11th Cir. Upholds Facebook Discipline of Police Officer

Posted by Molly DiBiancaOn October 22, 2013In: Public Sector, Social Media in the Workplace

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Here’s another Facebook-firing case to add to the “win” column for public-sector employers. [FN1] The plaintiff-police officer, Maria Gresham, posted comments on her Facebook page critical of another officer’s involvement in an arrest Gresham had made. Her Facebook page was “set to private” but, of course, the Department got wind of the comments and an investigation was initiated.  Employee Speech

The plaintiff was alleged to have violated the Department’s work rule requiring that any criticism of a fellow officer “be directed only through official Department channels . . . and not be used to the disadvantage of the reputation or operation of the Department or any employees.” [FN2]

While the investigation was pending, Plaintiff was not able to post for the several promotions that came open. Thus, she sued, alleging that she was not promoted in retaliation for her First Amendment speech on Facebook.

The District court held that, although the Facebook post did constitute protected citizen speech on a matter of public concern (thus satisfying 2 of the 3 requirements), the City’s interests in maintaining order and discipline outweighed the interest of the employee. The employee sued.

On appeal, the legal analysis came down to whether the employer was required to prove that the conduct at issue (the Facebook comments) actually caused a disruption or whether it was enough that the employer reasonably believed that a disruption would occur. The 11th Circuit sided with the government-employer, finding that the government has a legitimate interest in avoiding disruption. Therefore, the employer need not wait until an actual disruption occurs.

Yet another victory for public employers in the growing body of case law in the area of First Amendment free speech and social media.

[FN1] Technically, it’s a Facebook-failure-to-promote case. But you get the idea.

[FN2] Does this policy really work? Do employees go through “official channels” every time they want to gripe about a co-worker. If my employees were lined up outside my door to file petty complaints about who took whose sandwich from the shared refrigerator, I would surely run for the door.

Gresham v. City of Atlanta, No. 1:10-cv-1301-RWS, 2011 U.S. Dist. LEXIS 113347 (N.D. Ga. Sept. 30, 2011), aff’d No. 12-12968, 2013 U.S. App. LEXIS 20961 (11th Cir. Oct. 17, 2013).

See also

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).

Employee Sues Rude Customer: End of Customer Service as We Know It?

Posted by Molly DiBiancaOn October 21, 2013In: Social Media in the Workplace

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Customer service is brutal. Anyone who has had to answer to the public as an essential component of his or her job duties will tell you. It’s positively brutal.

Even the best employees will not be able to satisfy every customer. The reality is that there are some people who just will not be happy no matter what the circumstance. Employees are expected to take it on the chin when a customer overreacts or complains without justification. Defamation Complaint

But what if an employee doesn’t want to just “let it go”? What if the employee feels that she’s been wronged by the customer who berates her or otherwise lashes out. What if the employee feels so wronged that she sues the customer?

That is precisely what happened in Patterson v. Herms. In short, the plaintiff-employee, Jennifer Patterson, was working as an operations agent for Southwest Airlines when the defendant, Natalie Grant-Herms, and her three children attempted to board a flight without a boarding pass. Patterson intervened and a confrontation ensued.

Afterwards, Grant-Herms tweeted her “displeasure” both with the airline and with Patterson. I’ll spare you the specifics but suffice it to say that the tweets were very typical of online rants—incendiary and accusatory half-truths.  (See Venkat Balasubramani’s post at the Technology and Marketing Law Blog for the tweets).

Patterson, acting without a lawyer, filed suit against the unhappy customer, alleging defamation and invasion of privacy. The customer moved to dismiss but her motion was denied. After the close of discovery, the customer tried again with a motion for summary judgment, which was granted by the trial court. Patterson appealed.

On appeal, the court affirmed the decision to dismiss the defamation claim but reversed on the invasion-of-privacy claim.  Although the decision may seem alarming, there are several factors that mitigate the impact.  For example, the plaintiff represented herself pro se, which gives her some leniency in her pleadings.

Nevertheless, it is somewhat unnerving to think that a handful of angry tweets will now result in a trial.

But what interests me even more is how Ms. Patterson’s employer must feel about this whole kafuffle. Imagine your employee sues a customer (even a really lousy one) over that customer’s online outburst (even a really outrageous one). Oh, it’s a whole new world, isn’t it?

Patterson v. Herms, No. M2013-00287-COA-R3-CV, 2013 Tenn. App. LEXIS 675 (Tenn. Ct. App. Oct. 8, 2013).

Court Finds Duty to Preserve Personal Emails of Employees

Posted by Molly DiBiancaOn October 15, 2013In: Policies, Privacy In the Workplace, Purely Legal, Social Media in the Workplace

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The modern workplace presents a cornucopia of problems thanks to technology.  As much as employers may want to restrict employees from surfing the Internet or checking Facebook during working time, it’s nearly impossible.  After all, employees can just use their personal cellphones to get online.  Add to that reality the fact the growing popularity of BYOD policies. 

So what, you might ask?  Well, one big problem is when an employee uses his personal device or account for company business.  The issue of whether the employer is deemed to have custody or control over an employee’s work-related emails sent to and from the employee’s personal email account. BYOD

In a recent case in Kansas, the court found that the employer did not have possession, custody, or control of employees’ personal emails and therefore did not have to produce the emails in discovery.

But a new case from Puerto Rico takes a different approach.  In P.R. Telephone Co., Inc., v. San Juan Cable LLC, the court found that the company did have a duty to preserve relevant email from the personal email accounts of three of the company’s former officers.  The only facts given by the court as the basis for its decision is that the company “presumably knew” that its officers had used their personal email accounts to manage the company for seven years.

Although the court did not order sanctions, it did find that there was a failure to preserve relevant evidence.  The court denied the motion for sanctions without prejudice, leaving open the possibility that the motion could be renewed if discovery revealed additional evidence of spoliation.

P.R. Telephone Co., Inc., v. San Juan Cable LLC, No. 11-2135 (GAG/BJM), 2013 U.S. Dist. LEXIS 146081 (D.P.R. Oct. 7, 2013).

[H/T Bow Tie Law Blog]

NY Court Says Unpaid Intern Not Protected by Harassment Laws

Posted by Molly DiBiancaOn October 9, 2013In: Harassment, Harassment, Sexual

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The employment-discrimination laws have been expanding since their creation.  And, most of the time, that’s a good thing.  But there are times when I wonder, “Have we gone too far?”  There was the bullying craze a few years ago, when there was a push to make bullying in the workplace unlawful.  Although no decent employer (or human being) thinks that bullying is an endorsable attribute, I am of the opinion that it cannot be regulated via statute.  unpaid intern

And there are the recent cases that have found that individuals who are in the country unlawfully have standing to sue under the wage-payment laws.  I fall on the side of the employees on this one, in case you are wondering.

I defended a harassment case once that was brought by the former employee and her company, which had done business with the employer and which she claimed was subject to retaliation in violation of Title VII.  I tried to explain to my opponent that Title VII—an employment law—applies only to employees.  And, although the statute defines employees very, very broadly, I felt pretty confident that entities cannot be “employed” in this sense of the word.  Thankfully, my prediction proved true in that case and the court dismissed the claims brought on behalf of the company.

But it seems not to be an entirely settled question.  A New York judge ruled last week that an unpaid intern was not an “employee” for the purposes of that State’s anti-discrimination law and, therefore, could not bring a claim of sexual harassment.  According to USA Today, Oregon is the only state in the country to extend sexual-harassment protection to unpaid interns. 

Here’s my entirely unsolicited and subjective opinion on the question.  It seems to me that there are likely other remedies available to an intern who truly has been harassed.  And not just legal remedies, but the remedy that involves you heading for the door and finding somewhere else to give your valuable time to without compensation.

Is it a shame?  Yes, most definitely.  Is it a disgrace to the perpetrator and the employer who continues to employ him?  Absolutely.  But, the lucky break about being an intern is that the point of the experience is to learn, not to support yourself or your family.  And it seems like there are plenty of lessons to be learned in this scenario.  But that does not necessarily mean that there is a lawsuit to be had, either—at least not under the employment-discrimination statutes. 

EEOC Ordered to Pay Big Fees for Pursuing Criminal-History Suit

Posted by Molly DiBiancaOn October 9, 2013In: EEOC Suits & Settlements, Hiring

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The EEOC suffered another defeat this week, being ordered again to pay the fees and costs incurred by an employer after the EEOC’s claims turned out to be without merit.  IN EEOC v. Peoplemark, Inc., A split 6th Circuit affirmed an award of approximately $750,000 in fees and costs incurred by a temp agency in defending against one of the EEOC’s criminal-history cases.  The EEOC contended that the temp agency’s company-wide policy barring employment to individuals with felony records had a disparate impact on Black candidates. Attorney's fees

The temp agency, PeopleMark, had offices in five states.  In 2005, a Black candidate, Sherri Scott filed a Charge of Discrimination, alleging that she had been denied employment because she had a felony conviction.  In fact, Scott had two felony convictions and had been released from prison less than a month before she applied for a job with PeopleMark. 

And it gets worse. 

The EEOC “investigated” the Charge, issuing multiple subpoenas and obtaining more than 15,000 pages of documents.  Although the evidence did not seem to support the allegations in the Charge, EEOC disagreed and filed suit.  The suit, asserted on a class of individuals, alleged that the company's policy prohibited the hiring “of any person with a criminal record,” which disparately impacted Black applicants.

The trouble, though, was that PeopleMark did not have such a policy. Then the EEOC identified approximately 250 individuals it contended to be within the class of aggrieved persons.  Well, as it turned out, PeopleMark had hired 57 of the individuals and some others did not have a criminal background in the first place.

The EEOC eventually agreed to dismiss the case but, as you may imagine, PeopleMark was not exactly satisfied and it sought sanctions in the form of fees and costs incurred in the litigation in the amount of approximately $1.3 million. 

In March 2011, the U.S. District Court for the Western District of Michigan granted the motion and awarded approximately $750,000 in fees to PeopleMark.  On appeal, the 6th Cir. affirmed, finding that the employer was entitled to recover fees from the time that the EEOC learned or should have learned that PeopleMark did not have the policy as the EEOC had alleged.

EEOC v. Peoplemark, Inc., No. 11-2582 (6th Cir. Oct. 7, 2013).

See also

EEOC Faces Petition for $5.5m in Fees

W.D. Pa. Finds EEOC Failed to Conciliate

What Does “Good Faith” Mean to the EEOC?

When the EEOC Goes Too Far—Part 2

When the EEOC Goes Too Far

EEOC v. Ruby Tuesday

Boss Hacks Personal Email Account of Employee. Emotional Distress Follows.

Posted by Molly DiBiancaOn October 8, 2013In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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Another case involving employer access to an employee’s personal email account.  And the bad things that follow.

The plaintiff was an administrative assistant to the Athletic Director of a public school district in Tulsa, Oklahoma.  In her complaint, she alleged that she had reported that the Director and two Assistant Directors had “endangered the health and safety of students” and had “misappropriated funds.”  In other words, she was a whistleblower.  email hacked

Shortly after she made these reports, the Director suspended her and recommended that she be terminated.  She grieved the recommendation. 

Apparently during the grievance process, the plaintiff was contacted by the cyber-crimes division of the Tulsa Police Department, who informed her that her private email account had been hacked. 

She filed suit, alleging that the Director and two Assistant Directors intentionally obtained access to her private emails and used the information that they unlawfully obtained in order to pursue the recommendation to terminate her employment.  She brought several claims, including constitutional claims under the 1st and 4th Amendments, statutory claims under the federal and state wiretapping laws, and state tort claims.  The defendants moved to dismiss.

The opinion addresses several arguments on each claim but there are certain holdings that bear mention here. 

First, the plaintiff’s Fourth Amendment claim survived dismissal.  The court found that she had adequately pleaded that she had a reasonable expectation of privacy in her personal email account and that the hacking constituted an unlawful search and seizure of her account and/or emails in the account.

Second,  her privacy claim survived for the same reasons.  Basically, the court found that having your private email hacked and then the contents used against you in proceedings to have you terminated from your employment would be a “highly offensive” intrusion to a reasonable person.  This was further supported by the fact that the Tulsa Police Department considered her to be a victim of cyber-crime.

Third, the claim for intentional infliction of emotional distress survived, again, largely for the same reason.  The court concluded that the conduct could be plausibly deemed outrageous in nature.

I think many of us would agree that this motion to dismiss did not stand much of a chance.  (Although, the opinion is not very detailed in its description of the alleged events and did leave me with some unanswered questions about the actual allegations contained in the complaint.)  If an individual’s personal email account is intentionally targeted for hacking by anyone, it’s going to be a serious source of distress.  If the hacking is done by your direct supervisors for the purpose of making sure you lose your job because you (allegedly) blew the whistle about what you believed to be improper conduct, you are likely to be very close to “extreme” distress.  Wouldn’t you think?  The Northern District of Oklahoma did.

Murphy v. Spring, No. 13-cv-96-TCK-PJC (N.D. Okla. Sept. 12, 2013).

No Privacy Claim for Use of Student Facebook Picture

Posted by Molly DiBiancaOn October 6, 2013In: Privacy In the Workplace, Public Sector, Social Media in the Workplace

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At a seminar about Internet safety, the District’s IT Director gave a presentation designed to illustrate the permanent nature of social-media posts and how your posts could be embarrassing if published by third parties.  One of the slides in the Director’s presentation, titled, “Once It’s There—It’s There to Stay",” showed a photo of a student in a bikini and standing next to a life-size cut-out of the rapper Snoop Dog. camera lens

The Director found the picture by browsing students’ Facebook pages for pictures to use in his presentation.  Paper copies of the presentation, including the slide featuring the student’s picture, which also identified her by name, were distributed to attendees. 

As you may imagine, the student, Chelsea Chaney, was not happy about her cameo.  She filed suit against the district and against the IT Director, alleging violations of her constitutional rights protected by the 4th and 14th Amendments, as well as state-law tort claims.  The District moved to dismiss.

First, the plaintiff contended that the public display of her picture constituted an unlawful search and seizure in violation of the 4th Amendment.  In order for the 4th Amendment to apply, there must be a reasonable expectation of privacy.  Here, the court held that no reasonable expectation of privacy could exist in the picture because the plaintiff had voluntarily made it available to her friends and, because of her Facebook settings, to her friends’ friends, as well.  By doing so, Chaney surrendered any reasonable expectation of privacy in the picture.  Thus, the 4th Amendment claim was dismissed.

The court reached the same conclusion with respect to the 14th Amendment claim. The 14th Amendment protects an individual’s interest in avoiding the disclosure of personal matters and in making certain decisions.  But the constitution does not create a blanket right of privacy.  Nor does it create a right to be free from public embarrassment or damage to reputation. 

So, what are the lessons to be learned from this case?  Well, if nothing else, it serves as yet another reminder about the permanent and public nature of social-media content.  Once you post it, it is out of your hands and you have no legal recourse if it is republished to others.

From an employment-law perspective, there is another twist.  The District had various social-media and Internet acceptable-use policies, each of which would seem to have been violated by the IT Director.  For example, District employees were required to notify a student’s parents prior to “use of and interaction with a student’s social-media page.”  Here, the Director searched students’ pages for content he could use in his presentation. 

Call me crazy but this seems like a major lapse of judgment on the part of the IT Director.  It’s one thing to give real-life examples but altogether a different thing to use as one of those examples an actual student who will be present in the audience.  Seriously?  As if high school is not hard enough, man.

Chaney v. Fayette County Pub. Sch. Dist., No. 3:13-cv-89-TCB (N.D. Ga. Sept. 30, 2013).

See also Is There a Reasonable Expectation of Privacy In Your Tweets?

Discovery of Social-Media Passwords

Posted by Molly DiBiancaOn October 1, 2013In: Purely Legal, Social Media in the Workplace

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Access to social media in civil litigation remains a Wild West in many respects.  Parties don’t know what to ask for, so they ask for too much.  When the other side refuses, the court often agrees because the request is so obviously overbroad.  When it comes to discovery of social-media contents, the general rule of thumb is the narrower, the better.

But what about requests for passwords and user names?  I think most reasonable minds agree that employers should never ask an employee for his or her Facebook password.  So why are lawyers doing it?  Beats me, man.  It’s a terrible idea, no matter who makes the request. keyboard with blue lock key

A recent case in Louisiana seems to support this conclusion.  In NOLA Spice Designs, LLC v. Haydel Enterprises, Inc., the defendant sought to compel the plaintiff-entity and its principal to produce “passwords and user names to all online web sites related to the issues in this litigation, including social media, weblogs, financial information and records”  The court had little trouble concluding that the requests were overly broad and “far exceeded” what was considered proportional under the discovery rules. 

The court acknowledged that the plaintiffs had “no protectable privacy or confidentiality interest in material posted or published on social media.”  Nevertheless, the court explained that there was no reason that the plaintiffs should be required to give total access to their adversary, thereby allowing the defendant to roam around and, potentially, engage in “mischief.”

The court’s analysis is correct.  There is no basis to require a party to turn over social-media passwords during litigation.  In fact, it’s a terrible idea to do so.  And, in my opinion, lawyers are best advised not to request passwords in the first place.  Even if the other side is willing to turn it over, you risk any number of bad outcomes, such as spoliation of evidence.

One court feels at least as strongly as I do on the subject.  In Chauvin v. State Farm Mutual Automobile Insurance Co., a federal court in Michigan affirmed an award of sanctions against a defendant due to its motion to compel production of the plaintiff’s Facebook password.  The court found that the Magistrate Judge did not err in concluding that the content that the defendant sought to discover was available “through less intrusive, less annoying and less speculative means” even if relevant. Furthermore, there was no indication that granting access to the account would be reasonably calculated to lead to discovery of admissible information.  No. 10-11735 (S.D. Mich. Oct. 20, 2011). 

NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515 (E.D. La. Aug. 2, 2013).

Peek-a-Boo, I See You: Juror Contact Via LinkedIn

Posted by Molly DiBiancaOn September 30, 2013In: Purely Legal, Social Media in the Workplace

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Rules of ethics limit lawyers’ communications with certain groups of people.  For example, a lawyer may not communicate about a matter with a party who is represented by counsel.  Similarly, a lawyer may not communicate with jurors during a trial.  In some states, including Delaware, the prohibition on lawyer-juror communication continues even after the trial has concluded. 

Because of these ethics rules, the definition of “communication” is very important.  When I teach legal ethics and social media, I discuss “inadvertent” communications that can occur via social-networking sites.  For example, at my direction, my paralegal “follows” a juror on Twitter, the juror may receive an email notifying him of his new follower.  Is this a “communication”?   Yes, it probably is because my paralegal “followed” the juror for the purpose of seeing what he is tweeting that may be relevant to the case.   LinkedIN logo icon white

But what if the juror follows me on Twitter long before the trial.  During trial, the juror could view my tweets because they would appear in his timeline.  Would I have “communicated” with the juror?  Maybe. Assuming so, my communication would have been inadvertent, for sure. 

There’s another scenario that I give in this context that, unfortunately for all parties involved, has come to fruition.  In the Bank of America “hustle” case, one of the jurors has notified the court that one of the lawyers for the defense had reviewed the juror’s LinkedIn profile.  Judge Jed Rakoff of the S.D.N.Y. said that, when an associate had viewed the juror’s LinkedIn profile, the firm had “communicated” with the juror.  For those familiar with LinkedIn, you likely know that you can see who has “viewed your profile” within a certain period of time unless the user is not logged in or unless the user has a premium (paid) account, which enables him to block you from seeing his identity.

According to the WSJ’s MoneyBeat blog, the judge ruled that lawyers could conduct Internet research on potential jurors but only during the jury-selection period.  Once trial began, that research was supposed to stop.  (This, too, raises interesting questions.  Why wouldn’t the court want to know if jurors were engaged in misconduct online during the trial?  But that’s a whole different set of questions.)  Apparently, the court has determined “no harm, no foul” because the case will proceed as scheduled with an instruction to the jury that the search was a mistake that they should disregard.

This story, however, should serve as a lesson to lawyers everywhere—understand how social-media works and make sure those who are working for you do, too.  There are ethical implications, as well as the risk of significant costs to the client for failing to “get it.” 

See also, M. DiBianca, Ethical Risks of Lawyers’ Use of (and Refusal to Use) Social Media (Del. L. Rev. 2011) (PDF).

Why Employers Should Love, Not Loathe, Social Media

Posted by Molly DiBiancaOn September 26, 2013In: Social Media in the Workplace

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Human resource professionals often cringe at employees’ use of social media.  And for good reason.  Employees have caused countless problems for their employers by publishing confidential information, attacking supervisors and co-workers, and all sorts public-relations nightmares. Admittedly, social media causes a whole set of problems for employers that employers are still attempting to navigate.

But social media isn’t all bad. In fact, there are lots of benefits to be realized from employee social-media use.  Let me suggest one that doesn’t get a lot of attention.  I call it, “the cream rises” thesis. 

Although employers often think that they cannot discipline employees for what they do in their off-duty time, that, usually is not the case. Most times, employers can address conduct that occurs in cyberspace.  In fact, sometimes employers must do so.  And, despite the hype about the NLRB and its general distaste for social-media policies, the reality is that, most of the time, it is totally lawful to discipline employees for social-media conduct that conflicts with the employer’s policies or is in some way harmful to the employer.

The basic premise of my thesis is this: Instead of cringing when an employee acts like an idiot on social media, employers should rejoice—social media enables employers to weed out the problem employees who infect the workplace culture with negativity.  Without social media, these employees are difficult to manage. We know who they are but it’s often quite difficult to prove the harm that their negativity is causing. But social media gives you the proof that you need.

Take, for example, the nurse at the University of Mississippi Medical Center. In response to a tweet by Gov. Barbour calling for suggestions about how to trim fiscal spending, the nurse tweeted back that the Governor should stop coming to the Center after hours for wellness visits, which resulted in overtime costs.

The Governor had visited the Center once after normal operating hours but that was before the nurse’s employment. In other words, she was just a negative employee who couldn’t help but make a nasty comment about which she had no personal knowledge.

Well, good for her.  And good for the Center.  The Center was able to terminate the nurse because her nasty tweet was a violation of HIPAA.  Had it not been for her public comment via social media, the employer likely would not have had such indisputable proof of her nastiness. And, because her nastiness was unlawful, the Center had perfectly legitimate grounds to terminate her.

In other words, the cream rises to the top.  The nasty employees who you do not want to keep employed almost can’t help themselves but to show their true colors via social media.  And that’s a good thing because it enables employers to act sooner rather than later to eradicate these people from the workplace.  Which non-nasty employees really appreciate.

Thanks to my friend and blogger extraordinaire, Venkat Balasubramani, whose post earlier this week prompted me to write on this topic.

New Laws Gives New Rights Delaware First Responders

Posted by Lauren Moak RussellOn September 19, 2013In: Delaware Specific, Discrimination, Discrimination & Harassment, Legislative Update

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Delaware extended employment rights to volunteer firefighters and other first responders who must miss work due to emergencies or injuries sustained while providing volunteer rescue services.

Volunteer Emergency Responders Job Protection Act

Governor Markell signed two new bills affecting the employment rights of Delaware's emergency responders. Under the Volunteer Emergency Responders Job Protection Act, employers with 10 or more employees are prohibited from terminating, demoting, or taking other disciplinary action against a volunteer emergency responder because of an absence related to a state of emergency or because of an injury sustained in the course of his or her duties as a volunteer emergency responder.

The Act defines a "volunteer emergency responder" as a volunteer firefighter, a member of the ladies auxiliary of a volunteer fire company, volunteer emergency medical technician, or a volunteer fire police officer.

Importantly, while an employer may not discipline or terminate an employee for being absent when performing emergency services, the employer is not required to compensate the employee for time away from work to perform such services. The employee also has an obligation to make "reasonable efforts" to notify the employer of a possible absence.

Under the Act, employers are also entitled to verify that an employee was absent due to emergency service or a related injury. Employers may request a written statement confirming relevant facts from either the volunteer department with which the employee serves or from a treating medical provider. The employer is entitled to the statement within 7 days of making such a request.

Amendment to the Delaware Discrimination in Employment Act

The second bill signed into effect amends the Delaware Discrimination in Employment Act, to provide protection to volunteer firefighters, ambulance personnel, and ladies auxiliary members. More specifically, the bill makes it unlawful for employers to refuse to hire, discharge, or otherwise discrimination as to the terms and conditions of employment based on an individual's service rendered to a volunteer fire or ambulance company or related ladies' auxiliary.

Bottom Line

The bottom line is that Delaware employers have one more protected classification to be aware of. Hopefully these new restrictions will not impose a significant burden upon employers--comments made in connection with the bill signing indicate that the bills are a reaction to a single incident affecting an injured firefighter working in Wilmington. However, as always, employers need to give careful consideration to the circumstances impacting hiring and disciplinary decisions.

Workplace Revenge and the Equal Opportunity Jerk

Posted by Molly DiBiancaOn September 17, 2013In: Harassment, Harassment, Sexual, Jerks at Work

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Being a jerk is a legal defense, so to speak.  An “equal opportunity jerk” is a boss who treats everyone badly, regardless of race, religion, gender, etc.  If his subordinates sue, alleging an unlawful hostile environment, they’ll likely have trouble establishing that the jerk was more of a jerk to one particular group of employees based on a protected characteristic. 

It is a defense that defense lawyers prefer to not to have to invoke. Nevertheless, when the facts are there, even an unattractive defense can be a winner. Take, for example, the Third Circuit’s decision in Clayton v. City of Atlantic City. 

people backstabberThe plaintiff was a police officer in the Atlantic City Police Department, who alleged that she was subject to the sexual advances of a senior officer.  This went on for a number of years until, eventually, she came under his direct supervision. 

As her supervisor, she alleged, he gave her a less desirable work schedule and singled her out for various minor policy violations.  Another senior officer also disciplined her and reprimanded the plaintiff for other policy violations, which the plaintiff alleged were common practice throughout the Police Department, such as leaving the city limits without permission for lunch and for rolling her eyes during roll call.  She was eventually transferred to a different unit, which resulted in a pay decrease.

The plaintiff alleged that she was transferred because of her gender.  But she also testified to what she described as a “revenge management” culture in the department.  That culture, as she described it, meant that if you were not liked by a superior, regardless of gender, it was common for the superior to attempt to undermine your career.

It was this “culture of revenge” that resulted in the dismissal of the plaintiff’s suit.  The court reasoned that an attitude of “revenge” is not unlawful, provided it is equally applied without regard to race, religion, gender, etc.  Here, there had not been gender discrimination because males and females alike were subject to the punishments of dissatisfied supervisors.

Although this case makes an excellent teaching example, it’s not exactly one I would recommend as "inspirational.”  Equal opportunity jerks may not be in violation of the anti-discrimination laws, but, boy, they sure do get sued a lot.

Clayton v. City of Atlantic City, No. 12-4273 (3d Cir. Sept. 12, 2013).

Delaware Chancery Ct. Finds No Privilege for Email Sent from Work Account

Posted by Molly DiBiancaOn September 10, 2013In: Cases of Note, Delaware Specific, Privacy Rights of Employees

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Does an employee who communicates with his lawyer from a company email account waive the attorney-client privilege with respect to those communications?  The answer is not terribly well settled—not in Delaware and not in most jurisdictions.  But a recent decision by the Delaware Court of Chancery gives Delaware employers and litigants a pretty good idea of the analysis to be applied.

The case, In re Information Management Services, is an unusual type of derivative litigation in that it involves two families, each suing the other for breaches of fiduciary duty.  Two of the company’s senior executives, who were alleged to have mismanaged the company in violation of their fiduciary duties, sent emails to their personal lawyers from their company-issued email accounts.  During discovery, the executives refused to produce the emails, claiming them to be protected by the attorney-client privilege.  The plaintiffs sought to compel production of the emails.

The court adopted the four-factor test first enumerated in In re Asia Global Crossing, Ltd. (Bankr. S.D.N.Y. 2005), and applied it to determine whether the executives had a reasonable expectation of privacy in the contents of the emails that they sought to protect.  The court determined that the executives did not have a reasonable expectation of privacy in the contents of the emails because the company’s policy expressly warned that employee emails were “open to access” the company’s staff.  The policy permitted personal use of the company’s computers “after hours” but warned that, if an employee wanted to keep files private, the files should be saved offline.  Thus, the policy was key in ensuring the company can now access emails between the executives and their counsel.

There are a few particularly notable points in the decision that are worth mention. 

First, Delaware law generally provides great deference to the attorney-client privilege.  Usually, the privilege is considered very difficult to waive.  By contrast, this case suggests that a company policy is sufficient to overcome that otherwise difficult hurdle.  The court goes so far as to say that a policy that prohibits all personal use would likely be sufficient to waive the privilege without any further analysis.

Second, the court seemed to place a high burden on the executives. Vice Chancellor Laster recognized that the executives wrote in the subject lines of the emails, “Subject to Attorney Client Privilege” but concluded that the failure to use webmail (such as G-Mail or Yahoo!) or encryption rendered the communications not confidential.  The court wrote that there could be no reasonable expectation of privacy because:

a third party to the communication had the right to access [the] emails when [the executives] communicated using their work accounts.

The “third party” in this case was the company and its IT staff. But the holding raises questions of whether use of a service such as Dropbox, which, by its terms of service, expressly notifies users of its right to access the contents of any account, would also waive the privilege.  In that case, a third party has the right to access contents so, in accordance with the court’s decision, there could be no reasonable expectation of privacy and, therefore, no privilege.

The decision is very well researched and contains a stockpile of case citations and references for those who may be interested in the subject matter.  And even for those who may not be interested in the macro view of this area of the law, there is one key lesson to take away—Delaware employers should carefully review their policies to ensure that the language clearly warns employees that the company reserves the right to monitor, access, and/or review all emails sent or received from a company email account.  Now, the question of whether a personal, web-based email account, accessed via the company’s servers, would be subject to the same analysis is an even trickier one and one that we’ll save for a later date. 

In re Info. Mgmt. Servs., Inc., No. 8168-VCL (Del. Ch. Sept. 5, 2013).

NLRB Smacks Hand of Employer Over Facebook Firing

Posted by Molly DiBiancaOn September 9, 2013In: Social Media in the Workplace, Union and Labor Issues

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The NLRB issued another social-media decision last week, finding that an employer violated the National Labor Relations Act (NLRA) with respect to one “Facebook firing” but clearing the employer with respect to a second termination.  I’ll leave it to my blogging cohorts to write about the termination that didn’t get the employer into trouble and will focus in today’s post just the one that did.Employment Law Cookies

The Facebook firing that landed the employer, a Maryland ambulance company, in hot water was in response to an employee’s comment, posted on a former co-worker’s Facebook page.  The former co-worker, the complainant’s partner, posted on her Facebook page a note indicating that she’d been fired by the employer.  The complainant, William Norvell, and others, posted comments in response.  One of Norvell’s comments was a suggestion that his former co-worker get a lawyer and take the company to court.  Later, he added that she also “could contact the labor board.”  Someone turned over a printed copy of the posts to the HR Director who, after consulting with the COO, decided to terminate Norvell. 

I hope it doesn’t surprise most readers that the Board was not happy about the decision to terminate and found that the termination violated the NLRA.  One of the basic foundations of employment law is this:

Thou shalt not take adverse action against an employee in response to the employee’s protected activity.

The law (several laws, actually), prohibits this.  It’s called retaliation.  In non-legalese, I equate retaliation to telling a child he may have a cookie, holding out the cookie jar, and then smacking his hand when he proceeds to take one.  You may not punish someone for doing what the law provides he may do. 

Applied in this context, the former co-worker certainly had a right to consult a lawyer.  She also had a right to contact “the labor board,” whether that meant the state Department of Labor or the Regional Office of the NLRB.  If her termination had been for lawful reasons, the lawyer, with any luck, would have told her so.  So, too, would the DOL or NLRB.  And, armed with that knowledge, she could move on with her life.  But she had a right to investigate her legal rights either way.

And, in turn, Norvell had a right to suggest or even encourage her to investigate those rights.  Consequently, Norvell was engaging in protected legal activity for which he could not be “punished” (or, as we like to say in the law, “be subjected to an adverse employment action”). 

Butler Med. Transport, LLC, 5-CA-97810, -94981, and –97854 (Sept. 4, 2013).

See also:

Lawful Employer Investigations via Facebook . . . Sort of

Why the NLRB Is Its Own Worst Enemy

Another Dizzying Ride on the NLRB Roller Coaster

I Heart Confidentiality. The NLRB Does Not.

Pop Goes the Weasel . . . And the NLRA

NLRB Upholds Legality of Facebook Firing

Sticks 'n Stones May Break Your Bones, But Workers Can Defame You

Is the NLRB In Need of a Dictionary?

The NLRB's New Webpage Targets Your Employees

Employer Failure to Preserve Employee Social-Media Evidence

Posted by Molly DiBiancaOn September 5, 2013In: Social Media in the Workplace

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It’s seminar season again, which means I’m spending a lot of time preparing for upcoming speaking engagements.  For several of the engagements, I’m also preparing written materials that require a good deal of research.  I say this, in part, in the hopes that you’ll forgive my reduced posting schedule but, also, as a lead-in to today’s post.  I came across this case, which was decided in January, in the course of my recent research. Although it’s not hot-off-the-presses recent, it’s recent enough and important enough that it warrants a blog post.  So here goes. 3d man surrounded by laptops

The case, In re Pfizer, Inc. Sec. Litig., was brought by a class of shareholders and related to two of the company’s pain-relief drugs.  The particular decision of interest was on motions brought by both sides seeking sanctions for failure to preserve electronic evidence.  The part that relates to employers specifically is the allegation of the plaintiffs that Pfizer failed to preserve employee “eRooms.” 

An eRoom was "a collaborative application” for company employees to “share documents, share calendars, archive email, conduct discussions/instant messaging, and to conduct informal polls.”

When the plaintiffs sought discovery of documents “sent to or maintained” in one of the company’s eRooms, Pfizer’s counsel discovered that the company had decommissioned the used of eRooms.  The company had archived the eRooms and their contents but, when the archives were restored for production in the litigation, only the documents (and corresponding metadata) that existed in them at the time they were archived could be recovered.  In other words, the restored eRoom reflected information only as it existed when the eRoom was archived. 

The good news was that the documents saved in the eRooms were mostly duplicative of documents saved elsewhere in the company’s network, so they had likely been captured and produced as part of the discovery process.  However, the court found, the eRooms had value in and of themselves as compilations.  Therefore, Pfizer had a duty to preserve them and failed to do so.

Nevertheless, the court found that the company’s conduct was, at worst, negligent.  The company instituted a litigation hold and preserved and produced a tremendous volume of information in the course of discovery.  There was no evidence that the failure to preserve and produce the eRooms was intentional or willful.  Furthermore, the court found that plaintiffs had not shown that they were deprived of relevant evidence as a result of the failure to preserve.  Thus, the court determined that sanctions were not appropriate.

The real take-away from this case is a reminder of how difficult it can be to truly capture all sources of electronically stored information used in an organization.  An employer who provides employees with technological resources like eRooms and other internal collaboration and knowledge-management platforms take on the added burden of having to preserve the data those platforms contain in the event of litigation. 

In other words, the more tools you have and the more advanced the tools are, the more difficult the burden in litigation. 

In re Pfizer, Inc. Sec. Litig., 288 F.R.D. 297 (S.D.N.Y. Jan. 8, 2013).