law blogs. There's a connection between this blog and some of the other winners this year, though, that deserves my attention.

Young Conaway is a long-time member of the Employer's Counsel Network (ECN). Through this affiliation, we publish our monthly Delaware Employment Law Letter (the only monthly newsletter for Delaware employers). The ECN's presence in the blogosphere has multiplied in the past few years and I'm proud to say that 4 of us were selected as Top 100 blogs this year. In addition to the Delaware Employment Law Blog, the following three ECN members also were 2011 award winners (in alphabetical order):

Arizoneout is the newest addition to ECN's blogging family. Written by Dinita James of Ford & Harrison, the blog's focus is narrow but deep--with posts only about the medical marijuana law in Arizona. Dinita's blog is sure to be a go-to resource for employers across the country who will be dealing with questions about managing card-carrying employees. I have a particular fondness for Dinita's blog because, so she says, she was, in part, inspired to finally put pen to ink (or fingertips to keys) after hearing me and my fellow ECN bloggers talk about why we love blogging at an ECN meeting last year. Dinita tweets at @Arizoneout.

That's What She Said is another blog written by Ford & Harrison lawyers. This blog is the longest-running among all of the ECN blogs. The blog makes the Top 100 each year but not in the employment category. Instead, it is listed in the Humor category--and for good reason. Posts track the TV sitcom, The Office. Each week, its authors comment on the various workplace missteps that the show's characters make. They even give estimates of the costs of those missteps if the same facts were to occur in the real world, which surely would result in lots of litigation. The gang can be found on Twitter at @HRHero.

Work Matters is written by our friend, Mike Maslanka, in Dallas. Mike is a prolific writer and constant scholar, who always seems to find the deeper meaning of otherwise everyday events. Mike's take on employment matters is almost holistic--he tends to analyze issues in a highly insightful way. Follow Mike on Twitter @worklawyer.

Although technically not a member of the ECN, Robin Shea's Employment & Labor Insider is almost in the ECN family, since she and Mike Maslanka both are partners with Constangy Brooks & Smith. So maybe her blog is a blog-in-law of some sort. Either way, Robin, who practices in North Carolina, writes in a style that is very easy to read and as entertaining as it is practical. She's been blogging since late 2010 and posts as frequently as ever. Follow her on Twitter @RobinEShea.

Although not in my ECN family, fellow Top 100 bloggers Dan Schwartz and Jon Hyman certainly are members of my blogging family. Dan, who writes the Connecticut Employment Law Blog, is one of true innovators in legal blogging. Jon somehow manages to generate an enormous amount of content on his Ohio Employer's Law Blog. Each blogger also tweets like crazy. Follow them on Twitter at @danielschwartz and @jonhyman.

Eric Meyer also blogs more frequently than most and his new blog, The Employer Handbook, was honored as a Top 100 this year, as well. Follow him on Twitter at @Eric_B_Meyer.

Finally, there are two other winners this year, each of whom have made my Top 100 Employment Law Blogs list in past years. First, there's FMLA Insights, written by Jeff Nowak of Chicago. For any employer with 50 or more employees, there is hardly a more relevant topic than the FMLA and the constant challenges that it presents. Follow Jeff on Twitter @JeffreySNowak.

Second, is Donna Ballman's Screw You Guys I'm Going Home. For reasons that escape me, plaintiff's employment lawyers are largely absent from the blogosphere. But, of the handful of quality blogs written for employees, perhaps none has a better name than Donna's. You can follow her on Twitter @EmployeeAtty.

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

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

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

See also, Social-Media Woes for School Districts

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

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

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

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

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

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

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

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

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

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

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

• Failure to hire;


• Harassment / hostile work environment;


• FLSA;


• ADAAA failure to accommodate;


• FMLA;


• ERISA; and


• Class actions

What Documents and Information Must Be Supplied?

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

Documents to be produced by Plaintiff

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

• All relevant communications between the plaintiff and defendant;


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


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


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


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


• Plaintiff's current resume;


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


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


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


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

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

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

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

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


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


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


• Documents used in making the disputed employment decision;


• Workplace policies or guidelines relevant to the adverse action;


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


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


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

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

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


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

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

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


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


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


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


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


• At the conclusion of the litigation, within 30 days after the entry of final judgment, all copies of confidential information must be returned to the producing party or certified as destroyed

Pilot Project Initial Discovery in Employment Discrimination Cases.pdf (PDF)

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

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

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

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

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

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

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

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

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

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

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

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

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

What happens to an employer's social-media accounts when the employee tasked with managing those accounts leaves the organization? I asked that question in a recent post, Who Owns Your Company's Twitter Account? A recent case from the Southern District of New York, Ardis Health, LLC v. Nankivell, offers an answer.

Ardis, the employer, moved for a preliminary injunction against its former employee, Ashleigh Nankivell, seeking to require her to, among other things, return its log-in information for various websites. Nankivell had been employed as the company's Video and Social Media Producer, in which she was responsible for maintaining the company's websites, blogs, and social-media pages for marketing purposes. She was given and had sole control of all passwords and related information necessary to access the sites.

After her employment ended, Ardis demanded that Nankivell return the access information--since her departure, the employer had been unable to access the sites or update content.

The court found that the employer would be irreparably harmed if the access information was not returned prior to a final trial on the merits because, without that information, the employer precluded from continuously updating its profiles and pages and from reacting to online trends.

The employee argued that there was no irreparable harm because the pages had not been updated for two years prior to her termination. The Court rejected this argument, citing the fact that it was the defendant's responsibility to update the sites, so she could not use her own failure to perform her duties as a defense.

And, even if that was not the case, the Court continued, new opportunities may arise the employer would not be able to take advantage of due to the employee's withholding of the access information.

So, in short, in this case at least, the answer to the question, Who Owns the Company's Social Media Information?, is The Company.

Ardis Health, LLC v. Nankivell, 11 Civ. 50134 (NRB) (S.D.N.Y. Oct. 19, 2011).