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.

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

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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. 

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

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

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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

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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

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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

Lawful Discrimination and Off-Duty Conduct

Posted by Molly DiBiancaOn February 20, 2013In: Off-Duty Conduct

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Is discrimination ever legal? Most definitely. We all discriminate all day, every day. For example, nearly every morning, I discriminate against decaf coffee in favor the full-strength brew. The two pods are similarly situated right there in the rack. They brew in the same amount of time and cost the same. But I just can't bear the thought of the decaf.

Is my coffee choice discriminatory? You bet. Is it unlawful? Good heaven, let's hope not.

The same is true for the workplace. Employers can make employment decisions (i.e., discriminate), based on all sorts of things. Like who is the faster typist. Or who has the least number of dress-code violations. Choosing not to promote the employee who spends most mornings checking his Facebook account is discriminatory and it's totally lawful.

Off-duty conduct is similar is many ways. In most states, including Delaware, private employers can make adverse employment decisions, including the decision to not hire, based on an employee's or applicant's off-duty conduct. The rules are different for public employers.

An example of employment discrimination based on off-duty conduct that seems raise a lot of eyebrows is discrimination based on smoking. Approximately 30 states have a "smokers'-rights" statute, which protects individuals who use tobacco from workplace discrimination. But Delaware is not one of those states. Thus, in Delaware, employers can decide not to hire (or employ) any individual who smokes or uses tobacco.

Pennsylvania is another state without a smokers'-rights statute. Which is why the University of Pennsylvania Medical System's announcement that it will no longer hire smokers did not come as a big surprise. The Hospital of the University of Pennsylvania announced that it will permit current employees to continue to use tobacco--although those employees already pay a "smoker's surcharge"--an extra charge added to the employee's health-insurance payments.

New employees, however, will have to be tobacco free for 6 months in order to qualify for a position. And new employees, including doctors, who are found to have lied about their tobacco use may be terminated.

But not all new employees. Applicants for the Hospital's facilities in New Jersey get a pass because that state has a smokers'-rights statute.

Much to the Hospital's credit, it has published a great deal of information about the policy on its website.

Related Posts:

Bans on Smokers In the Workplace Continue
Health vs. Privacy: Employers Continue to Juggle Both
How Far Should Employers Go When It Comes to Employees' Health?
Not Everyone Is Fired Up About Smoking Ban
Employer Quits Its Smoking-Penalty Policy
Smokers' Rights in the Employment Context

New FMLA Forms and Poster Now Available

Posted by Molly DiBiancaOn February 19, 2013In: Family Medical Leave

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The Family and Medical Leave Act (FMLA) took effect 20 years ago.  To celebrate, the DOL released a survey on the impact and use of the FMLA.  According to the DOL, the survey found that “misuse of the FMLA is rare.”

Now, for those of you who have not laughed yourself right out of your chair, congratulations. For the rest of us, the reality is that FMLA abuse is, in many, many workplaces, a significant problem and, I bet many employers would say, maybe the most misused workplace law today.  Of course, I don’t have a survey to back up my conclusions. But there you have them, anyway.

Putting aside the issue of employee misuse and abuse, employer compliance with the FMLA is difficult, to say the least. It’s a very technical statute and seemingly harmless oversights can land an employer in court. 

One of the easiest ways to improve your odds of not getting it wrong with the FMLA is to use, consistently, the DOL’s standard forms.  Use of the forms is voluntary—you may, lawfully, use your own forms and/or create your own letters and abandon forms altogether.  But, really, why?  The FMLA is not a law for which creativity will be rewarded. 

The DOL has just released updated FMLA forms.  Download the forms and, if you don’t use them (and, really, why wouldn’t you?), at least take this opportunity to review your own forms and letters to be absolutely sure that you have encompassed every aspect of the DOL’s versions. 

Forms relating to military caregiver leave for a veteran are not included in the revised forms.  That rule does not take effect until March 8, 2013.  In conjunction with that effective date, though, comes another important requirement— a new FMLA workplace poster.  The new poster has an updated section regarding Employee Rights and Responsibilities.  You can download the poster from the DOL’s website.

Until then, you can download the rest of the forms (in PDF) for your review and use using the links below or, if you prefer, download the whole lot in a single PDF containing all of the new FMLA forms.

Another Employer's Auto-Deduct Policy Is Upheld

Posted by Molly DiBiancaOn February 19, 2013In: Fair Labor Standards Act (FLSA), Wages and Benefits

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In Creely v. HCR ManorCare, Inc., a class of 318 nurses, LPNs, CNAs, an admission coordinators alleged that they had not been paid for time worked during meal breaks. The employer was a nationwide provider of short- and long-term medical and rehabilitation care with more than 300 facilities. Each facility had its own management team and HR personnel but its policies were developed at company headquarters and implemented at all facilities.

The employer's meal-break policy required that hourly employees take a daily 30-minute meal break. The employer's timekeeping system automatically deducted 30 minutes from the time worked a shift longer than 5 or 6 hours.

Employees did not clock in or out for their breaks. An employee who missed a break was required to fill out a "missed-punch" form and submit it to a manager, who would sign it and turn it into the Payroll Department. Payroll personnel would then adjust the timecard to reverse the automatically deducted 30 minutes.

Unlike the plaintiffs in White v. Memorial Baptist Hospital, the plaintiff-employees here did not argue that the policy was per se illegal. They also did not argue that the employer had an unofficial "policy to violate" its lawful policy. Instead, they argued that they were denied overtime pay due to the employer's implementation of the auto-deduct policy. Specifically, they claimed that they had not been paid for breaks that they'd not taken because:

1. Defendant illegally shifted the burden of monitoring time worked to the employees by requiring them to cancel the automatically deducted time;
2. Defendant took no affirmative measures to monitor whether the employees actually received their meal breaks;
3. Defendant failed to train or inform employees or management what to do if a meal break was missed or interrupted; and
4. The employees didn't report missed breaks because they were discouraged from doing so.

It was these arguments that led the court to decertify the class, finding that the plaintiffs were not similarly situated for the purposes of the FLSA. The court found that the application of the lawful auto-deduct policy varied between managers and facilities. For example, some managers provided follow-up training to the plaintiffs on the missed-punch forms, while other managers were accused of actively discouraging the plaintiffs from submitting the forms. In other words, the Plaintiffs' knowledge of and training on the policy, and the application of the policy itself, varied in large part depending on the individual managers at the employer's facilities.

This case is yet another in a growing line of auto-deduct cases that fail at the final certification stage.
Creely v. HCR ManorCare, Inc., No. 09-2879 (N.D. Ohio Jan. 31 2013).

See also
The Legality of Automatically Deducting Meal Breaks
E.D. Pa. Dismisses Nurses' Claims for Missed Meal Breaks

Manager's Drunk Facebook Post Leads to Retaliation Claim

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

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Readers may recall the case, Stewart v. CUS Nashville, LLC, which is one of the few opinions on the discoverability of a party's social-media account. There were at least a couple of interesting issues in that decision but the most interesting part may be that the defendant is the entity that owns and operates Coyote Ugly Saloons. That's right--the one from the movie, where hot bartenders dance on the bar.

The case was initiated by two of those (presumably hot) bartenders, Misty Blu Stewart and Samantha Thomas. They originally brought claims under the FLSA, alleging an unlawful tip-pooling policy. Those claims are quite interesting--so much so that I'm going to write a separate post about them later in the week. So stay tuned for the FLSA angle.

In the meantime, I have to write about the retaliation claims that the named plaintiffs added to their complaint.

The Allegations
First, Ms. Misty Blue Stewart (yes, really). Ms. Stewart worked at the Coyote Ugly saloon in Nashville until she was fired for giving away free drinks (a/k/a stealing), in December 2009.
Ms. Stewart claims that, one month after she initiated her FLSA claim in April 2011, the founder and president of the franchise, Liliana Lovell, wrote a post on her blog, which is hosted on the Coyote Ugly website about the lawsuit: "This particular case will end up pissing me off[,] cause it is coming from someone we terminated for theft."

[Side Note: The rest of the post is pretty hilarious. You can read it on the Technology & Marketing Blog, where Venkat Balasubramani wrote about the case.]

Ms. Stewart had already found a new job, so she had no economic damages. Instead, she claimed that was "humiliated and embarrassed by the blog entry."

Second, Ms. Stone. Stone worked at the saloon in Oklahoma City. Her retaliation claim was based on two comments made by the Director of Operations, Mr. Huckaby. Huckaby was in town for a party that was being held at the saloon and, like all good Directors of Operations tend to do, apparently found himself two sheets to the wind before the night was over.

While under the influence, Huckaby posted on his Facebook page, "Dear God, please don't let me kill the girl that is suing me . . . that is all. . ." Stone, who was (of course), Facebook friends with Huckaby, saw the post about an hour later. The post was gone by the next day. Huckaby does not remember making the post or removing it.

The second comment occurred the next night. Ms. Stone testified that Huckaby learned that a customer had fallen down the stairs in the saloon and had threatened to sue. In response, Huckaby yelled out, "Why does everyone sue? I'm tired of all these bi***es taking their issues out on our company. They're f***ing idiots."

Ms. Stone testified that, although Huckaby was looking at the saloon manager, Amber Almond (yes, really, again), he sort of looked towards Ms. Stone as he yelled. Stone quit the next day and alleged constructive discharge. Huckaby does not remember making the statement.

The Decision

I'll start with my conclusions because, heaven knows, I hate to bury the lead. I think the court got this one wrong. As in wrong. So, there, I said it. I think this was a bad decision. You can decide for yourself.

With respect to Misty Blu, the court found that there was sufficient evidence of retaliation to survive the employer's motion for summary judgment. The employer argued that there was no evidence of an adverse employment action--a necessary component of a retaliation claim (i.e., an adverse action must be taken because of protected activity). The court disagreed and found that the comment in the founder's blog post about being fired for theft was, if false, enough to constitute an adverse action.

Here's the main problem I have with that decision--the employee had not been an employee for about 16 months at the time of the blog post. Not to mention that the employee was not referenced by name. And not to mention that there was no evidence that the employee hadn't been terminated for theft. The court seems to confuse a statement that the employee committed theft with a statement that she was fired for theft. They're not the same thing, are they?

Okay, moving on to Ms. Stewart. The court held that Stewart's claim of constructive discharge also could survive summary judgment. The sum total of the evidence that Stewart presented in support of this claim was as follows, assuming everything in her favor:

1. A manager from Corporate made a snarky comment--without naming any names or even job titles--apparently while in the bag, which Stone viewed for all of two seconds and which was taken down a few hours later.

2. The same manager, who, let us not forget, was in town only for this party, made a comment about "bi***es" who sued the company upon learning that the company was being sued by someone other than the plaintiff.

Folks, if this constitutes a constructive discharge, well, color me confused. How the court concluded that these two incidents could lead to the type of intolerable conditions that are required to warrant a constructive discharge is beyond me. Maybe the standard is significantly different in the 6th Circuit. Because here, in the 3d Circuit, the standard requires far more dire conditions. Thankfully.

After all of that has been said, though, where are we? What are the lessons of today's post? Well, try these on for size:

1. Please, please, please, discourage your supervisors from being Facebook friends with employees. It's a bad idea. Particularly if your supervisors have a tendency to "drunk post" from the workplace.

2. Don't let employees check Facebook while they're on the clock. Yeah, yeah, I know. You disagree. But if Stewart hadn't been permitted to check Facebook from her phone while on the clock, she wouldn't have seen Huckaby's post, which was gone a few hours later.

3. If you're the owner, founder, senior executive, etc., don't comment about confidential matters--including lawsuits and employee issues--on the company's publicly available blog. (Interestingly, the only other time I've seen this was also with a female bar owner, who made a similar comment on her Facebook comment and was sued for retaliation, which leads me to the next and final lesson for today. . . )

4. Read this blog. Had Ms. Lovell read the post I mention above about how social-media rules also apply to supervisors, maybe she would have avoided the whole mess.

Stewart v. CUS Nashville, LLC, No. 3:11-cv-0342, 2013 U.S. Dist. LEXIS 16035 (M.D. Tenn. Feb. 6, 2013).

Going Gaga over the Not-So-Little Overtime Monster

Posted by Molly DiBiancaOn February 13, 2013In: Fair Labor Standards Act (FLSA), Wages and Benefits

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Lady Gaga has cancelled the remaining dates in her Born This Way Ball tour. Try to hold back those tears, dear readers. I know you're upset.

I, too, am upset by this news, particularly because I had tickets to next week's show in Philadelphia. Ok, I didn't buy the ticket, it was a gift, but, dag nab it, I was going to put it to good use! Although "Mother Monster," as she's known, doesn't exactly make regular appearances on my playlist, she's supposed to put on one heck of a show and, by George, I was excited to see it!

Alas, it appears that the Rock 'n Roll gods, which would be the musical gods I pay homage to most days, may be punishing me for straying into the land of popular music. Hopefully I will be forgiven by attending the Mumford & Sons show on Sunday and The Who show in Atlantic City next Friday.

But I digress. Back to Gaga.

As I said, I am disappointed to hear that Gaga won't be able to perform next week. Disappointment is a sentiment that the pop star understands. She was very disappointed when her former personal assistant (and personal friend), sued her in federal court.

In the suit, the assistant, Jennifer O'Neill alleges that she is owed more than 7,000 hours in overtime pay because, she claims, she was "on call" 24 hours a day, 7 days a week. (No, really, that's what she alleges). She was paid--in case you're wondering--$75,000 per year.

Lady Gaga's defense rests, in part, on her claim that the assistant was not "on the clock" during all of those long nights but, instead, was hanging out with Gaga as her friend. Gaga insisted that she and O'Neill were spending time together as friends, not as employer and employee. Gaga went on to say that she had showed O'Neill the "time of her life," and that O'Neill "slept in Egyptian cotton sheets every night, in five-star hotels, on private planes, eating caviar."

That may be all well and true but it does not serve as a legal defense to a claim for unpaid wages. The FLSA provides that workers cannot waive their right to wages earned. So, even if O'Neill had said, "Ahh, Gaga, you needn't pay me anything for this work. It's payment enough that I have the honor to hang out with such a superstar and her jet-setter friends," she would not have waived her right to be paid for time worked.

Of course, that doesn't mean that she's entitled to overtime, either. We'll have to wait and see what the court says.

Until then, though, here's a snippet of entertainment to hold you over. During her deposition, Gaga gave plenty of entertaining testimony, as reported by the New York Post. Many of her comments sound like what I'd like to say to FLSA plaintiffs. Here are a few other gems with my comments in brackets:

"Are you going to stare at me like a witch this whole time -- honestly?"
[How many times I would have liked to say that to my opposing counsel and/or the plaintiff who is sitting across the table from me, giving me the death stare.]

"I'm quite wonderful to everybody that works for me, and I am completely aghast to what a disgusting human being that you have become to sue me like this."
[The sentiment of many employers, who feel the same way when an employee files suit.]

"You don't get a schedule that is like you punch in and you can play [expletive] Tetris at your desk for four hours and then you punch out at the end of the day. This is -- when I need you, you're available."
[Boy, that sounds an awful lot like "you're on call."]

And, now, my personal favorite:

"This whole case is bulls--t, and you know it."
[Well, that pretty much sums it up, doesn't it?]

Maybe Gaga is cooler than I've given her credit for, after all. For more celebrity testimony, see this post about rap star Lil' Wayne's deposition.

Posting Vacation Pics on Facebook While On FMLA Is a Bad Idea

Posted by Molly DiBiancaOn February 12, 2013In: Family Medical Leave, Leaves of Absence

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The FMLA turned 20 last week and there has been a flurry of articles and posts discussing how the FMLA has changed the workplace, whether it imposes too high of a burden on employers, and predicting how it will likely continue to evolve. All of the academic commentary aside, though, we all know that the FMLA is no easy row to hoe. The truth is that the law is a very technical one and its application must comply with very detailed technical requirements.

Which is why we get all sorts of excited over FMLA cases that are resolved in favor of employers. The case du jour is precisely that--a win for the employer. It's such a great set of facts, though, that I'm going to switch up the normal order of things and start today's post with my "lessons learned." Admittedly, they're a bit snarkier than usual. But, I dare say, spot on.

5 lessons for employees to learn from Lineberry v. Richards:

1. Give serious consideration to whether you should be Facebook friends with your coworkers. They'll rat you out in a heartbeat and you're a fool if you think otherwise.

2. Don't demand or request sympathy from your "friends." If they really are your friends, you wouldn't be asking. Whining about why you have not received a get-well card constitutes a request for sympathy.

3. Do not press "Send" until you have cooled off. Getting into an email flame war is never a good idea. It is a very, very bad idea when your boss is the target of your flames. It is an even worse idea when you tell tall tales in the inflammatory email. After all, what you type can and will be used against you in a court of law (and by your employer).

4. Don't lie, dummy. You'll get caught. There are cameras everywhere, including at the airport and in your friend's hands as they snap your vacation photos.

5. Don't sue your employer after you've been fired for lying. If your employer wins, information about your case and related acts of deceit will be posted all around the Internet. It may be embarrassing.

The Facts

The plaintiff-employee was working as a full-time R.N. for the defendant-hospital when she was injured on the job. She was approved for FMLA leave for the maximum 12-week period. By all accounts, she was a good employee with satisfactory performance.

While on FMLA leave, the employee took a prepaid, planned vacation to Mexico. Her physician (who worked at the hospital), approved the vacation and testified that it would not conflict with her recovery.

During her leave, her co-workers saw pictures of the employee on her Facebook page, which showed her on vacation, riding in a motorboat, drinking, etc. She also posted pictures of herself holding her infant grandchildren--one in each arm as she stood. In her status updates she talked about trips to Home Depot, babysitting her grandkids, and taking online classes.

Her co-workers complained to their supervisors about what they considered to be a misuse of FMLA leave. About half-way through her leave, the employee sent her supervisor an email complaining that she had not received a get-well card from coworkers. Her supervisor responded:

[T]he staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.

The employee, apparently unable to hold back, sent the following email reply:

As far as the airport, customs, etc., goes, I was in a wheelchairbecause I couldn't stand for that long. As far as the plane goes (3.5 hour flight), I was up and down the entire flight, but sitting is so much easier on me than standing. I am able to walk short distances, but am unable to stand for more than 10 minutes at a time.
* * * * *
I want to come back to work as soon as possible and wouldn't have went to Mexico if a wheelchair was not available at both airports so I would not have to stand for any length of time.

The next week, her supervisor reported her belief that the employee was misusing her leave. On the same day the employee was approved by her physician to return to work, the hospital's HR and Loss Time Management departments decided she would be terminated.

In accordance with the hospital's progressive-discipline policy, the employee was called in for an investigative meeting prior to her termination. At the meeting, the employee reiterated that she had used a wheelchair in all airports on her trip. When the hospital's Director of Security Investigations presented the employee with the Facebook pictures, she admitted that she had lied and, in fact, had never used a wheelchair on her vacation.

She was fired for violating the hospital's policy prohibiting "dishonesty, falsifying, or omitting information." The employee sued, alleging that the hospital unlawfully interfered with her FMLA rights by denying her reinstatement upon return from leave and by retaliating against her for taking FMLA leave.

The court granted summary judgment to the employer on two alternative grounds. First, the court found that there was no evidence that the employee was terminated as a result of her FMLA leave. Instead, she was terminated because she violated the hospital's policy against dishonesty.

Alternatively, the court found that the employer was entitled to summary judgment under the "honest-belief" doctrine because the employer honestly believed, based on particularized facts, that the employee lied and misused her FMLA leave.

For those of you who may be keeping score, this counts as a "W" in the Employers' column.

Lineberry v. Richards, No. 11-13752 (E.D. Mich. Feb. 5, 2013).

[H/T to the Disability Leave Law Blog]

Lessons from a Shooting Close to Home

Posted by Molly DiBiancaOn February 12, 2013In: Delaware Specific, Workplace Violence

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Delaware experienced a tragedy yesterday at the New Castle County courthouse. As reported by ABCNews.com, a man embroiled in a custody dispute entered the courthouse lobby this morning shortly after 8 a.m. and opened fire, fatally wounding two women and injuring two Capital Police officers. The shooter exchanged gunfire with the officers and died at the scene.

The courthouse is just a few blocks away, on the same street as our firm's offices. Reports of the story spread quickly but were not confirmed until this afternoon. The courthouse was evacuated and will be closed tomorrow.

Gun violence certainly has been on the minds of many of us in the past several months. The dialogue has even extended to the topic of guns in the workplace. For example, despite the devastating events of the recent past, some state legislatures are considering legislation that would permit employees to keep loaded firearms in their vehicles, even in the employer's parking lot.

According to this post at Fox Rothschild's Employment Discrimination Report, 20 states have adopted a "parking-lot" law. Al Vreeling offers his thoughts on Alabama's recently proposed law in Guns Do Not Belong In the Workplace, at HR Hero.

Oklahoma's "open-carry" law takes a different approach and, as I understand it, provides an exception for employers, preserving their right to manage the workplace with the policies of their choosing. For those who are interested, our friends at McAffee Taft are hosting a free webinar, Guns or No Guns--Weighing Workplace Weapons Policies, on this issue on February 21.

Enforceability of Non-Compete Agreements in Delaware

Posted by Molly DiBiancaOn February 10, 2013In: Non-Compete Agreements

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Delaware's Court of Chancery is the court of choice for employers seeking to enforce non-compete agreements. As Delaware practitioners know, the Court has a long-standing practice of ruling from the bench, particularly in cases in which injunctive relief is being sought and where time is of the essence. See this post on the Delaware Corporate and Commercial Litigation Blog ("Regular readers will know that transcript rulings are often cited in this court as valid authority.") And this practice means that transcripts are an important, if not critical, source of information about how the court is likely to rule.

Vice Chancellor Glasscock served as a Master in the Court of Chancery for 12 years before being appointed to Vice Chancellor in 2011. Having been on the bench as Vice Chancellor for just a year, his non-compete opinions are limited. Which is why the transcript from a recent preliminary-injunction hearing offers Delaware counsel important insight.

Bridgeport Tank Trucks, LLC v. Smith, involved a non-compete agreement that resulted from the buyout of a business. As a result of the sale, the defendant, Mr. Smith, was subject to a restrictive covenant for a five-year period. The agreement did not contain a geographic restriction.

At the end of the five years, the plaintiff, Bridgeport Tank Trucks learned that Smith was in violation of the agreement and filed suit in the Court of Chancery seeking a preliminary injunction. At the preliminary injunction hearing, the Court addressed several important questions facing litigants in non-compete cases. Here are some of the highlights:

Temporal Restriction
In the employment context, a non-compete agreement is not usually enforceable for a period longer than two years. But when the agreement is tied to the sale of a business, the court general permits a longer period of restriction. That certainly was the case here, as the Court explained that it saw nothing "shocking" about the five-year limit.

Geographic Restriction
The Court did not make much of the absence of a geographic restriction in the agreement. In fact, the Court concluded that it would be able to "readily determine what area [the agreement] was meant to cover" from the "words of the agreement and extrinsic evidence." But perhaps more important to the Court's decision on this issue was the undisputed fact that Mr. Smith was competing in the area that the agreement would most certainly cover, even if construed narrowly.

Enforceability Provision
The Court found that the agreement was enforceable on its terms but noted that the parties had included a provision that they would not challenge enforceability. Although the Court did not expressly rely on this provision, it did seem to find the provision to be legitimate.

Extension of the Restricted Period
Parties seeking to enforce a non-compete agreement often request that the Court use its equitable powers to toll the restricted period. The Court does not commonly grant this request but, in Delaware, it is a potential component of the equitable relief. Here, the Court indicated that it would not toll the restricted period but acknowledged that it does have the discretion to do so.

The Court's indication that it would not toll the restricted period was really what decided the case. At the time of the hearing, there were just four months left before the covenant expired. The Court expressed concern that it was not likely to issue a decision before the end of the four months. Additionally, the Court explained that the injunctive relief sought by the plaintiff--that Mr. Smith either take his company out of business or sell his business--was not something that Court was inclined to order before a full trial on the merits.

Based on that Catch 22, the Court "suggested" to the parties that they consider reaching a settlement that would not be as drastic as the forced closure of Mr. Smith's business, while still protecting Bridgeport's rights. The Court stated that it would reconvene in one week's time. In the meantime, the Court explained, the parties should attempt to come up with some creative resolutions for their dispute, thereby avoiding the risks inherent in litigation.

The parties took the Court's advice and settled before the week had concluded. So, although we don't get a final ruling on the merits in this case, we do get some useful insight and commentary from Vice Chancellor Glasscock.

[H/T to Larry Cronin, who represented the Plaintiff in this case and who was kind enough to alert me to the case.]

Party Like It's the FMLA's Birthday

Posted by Molly DiBiancaOn February 8, 2013In: Family Medical Leave, Leaves of Absence, National Defense Authorization Act (NDAA)

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The Family Medical Leave Act (FMLA) celebrated its 20th birthday this week. And boy, oh boy, was the DOL was ready to celebrate!

And what kind of birthday would it be without a party? Acting Secretary of Labor Harris hosted a commemoration program that featured celebrity special guests, including former President Bill Clinton, former Senator Christopher Dodd, and former labor secretary Hilda Solis, among others. The entire program, which lasts about an hour, is viewable on YouTube.

But wait, there's more!! On February 5, the actual anniversary of the day the FMLA was signed into law, the DOL issued a final rule implementing expansions that cover military families and airline flight crews. Under the rule, military family members can take leave to care for a covered veteran who is seriously ill or injured. They can now take additional time, up to 15 days of leave, to be with a service member who is on leave from active duty. Additionally, the rule expands the FMLA's protections to airline pilots and flight crews who were frequently ineligible for FMLA due to their unique work schedule.

And, for those who really can't get enough of the FMLA, there is a new survey, "Family and Medical Leave Act in 2012: A Final Report," which was released just in time for the big celebration. According to the DOL, the survey shows that the FMLA "has had a positive effect on the lives of millions of workers and their families without imposing an undue burden on employers."

And, now, one for the road. Last month, the Wage and Hour Division issued an Administrator Interpretation providing guidance on the definition of "son or daughter" under the FMLA as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability. Fact Sheet, FAQs

That ought to satisfy your FMLA thirst this Friday. Have a great weekend!