Demoted for Posting Picture of Confederate Flag on Facebook Page

Posted by Molly DiBiancaOn February 6, 2014In: Public Sector, Social Media in the Workplace

Email This Post | Print this Post

Public-sector employees have First Amendment rights.  But those rights are not without limits.  Employers, too, have rights—in particular, the right to operate an effective and efficient workplace.  Law-enforcement agencies get even more protection because the law recognizes the potential for harm to the department’s reputation and the public’s trust.

And how do all of these rights play out in the context of social media?  Usually in the employer’s favor.  As yet another court opinion shows, police officers have very little latitude when it comes to posting controversial views on their personal Facebook pages. 

The plaintiff in this case, Deputy Chief Rex Duke, worked for the Clayton State University Police Department for eight years with no performance problems.  Shortly after the presidential election in November 2012, the plaintiff posted a picture of a confederate flag to his Facebook page with the comment, “It’s time for the second revolution.”

confederate flag

His Facebook profile and posts were accessible only to his Facebook friends. His profile did not indicate that he was employed by the Police Department or even that he was a police officer. And he took the post down within an hour after posting it.

But that hour was long enough for one of his “friends” to send a screenshot of the post to the local TV station. A story ran that evening on the local news about the post and the plaintiff’s position as Deputy Chief.

The Police Department received anonymous complaints about Plaintiff, prompting an investigation. Following he investigation, the plaintiff was demoted in rank and duties and his pay was cut. The plaintiff sued the Police Department, alleging First Amendment retaliation.

The court upheld the demotion, finding no unlawful imposition by the employer on the plaintiff’s right to free speech.  The basis for the court’s opinion was the potential disruption and/or actual disruption caused by the plaintiff’s posts.  In most circuits, including the 11th Circuit, potential disruption can be sufficient justification for an employer’s interference with an employee’s right to free speech.  Here, the court explained, there was not only potential for disruption caused by the plaintiff’s post but there was actual disruption, as well, as evidenced by the complaints the Department received. 

Are these consequences harsh?  Most definitely.  Remember, the post was not publicly accessible and was up only for an hour.  But that doesn’t mean that the consequences were unlawful. 

Duke v. Hamil, No. 1:13-cv-01663-RWS, 2014 U.S. Dist. LEXIS 13388 (N.D Ga. Feb. 4, 2014).

Disruptive Facebook Posts Warrant Termination

Posted by Molly DiBiancaOn February 3, 2014In: Social Media in the Workplace

Email This Post | Print this Post

Employers continue to struggle with how to deal with the repercussions of employees’ online commentary.  When an employee is critical of his or her employer, supervisor, or coworkers on Facebook or other social-networking site, the employer’s knee-jerk reaction is often to discipline the employee.

Sometimes, that is the appropriate reaction.  And, sometimes, it is not.  How to tell which reaction is appropriate for any given comment (or series of comments) is the hard part.  I encourage employers to handle the situation as if the comments were made at a bar over the weekend or on the sidelines of a softball game—anywhere outside of the workplace—in an effort to put it into context.  I then counsel them that, if they still think a response of some sort is warranted, to proceed just as they would in any other workplace investigation.  Facebook firing

In other words, it’s best not to get all twisted about the fact that the conduct occurred online or that the comments were made via Facebook. 

A recent case from the 10th Circuit is a great example of that advice applied.  In Debord v. Mercy Healthy System of Kansas, Inc., the employee, Ms. Debord, was criticized by her boss, Mr. Weaver, after which, he tried to give her a hug.  (Hugging is, in my opinion, not all right at work.  I am not alone in this position, either.  See NPR, “A New Rule for the Workplace: ‘Hug Sparingly’”). 

In response, Debord posted—from her workplace computer, during working time—several posts to her Facebook page.  The posts contained comments critical of her employer, of Weaver, and of co-workers.  And some of the posts accused Weaver of unlawful and/or unethical behavior.  Several co-workers saw the posts and reported them to management.

Later that day, Debord was meeting with the company’s HR Director about an unrelated issue when Weaver interrupted and confronted Debord about the posts.  Debord denied having written any such comments.  Weaver brought in his laptop and showed the HR Director the posts on Debord’s Facebook page.  Debord again denied writing them. 

The HR Director met with Debord two days later and she again denied that she had written the posts on her Facebook page.  She finally relented, though, and admitted to her conduct.  She was suspended for one day without pay for acting in a manner inconsistent “with a high degree of personal integrity and professionalism.”  After it was determined that the allegations about Weaver were without any basis, Debord was terminated for “disruption, inappropriate behavior, and dishonesty.”

Debord sued on a number of bases but her termination was upheld by the district court and on appeal.  In other words, the 10th Circuit didn’t take issue with the termination of an employee because her Facebook comments caused disruption in the workplace.  Nor should there be an issue.  The employee used company resources to make false allegations about her boss, which were seen by several of her co-workers.  This conduct, to be sure, resulted in a disruption. 

Where there is an actual disruption caused by an employee’s activities—online or offline, there may be a legitimate basis for discipline.  But not always.  Here, the employee’s comments were elevated to a more serious level because they accused her boss of unlawful and/or unethical conduct.  That is a legitimately serious issue that the employer should address appropriately. 

Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642 (10th Cir. 2013).

Survey of Chancery Court Cases Shows Most Litigants Obtain Expedited Relief

Posted by Scott HoltOn January 29, 2014In:

Email This Post | Print this Post

A recent survey conducted by several of my colleagues demonstrates the speed in which litigants can obtain preliminary relief from the Court of Chancery. The survey included a sampling and analysis of approximately 200 cases between 2009 and 2011, in which the court ruled upon a motion for temporary restraining order or a motion for preliminary injunction. The results reflect the frequency and speed at which the court has granted injunctive relief in recent years:

  • For cases in which the court ruled on a motion for temporary restraining order, the court granted the motion 58 percent of the time. On average, the court granted the motion 7 days after its filing.
  • For cases in which the court ruled on a motion for preliminary injunction, the court granted the motion 30 percent of the time. On average, the court granted the motion 26 days after its filing.
  • The survey also looked at cases from the sample that involved trade secret claims and in which the court ruled on a motion for temporary restraining order or preliminary injunction. In those cases, the court granted the motion for temporary restraining order 88 percent of the time and granted the motion for preliminary injunction 75 percent of the time.

Based on these statistics, there seems to be little doubt that the court will order injunctive relief on an expedited basis in cases where circumstances require expedition, including those involving noncompete agreements and misappropriation of trade secret.

A copy of the full article drafted by my colleagues and published by BNA can be obtained on the Young Conaway Stargatt & Taylor website.

Discovery and Preservation of Social Media Evidence

Posted by Molly DiBiancaOn January 27, 2014In: Purely Legal, Social Media in the Workplace

Email This Post | Print this Post

This one is for the litigators in the group.   An article I wrote about the discovery of social-media evidence is now available online at Business Law Today, a publication by the ABA Business Law Section.  My article, Discovery and Preservation of Social Media Evidence, is one of several in a mini-theme issue focusing on Social Media and Business Law.  like tweet share follow letterpress

Other feature articles include:

-The Threat of Social Media Diligence on the Confidentiality of the M&A Process: The Problem and Possible Solutions, by Jonathan D. Gworke

-10 Tips for Avoiding Ethical Lapses When Using Social Media, by Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath

-Privacy and Social Media, by Theodore F. Claypoole

Enjoy!

No Love for Twibel Lawsuit Against Courtney Love

Posted by Molly DiBiancaOn January 27, 2014In: Social Media in the Workplace

Email This Post | Print this Post

“Twibel” is the sporty little name someone clever has come up with as a way to say “libel via Twitter.”  In other words, if it would be defamation if it is published in a newspaper, it will be defamation if tweeted on Twitter.  And now we have a case that has gone all the way to jury verdict on just this subject. signing twitter bird with bow

Courtney Love was sued by her former lawyer, Rhonda Holmes, for defamation via Twitter (Twibel is not yet an official cause of action).  Holmes claimed that she had been defamed by the famous singer when Love tweeted that Holmes had been “bought off.”

Love didn’t settle the case, instead choosing to take her defense to a jury.  According to the Hollywood Reporter, Love testified that she believed that her comment was true at the time she posted it.  She also testified that she meant the message to be a private “direct message” to two friends and when she learned that it had been sent to the public, she quickly deleted it.

The jury was asked to decide whether Holmes proved by clear and convincing evidence that Love knew her tweet was false or doubted the truth of it.  The jury returned an answer of “no” and Love prevailed. 

So what’s the lesson to be learned?  Well, for one, defamation cases are hard to win, regardless of the medium of the message.  It often comes down to credibility of the witnesses.  And, apparently, the jury believed Love when she said that she didn’t mean to make false statements about her former attorney.   If nothing else, this verdict won’t prompt a wave of Twibel claims to be filed.

FMLA Master Class: Feb. 12, 2014

Posted by Molly DiBiancaOn January 22, 2014In: Fair Labor Standards Act (FLSA), Seminars, Past, Wages and Benefits

Email This Post | Print this Post

The Family and Medical Leave Act has been a part of the workplace for more than a decade, so it’s gotten easier for HR to administer, right?  Not so.  Confusing regulations, coupled with numerous recent changes at both the legislative and regulatory levels and conflicting court decisions, ensure that FMLA continues to be one of the biggest compliance headaches for employers.

Let us help you clarify the confusion surrounding the numerous legislative and regulatory changes to the FMLA and get answers to all your FMLA questions at this advanced-level seminar just for Delaware employers.  Learn More.

Register now for the one-day seminar, and you'll learn:

  • The latest expansion, so you don’t risk noncompliance
  • What recent FMLA court decisions really mean, so you can adjust your policies accordingly
  • Why FMLA record-keeping continues to trip up even the savviest human resource managers, and effective solutions to avoid similar mistakes
  • How to tame the intermittent leave and reduced schedule beasts, and put a stop to abuse and fraud
  • How FMLA, ADA, and your state's leave and workers’ comp laws overlap, so you don’t violate any statute
  • What to expect when an employee’s expecting, so you can balance your business needs with her personal requirements, all within the spirit and letter of the law
  • How to judge a "serious health condition" the way a real judge would, and eliminate disputes about what does and doesn’t constitute it
  • And more...

Visit HRhero.com to see your full Agenda.

http://www.hrhero.com/img/2014_FMLA_MC.jpg

How to Register:

  • Register Now online or call (800) 274-6774.
  • Please mention Seminar Code S1694A when calling

Bill Would Limit Use of Criminal Histories for Delaware Employers

Posted by Molly DiBiancaOn January 17, 2014In: Background Checks, Delaware Specific, Hiring, Legislative Update

Email This Post | Print this Post

So-called “ban-the-box” initiatives, which limit employers’ inquiries into an applicant’s criminal history, have been adopted by several cities and municipalities.  Philadelphia adopted such a law in the Spring of 2011.  The City of Wilmington joined the ban-the-box bandwagon in Fall 2012, when then-Mayor Baker signed an executive order that removed a question about criminal convictions from job applications.  But that executive order applied only to applicants seeking work with the City of Wilmington.  Other Delaware employers have not been subject to these restrictions.

A bill is pending in the Delaware legislature, though, would change that and more if passed.

H.B. 167 proposes to limit when public employers and government contractors may inquire about or consider the criminal background or credit history.   The employer would not be permitted to ask about this information until “after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.”  Thus, a covered employer would be prohibited from asking about criminal or credit history until at least the first interview—no more checkboxes on job application.

The bill also proposes to limit the specific types of information that can be requested. Covered employers would be permitted to ask only about: (a) felony convictions in the past 10 years; and (b) misdemeanor convictions in the past 5 years.

This means that questions about arrests would be totally off limits—both on applications and in in-person interviews.

Finally, the bill proposes to limit how the information that the employer obtains will impact the hiring decision.  The bill basically adopts a scaled-down version of the EEOC’s multi-factor analysis whereby employers would be required to consider the nature of the crime and its relationship to the position sought, how much time has passed, etc. 

Oddly, the bill offers no specific limits on the use of credit history information other than timing.  In other words, the bill prohibits covered employers from obtaining a credit report for the candidate until a conditional offer has been made.

Even for private-sector employers who do no business with the State or any State agency, the use of background checks as part of the screening process continues to warrant consideration.  Particularly since the laws around the country are still developing, employers should weigh the benefits of this checks against the risks.  (See 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit).  And, if nothing else, employers should evaluate the process and policies in place for conducting such checks.

Delaware Mini-COBRA Law Grows

Posted by Molly DiBiancaOn January 15, 2014In: Benefits, Delaware Specific, Legislative Update

Email This Post | Print this Post

Editor's Note:  This post was written by Timothy J. Snyder, Esq.  Tim is the Chair of Young Conaway's Tax, Trusts and Estates, and Employee Benefits Sections. 

Delaware's Mini-COBRA law, enacted in May 2012, allows qualified individuals who work for employers with fewer than 20 employees to continue their coverage at their own cost, for up to 9 months after termination of coverage.  When it was passed, the legislature provided that the provisions of the Mini-COBRA statute:

shall have no force or effect if the Health Care bill passed by Congress and signed by the President of the United States of America in 2010 is declared unconstitutional by the Supreme Court of the United States of America or the provisions addressed by this Act are preempted by federal law on January 1, 2014, whichever first occurs.health care

I'm not sure what the Legislature meant when they provided that the Mini-COBRA statue would be preempted by federal law on January 1, 2014 but the intent was for the Mini-COBRA law to sunset on that date. However, in a little-publicized move in July of 2013, the legislature eliminated the January 1, 2014 sunset date for Mini-COBRA. They described their rationale for doing so as follows:

The Mini-COBRA Bill was originally passed as a short-term bill that was needed until the provisions of the Patient Protection and Affordable Care Act ("PPACA") became applicable to states, which was to occur on January 1, 2014. However, because PPACA's legislation relating to small employer group health policies now permits insurance companies to impose a ninety (90) day waiting period prior to the effective date of coverage, which was not anticipated when the Mini-COBRA Bill was passed, it is desirable to remove the sunset provision of the Mini-COBRA Bill so that the Mini-COBRA Bill remains in the Delaware Code, at least until a point in time when PPACA or other law may no longer permit an insurance company to impose waiting periods.

I initially thought that the Legislature provided for a January 1, 2014 sunset date because that is the date that coverage begins under the healthcare exchanges, which do not impose waiting periods in the typical COBRA scenario.  Thus, an individual terminated from a small employer could purchase his or her coverage for at least the 90-day waiting period from the exchange rather than requiring the former employer's insurer to provide the mini-COBRA benefit.  In fact, the U.S. Department of Labor, which oversees regular COBRA benefit administration, has issued revised model COBRA Notices that inform the qualified beneficiaries that they can acquire COBRA coverage through their former employer or they can obtain new coverage from the healthcare exchange.

3 HR Lessons I Learned In Vienna

Posted by Molly DiBiancaOn January 13, 2014In: Just for Fun

Email This Post | Print this Post

I spent the first half of my recent vacation in Vienna, Austria.  It was my first visit to to Vienna and I found the city to be absolutely enchanting with it deep roots in the arts, jaw-dropping architecture, and irresistible sweets.  Being the employment lawyer that I am, though, I can’t resist writing a post about some of the HR lessons one could learn from Vienna.

Vienna State Opera House

1.  Get out and walk around

I spent hours each day walking around the city.  Although I had a list of sites I wanted to visit and things I wanted to do, I found that some of my best experiences occurred more or less by accident.  For example, some of the best pictures I took on this trip were taken during unplanned walks.

The concept of “management by walking around” applies in the same way.  You can’t know what your employees are doing or what the general feeling is unless you get out of your office and see it for yourself.

2.  Don’t forget the date

In Vienna, the year of construction is displayed clearly on most buildings.  When I arrived, my driver pointed out the differences between pre- and post-war construction.  This was made significantly easier to do by virtue of the fact that the year can be seen clearly from the street.

Employers are well advised to follow a similar pattern.  Although employment lawyers love documentation, we really love documentation that includes a date.  Although we’ll make do with an undated witness statement, a statement that includes a date and signature is far, far more useful.

3.  Try a new angle

We all get stuck in our ways.  One of the hardest things to do is to look at a situation in a truly objective way without any predetermined opinions and without jumping too quickly to conclusions.  Although this is a very, very difficult thing to do, it is an incredibly valuable skill to have.

Vienna’s historic buildings are awe-inspiring.  They are also everywhere.  To really get a sense of any one building, I had to look at it from as many angles as possible.  The legendary Opera House looks completely different when seen from the ground as it does from the balcony of the Albertina Museum, which is just across the street.  Every view was gorgeous.  But I found that some of best images I captured were taken at angles other than straight on.

When dealing with a problem, take a step back from it.  Look at it from the left, the right, and then look at it up and down before you decide how to proceed.  Sometimes, the best approach may not be the one you’re used to taking.

3 Lessons I Learned On Vacation

Posted by Molly DiBiancaOn January 10, 2014In: Just for Fun

Email This Post | Print this Post

Every year, I go away for a few days on January 1st in an effort to refresh following the hectic holiday season. Having had enough of winter by January, I usually head south and spend three or four days with friends and family in Florida. But this year, I took a very different approach. Instead of four days in the Sunshine state, I headed overseas for 8 days. I spent the first four in Vienna, Austria, and the second four in Budapest, Hungary. It was a fantastic trip and I returned refreshed in a different way.Molly DiBianca

Here are three of the lessons I learned during my great escape.

1. Make the Time

I’m sorry to say, this is not a skill I’ve developed very well. The last true vacation I took (meaning more than a long weekend without answering emails and doing legal work) was more than 9 years ago. I cringe at the thought but it’s true. It always seems so hard to get away—there is always so much to do and never enough time. But the idea of work-life balance is that you are supposed to have a life. Vacation (i.e., a time free of work), is part of that balance.

2. Step Out of Your Comfort Zone

Instead of my standard trip south, I chose, instead, to go somewhere entirely different. To two cities I’ve never seen in two countries I’ve never visited. The perspective gained from stepping out of your comfort zone is well worth the initial anxiety about not speaking the language or knowing your way around. Plus, as the saying goes, “nothing risked, nothing gained.”

Challenge yourself and your employees to try new things if you want to promote growth and development.

3. Embrace Independence

My traveling companion had to back out of the trip at the last minute, letting me know about six days before our scheduled departure. As you may expect, I was not exactly thrilled about the change. It’s easier to travel with a companion and I worried that I wouldn’t be up to the challenge of traveling abroad by myself.

I mentioned the change to a friend, who responded, “So go by yourself—you’re sociable!” And right he is! So I took his advice and went by myself.

And I am so glad that I did. It was great to choose my agenda each day based only on what I wanted to do and to see. Would it have been fun with someone to share the adventure? Definitely. But sometimes it’s important to accomplish something on our own.

Teamwork is important but don’t underestimate the value of the solo experience. Being a “party of one” has its benefits.

The Risk of Fishing for Support in an Employee Discipline Matter

Posted by Molly DiBiancaOn December 18, 2013In: Social Media in the Workplace

Email This Post | Print this Post

Ah, Facebook. I wonder, sometimes, what I’d write about it Facebook hadn’t made its way into the workplace. There’s another recent decision involving an employee’s misuse of Facebook and the consequences of his decision.

The facts of the case—as opposed to the legal analysis—are what captivated me.  They offer an excellent example of the problems that arise when employees vent their frustrations on social-media sites, such as Facebook.

The plaintiff was employed as an Assistant Professor at the University of Southern Mississippi.  His employment was at-will and his contract was subject to non-renewal “for any reason.”

In 2010, the plaintiff was teaching an online course that included a “chat component.”  This enabled students to type comments and questions in a dialogue format.  During one of these chats, the plaintiff was logged out, so, to those students who were still logged in, it appeared that he was not viewing the the discussion.  But, alas, he was.

During one of these chats, a student made disparaging comments about the plaintiff, apparently not realizing that he was still online and could view the comments.  After the chat ended, the same student sent an email to an administrator, complaining about the quality of the plaintiff’s instruction. 

The next day, the plaintiff told a graduate assistant about the student’s comments made during the chat.  The assistant, apparently concerned with the way the plaintiff responded to the comments, reported the matter to the plaintiff’s direct supervisor, who, in turn, reported it to her supervisor.  The decision was made to remove the plaintiff from campus until the matter could be further investigated.  As a result, the plaintiff was placed on paid administrative leave.

While on leave, the plaintiff sent messages to students and others via email and Facebook requesting that they provide support for him in his dispute with administration.  The plaintiff also posted on Facebook the letter placing him on administrative leave, as well as the written statement of the graduate assistant, which had been obtained during the course of the investigation.

At the conclusion of the investigation, the plaintiff’s contract was not renewed.  In part, the decision was based on the plaintiff’s Facebook campaign initiative to get students’ support.  The plaintiff brought a variety of constitutional claims contesting the non-renewal decision. 

The court dismissed the claims but made specific note of the Facebook posts.  The court noted the disruptive nature of the posts.  The court also pointed out that the plaintiff “understood that a Facebook friend could forward his posts to anyone.”  If I were to summarize the lesson to be learned, as indicated by the court, they’d be as follows:

If you take your case to the streets and try to rally support, understand that you may lose  and be prepared to accept the loss.

To the victor goes the spoils.

Klinger v. Univ. of S. Miss., No. 12-150-KS-MTP, 2013 U.S. Dis. LEXIS 171515 (S.D. Miss. Dec. 5, 2013).

Facebook Posts by Police Officer Not Protected by the 1st Amendment

Posted by Molly DiBiancaOn December 10, 2013In: Public Sector, Social Media in the Workplace

Email This Post | Print this Post

Public-sector employers can add yet another “W” in the “Win” column on the Facebook-firing scorecard.  The victory comes by way of a federal court in Mississippi where, earlier today, a judge granted summary judgment to the City of Greenville in a First Amendment claim brought by a former police officer, Susan Graziosi.

Graziosi was employed by the Greenville Police Department for 26 years at the time she posted a series of comments on her Facebook page and the Facebook page of the then-mayor, complaining that the Chief of Police had not sent police-officer representatives to the funeral of an officer killed in the line of duty. 3d police officer

The comments weren’t outrageous, frankly.  No profanity, for example.  They were, however, decisively negative about the Chief’s leadership of the Department. 

Upon learning of the comments, the Chief spoke to the City Attorney and expressed concern about his ability to lead the Department in light of Graziosi’s posts.  Her employment was subsequently terminated for her violation of several Department policies, including Supporting Fellow Employees, Insubordination, and Discipline & Accountability. 

Graziosi appealed to the City Council but the termination decision was upheld and she filed a First Amendment retaliation claim in federal court.  Regular readers of this blog are likely more familiar than they’d like to be with the applicable test for a First-Amendment claim.  But, hey, it’s a classic, so bear with me while I go through it again.

In order for a public-sector employee to state a claim under the First Amendment in a “Facebook-firing” case, the court must determine that the speech at issue is entitled to constitutional protection and that the employee’s free-speech interests outweigh the employer’s interest in maintaining an efficient and effective workplace.  A review of any of the cases discussed in my previous posts (see the links, below), shows that the analysis usually comes out in the employer’s favor.  This is especially so in police and other paramilitary institutions because the law recognizes the need to maintain discipline and good working relationships amongst employees. 

And that is precisely what the court determined in this case, too. The court held that Graziosi’s venting on Facebook did not enjoy First Amendment protection.  Moreover, the Chief’s interest in maintaining his authority and preserving close working relationships outweighed any constitutional protection Graziosi’s speech may have had.  Thus, the court concluded, Graziosi’s termination was entirely lawful. 

Another win for employers in the workplace battle involving social media.

Graziosi v. City of Greenville, No. 4:12-cv-68-MPM-DAS, 2013 U.S. Dist. LEXIS 172581 (N.D. Miss. Dec. 3, 2013).

See also

Fed. Ct. in Oregon Upholds Facebook Firing of DHS Employee

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

image

And, if you haven’t yet cast your vote for the Delaware Employment Law Blog in the Labor & Employment category in this year’s ABA Journal Top 100 Blawgs, there’s still time!  Voting closes next Friday, December 20, though, so don’t delay.  And thank you!

SCOTUS Ruling on Forum-Selection Clauses Good News for Employers

Posted by Sheldon N. SandlerOn December 9, 2013In: Delaware Specific, U.S. Supreme Court Decisions

Email This Post | Print this Post

Many employment agreements contain forum-selection clauses naming the state or the court in which any disputes must be litigated, and what state's law will govern. Employers often name Delaware state courts as the exclusive forum, due to the high quality of Delaware courts and large number of corporations and other entities created in Delaware, and name Delaware law as the governing law.

Some courts have refused to enforce forum-selection clauses on the ground that another state would be more convenient than the named forum, based on the location of witnesses or documents. In a unanimous decision, the U.S. Supreme Court has strongly endorsed enforcement of these clauses. While the facts did not involve an employment dispute, the Court's reasoning will apply with equal force to such disputes.

The facts involved a construction contract between a firm in Texas and one in Virginia, for work to be performed in Texas. The contract contained a clause naming Virginia as the appropriate forum. When the Texas firm filed a lawsuit in Texas, the Fifth Circuit refused to enforce the forum-selection clause, explaining that the convenience of the parties justified keeping the case in Texas notwithstanding the clause. The Supreme Court reversed. The Court observed that a forum-selection clause must be

given controlling weight in all but the most exceptional cases. . . . When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a [motion to transfer] be denied.

Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct., No. 12-929 (U.S. Dec. 3, 2013).

Significantly, the Court pointed out that whether the forum-selection clause names another federal court or a state court, the same standard applies, that is, the existence of the clause is to be given great weight. Delaware has a specific statute on choice of law that should be invoked in any forum-selection clause. That statute, 6 Del. C. § 2709, applies to contracts involving $100,000 or more and sets out the language to be used in a forum-selection clause in order to establish the requisite relationship with Delaware. Especially in agreements with senior-level employees, employers would be well advised to consider the use of forum-selection clauses.

What Your Employees Steal May Be Used Against You In a Court of Law

Posted by Molly DiBiancaOn December 3, 2013In: Privacy In the Workplace

Email This Post | Print this Post

Can employee theft be a protected activity? Unfortunately, yes.  As I’ve written previously, employee theft of data and documents is so common it’s frightening—or should be—to any employer.  See Your Employees Are Stealing Your Data; Your Employees Are (Still) Stealing Your Data.

When an employer discovers that a recently separated employee has taken with him or her the employer’s data in electronic and/or paper format, there are a few possible outcomes.  Frequently, legal counsel is able to get the documents returned and an affidavit signed by the employee certifying that he no longer has any of the employer’s property in his possession, custody, or control, and that, should he later discover that he does still have such property, that he will contact the employer immediately and cooperate fully in returning it.  In these cases, it is up to the employer whether or not to “go after” the documents (and/or the employee who stole them).   data thief employee

But this is not always the case.  Employees have stolen the employer’s documents only to then attempt to use those documents in litigation against the employer.  Yes, this is as horrible as it sounds.

Here’s the nightmarish scenario.  Employee sues employer, alleging that employee was subject to unlawful discrimination based on age.  While still employed, employee steals a copy of her personnel file and the personnel file of the younger co-worker who employee claims was promoted instead of employee.   During discovery in the litigation, employee produces copies of these stolen documents and claims that they support her age-discrimination claim.

You now know that the employee wrongfully accessed the co-worker’s (confidential) personnel file, made a copy of it, and retained that copy (presumably giving a copy to her lawyer, who then produced it to you during discovery).  The rational employer would likely respond to this information by terminating (or at least wanting to terminate) the employee for breaching all sorts of policies.  And, if the file contained certain personal data, the employer would likely have a legal duty to notify the affected co-worker, as well.

But, alas, the law is never as obvious as one may hope.  There is a small body of cases that held that problems can arise if the employer does what most rational employers would want to do—i.e., fire the thief-employee.  For example, in a 2010 decision, the New Jersey Supreme Court held that it was, in fact, unlawful to terminate the employee for precisely the conduct described above.  The court found that the employee gave the documents only to her lawyers, that the documents were directly relevant to the employee’s claim of discrimination, that the disclosure of the documents did not threaten the company’s operations, and the employee had a reasonable basis to believe that the documents would not have been produced during discovery.   Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010).

Ugh.  I should hope that it goes without saying but, wow, that is disturbing.

Thankfully, there are cases and courts that disagree with that approach.  For example, in an opinion from the normally employee-friendly Ninth Circuit, the court held that the plaintiff-employee could not support his age-discrimination claim with documents taken from his supervisor’s office.  Instead, the court explained,

[W]e are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer’s discriminatory practices; it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.

O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir. 1996).   The Ninth Circuit is not alone in rejecting the idea that an employee’s theft should be endorsed by the courts.   The Sixth Circuit reached a similar result in Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 718 (6th Cir. 2008).

Nevertheless, if you thought that your employees could not use stolen information against you, you may want to think again.  And then think about whether you have solid confidentiality and privacy policies in place.  More and more employers require employees to sign a confidentiality agreement every year.  And, with cases like Quinlan, this idea seems to be a prudent one.

ABA Journal Top 100 Legal Blogs: An Embarrassment of Riches

Posted by Molly DiBiancaOn November 26, 2013In: Delaware Specific, YCST

Email This Post | Print this Post

Well, it’s happened again.  The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country for the fifth consecutive year.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again.  It is, as the saying goes, truly an embarrassment of riches. 

image

To those who nominated us for the award, thank you. To all of our readers, thank you.  And to all of the many, many, many employment law bloggers whose posts continue to set an incredibly high standard for the rest of us, thank you.

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

Here's the list of winners—we’re all repeat honorees, except for Trading Secrets, which we extend a warm welcome to the Winner’s Circle:

I’ve said it before but will say it again here because it’s more true than ever—I am in awe of my fellow honorees.  The time and work that they consistently devote to their blogs is just amazing.  I continue to be humbled by the company I have been permitted to keep. 

Writing a legal blog is a labor of love. And, by that, I mean that it doesn't pay the bills. To consistently put up quality posts that are original and interesting to readers is no easy feat--especially when the demands of our day jobs can be, well, demanding. To be recognized for the hard work that goes into writing a legal blog really does mean so much. Almost as much as knowing that our readers find value in the content that we generate.

You can vote for your favorite in the employment-law category at the ABA Journal site . . . but no pressure, really. You can find all of the Top 100 bloggers on Twitter through the ABA Journal's list. So, as Frank and Ed used to say in those classic Bartles & James commercials, "Thank you for your support."