Harassment Is Equal Opportunity

Posted by Molly DiBiancaOn May 24, 2013In: Harassment, Sexual

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Harassment knows no boundaries. Unfortunately, it occurs in workplaces of any shape and size and can be effectuated by persons in positions of every variety and in every industry. Even a quick look at the story reported in today’s News Journal makes this very clear.

According to the story, a partner at a prestigious law firm in Indianapolis became seemingly obsessed with a female intern, who was later hired as an associate.  The associate filed suit based on the partner’s conduct, which, if to be believed, is outrageous, bordering on horrifying.

Some of the conduct alleged includes that the partner sent an email to the law firm, pretending to be the firm’s managing partner, claiming that the associate had acted in pornographic movies and suggesting that she had been awarded her job at the firm as a result of performing sexual favors.  The email also included a video clip of a young woman dancing topless—the video was not the female associate.  The email was one incident in a string of similar aggressions by the partner. 

As a result of the conduct, the Indiana Supreme Court suspended the partner’s law license for at least three years.

If true, this story is a sad example of the equal-opportunity nature of harassment in the workplace.

Teacher Was "Just Venting" On Facebook

Posted by Molly DiBiancaOn May 20, 2013In: Social Media in the Workplace

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Teachers' use of social media is an ongoing problem across the country. Teachers are given little, if any, guidance about what is and is not appropriate online conduct. School districts, in turn, are left to decide the rules on an ad hoc basis. And uncertainty breeds disaster.

Cases of teacher termination based on social-media commentary are some of the most common in the employment-law world. Most of these cases have been decided in favor of the school district, finding that the district was within its rights when it fired the teacher for her inappropriate online postsAngry woman on cell phone

One case, though, came out in favor of the teacher. In March, I reported about a ruling from the New York Supreme Court, which overturned the decision of a disciplinary hearing officer. Before being overturned, the hearing officer had upheld the decision to terminate a teacher who had posted on her Facebook page that she wished that her students "would drown," along with other, equally distasteful comments.

Not surprisingly, the district appealed the decision of the Supreme Court to the New York Appellate Division. The appellate court, earlier this month, upheld the decision to set aside the termination. The order by the appellate court is quite short--just two pages in length--but filled with findings that should be of great concern for employers.

The court began its opinion by acknowledging that the teacher's "comments were clearly inappropriate." But, the court went on, it was "apparent" that the teacher's purpose in posting the offensive comments was "to vent her frustration only to her online friends after a difficult day with her own students."

The court went on to find that the teacher had, for this purpose, a limited expectation of privacy in her Facebook posts because her page was not public but could be viewed only by her Facebook friends. "None of her students or their parents were part of her network of friends and, thus, the comments were not published to them, nor to the public at large," explained the court.

Moreover, the court gave the teacher bonus points because she deleted the comments three days after posting them. The court acknowledges that the teacher then proceeded to lie about having made the comments at the disciplinary hearing several months later. The court excused this attempted cover-up, though, because it was done "out of fear of losing her livelihood."

The court also gave the teacher points because she "acknowledged that [her comments] were inappropriate and offensive, and repeatedly expressed remorse." Thus, the court concluded that, based on the teacher's 15-year employment history, during which she had had no prior disciplines, and her promise not to repeat the conduct, the Supreme Court had properly determined that the penalty of termination was shocking to one's sense of fairness."

Let's sum up what we've learned. If we follow the appellate court's reasoning, we're left with at least three troubling holdings. First, that a person has a reasonable expectation of privacy when posting comments online, provided that the person's page is not publicly available.

This is directly contrary to the majority of rulings in similar cases. Even in the discovery context, the majority of courts have found the opposite--that there can be no reasonable expectation of privacy when an individual posts something to the Internet. And that makes sense, doesn't it? I mean, in this case, someone did report the teacher's comments and the comments did become public. So how reasonable could it have been for her to expect otherwise?

Second, since when is "just venting" a legitimate defense?  Does the fact that she had a bad day somehow mitigate the harm that her comments may have caused?  For example, did the students and parents who learned about the comments and who lost faith in the educational system as a result think less badly of the school because the teacher was "just venting"?  Doubtful.

And, third, employees who lie when they've been caught engaging in terminable conduct can get out of jail free simply by saying they lied only because they didn't want to get fired and by promising not to repeat the conduct.

Really? Don't most employees try this when they get busted for doing something sure to get them fired? If a teacher with an otherwise unblemished employment history snorts cocaine in the bathroom during recess and then lies about it, can she avoid termination simply by promising not to do it again?

Or what about a teacher who is asked whether she witnessed conduct constituting sexual harassment by a co-worker. If she lies and says she didn't witness any inappropriate behavior, wouldn't the school be justified in disciplining or terminating her? After all, she's exposed the school to significant liability--not to mention her coworkers to potential future harassment. If her lies are later discovered, can she save her job by saying that she lied only because she didn't want to get fired and by promising not to do it again?

This case has some significant implications if its rulings are applied to other cases involving social media. I'll keep my fingers crossed that it is not.

Rubino v. City of New York, 2013 NY Slip Op 03272 (N.Y. App. Div. May 7, 2013).

8th Cir: FLSA Plaintiffs Must Spell It Out

Posted by Molly DiBiancaOn May 17, 2013In: Fair Labor Standards Act (FLSA)

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FLSA overtime claims can be tremendously difficult to defend, particularly when the plaintiff-employees don’t “recall” when or how many hours they allegedly worked. Many employers are shocked when they learn that the plaintiffs can pursue their claims without making any real proffer of such critical evidence. A decision from the Eighth Circuit last month represents a significant step in the right direction—and away from the shadowboxing that many FLSA lawsuits can involve.

The plaintiff-police officers were given flextime or time off in lieu of overtime compensation. Neither the officers nor the city tracked the accrued flextime, which the officers alleged would be lost if not used within a short period. The officers filed a collective action under the FLSA.

In response to the city’s written discovery requests, the officers did not identify the number of uncompensated hours or the amount of money that they claimed to be owed. After discovery closed, the city moved for summary judgment, arguing that the officers failed to satisfy their evidentiary burden. In response, the officers submitted affidavits in which they offered precise estimations, week by week, of the hours they claimed to be owed.

The district court granted summary judgment to the city, dismissing the case. As the basis for its decision, the court found that the officers had unjustifiably failed to comply with their discovery obligations and that, without the affidavits, the officers failed to satisfy their burden of production by showing “the amount and extent of their alleged overtime work.”

On appeal, the Eighth Circuit upheld the decision of the district court. The officers argued that the relaxed evidentiary standard should be applied, which would excuse their failure to show the unpaid time during discovery. This argument was based on the undisputed fact that the city had failed to keep time records. The Eighth Circuit rejected this argument, finding that the relaxed evidentiary standard applies only “where the existence of damages is certain.” Here, the officers’ failure to prove the extent of the allegedly unpaid overtime meant that they had not proved any damages and, therefore, the lesser standard was not triggered.

This case represents another glimmer of hope for employers facing FLSA lawsuits. In many respects, defending an overtime suit can be a lot like shadowboxing, especially if the plaintiff-employees “decline” to specify the basis for their claim. This decision by the Eighth Circuit imposes a definite burden on the plaintiff-employee to produce some actual evidence of their alleged damages.

Carmody v. Kan. City Bd. of Police Comm’rs, No. 12-3051 (8th Cir. Apr. 23, 2013).

No, I am not from the Midwest. Sex Discrimination Lives On.

Posted by Molly DiBiancaOn April 29, 2013In: Gender (Title VII)

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Gender discrimination happens. Let’s not pretend that it doesn’t. I have not, in my short life as a lawyer, ever felt that I was not getting the same opportunities as my male counterparts. But I don’t pretend that it doesn’t happen. Recently, I had an interaction with a senior lawyer from an out-of-state firm that reminded me how lucky I am.

Let me set the scene. The event was hosted by lawyers and held for lawyers. So, waitstaff aside, everyone present was a practicing lawyer. When I arrived, I saw a female colleague of mine (a lawyer), and went over to say hello.

Standing with her was a junior female associate and a senior male partner, both from the same firm. I reached out to shake the partner’s hand and introduce myself. As I did, he said, “You look like you’re from the Mid-West.”

Sex Discrimination in the Workplace

Uhhh, Come again?

Folks, I’ve been called a lot of things but never have I been presumed to be “from the Mid-West” at first sight. I hadn’t said a word, so he couldn’t have misunderstood my Philly accent for a Minnesota accent (not that the two would be easily confused). My haircut is asymmetrical. I wear a diamond stud nose ring. I was dressed more like an artist than a lawyer.

Totally perplexed, I asked, “Oh, really? Why is that?”

He responded—sincerely, I might add—“Because you’re blonde. Well, at least for today.”

Wow. Indeed I was a blonde that day (and pretty much every day of my life except for a few months in 2004 when I dared to have my hair dyed a chestnut brown, to the utter horror of just about everyone I knew. . . but I digress).

The partner, if you recall, is talking to three female lawyers, all three of whom are full-time practicing litigators. And, to these same three female lawyers, he proceeded to describe how, at a former firm, he had been the partner in charge of recruiting new attorneys. He went on to recount that, in his experience, the female candidates were always the best. They were always the smartest. They were always the most driven.

The “problem” he went on to explain, was that, as we (the three female full-time lawyers standing near enough to knock his block off), “surely knew,” no matter how well intentioned “these” candidates were and no matter how sincerely they may have meant it at the time, although they said that they were going to get married, “have babies,” and return to work, the “reality” was that “we all knew” that they would never come back after having children.

Really? No, really?

This seasoned lawyer did not hesitate for a second before telling us this grossly sexist story reflecting his deep-seeded belief that gender discrimination in the workplace is standard operating, apparently convinced that the three women standing in front of him (again, it bears repeating, within striking distance), were, undoubtedly, going to agree with him about the sheer absurdity of the idea that law firms would even bother to try to hire female lawyers because, as “we all know,” there was absolutely no chance of long-term retention.

So, what are the lessons to be learned from this? I’ll offer you two, though there are surely many more.

First, it’s a good reminder to me, a woman who (very thankfully) has not had to work with someone who, at least not openly, held such biased opinions about inequality among the sexes. It’s a good reminder, specifically, not to assume that all workplaces are like my own—clearly, they are not.

Second, it’s a good reminder for employers to keep their eyes and ears open for this kind of commentary. I cannot imagine that this was a recent epiphany by the senior partner. It’s probably a safe bet that he had made similar pronouncements in the past. So shame on his partners for having failed to put a stop to it.

And a third by way of a bonus tip.  In the even that you, dear reader, are ever inclined to express your opinion that a class of people are generally less worthy than yourself, may I suggest that you do so outside of arm’s reach of members of that class?  It’s a matter of self-preservation more than anything.

Instagram Post Lands Delaware Restaurant Manager In Hot Water

Posted by Molly DiBiancaOn April 15, 2013In: Social Media in the Workplace

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I’ve posted before about restaurant employees’ Facebook posts that caused big headaches for their employers. I’ve also posted about trouble-causing Facebook posts by a saloon manager and by a tavern owner. Well, it seems that the trend has made it way to Delaware.

As reported by Patty Talorico on her Second Helpings blog, a Thai restaurant in Hockessin has landed itself in hot water as a result of unappetizing posts made to its social-networking sites. Photographs of customers’ receipts and of restaurant patrons were posted to the Instagram account of the restaurant’s manager. According to Talorico, racial slurs and derogatory comments were posted with the photos.

The manager reportedly told The News Journal that other employees have access to the accounts and that he didn’t post the controversial comments, “probably.”

One of the controversial posts read: “Cheap ass, order takeout and eat it at the bar #monday #cheap #trash.”  At around the same time, a photo of a receipt was posted, which showed that the customer left no tip on a $42.55 bill.

So far, I’m on the manager’s side—who orders takeout, only to eat it at the bar so he can avoid having tip?! For real? But my sympathy for the slighted restaurant worker ends there.

The manager is alleged to have then posted: “#cheapass … #jews #disrespect #jerk … #hillbillies #cheap Didn’t tip a single dollar.”

At the risk of stating the obvious, these comments are totally out of line. There’s no time or place—and certainly no Facebook page—where such comments would be anything close to appropriate.

And it apparently gets worse. According to Talorico, a photograph of a customer’s receipt, which showed that the customer, who had an Indian surname, had left less than 10 percent for a tip. The comment posted with the photo read, “What do you expect from a last name like that?”

Again, there’s nothing entertaining or funny about the manager’s commentary. Racist and other derogatory slurs about customers cannot be tolerated in any business but, when they’re coming from management, the potential repercussions are tremendous.

If you are an employer with a public Facebook page or other social-media account, it’s time to make sure you know who has access to post to the accounts and communicate the bounds of appropriate conduct apply both inside and outside of the workplace when it affects the business and its reputation.

Spoliation of Facebook Evidence

Posted by Molly DiBiancaOn April 1, 2013In: Social Media in the Workplace

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Discovery of social-media evidence can be a valuable tool, particularly in employment and personal-injury litigation.  Employers’ lawyers should be aware not only of the potentially relevant evidence in a plaintiff-employee’s Facebook account.  They also should be very aware of the ethical implications relating to their own client’s social-media activities.  One such implication is the potential spoliation of evidence.  A new decision from the U.S. District Court of New Jersey offers an important reminder of this critical duty.

The plaintiff, a baggage handler, alleged that he was injured when a set of feuler stairs crashed into him. He claimed that, because of his injuries, he was permanently disabled, was unable to work, and was limited in his physical and social activities.

During litigation, the defendants sought discovery regarding the plaintiff’s damages and social activities. Plaintiff signed authorization forms form eBay, PayPal, and some social-networking sites but not for his Facebook account.

At a settlement conference, the Magistrate Judge ordered the plaintiff to execute an authorization for his Facebook account. The plaintiff agreed to change his password so the defendants’ counsel could access the contents of his Facebook account. After the conference, the defendants’ counsel logged in and printed some of plaintiff’s profile page.

As a result, the plaintiff got a notice from Facebook informing him that his account had been accessed from an unauthorized ISP address. According to the plaintiff, he deactivated the account upon receiving the alert from Facebook but, 14 days later, Facebook “automatically deleted” the account and all of its contents. Therefore, all of the contents were lost permanently. The court ordered spoliation sanctions against the plaintiff in the form of an adverse inference.

Now, the reality is that the plaintiff actually deleted the account. Deactivating your Facebook account does not result in the “automatic deletion” of the account. Apparently, the plaintiff thought that he was deactivating it but actually deleted it. 

News to me was that Facebook permanently deletes contents of any account that is deleted and that it does so just 14 days after the account is deleted.

Either way, this case should serve as an important reminder to lawyers of their duty to take an active role in the preservation and/or production of clients’ social-media contents.

Gatto v. U. Air Lines, Inc., No. 10-cv-1090-ES-SCM (D.N.J. Mar. 25, 2013).

See also,

EEOC Sanctioned for Failure to Produce Social-Media Evidence

Employees Must Turn Over Facebook Info For Harassment Claim

Discovery of EEOC Claimants' Social-Media Posts

Call Me, Maybe. Discovery of Employee Identities

Manager’s Drunk Facebook Post Leads to Retaliation Claim

Your Employees Are Stealing Your Data

Posted by Molly DiBiancaOn March 25, 2013In: Electronic Monitoring, Policies, Privacy In the Workplace

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Employee resigns. But before her last day of work, Employee copies thousands of emails and documents from Employer’s computer.  Off goes Employee into the sunset.

How often is this scenario?  I bet most employers think this never happens in their workplace. I’d be willing to bet that it happens in almost every workplace.  It happens with such regularity, yet most employers are absolutely stunned to discover that it’s happened to them. 3d thief cracks safe

If you think it doesn’t happen pretty much all of the time, check out this post at the uber-popular website, Lifehacker.com, titled, How Can I Save All My Work Emails for a Personal Backup?  A reader submitted the following question:

I'm leaving my job and want to take my work emails with me. I've been burned at jobs before, and it became very useful to have an email paper trail behind me. How can I save all the emails so I can access them in the future, just in case I need them?

The author of the piece responds back, providing detailed, step-by-step instructions for how to do exactly that—take with you each and every email you sent and/or received during the course of your employment.

Putting aside how terrible of an idea this is on Lifehacker’s part (can you say, “promoting or endorsing illegal activity?), let’s focus just on the reality—which is, clearly, that your employees are taking your stuff!

What remedies are available to the employer?  Well, most immediately, there’s the demand that the items be returned.  Lawyers have a particular flair when it comes to a well-crafted cease-and-desist letter, so consider having your employment counsel get involved from the outset.

But if the employee refuses to return the documents or ignores your demand, then what? One option is to sue.  A variety of claims may be applicable, depending on the precise nature of the documents and information and on what the employee has done with them since her departure.  For example, the employer may have claims like conversion (civil theft, generally speaking), misappropriation of trade secrets, tortious interference, etc. 

And, depending on where the employee worked, there also may be a claim under the state and/or federal computer-misuse statutes.  In Delaware, for example, we have computer-misuse statutes that provide for recovery of an award of treble damages and attorney’s fees.  And, because Delaware is in the Third Circuit, we have the Computer Fraud and Abuse Act. 

This statute has limited application in other states—including those within in the Fourth and Ninth Circuits, where the Courts of Appeals have rejected the application of the CFAA in the employee-traitor context.  Instead, in those states, the statute is construed as applying only to the true computer hacker. 

The CFAA is a fascinating statute with complex provisions.  The Florida Bar Journal has an excellent analysis of the law—and of the different interpretations of the various Courts of Appeals—for those who may be interested.

For the rest of you, though, now is the time to implement a confidentiality agreement if you don’t already have one in place and to consider just how certain you are about what employees can and cannot take at the end of employment.

See also

Judge's Porn Habit Results In Suspension

Computer Fraud and Abuse Act: Government to the Rescue of Employers?

Putting the Computer Fraud and Abuse Act to Work for Employers

Putting the CFAA to Use, TV Style

EEOC Faces Petition for $5.5m in Fees

Posted by Molly DiBiancaOn March 25, 2013In: EEOC Suits & Settlements

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Employers are wary of litigating against the EEOC. And for good reason. Many employers who have faced the EEOC in the courtroom have complained that the agency uses guerilla litigation tactics. One commonly heard complaint occurs in the context of class actions, when the EEOC refuses to disclose the identity of the claimants on behalf of whom the EEOC seeks relief.

Recently, though, some courts have heard these complaints and agreed with the employer. Different courts have reacted, differently, though. Only a few have gone so far as dismissing the EEOC’s case.

One of the first courts to take this course was the U.S. District Court in Iowa. In EEOC v. CRST Van Expedited, Inc., the EEOC filed suit on behalf of 270 female truck drivers, claiming that they were subject to a hostile work environment. The district court dismissed the claims of all but two employees. The company settled the remaining claim for $50,000.

The EEOC appealed but the 8th Circuit held that the EEOC’s failure to conduct a complete investigation and conciliation prevented it from representing certain claimants and affirmed the dismissal of the EEOC’s suit as to those employees.

With that significant victory under its belt, the employer has decided to see if it can keep its winning streak alive. On March 18, 2013, CRST filed a petition seeking $5.5 million in fees and expenses incurred in defending the EEOC’s suit. In support of its petition, the employer points to some troubling facts:

· 150 depositions were taken during the litigation;

· 115 of the 270 claimants were dismissed for failing to appear for deposition;

· 7 summary-judgment motions were filed;

· 88 claims were dismissed as meritless; and

· 67 claims were dismissed for the EEOC’s failure to conciliate.

These facts should be enough to scare any employer, although it remains to be seen whether they will be sufficient to warrant an award of fees. We’ll be sure to keep you posted.

See also

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

2013 Annual Employment Law Seminar

Posted by Molly DiBiancaOn March 19, 2013In: Seminars, YCST

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Registration is now open for Young Conaway’s 2013 Annual Employment Law Seminar.  This year’s event will be held on May 9 at the Chase Center on the Riverfront.  We are looking forward to it and hope to see you there!

Slide1

The details about the day-long program and online registration can be found at the event’s webpage here.

Promissory Estoppel Is Alive and Well In Delaware Employment Law

Posted by Sheldon N. SandlerOn March 17, 2013In: Cases of Note, Delaware Specific

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In a reminder to Delaware employers that what you say can come back to bite you, the Delaware Supreme Court reinstated a Superior Court jury verdict in favor of a plaintiff, after the trial court had determined that his claim failed as a matter of law. The plaintiff, Donald Harmon, had been the Presiding Judge of the Delaware Harness Racing Commission, and was fired as a result of an allegation that he had changed a judging sheet for a race, as a favor to the horse's owner. Harmon was charged with crimes and was suspended without pay pending the outcome of the criminal case.

He asked another employee to find out from the Racing Commission whether he would be reinstated if he was acquitted on the criminal charges. The employee testified that he put that question to the Commissioners and they "looked at each other and then said [Harmon] would be reinstated." The Commission later decided not to reinstate Harmon and he sued, obtaining an award of $102,273 after a 5 day jury trial. The trial court overturned the verdict and Harmon appealed to the Delaware Supreme Court.

In essence, promissory estoppel in the employment context means that the employer has made a representation to an employee that the employee reasonably relied on to his or her detriment. While that theory can apply to private employers, the general rule in the public sector, as asserted by the Racing Commission in this case, is that "the state is not estopped in the exercise of its governmental functions by the acts of its officers."

Relying on two rather hoary school-district cases, the Delaware Supreme Court recognized that there is "an exception to the general rule in the employment context." In, Keating v. Bd. of Educ. of the Appoquinimink Sch. Dist., and Crisco v. Bd. of Educ. of the Indian River Sch. Dist., the court rejected the claim that promissory estoppel does not apply to a "creature of the State."

The Takeaway

What is striking about all three cases is the casual manner in which the employers' representatives acted. If a clear, written statement had existed in Keating that it was only the decision of the Board that determined who would be rehired, and in Crisco that persons with standard certificates would have preference under the RIF policy, and if the Racing Commission had, instead of "looking at each other," made it clear that it was not committing to rehiring Harmon without a more formal investigation, the outcome almost surely would have been different.

Harmon v. State of Delaware, (PDF), No 676, 2011 (Del. Feb. 15, 2013).

EEOC Sanctioned for Failure to Produce Social-Media Evidence

Posted by Molly DiBiancaOn March 8, 2013In: EEOC Suits & Settlements, Social Media in the Workplace

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EEOC v. Original Honeybaked Ham Co. of Georgia, Inc., is the subject of today’s post. I first wrote about this case in November, when the Colorado District Court granted a motion to compel the EEOC to turn over social-media content of claimant-employees. The court acknowledged that discovery of social-media content presents “thorny and novel issues.” But, finding that the postings were relevant to the issues in the case, the court ordered that it be turned over.EEOC

In an unusual twist, the court required the EEOC to turn over the log-in information and passwords of the claimants to a special master, who would make an initial determination of discoverability. I concluded that the decision was a well-reasoned attempt to balance the individual claimants' privacy interests with the defendant-employer's right to broad discovery of potentially relevant information. Faced with these two competing interests, the court crafted a fairly complex, multi-tiered, and dynamic process for the collection, review, and production of the information from the employees' social-media accounts.

Fast-forward three months.

The employer files a motion for sanctions, alleging that the EEOC had failed to comply with the court’s order to produce the social-media data. The court granted the motion, finding that the EEOC had, in several material respects, made the discovery of claimants’ social media “more time consuming, laborious, and adversarial than it should have been.” In short, the court found that the EEOC had agreed to various discovery procedures only to later renege when the “higher-ups” at the EEOC learned about the parties’ agreement and didn’t, well, . . . agree.

In awarding the employer its reasonable attorney’s fees, the court had to use some judicial imagination, finding first that most of the sanctions rules did not apply because the EEOC had not litigated in bad faith. Instead, the discovery problems were more a result of bureaucracy, rather than intentional bad-faith tactics. Still, the court did find a rule that enabled it to award fees and, with any luck, send a strong message to the EEOC about the consequences of failing to cooperate (and keep its promises) during discovery.

No. 11-02560-MSK-MEH (D. Colo. Feb. 27, 2013).

Employees Must Turn Over Facebook Info For Harassment Claim

Discovery of EEOC Claimants' Social-Media Posts

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

Call Me, Maybe. Discovery of Employee Identities

2d Cir: FLSA Does Not Cover Gap Time

Posted by Molly DiBiancaOn March 6, 2013In: Fair Labor Standards Act (FLSA)

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Auto-deduct policies and meal breaks continue to make FLSA headlines. Last week, the Second Circuit tackled these policies, as well as gap-time claims, head on and came down on the side of the employer.

The case involved a collective action brought by employees of various health-care facilities. The basic allegation was that the plaintiff-employees had not been paid for time worked during meal breaks, before and after shifts, and time spent at training. The plaintiffs brought claims under the federal FLSA and under the New York state wage law. The district court dismissed the complaint several times before the case made it to the 2d Circuit.

The plaintiffs brought two types of claims under the FLSA: (1) overtime; and (2) gap time. Both were dismissed by the trial court. The Second Circuit affirmed the dismissal.

Overtime

The court concluded that, "in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours." Here, the plaintiffs didn't make any factual allegations about how much time they claimed to have worked but not been paid. Similarly, they did not allege whether this missed time (in whatever amount that may be), bumped them into a more-than-40-hour workweek.

As so aptly stated by the court, the plaintiffs' vague allegations "supply nothing but low-octane fuel for speculation, not the plausible claim that is required." Based on the failure to allege any specific facts about the time worked, the dismissal of the claim was affirmed.

Gap Time

We've posted about gap time previously. In this case, the Second Circuit described a gap-time claim as "one in which an employee has not worked 40 hours in a given week but seeks recovery of unpaid time worked, or in which an employee has worked over 40 hours in a given week but seeks recovery for unpaid work under 40 hours."

The court, consistent with the majority of courts to have reached the question, explicitly rejected a gap-time claim brought under the FLSA. As the court explained, there is "no claim under FLSA for hours worked below the 40-hour overtime threshold, unless the average hourly wage falls below the federal minimum wage."

And, in a question of first impression, the court held that the FLSA does not provide for a gap-time claim even when an employee has worked overtime. The court explained:

The agreement to work certain additional hours for nothing was in essence an agreement to accept a reduction in pay. So long as reduced rate still exceeds the minimum wage, an agreement to accept reduced pay is valid.

So long as an employee is being paid the minimum wage or more, the FLSA does not provide recourse for unpaid hours below the 40-hour threshold, even if the employee also works overtime hours the same week. This is an important and timely victory for employers in their continued defense against FLSA lawsuits.

(PDF)

Another Employer's Auto-Deduct Policy Is Upheld (Creeley v. HCR ManorCare, Inc., (N.D. Ohio Jan. 31, 2013)).

6th Cir. Affirms Dismissal of FLSA Gotcha Litigation (White v. Baptist Mem'l Health Care Corp. (6th Cir. Nov. 6, 2012)).

The Legality of Automatically Deducting Meal Breaks (Camilotes v. Resurrection Health Care Corp. (N.D. Ill. Oct. 4, 2012)).

E.D. Pa. Dismisses Nurses' Claims for Missed Meal Breaks, Part I and Part II (Lynn v. Jefferson Health Sys., Inc. (E.D. Pa. Aug. 8, 2012)).

FLSA Victory: Class Certification Denied (Pennington v. Integrity Commun, LLC (E.D. Mo. Oct. 11, 2012))

Penn Admissions Officer Too Funny for Facebook

Posted by Molly DiBiancaOn March 4, 2013In: Social Media in the Workplace

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Teachers and Facebook can be a dangerous combination. I’ve written numerous posts about the impact of social media on today’s public schools. But the woes of social networking aren’t limited to educators in grades K-12. Just ask administrators at the University of Pennsylvania.

The prestigious university is dealing with an incident of bad form by an admissions officer. According to Inside Higher Ed, the Nadirah Farah Foley, posted excerpts from application essays on her Facebook page, accompanied by her own snarky commentary. Facebook for Educators

I think many of us would agree that there is a tremendous amount of comedic potential with college-application essays . . . for comedians. But probably not for the admissions officers charged with deciding the applicants’ future. Although Foley’s Facebook friends didn’t seem to mind. In fact, they thought her commentary was so entertaining, they encouraged her to post more snarkiness.

Ironically, Foley declined. She would, she said, “if it weren’t such a professional risk/liability.” Ah, yes. How wise she was. Too bad she hadn’t thought of that before posting the comments.

The story has a predictable ending. One of Foley’s Facebook “friends” sent screen shots of the posts anonymously to the University’s independent student newspaper. Foley is “no longer affiliated with the institution,” according to Inside Higher Ed, but school officials have been mum about the conditions of her departure.

Not surprisingly, the school does not have a social-media policy for its admissions officers.

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What Is Good for the Goose . . . Employers Oppose Federally Mandated Inequality

Posted by Molly DiBiancaOn February 28, 2013In: Discrimination, Employee Engagement

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The United States Supreme Court will hear argument next month in United States v. Windsor, which addresses the constitutionality of the federal Defense of Marriage Act (DOMA).  Nearly 300 private-sector employers joined forces in opposition to the law, filing a joint amici brief.  Among the employers who oppose the law are Citigroup, Google, Facebook, and Starbucks, reports the L.A. Times.Employers Oppose DOMA

The employers voice a number of objections to the law, all arising from the conflict between state and federal law.  Twelve states and the District of Columbia now recognize same-sex marriages.  But federal law, pursuant to DOMA, prohibits the recognition of same-sex unions.

This contradiction puts employers—particularly those operating in multiple states—in a difficult position as they attempt to reconcile what they must do according to state law, what they must not do according to federal law, and, for many employers, what they want to do according to their own policies of anti-discrimination. 

We discussed a similar conundrum in October of last year, when Nordstrom, Amazon, Microsoft, Nike, and others, took a stand in favor of Seattle’s same-sex law, Referendum 74. A similar theme is heard in the Windsor briefing—smart employers know that equality and fairness are essential to a productive and efficient workforce.  Employers lose when employees are treated unequally in the workplace. 

So it makes sense that smart employers would speak out in opposition to government-imposed inequality.

'Everybody Is Doing It' Is Not a Valid Defense Under the FLSA

Posted by Molly DiBiancaOn February 28, 2013In: Fair Labor Standards Act (FLSA)

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In my post, Manager's Drunk Facebook Post Leads to Retaliation Claim, I wrote about a wage-and-hour lawsuit brought by bartenders at the famous Coyote Ugly Saloons.  In that post, my focus was on retaliation claims that the employees had added by way of an amended complaint.  I promised, though, to follow up with a post dedicated to the wage claim.  And here it is. 

The case began its life as an FLSA collective action based on an allegedly illegal tip pool.  The class included current and former employees who worked as bartenders, barbacks, and waitresses.  Bartenders were required to put all of the tips they earned during a shift into a pool.  The pool was then distributed among bartenders, barbacks, and security guards who worked that shift.  An employee's share of the pool depended on the job performed but was always percentage based.  Bartenders never retained more than 85% of the total pool. 

Tip pooling is a common practice and not as draconian as it may sound when it's done properly.  But when it's done improperly, it can be a major source of hostility.  In this case, the employees claimed that the tip pool was unlawful because security guards, who were not "tipped employees," participated in it. 

The FLSA defines "tipped employees," as those who "customarily and regularly receive tips."  The employer argued that security guards sufficiently interacted with customers so as to constitute employees who "customarily and regularly receive tips."  This claim was based on the undisputed fact that the security guards checked the I.D.s of patrons, interacted with them, and encouraged people passing by to come inside. 

But to prove that the security guards were "tipped employees" as defined by the FLSA, the employer submitted evidence of an alleged industry standard.  It purported to show this standard by introducing the testimony of a couple of people who had patronized the saloons and who claimed to have tipped the security guards.

The court rejected this argument, finding that a so-called industry is never a consideration in determining the proper classification of an employee under the FLSA.  In fact, if anything, the court noted, the argument was more of an admission of improper misclassification.  The fact that an entire industry is getting it wrong does not mean the FLSA does not apply.  

And I heartily agree.  Really, since when has the claim that "everyone's doing it" been sufficient to excuse liability?  In my house, that argument never worked--even when I was just a lass. So I'm hard pressed to understand why the employer thought it would work here.