The U.S. Supreme Court has issued a number of significant opinions over the past few months that address employment laws and practices, including harassment, retaliation, arbitration, and collective action wage claims. The impact of these decisions will be both immediate and far reaching. I am pleased to be participating in a webinar about these recent decisions and even more pleased to offer readers the opportunity to register for the event for free. 

The 90-minute webinar will be held on July 17, 2013, beginning at 3 p.m. Eastern time.  Among the cases that will be discussed are:

  • Vance v. Ball State University: Are there steps an employer should take to reduce the potential for harassment liability based on “supervisor” actions? 
  • University of Southwestern Texas Medical Center v. Nassar: Is this the end of retaliation claims as we know them, or a case that only lawyers can love?
  • American Express v. Italian Colors Restaurant: Should an employer consider changes to arbitration agreements? 
  • Genesis HealthCare Corp. v. Symczyk: A new defense for employers facing a collective-action lawsuit for unpaid wages?

We also will briefly discuss the potential impact of the Fisher v. University of Texas affirmative action decision, the recess appointments of NLRB members, and whether Congress will take steps to undo any of these Supreme Court decisions.

The webinar is offered by the Employment Law Alliance, of which Young Conaway is a proud member.  The Employment Law Alliance is the most comprehensive network of labor and employment attorneys in the world.   Members provide employment, labor, and immigration expertise in more than 135 countries around the globe and all 50 U.S. states.  We work closely together to ensure that their clients’ legal matters are handled seamlessly wherever they do business. We provide a smarter, more efficient and effective alternative to using a single multi-state or multi-national law firm.

To register, go to the Employment Law Alliance website and click “the “Register Now” link in the webinar box on the right side of your screen.  When asked for the name of the referring ELA member firm and attorney, simply enter Young Conaway and Molly DiBianca.  Hope to “see” you then!

Delaware’s employment-law landscape has been in flux in recent months. In addition to the Supreme Court’s recent decisions affecting employment law, Delaware also passed a law prohibiting employment and other types of discrimination on the basis of an individual’s gender identity. Here is what Delaware employers need to know about the new statute.

What Is Gender Identity?

Gender identity and sexual orientation are not synoymous. Instead, an individual’s gender identity relates to his or her internal sense of self as male or female, as well as an outward presentation and behavior related to that internal sense of self. Developing from that concept, an individual may be described as transgender when his or her gender identity does not match his or her biological sex at birth. Because gender identity is based on what an individual feels inside, when addressing transgender employees, employers should be guided by the employee’s description of his or her gender, not outward appearance.

Protection Against Gender-Identity Discrimination

On June 19, 2013, the Delaware Discrimination in Employment Act (“DDEA”) was amended to prohibit employment discrimination on the basis of gender identity. The statute defines “gender identity” to mean “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.” The statute further provides that “[g]ender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that ender identity shall not be asserted for any improper purpose.”

The DDEA provides the same protection from discrimination based on gender identity as it does for all other protected classifications. In other words, it is unlawful for an employer to discriminate against an employee in any term or condition of employment on the basis of the employee’s gender identity. Only employers with four or more employees are subject to the provisions of the DDEA.

How to Prepare for the Change in Law

In light of the amendments to the DDEA, which are currently in effect, employers should begin educating employees about gender identity, and their non-discrimination obligations. While more than fifteen states currently have laws that prohibit gender-identity discrimination, it is still a concept that is frequently misunderstood. Outlining for employees and managers the differences between sex, gender, and sexual orientation will help individuals to better understand their workplace obligations with respect to the new law.

Employers should also be alert to workplace conduct that may implicate this new protected classification. Common issues implicating gender-identity include “joking” about an individual’s external appearance (e.g. dress, facial hair, or physical build; the use of proper gender pronouns to refer to a transgender individual; and the use of communal bathrooms that are designated for use by gender). While there are no hard and fast rules in addressing these issues, employers should be guided by the transgender employee’s personal preferences, whenever possible.

Bottom Line

Delaware law now protects employees from discrimination on the basis of their gender identity. When preparing for this change, employers should make sure that their employees (managers and subordinates, alike) have a basic understanding of the concept of gender identity, and that they following basic workplace standards of respect. If conflicts or misunderstandings arise, employers should take their lead from the transgender employee–wherever reasonable–in how best to treat the employee with respect.

In United Texas Southwestern Medical Center v. Nassar, the Supreme Court ruled that the anti-retaliation provision of Title VII requires “but-for” causation. In other words, an unlawful reason has to be the reason for the adverse employment action. The Supreme Court had previously ruled that this type of “but-for” causation also is required in cases alleging age discrimination.

It does not, however, apply to cases of discrimination brought pursuant to Title VII. In those cases, the unlawful reason need only be a reason. There may be other, lawful reasons, but if an unlawful reason plays a part in the decision, then the decision is unlawful.

Here’s how it plays out.  Let’s say that I go to work for a new law firm. My new boss doesn’t think that women lawyers are worth much. He also really hates my nose ring (despite how lovely and not at all offensive it looks in person). Based on those two prejudices, he decides to not put me up for a promotion.

If I sued for gender discrimination under Title VII, I could meet my burden by showing that I did not get the promotion because of I’m a woman-even if he also decided not to promote me because of the nose piercing. That’s a mixed motive and that’s sufficient to establish a discrimination claim under Title VII.

The burden is different, however, if I had brought the claim as an age-as opposed to gender-claim. If I had alleged that he had not promoted me because of my age and he had argued that it was only a little about it my age but most it was because of my nose ring, I’d lose.

And the same analysis now officially applies to retaliation claims under Title VII. An employee will not be able to succeed in a retaliation claim by arguing that her supervisor harbors a bias against, for example, women. Instead, that bias must be the reason for the retaliatory act.

All that being said, here’s the real deal. This is another decision by the Supreme Court this term that affects the burden of persuasion in employment lawsuits. The Nassar decision, like Vance, is a true victory for employers in defending against meritless lawsuits brought current and former employees.

The U.S. Supreme Court issued two important employment-law decisions this week and, surprising to many of us, both came out in favor of employers. Both cases will have significant impact on employment lawsuits but one of the two is of of particular interest to me because it has been an issue I’ve faced in prior cases of my own.

In Vance v. Ball State University, the Supreme Court was asked to decide what it means to be an employee’s “supervisor” for purposes of Title VII.  In short, the Court held that an individual can be considered to be a supervisor only if he or she has been empowered by the employer to take “tangible employment action” against the employee who claims to have been harassed. 

And what, exactly, is a “tangible employment action,” you ask?  Basically, it means the power to effectuate significant change in the victim’s employment status.  So the power to hire, fire, demote, etc., is the power to effectuate a tangible employment action.  If the individual does not have the authority to fire, transfer, or demote the victim, then the individual is not considered to be the victim’s supervisor.

Now, why does this matter?  In harassment cases, the law provides for an affirmative defense in certain cases.  By “affirmative defense,” I mean that, even if harassment did occur, the employer still will not be held liable if the defense is found to apply.  Which means that the affirmative defense is absolutely critical for an employer facing a harassment claim.

But the defense does have its limits. And one of them is when a supervisor is the alleged harasser.  If the employee was harassed by a supervisor and the harassment resulted in a tangible employment action, then the defense is not available.  So, in any case involving allegations of unlawful harassment, the employer will want to show that the alleged harasser was not the victim’s supervisor.

And that’s why the definition of a “supervisor” is so important. Prior to the Vance decision, the employee is free to argue that the individual was his or her supervisor based on any number of factors.  I had a case in which the plaintiff-employee claimed that the alleged harasser was her supervisor.  The employer disputed this, contending that the individual did not have the power to hire, fire, demote, or otherwise take any tangible employment action against the employee.  In response, the employee argued that the individual trained the employee.

Without the precedent to support our argument on what defines a supervisor, we were left only with “common-sense” arguments.  And, maybe it’s just me but “common sense” doesn’t get me very far with the court on most days.  Generally speaking, judges prefer to see a legal citation at the end of the sentence instead of a footnote that says, “Well, obviously.”

So although I do think that the Court’s opinion is one that derives a great deal of its holding from common sense, I am no less excited about it. 

I’ve spent the past four weeks preparing for and in trial in Delaware’s Court of Chancery.  As evidenced by the absence of any posts in the past several weeks, virtually all of my waking hours have been devoted to the case as we neared the big day at the courthouse.  Now that trial has concluded and we switch gears to focus on the impending post-trial briefing and oral argument, I’ve been able to to catch my breath and to reflect.judge's gavel_thumb

In the employment context, trials are few and far between.  Most cases are dismissed or settled prior to trial.  Clients often struggle with the idea of settlement, though, and, at least initially, find the idea difficult to stomach.  This automatic bias against settlement is unfortunately, though, as there are can be many good reasons to settle a case-both for the plaintiff and defendant.

Good lawyers will discuss those reasons with their clients early in the case in a frank and honest way.  And good lawyers will keep an eye on those reasons throughout the case and will not hesitate to remind their clients about them when appropriate.  A lawyer who discourages his client from considering settlement is, in my opinion, doing his client a tremendous disservice.

Here are some of the points I urge clients to consider when discussing the idea of settlement:

1.  Control

Unlike a decision left in the hands of the court or a jury, a negotiated settlement is left in the parties’ control. You agree only to what you are willing to agree and you know exactly what you will get in return.  A settlement eliminates the possibility of an unexpected adverse decision.

2.  Confidentiality (Or Not)

Unlike a court order or jury decision, the terms (and even the existence) of a settlement agreement can be subject to a confidentiality provision.  Alternatively, the parties can agree to a limited confidentiality provision. This may be desirable in cases where the employer wants to be able to communicate some limited information about the result to its workforce, for example.

3.  The Value of Non-Monetary Relief

Contrary to popular belief, there are plenty of cases in which non-monetary relief is included in the parties’ final settlement agreement.  Although money is often a driving force in reaching agreement, readers may be surprised by how many cases involve certain important non-monetary terms.  For example, in cases in which the plaintiff-employee alleges wrongful termination, a positive, or even neutral, letter of reference can be an important term.  In cases where the plaintiff is still employed, the settlement may include the removal of a disciplinary write-up from the employee’s personnel file.

4.  A Return to Normal

Often times, employers find that the most attractive part of settlement is the ability to put an end to the drain on resources that litigation absolutely involves.  Litigation is costly in attorney’s fees and other expenses.  But there are other critical costs, too, including the time key decision makers must devote to the case and the general distraction that it causes in the workplace.  Every hour spent in depositions and discovery is an hour that cannot be devoted to achieving the organization’s objectives.  I’ve never had a client who didn’t take a deep sigh of relief once the case was resolved and they realize they’re able to return to running their business.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

sophisticated lady portrait_3

Uhhh, Come again?

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

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

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

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

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

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

Really? No, really?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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