Give Me Some Credit! EEOC Credit-Check Case Dismissed

Posted by Lauren Moak RussellOn February 6, 2013In: Background Checks, EEOC Suits & Settlements, Hiring

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"Give Me Some Credit!" Maybe that's how the EEOC feels these days, after its high-profile suit against Kaplan Higher Education Corp. was dismissed on January 28, 2013. As readers may remember, the EEOC sued Kaplan in 2010, alleging that its pre-employment credit check policies had a disparate impact upon Black job applicants.

In a 23-page opinion, the U.S. District Court for the Northern District of Ohio dismissed the suit on Kaplan's Motion for Summary Judgment. The Court first excluded the expert witness testimony offered by the EEOC, holding that it was scientifically unsound. Expert witness testimony is key in disparate impact cases, because they rise and fall on the percentage of job applicants from a given classification as compared to the percentage of hires in the same classification. Among the key problems for the EEOC was that Kaplan, like many employers, does not collect demographic information on the race of job applicants. As a result, EEOC struggled to identify the races of those applicants that were rejected due to credit problems. In an effort to remedy the problem, the EEOC subpoenaed records from state DMVs, and used a team of "race raters" to review the DMV photos and assign races to the job applicants. The Court, not surprisingly, rejected this approach and the resulting expert witness analysis.

Next the Court addressed Kaplan's Motion for Summary Judgment. In the absence of any statistical evidence demonstrating an adverse impact caused by the use of credit checks, the Court held that the EEOC's case had to be dismissed.

There are several interesting considerations arising out of this litigation. First, as the Court's decision noted, the EEOC itself uses credit checks to vet job applicants! This should not come as a great surprise, as many employers use credit checks as one of a litany of tools at their disposal to identify the best-qualified candidates. Nonetheless, for an agency that has widely publicized the pitfalls of background checks in the hiring process, its adoption of the practice calls its hardline stance into question.

Second, the EEOC's past enforcement practices gave rise to many of its difficulties in this case. Many employment law attorneys discourage their clients from collecting race, gender, and other protected-characteristic data during the application process. In the past, the EEOC has used such information to support disparate hiring claims. Kaplan, in complying with EEOC best practices, deprived the EEOC of information that it needed to prove its case, thereby leading to the rejected "race rater" approach.

Finally, many employment law experts and EEOC-watchers are wondering if the Court's decision will put a damper on EEOC enforcement efforts directed at background checks. As readers of this blog know, background checks have been in the EEOC's cross-hairs for quite some time, with new guidance issued on the use of criminal background checks in April 2012. In light of the hurdles faced in this case, many are speculating that the EEOC may back off of its efforts to litigate these issues, focusing instead on conciliation efforts.

Only time will tell. In the meantime, employers can rejoice in a victory for the reasoned and supportable use of pre-employment credit checks.

I Believe, I Believe! A Vegan and a Flu Shot

Posted by Molly DiBiancaOn February 5, 2013In: Discrimination, Religious (Title VII)

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Can an employee be required to get a flu shot? Employers want a healthy workforce and, presumably, employees do not want to be sick. So a flu shot seems like a good idea. And an offer of a free flu shot for employees seems like a great perk.

But the goodwill-nature of a suggestion always seems to change when a suggestion turns into a requirement. Maybe it's just the rebellious teenager in all of us that reacts negatively to being told that we must do something. Maybe we all have authority issues. I don't know what it is about being ordered to do something that seems to set off an automatic negative response.

The real trick, though, is how to respond to that negative response. Push back? Stand your ground and insist? Or give in and abandon your request? This is the question that one employer had to deal with when its employee refused to get a flu shot.

In Chenzira v. Cincinnati Children's Hospital Med. Ctr., the employer required its employees to be vaccinated for the flu. Ms. Chenzira had worked for the hospital for 10 years when she was terminated for refusing to be vaccinated. She alleged that she refused on religious and political grounds because, as a vegan, she does not ingest any animal or animal by-products.

The employer moved to dismiss the complaint on the grounds that Veganism is not a true religion but, instead, is more of a dietary preference or social philosophy. The court denied the employer's motion, finding that the plaintiff-employee may be able to establish that veganism meets the requirements of a religious belief for purposes of Title VII's anti-discrimination provisions.

It is important to note that the court did not find that Veganism is or is not a religion. Instead, it merely held that, based on the face of the complaint, it was plausible that the plaintiff would be able to show that she subscribed to Veganism with a religious-like sincerity.

Here are two points to consider from this case.

First, take a deep breath and slowly exhale. Don't overreact. When a 10-year employee refuses to get a flu shot, consider whether this is a truly terminable offense. I would suggest that, based on the facts as they are described in the court's opinion, the answer is, "no." If it's not, let it go and move on. (The same advice applies in the context of Facebook comments by employees).

Second, do not be the arbiter of morality. Do not make a decision about whether an employee holds a "true belief" with regard to their religion (e.g., "She's not a real Catholic; she never goes to mass!"). And do not make decisions about whether a particular belief qualifies as a religion, as was the case here.

Instead, consider the practical approach. If the employee had not gotten a flu shot and she got the flu, would it have been the end of the world for the employer? Probably not. Although there are plenty of times when standing on principle is the right approach. But that is not always the case. There also are plenty of times when the better approach is a practical one.

Chenzira v. Cincinnati Children's Hospital Med. Ctr., No. 11-917 (S.D. Ohio Dec. 27, 2012).

Down But Not Out, Baby

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

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Ok, dear readers. No doubt that, by now, you think I've abandoned my post. Fear not, loyal readers, fear not. I am entirely certain that I am now, once and for all, through with the bit of illness that managed to slow me down for the first three weeks of the new year. Now that February is here, though, I am absolutely determined to get back to it.

The story featured in today's post highlights a similar sense of bullish determination of a different sort. The story, which came to my attention courtesy of Evan Brown at Internet Cases, involves a 911 supervisor in New York. The supervisor-petitioner photographed a computer screen containing confidential and privileged information concerning a 911 caller's complaint of a gynecological emergency.

He also photographed the caller's name, address and telephone number, all of which he uploaded the image to his Facebook account, along with the caption "[c]an't make this up." Actually, what you can't make up is that the petitioner had the nerve to appeal his termination. Bullish determination, indeed.

Thankfully, the Court affirmed the decision to terminate, finding that, because the Facebook post violated the FDNY's policies and was a serious violation of trust (not to mention HIPAA!) the penalty imposed did "not shock [the Court's] sense of fairness."

Palleschi v. Cassano, No. 9104, 2013 N.Y. App. Div. LEXIS 433, 2013 NY Slip Op 437 (N.Y. A.D. 1st Dept. Jan. 29, 2013).

3d Cir. Issues a Bitchin' Constructive Discharge Decision

Posted by Molly DiBiancaOn January 24, 2013In: Harassment, Sexual, Retaliation

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Sexual harassment, retaliation, and constructive discharge. The trifecta of employment-discrimination claims. And all three were the subject of a recent decision from the 3d Circuit. The decision contains lots of interesting discussion points but I'll limit myself to just one for the purposes of this post.

The plaintiff-employee contended that she resigned because her boss called her a "bitch" during a meeting. The court explained that, to establish a constructive discharge, the employee must show that "the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." In determining whether the employee was forced to resign, the court looks to several factors, including whether she was threatened with discharge, encouraged to resign, demoted, subject to reduced pay, involuntarily transferred to a less desirable position, subject to a change in job responsibilities, or given poor performance evaluations.

So is being called a "bitch" at a meeting so bad that it could force an employee to quit?

You may be surprised to learn that the 3d Circuit did not answer this question in the negative. Nor did it find that this single incident was sufficient to constitute a constructive discharge.

Instead, it sent the question back to the trial court. The trial court had dismissed the claim based only on its dismissal of her sexual-harassment claim. Although the district court was correct when it determined that there cannot be a constructive discharge unless there was conduct over and above a hostile work environment. The district court held that, since there was no hostile work environment, there could not be a constructive-discharge claim. Although that theory is correct, the 3d Circuit explained, the district court had erroneously found that there was no hostile environment. Thus, the 3d Circuit directed the trial court to reevaluate the constructive-discharge claim after it had taken a second look at the hostile-environment claim.

Mandel v. M&Q Packaging Corp., No. 11-3193 (3d Cir. Jan. 14, 2013).

Don't Be a Quitter: The Duty to Mitigate

Posted by Molly DiBiancaOn January 23, 2013In: Discrimination & Harassment, Purely Legal

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An employee who is unlawfully terminated may be entitled to recover damages in a variety of forms, including front pay. Front pay can be a frightening prospect for the employer-defendant--just imagine having to pay a former employee for time he doesn't work for you. Not pleasant.

But, as is the case in most employment laws, the rules tend to balance out in a fair way. An employee who claims she was unlawfully terminated because of her gender cannot merely sit at home indefinitely and wait to collect a big jury award. The law imposes what is called a "duty to mitigate," which means that the employee has the duty to mitigate her losses.

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If an employee fails to look for work at all and, instead, elects early retirement, her damages are tolled. In other words, she will not be eligible for an award of front pay during any period in which she is not actively seeking work. The phrase used by the courts is that the employee must be "ready, willing, and able" to obtain employment. If, instead, she elects to stay home and watch soaps all day, she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.

So, on one hand, if the employee makes constant and good-faith efforts to seek similar employment, she is eligible to receive front pay if victorious on her claims. On the other hand, she will receive no front pay if she voluntarily elects to remove herself from the job market. But, as with everything in the law, there are countless variations in between these two extremes.

For example, what if the employee decides not to look for work so she can stay home with her young children? But, once the kids are old enough, she elects to return to the workforce and begins again to actively seek employment? In the Third Circuit, which covers Delaware, Pennsylvania, New Jersey, and the Virgin Islands, she would not be able to collect front pay during the period when she stayed home but, once she started to look for work, she would be eligible for front-pay damages again.

And what if she elected to try a new career path and, in that effort, returned to college to complete her degree? In that case, the courts differ. Some say that she would still be eligible for front pay as long as she was ready, willing, and able to work. Others say that she could not be awarded front pay unless or until she returned to an active job search.
The cases are very fact specific and difficult to predict. However, at least in the Third Circuit, one thing is settled--an employee who makes no attempt to look for work after an allegedly unlawful termination is deemed to have voluntarily withdrawn from the job market and is ineligible for an award of front pay for that time.

Boss Gets Fired After She Busts Employees on Facebook

Posted by Molly DiBiancaOn January 22, 2013In: Social Media in the Workplace

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Employees getting terminated for negative comments posted on Facebook about their supervisors. This, I predict, will be the #1 issue facing employers in 2013. But here's an unusal twist on that story. What about the manager who rants about employees on Facebook? And not a petty rant or a profanity-laden post, either. Just a post that says something to the effect of, "Why'd you call in sick today if you're at a picnic?" A district court in Texas didn't have a problem with it.

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Plaintiff Virginia Rodriquez was a manager at a Sam's Club store in Texas when she was put on a performance-improvement plan so that any subsequent violation would result in her termination. Approximately 9 months after being placed on disciplinary status, Plaintiff viewed pictures of co-workers at a July 4th holiday party. Those same co-workers had called in sick to work that day. Apparently, Plaintiff was less than thrilled when she learned that her coworkers were out having fun while she was stuck at work or, perhaps, she was the only one not invited to the party. Either way, she wasn't happy about her discovery.

To express her displeasure, she posted on one of the employee's Facebook page, chastising the group for calling out. (The Court describes the comments as "public" but it is not clear whether they were actually public for all the world to see or only viewable by the user's Facebook friends.) The employee reported the incident to HR. Following an investigation, HR determined that Rodriquez had violated the company's Social-Media policy by "publicly chastising employees under her supervision, rather than waiting for the associates to return to work to discuss her attendance concerns." Because she was on probationary status, Rodriquez was terminated.

Sure enough, Rodriquez subsequently filed a charge of discrimination, alleging age and national-origin discrimination and retaliation. The state agency determined the Charge to be without merit but she filed suit anyway. On summary judgment, the court dismissed the plaintiff's claims, though, finding that the employer had demonstrated that its decision to terminate was based on her violation of the social-media policy. Specifically, the court held, the employer's decision to fire the plaintiff after she elected to publicly chastise her direct reports via Facebook instead of in person was legitimate and non-discriminatory.

I think most rational minded employment lawyers would agree that the court's decision was right. There was no evidence that the plaintiff was fired for anything other than her comments on Facebook, which violated the company's policy. That said, the facts of this case are reflective of the myriad of variations on the same problem--use of social-media to discuss work and co-workers. My prediction stands--this issue is not likely to go away any time soon.

Rodriquez v. Wal-Mart Stores, Inc., No. 3:11-2129-B (N.D. Tex. Jan. 9, 2013).

Another Dizzying Ride on the NLRB Roller Coaster

Posted by Molly DiBiancaOn January 18, 2013In: Social Media in the Workplace, Union and Labor Issues

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What does the NLRB have against handbooks? Doesn't the Board have policies and procedures for its employees? I imagine it does, don't you? So why does the Board continue to find fault with employers' workplace policies?

The Board's recent Order has my head spinning like I spent the afternoon on a roller coaster. In GCA Services Group, Inc.,, the United Food and Commercial Workers Union Local 99, AFL-CIO, filed a UPL, contesting the legality of various provisions in the employer's handbook. The employer and the Union resolved the dispute by a Formal Settlement Stipulation, which was approved by the Board on January 16, 2013.

As a result of the Stipulation, the employer must remove the disputed provisions from the hourly-employee handbook, which, according to the Board's Order, are "overly broad and discriminatory."

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Ok, kids, hang on tight. Here's where the ride gets a little scary. Please keep your arms and other body parts inside the car until we have completed the descent.

As you may have guessed, the Confidentiality provision was the first to go. Here's just a portion of the offensive language:

Confidential, proprietary, and private information about [the Company], employees, and customers, is intended for use within the scope of your job at the facility.

Not only is the company's information no longer confidential but the employees' personnel records are now open for business. Here's the language that the Board says have to go:

Your employment record is considered confidential and includes your resume, benefit selections, performance reviews, employment history, and other employment information.

Even the non-harassment policy was a problem! I'm guessing it was the following language regarding confidentiality that caused the Board heartburn:

Confidentiality will be maintained throughout the investigative process to the extent practicable and consistent with the Company's need to undertake a full investigation.

Perhaps the biggest shocker was the issue the Board had with the company's policy titled, Use of Communication Systems, which outlined the acceptable use of company-provided email.

The problem with the Settlement for purposes of prevention is that there's no indication of what exactly the Board objected to or what language the Board would not find objectionable. It seems virtually impossible that the Board took issue with each and every sentence of each of the disputed policies. But we really don't know, since large excerpts were quoted in the opinion. And we definitely don't know how the provisions could be altered to comply with the NLRA.

GCA Servs. Group, Inc., 28-CA-080785 and -083504 (Jan. 16, 2013)

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

Posted by Molly DiBiancaOn January 15, 2013In: Public Sector, Social Media in the Workplace

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Schools have been dealing with the social-media blues, basically, since Facebook was merely a glimmer in Mark Zuckerberg's eye. See Social-Media Woes for School Districts and More Social-Media Woes for School Districts. The balancing act is a tricky one. On one hand, you have the First Amendment rights of teachers to live a life outside of the classroom and to post about it on their blogs and social-networking site. On the other hand are the school's rights as an employer to accomplish its primary mission--to educate students--and to manage its operations effectively.
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There are plenty of news stories about teachers who are disciplined or terminated due to information posted online. And, unlike most areas of the law involving social-media issues, there are several reported opinions on this question. More often than note, the termination decision is upheld, based on the court's finding that the teacher's First Amendment rights were outweighed by the school's interest in maintaining peace and order.

Occasionally, though, a decision comes down the other way, finding that the teacher was unlawfully terminated. One such case involved a first-grade teacher from Paterson, New Jersey. We first reported on this story in November 2011, when parents complained that Jennifer O'Brien had referred to her students as "future criminals" and analogized her job to being a "warden" in posts on her Facebook page.

At the administrative level, the administrative law judge recommended that O'Brien be terminated for her Facebook posts. The ALJ determined that the school district's need to operate efficiently trumped Ms. O'Brien's free-speech rights because "thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

O'Brien appealed the ALJ's decision to the acting commission of education. When the commission agreed with the ALJ, O'Brien appealed to the New Jersey courts. Last week, the appeals court issued its ruling, upholding the termination. In short, the court found that her comments were, indeed, "conduct unbecoming a tenured teacher," which is any conduct that has a "tendency to destroy public respect for government employees and confidence in the operation of public services."

Mark another line in the Win column for employers.

See also,
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

So Sue Me! (For Threatening to Sue You)

Posted by Molly DiBiancaOn January 14, 2013In: Non-Compete Agreements

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Employee sues employer. Employer calls employer's lawyer. Employer and lawyer discuss the case. They review the cast of characters. They talk about the chronology of events. They assess the potential exposure to employer.

And, as sure as eggs, employer asks lawyer the following question: "Can't we sue him?"

And what, do you presume, employer proposes to sue employee for exactly? Oh, there are many options, of course. But the classic is a claim for defamation. Employer wants to sue employee for alleging that employer engaged in unlawful discrimination or harassment or retaliation, etc., etc. Ok, truthfully, employer doesn't care much about what exactly the suit would be for--just whether employer can sue the bejesus out of employee.

99 times out of 100, the answer to that question is a resounding "no". See Jon Hyman's post yesterday on this very topic. And, worse yet, lawyer may even tell employer that, just the threat of suit would be grounds for employee to add another claim to employee's original suit.

Which, at last, brings me to the case I'd intended to post about today.

In Soterion Corp. v. Soteria Mezzanine Corp., the parties had negotiated the sale of a business but the sale was not consummated. The plaintiff sent the prospective buyers a letter threatening litigation and enclosing a copy of a draft complaint. The complaint was not filed until three months later.

The parties litigated the case all the way up to the courthouse stairs, as the saying goes. But, several days before trial was set to begin, the plaintiff stipulated to dismiss its claim.

The defendant counterclaimed, alleging that the plaintiff's threat of litigation constituted a tortious interference with prospective business relations. The Court of Chancery addressed, as a matter of first impression, the question of whether such a claim could stand. Put differently, when does a threat of litigation constitute tortious interference? ,

The court held that a claim for tortious interference cannot stand where the threat of litigation is made in good faith and the bases for the threatened litigation are truthful. So, what is the lesson to be learned for employers from this case? In short, where a real claim exists, employers (and their lawyers) need not be afraid to say so.

Soterion Corp. v. Soteria Mezzanine Corp., No. 6158-VCN (Oct. 31, 2012).

I Heart Confidentiality. The NLRB Does Not.

Posted by Molly DiBiancaOn January 13, 2013In: Union and Labor Issues

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Last week, I posted about the decision of an ALJ finding that Quicken Loans' confidentiality and non-disparagement provisions contained in its employment contracts violated the National Labor Relations Act (NLRA). Before the new year, though, the NLRB gave us some indication about its position with respect to confidentiality in the workplace. In short, it is not a fan.
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On December 28, 2012, the NLRB announced its decision in American Baptist Homes of the West d/b/a Piedmont Gardens. In that decision, the Board overruled a decision from 1978, which established a categorical exemption for witness statements made during a workplace investigation. Under that long-standing precedent, an employer did not have to provide such witness statements to the union representing an employee concerning discipline.

Well, not anymore. Under the new decision, which found that the bright-line rule established in Anheuser-Busch, Inc., should be replaced by a balancing test. The Board found that the NLRA imposes on an employer a "general obligation" to furnish a union with relevent information necessary to perform its duties. Under the new balancing test, the employer will have to determine whether it has "any legitimate and substantial confidentiality interests."

I've written before about the NLRB's apparent lack of understanding of what exactly an investigation entails. By definition, a legitimate investigation involves legitimate confidentialty concerns. I won't repeat myself here but will note that it's not too late for us to pool together and buy the Board a new dictionary. Valentine's Day is right around the corner, after all.

Pop Goes the Weasel . . . And the NLRA

Posted by Molly DiBiancaOn January 10, 2013In: Union and Labor Issues

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Just when you think the NLRA has been expanded as far as it can possibly go, POP!! Along comes a decision yet again expanding the reach of the NLRA and limiting the ability of employers to manage their workforces. The latest such expansion comes from an Administrative Law Judge in an unfair labor practice charge filed against Quicken Loans, Inc., by a former employee, Lydia Garza.
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Quicken Loans, as you may have guessed, is not a unionized employer. And Ms. Garza was not a union employee. In fact, she worked for Quicken as a mortgage broker pursuant to a contract that governed the terms and conditions of her employment. As we all well know, though, the NLRA does not apply only to unionized workplaces and the non-unionized employers have become an increasingly frequent target of the NLRA over the last two years.

Ms. Garza and five of her co-workers were sued for breaching their employment contracts, apparently by violating the non-compete and no-raiding provisions of the agreement. In return, Ms. Garza filed an unfair labor practice in which she contended that two of the provisions in the contract violated the NLRA.

The ALJ found that the provisions--a confidentiality and a non-disparagement provision--did, indeed, violate employees' Section 7 rights as provided by the NLRA. No, really, that's what he found.

The confidentiality provision required employees to maintain as confidential:

non-public information relating to the Company's business, personnel . . . all personnel lists, personal information of co-workers . . . personnel information such as home phone numbers, cell phone numbers, addresses and email addresses.

The non-disparagement provision prohibited employees from "publicly criticize, ridicule, disparage or defame the Company or its products, services, [or] policies."

According to the ALJ, there "can be no doubt that these restrictions would substantially hinder employees in the exercise of their Section 7 rights." Well, if I may be so bold, I would suggest that, in fact, there can be plenty of doubt.

Being the practical lawyer that I am, I'd like to put aside for a moment the legal conclusions reached in this opinion and, instead, focus on the business implications. Although many employers and their counsel around the country are groaning over this decision, I contend that not all hope has yet been lost.

Admittedly, the ALJ's conclusion that an employer is not free to contract with its highly compensated professional employees that those individuals will not disparage their employer or steal its confidential and proprietary information is a bit depressing. But keep in mind the remedy, friends. Having found that the provisions violated the NLRA, the remedy ordered by the ALJ was that the provisions be revised. Or, if the employer didn't want to go to the trouble of reprinting new agreements for all of its highly compensated brokers, it could simply provide a single-page addendum, notifying those highly paid employees that the two provisions were rescinded.

Of course, the employer is certainly free to draft new agreements containing revised versions of the provisions. Not all confidentiality provisions are unlawful, even in the current political climate. Nor are all non-disparagement provisions--although it is Is the NLRB In Need of a Dictionary? more difficult to construct one of these that is not likely to raise the eyebrow of an NLRB judge. And, based on the form of the Notice that the employer will be required to post, informing employees of the rescinded provisions, a Section 7 disclaimer may just do the trick.

Of course, there's no guarantees these days. It seems inevitable, though, that, at some point, that Jack will have to get put back into the box.

See also
NLRB Upholds Legality of Facebook Firing
Sticks 'n Stones May Break Your Bones, But Workers Can Defame You
Is the NLRB In Need of a Dictionary?
The NLRB's New Webpage Targets Your Employees

Del. Supreme Court Warns Lawyers to Mind the Clock

Posted by Molly DiBiancaOn January 10, 2013In: Cases of Note, Delaware Specific, Purely Legal

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The Delaware Supreme Court started the New Year with a resolution of sorts for lawyers. In a decision issued on January 2, 2013, the Court instructed that, if counsel agrees to alter a deadline in the trial court's scheduling order, all remaining deadlines will be rendered inapplicable:

Henceforth, parties who ignore or extend scheduling deadlines without promptly consulting the trial court will do so at their own risk. In other words, any party that grants an informal extension to opposing counsel will be precluded from seeking relief from the court with respect to any deadlines in the scheduling order.

The Court also stressed the priority of avoiding any changes that would affect the trial date:

. . . [I]f the trial court is asked to extend any deadlines in the scheduling order, the extension should not alter the trial date. Counsel may face a compressed time period to complete discovery, or the filing of dispositive motions, but the most important aspect of the scheduling order--the trial date--will be preserved.

And, the Court warned, where the trial court does elect to postpone the trial date, the parties should expect that their new date will be after "all other trials already scheduled on the court's docket." In other words, there's no butting in line.

The Court's admonition is a welcome one. All too often, counsel wants to extend a deadline that truly should not be extended. There seems to be a belief by some practitioners that all requests or extension must be granted. This simply is not true. In fact, a lawyer may not agree to extend a deadline that would detrimentally affect his client's case.

Moreover, the parties negotiate the scheduling order--it is not a set of arbitrary deadlines forced upon them by the court. It is a set of obligations created entirely by agreement. Thus, I tend to have a fairly low tolerance for the opposing counsel who cries that he just couldn't meet the deadlines and whines that I'm such a monster for not agreeing to extend them. In my book, a deal's a deal and there's a lot to be said for keeping your promises.

Christian v. Counseling Resource Assocs., Inc., C.A. 460, 2011 (Del. Jan. 2, 2013).

Call Me, Maybe. Discovery of Employee Identities

Posted by Molly DiBiancaOn January 9, 2013In: Non-Compete Agreements

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Delaware's Court of Chancery is the North Star of the noncompete-litigation universe in the State and, in many respects, in jursidctions around the country. It can also be a tricky galaxy to traverse due to the speed of litigation, the equitable principles that control procedural rules and, on an even more basic level, the fact that many of the court's opinions are not reported. As a result, transcripts of rulings from the bench are commonly cited as binding authority.

But today's post is not about a transcript ruling but about a letter decision, issued by Vice Chancellor Glasscock on October 12, 2012, in NuVasive v. Lanx, Inc., No. 7266-VCG (PDF). In this case, the plaintiff alleged that the defendant had "lured away a number of [its] employees to work for [the defendant], in breach of various duties owed to NuVasive by these employees."

The opinion was issued on the plaintiff's motion to compel the defendant to provide the identities of all of the plaintiff's employees, past and current, with whom the defendant had communicated in the past year about possible employment.

The defendant opposed the motion, arguing first that the information was not relevant. The court quickly dismissed that argument, finding that "it is clear . . . that, in this case, where NuVasive seeks injunctive relief from Lanx's allegedly toritious efforts to hire NuVasive employees," the information and documents sought were reasonably calculated to lead to the discovery of admissible evidence.

Next, the defendant argued that the plaintiff's real purpose in requesting the names of the solicited employees was so that it could "coerce them into staying with NuVasive." Again the court was unpersuaded. It reiterated that the plaintiff sought to enjoin the defendant from its allegedly unlawful dealings with the plaintiff's employees. As a result, the court found, the plaintiff was entitled to discovery of the details of the defendant's contacts with those employees.

It is interesting to note that, based on this opinion, there does not appear to be an agreement not to solicit or other restrictive that would prevent Lanx from hiring NuVasive's employees. Parties and their lawyers tend to forget that contractual duties are not the only ones by which employees are bound. So, if you attempt to compete unfairly by unlawfully soliciting employees from your competitor, that competitor will have the right to discover who you called and who turned down your offer. Presumably, these individuals, having declined your offer of employment and electing, instead, to stay with their current employer, will make good witnesses for that employer, which you would want to avoid.

Denial. It may, as they say, be a river in Egypt, but that river doesn't run through the Delaware Court of Chancery.

A New Year, A New Honor, and A Lot of Thanks

Posted by Molly DiBiancaOn January 8, 2013In: Delaware Specific, YCST

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I took a week off of blogging last week in a largely unsuccessful attempt at vacation. Although my vacation plans did not turn out quite as I'd expected, I did manage to tear myself away from the computer, my smartphone, Twitter, and the Internet as a whole for three entire days. For me, this is no small feat.

The draws of the digital world are many. For me, the strongest pull is the thought of a client trying to reach me. I'm in the service business, after all. So it's my business to make sure my clients are getting the services they need, when they need it.

My three-day reprieve was a reasonable success. I was able to see a few sights, take a few good pictures, and even managed to make some time for a little retail therapy. And, despite my digital absence, no client suffered as a result.

Maintaining a "work-life balance" (whatever that is), has never been my strong suit. But my long weekend has given me a bit of perspective. It's good to get some fresh air once in a while. It's good to get away from the daily grind every so often. And it's really good not to be tied to the iPhone 24-7.

Now, all that being said, I'll finally get to the point of this post. During my brief respite, I learned that this blog was voted into the top spot in the Labor & Employment category of ABA Journal's Top 100 Blawgs. Lest you think that I was anything other than extremely grateful for your votes, I thought it best to let you know why my thanks have been somewhat delayed.

Blawg100Badge_Labor.jpg

Delayed or not, my thanks are sincere. I've said it before but I'll say it again--thank you for your support.

For those of you who visit the blog irregularly, consider subscribing via email, which you can do by entering your email address in the box at the top right side of this page. That way, you'll get the day's post delivered before lunch. Seems that email has its advantages after all.

Michigan Enacts Social-Media Privacy Law

Posted by Molly DiBiancaOn December 30, 2012In: Electronic Monitoring, Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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Michigan is the latest State to pass a "Facebook-privacy" law. The law, called the Internet Privacy Protection Act, was signed by Gov. Rick Snyder last Friday. The law prohibits employers and educational institutions from asking applicants, employees, and students for information about the individual's social-media accounts, reports The Detroit News.

The Michigan law contains four important exceptions. Specifically, the law does not apply when:

1. An employee "transfers" (i.e., steals) the employer's "proprietary or confidential information or financial data" to the employee's personal Internet account;

2. The employer is conducting a workplace investigation, provided that the employer has "specific information about activity on the employee's personal internet account;"

3. The employer pays for the device (i.e., computer, smartphone, or tablet), in whole or in part; or

4. The employer is "monitoring, reviewing, or accessing electronic data" traveling through its network.

The enactment of Michigan's Social Network Account Privacy Act makes Michigan the fifth State this year to enact legislation that prohibits employers from requiring or requesting an employee or applicant to disclose a username or password to a personal social-media account. Maryland, Illinois, California, and New Jersey were the first four. California and Delaware passed similar legislation applicable to educational institutions. Notably, new legislation was introduced in California on December 3, which would extend that State's law to public employers.

I continue to believe that these laws are unnecessary and do nothing more than expose employers to legal risk with no real benefit to the citizenry. However, of all of the states to have passed such "internet-password-protection" laws, Michigan's is the first to contain these critically important exceptions. Without them, the laws have the potential to paralyze employers from conducting internal investigations that are necessary to protect both the organization as a whole and individual employees.

Problems With Delaware's Proposed Social-Media Law

Lawfulness of Employers' Demands for Facebook Passwords

Should Employer Cyberscreening Be Legislated?

Employers Who Demand Facebook Passwords from Employees. Oy Vey.