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

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

Email This Post | Print this Post

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

Email This Post | Print this Post

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

Email This Post | Print this Post

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

Email This Post | Print this Post

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

Email This Post | Print this Post

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

Email This Post | Print this Post

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

Email This Post | Print this Post

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

Email This Post | Print this Post

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)

Email This Post | Print this Post

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

Email This Post | Print this Post

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.

Teacher’s Facebook Firing Upheld by N.J. Appellate Court

Social-Media Woes for School Districts

More Social-Media Woes for School Districts

The State of the Social-Media Mess in Public Schools

Students, Teachers, and Social Media

No 1st Am. Protection for Teacher's Facebook Posts

Court Denies Reinstatement to Teacher Fired for Facebook Posts

N.Y. Teacher's Firing Overturned Despite Facebook Wish that Students Drown

Blogging Teacher Returns to Work After Suspension for Posting About Students

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

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

Email This Post | Print this Post

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)

Email This Post | Print this Post

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. 

3d Cir.: You Are a Manager. Deal With It.

Posted by Molly DiBiancaOn February 26, 2013In: Age (ADEA), Cases of Note

Email This Post | Print this Post

Today’s post is about another recent employment-law decision from the Third Circuit.  For those of you who want the shortened version, feel free to skip to the end of the post for the valuable Lesson Learned

Background

The plaintiff-employee, Mary Burton, founded and ran two companies, which were sold to the defendant-employer, Teleflex. Following the sale, Burton became employed by Teleflex pursuant to a written employment agreement.  Burton was 67 years old. 3d Cir. ADEA Resignation

From the start, Burton did not get along with her new supervisor, Edward Boarini. Their relationship was already strained when Boarini told Burton that he wanted to meet with her to discuss her performance. At a trade show, Burton asked Boarini when he wanted to meet. When he couldn’t give her an immediate answer, Burton responded by asking whether he wanted her to resign. He said that he did not but she repeated the question several times.

By the end of the conversation, Boarini believed that Burton had resigned. Burton, on the other hand, felt that she’d been fired. 

Following a previously scheduled vacation, Burton received a letter from Teleflex’s HR Department, “accept[ing] her resignation.”  Despite being “in disbelief” about the letter, Burton did not call Teleflex or attempt to return to work. Instead, she called her lawyer, who attempted, unsuccessfully, to negotiate a separation agreement.

The Claims

Burton filed suit, alleging that she had been fired because of her age in violation of the ADEA. Teleflex claimed that Burton had not been fired but had resigned and, therefore, Burton had not been subject to any adverse action.  The trial court, the Eastern District of Pennsylvania, granted summary judgment to Teleflex, finding that Burton had resigned and that, even if she had not, there was no evidence that its letter was a mere pretext.  The Third Circuit reversed, finding that there “clearly” was a dispute of material fact as to whether Burton resigned or was terminated.

Lesson Learned

Instead of discussing the intricacies of the Third Circuit’s holding (i.e., whether there is sufficient evidence that Burton resigned) I think there is a more immediate lesson to be learned from this case:

Being a manager is tough.  Deal with it. 

Or, to put it differently:

There are serious and costly consequences for employing managers who are conflict adverse.

I certainly understand Boarini’s desire to interpret Burton’s comments as a resignation.  But she didn’t come right out and say it, she didn’t call later and confirm it, and she didn’t submit a resignation letter (even though she was required to do so pursuant to her employment contract). Just because you want to hear her say she’s quitting doesn’t mean that is what she actually said.

The right way to handle this would have been to meet with Burton and address the performance issues that she’d been having. Just pick a time, set the meeting, and deal with it. Don’t wait for her to come to you to schedule a time. And, when she does, don’t say you’re too busy or be reluctant to commit to a time.

And then, when you have the little spat and she says, “Do you want me resign? Is that what you want,” understand that the conversation is not over. Be the manager. Tell her that she can calm down and collect her thoughts and that you will discuss the situation on Monday morning, 10 a.m., in your office.

Don’t close your eyes and hope the whole mess just disappears. It won’t. Being a manager is no easy business. But you can handle it—that’s why they gave you the job. So toughen up and deal with it head on.

(PDF) No. 11-3752 (3d Cir. Feb. 21, 2013).

See also

3d Cir. Issues a Bitchin' Constructive-Discharge Decision

3d Cir. Confirms EEOC's Broad Subpoena Power

3d Cir. Decides Certification Standard for FLSA Class Claims

3d Cir. Finds Individual Supervisor Liable Under FMLA

3d Cir. Employees Fired for Pornographic Emails Lose Age-Discrimination Case

3d Cir. No Protection for an Employee Who Lies

W.D. Pa. Finds EEOC Failed to Conciliate

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

Email This Post | Print this Post

In February 2012, the EEOC approved its Strategic Plan for fiscal years 2012-2016.  The Plan establishes a framework for achieving the EEOC's mission to stop and remedy unlawful employment discrimination by focusing on strategic law enforcement, education and outreach, and efficiently serving the public.  The second performance measure of the plan requires the EEOC to approve a Quality Control Plan. The QCP will revise criteria to measure the quality of agency investigations and conciliations throughout the nation.

The EEOC has requested input from interested parties regarding recommendations for quality indicia of investigations or conciliations or general recommendations for improving the quality of our intake process, investigations and conciliations.  The EEOC’s current interest in improving its conciliation track record likely is related to a recent string of cases challenging the sufficiency of the agency’s conciliation efforts.  One such case was issued last month by a federal court in Pennsylvania.

Background

The case began when a single employee filed a charge of unlawful discrimination based on sex and retaliation, which was later amended to allege age discrimination. The EEOC investigated the Charge, requested and received a significant amount of information from the defendant. Approximately 8 months later, the EEOC issued a Cause Finding in which it determined that the defendant had unlawfully discriminated against the Charging Party based on sex and that the defendant had engaged in a pattern and practice of discrimination based on age in 6 of its restaurants.

The EEOC advised the defendant that it would promptly seek to conciliate the dispute and sent a proposed conciliation agreement. By the time the defendant received the Determination and proposed conciliation agreement, it had only 7 days to respond.

The defendant asked for an additional 30 days to respond but the EEOC denied the request. Instead, the EEOC told the defendant that it had to provide its “best offer” within the next week. The EEOC also made its first monetary demand—approximately $6.5 million for an unspecified number of potential claimants.

The defendant made a counter-offer as to the Charging Party’s claims and an expressed willingness to engage in further negotiations. Six days later, the EEOC issued a Notice of Failure of Conciliation and, a week after that, filed suit. The parties engaged in discovery for the next three years.

The Employer’s Motions

The defendant filed a motion to dismiss and for summary judgment. In support of its motion to dismiss, the defendant argued that the EEOC’s complaint failed to allege sufficient facts as the basis for its claim. The court agreed and ordered the EEOC to file an amended complaint within 30 days.

In support of its motion for summary judgment, the employer argued that the EEOC had failed to satisfy its duty to conciliate in good faith. The court acknowledged that the EEOC had great discretion to determine the extent of efforts needed to meet this duty. Even so, the court concluded that the so-called conciliation was insufficient.

The Court’s Decision

Particularly because of the break-neck speed of the process, the court found it difficult to “discern how the EEOC’s actions here would indicate a meaningful desire to actually engage in a process of ‘persuasion,’ ‘conference’ or ‘conciliation.’” As the court explained:

By any measure, a demand for the payment of more than $6 million dollars, coupled with nine days to either say “yes” or to make a “best and final” response in these circumstances (which includes, as noted above, a demand for more than a dozen significant affirmative remedial measures) is so devoid of reasonableness as to lead this Court to the conclusion that it was not a meaningful, good faith conciliation effort.

The court went on to explain that an “exchange of pointed letters does not evidence a sincere effort to reach a meeting of minds, especially in the context of an extraordinarily short set of response deadlines which were not driven by any externally imposed deadlines.” “Conciliation by letter,” the court concluded, will “rarely constitute ‘conciliation’” but, instead, were more akin to “surface bargaining.

Although the EEOC’s efforts were so fundamentally flawed, they were not sufficient to warrant dismissal of its case. Instead, the court concluded that, to dismiss the suit, after years of discovery, would be “wholly improvident.” Instead, the better course was to require that the parties now engage in the conciliation process—a process that should have occurred sooner.

Thus, the court stayed discovery to allow the parties 45 days to engage in conciliation under the court’s supervision.

(PDF) 2:09-cv-01330 (W.D. Pa. Jan. 22, 2013).

See also:

What Does “Good Faith” Mean to the EEOC?

When the EEOC Goes Too Far—Part 2

When the EEOC Goes Too Far

Whoooooo Are You? The Price of Rock-Star Employees

Posted by Molly DiBiancaOn February 25, 2013In: Employee Engagement

Email This Post | Print this Post

If you’re a die-hard fan of The Who, you may not want to read the rest of this post.  Don’t misunderstand, I, too, am a fan.  Which is why I was all sorts of excited to see them in Atlantic City on Friday night.  stick figure businessman in spotlight

The band did not disappoint.  Overall, I’d say the show was pretty good.  Guitarist Pete Townshend, though, was far better than “good.” Townshend was great; and I mean great.  Well worth the price of admission.

Lead singer, Roger Daltry, on the other hand, left a lot to be desired.  Daltry was, well, a diva. He barely sang at all—or at least not as much as I’d hoped.  Mostly, he sort of stood there, swinging his mic around—sometimes catching it and sometimes not.  As he stood at the edge of the stage, not singing, shirt unbuttoned so to expose way, way, too much skin, it was as if he was saying to the audience, “Yes, it’s me.  I am really here on the stage before you.  Try not to faint from excitement.”

I assure you, I did not.  Clearly, he was very impressed with himself.  I, however, was far less impressed.  And what’s the tie in to HR and employment law, you ask?  Have faith, dear readers. I’m getting there.

The lesson is to be aware of the tipping point with rock-star employees. If you’ve had an all-star employee in your workplace, you probably learned this lesson a long time ago. Rock-star employees are those who out perform their colleagues. They’re worshipped by their managers and their direct reports, alike.  They have skills that far outshine the skills of their peers.

The trick with rock-star employees is keeping them happy enough to keep them productive. At some point, you may find that you’re investing more than you’re getting in return. This is particularly true if you compromise your culture or principals because the rock-star demands it.

If the rock star can no longer belt the tunes, you should ask whether you should be giving him special benefits and, well, treating him like a rock star.  It may be time to tell the rock star to button up his shirt and pass the mic along to someone else. (In the case of The Who, that someone would be guitarist Simon Townshend, brother of Pete, who stole the show on Friday night).

See also:

Going Gaga over the Not-So-Little Overtime Monster

Bob Dylan's HR Lesson- Mandatory Retirement

Why Top Performers Are So Hard To Please