I went to my second Bob Dylan concert tonight. Dylan, 71, put on a good show. A good show–but not a great show. By the end of the night, it seemed that most of the wind was out of his sails. I left the show asking myself, “How do you know when it’s time to quit?” I think this is a tough question for anyone who loves what they do and really hard for anyone who is great at what they do.

The same question could be asked about lawyers and judges. Six Pennsylvania judges have taken the question to the State’s supreme court, where they’ve filed a lawsuit alleging their constitutional rights are being violated by a provision in the State constitution that mandates the retirement of all state-court judges before they turn 71.

A similar provision in Missouri was upheld by the U.S. Supreme Court in 1990 but the PA judges hope that changes in the way the Court interprets the 14th Amendment’s Equal Protection Clause and what science says about the effects of aging. Currently, 33 states and the District of Columbia impose age restrictions on judges.

The discoverability of social-media evidence is far from a settled question. Many of the few cases that have addressed the question are employment claims. And the latest such decision is no exception. In EEOC v. Original Honeybaked Ham Company of Georgia, Inc., No. 11-02560-MSK_MEH (D. Col. Nov. 7, 2012), the Colorado District Court granted an employer’s motion to compel and required the employee-class members to turn over their log-in and passwords to a special master, who would make an initial determination of discoverability.

The EEOC filed suit on behalf of approximately 20 female employees, who, the EEOC alleged, had been subject to unlawful sexual harassment and retaliation by their former employer. The defendant-employer sought to compel the class members to produce unredacted versions of their social-media accounts.

The court first reminded the parties that it was determining what was discoverable–not what would be admissible at trial. The court next acknowledged that discovery of social-media information is a “thorny and novel” area of the law. Then the court reached its first substantive conclusion:

The fact that [information] exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.

Based on that conclusion as its starting point, the court then turned to the question at hand. First, the court concluded that the evidence was discoverable. This finding was based on postings by one of the former employees to her Facebook page. In those posts, the employee discussed her financial expectations in the lawsuit; sexually amorous communications with other class members, and post-termination employment and income, to name a few. Other class members posted comments to this individual’s Facebook page.

The court then discussed the privacy interests of the class members and concluded that a process was needed to ensure that only relevant, discoverable information would be gathered. To do this, the court would appoint a forensic expert a special master. The court ordered the employees to provide “directly and confidentially to the special master,” all “necessary information to access any social media website” the employee had used during the relevant time period.

The parties are then to submit a joint questionnaire for the special master to use in gathering the information. The special master would then provide the court with a hard copy of all of the information yielded by the process and the court would conduct an in camera review. The court would review the information for relevancy and turn over only what was relevant to the EEOC.

So, what’s to be learned from this decision? First, litigants are going to continue to bring this issue to the court. Second, parties are going to continue to post information relevant to their claims on social-media accounts. And, third, the courts are going to continue to struggle with the best way to order such information be produced.

In this case, with a class of claimants, there does seem to be some justification for the incredible use of the court’s resources and time but, more often than not, such justifications will not be present. And in those cases, what is the appropriate process for the collection, review, and production of social media? That remains to be seen.

FLSA lawsuits based on missed meal breaks and automatic-deduction policies are one of many current trends in of wage-and-hour litigation. Meal-break claims brought by nurses and hospital staff are a particularly common scenario. But employers in the health-care sector need not give up hope, as there have been several recent opinions in favor of the employer in such cases. See FLSA Victory, Class Certification Denied. A recent decision by the 6th Circuit offers another positive example.

In White v. Baptist Memorial Health Care Corporation, (6th Cir. Nov. 6, 2012),the plaintiff, an ER nurse, did not have regularly scheduled meal breaks but was permitted to take them as the demands of her work allowed. The hospital had an automatic-deduction policy, whereby 30 minutes were deducted from time worked unless the employee submitted a time-exception form. The plaintiff in the case did not submit the form when she missed her meal break and did not complain that she was not being paid for that time.

After the district court awarded summary judgment to the employer, the employee appealed to the Sixth Circuit. The appellate court affirmed the decision, finding that the employee’s failure to comply with the hospital’s procedures by submitting the time-exception form precluded the hospital from knowing about the unreported time.
This line of reasoning is similar to the affirmative defense available to employers in harassment lawsuits. The theory behind it is that an employer cannot be held liable for conduct of which it does not know. The burden to report unlawful harassment–and, in this case, unpaid time–falls to the employee.

This is not only a logical holding but, also, an important one for employers. It supports the idea that an employee will not be permitted to sit on information and wait to use it against her employer whenever she’s so inclined. The decision is a bar against “Gotcha” litigation, which I’ve also described as “Legal Extortion.” With any luck, federal courts will continue to embrace this approach in similar FLSA cases and collective actions.

We deal with difficult people everywhere, really. At work, we may have to deal with difficult people as co-workers, as customers, as vendors, and as bosses, just to name a few.
Difficult people come in all shapes and sizes. The street bully is the difficult person who are yells and throws insults to get his or her way. The silent killer uses passive-aggressive tactics to wage wars based on sabotage. In today’s post, though, I have in mind the rough and rude bully type–the difficult person who pushes his or her way around like a bull in a china store and expects everyone to jump into action at his or her command.

The ABA Journal recently asked its readers how they deal with difficult people of a particularly difficult variety–opposing counsel in litigation. As a general rule, I have had very positive relationships with opposing counsel. In fact, many of my opposing counsel have become very good friends of mine, whose friendship I value tremendously. Particularly in Delaware, where we value civility and professionalism as a foundation of the practice of law, my interactions with the lawyer on the other side of the table is a positive one more often than not.

That said, there certainly have been times when I have had to deal with a lawyer on the other side who, it seems to me, insists on being unreasonable or who routinely uses bully tactics in an effort to get his or her way. These interactions trouble me a great deal and, unfortunately, tend to change the way the case is litigated. Perhaps it is because this happens so infrequently (thank goodness), that I have given these bullies a good deal of thought once the interaction or case is over.

There are a few mantras that I do my best to remember when getting screamed at by another lawyer or having to deal with a lawyer who uses threats as strategy. I share them here both as a reminder to myself and in the hopes that readers may be able to put them to use in their time of need.

Mean people are scared people.
If my opposing counsel is yelling at me, I know he’s scared of something I’ve said or he thinks I am going to say. Either I have an actual advantage or he thinks I do. I’m happy to have either.

A lawyer who can’t control his temper can’t control his case.
If my opposing counsel spends hours writing lengthy letters and multiple emails filled with ridicule and scathing commentary, he is not spending his time preparing his case, reviewing the facts, or coming up with new legal arguments and strategy. A distracted opponent is fine by me.

Sticks ‘n stones may break my bones (and even hurt my feelings), but they won’t affect my client’s case.
At the end of the case, nasty comments and raised voices are irrelevant. The outcome of the case–whether by settlement, by verdict, or by judicial decision–will not include a scorecard of baseless accusations made or declare a winner for worst-mannered, most uncivil lawyer. The case will be decided on the application of the law to facts, as argued by the more effective lawyer, so it’s best not to focus on anything else.

So, turning back to the question posed by the ABA Journal, “how do you deal with rude opposing counsel?” My answer is easy. I win.

Workplace anti-harassment training can be summarized with the title of this post. The fact that an employee laughs at an inappropriate joke is not a legal defense to a later claim at harassment. Nor is an employee’s failure to object to inappropriate workplace conduct. One employer recently learned this lesson the hard way.

In the case of EEOC v. Holmes & Holmes Industrial, Inc., the EEOC filed suit against a construction company on behalf of several Black employees, alleging hostile work environment claims. To succeed in a case alleging discrimination based on a hostile work environment, a plaintiff must prove that he or she was subject to (1) intentional discrimination, that was (2) severe or pervasive (3) and subjectively offensive to the plaintiff, and (4) that would be objectively offensive to a reasonable person in the plaintiff’s position.

In support of its claims against Holmes & Holmes, EEOC asserts that the employee-claimants faced frequent, racially-charged comments from their managers and co-workers. EEOC also contended that supervisors frequently told racial jokes. In response, the employer argued that the employees engaged in similar conduct, frequently using racial slurs and terms.

Following the conclusion of discovery, the EEOC moved for summary judgment–and won! The Court granted partial summary judgment, concluding that the EEOC had proved elements one, two, and four of its claims. The Court’s decision noted that the EEOC had brought the “rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct.”

The Court rejected the employer’s argument that the employees’ participation in the misconduct indicated that it wasn’t offensive. Instead, the Court left for the jury the question of whether the employees were willing participants in the harassment.
The employer now finds itself in the unenviable position of going to trial in a case with very bad facts.

The lesson to be learned may be easier said than done but absolutely essential in preventing litigation and limiting liability–inappropriate or off-color jokes do not belong in the workplace, regardless of who you seems to find them funny. Really, there’s absolutely nothing funny about being suied for unlawful employment discrimination.

New Jersey is the latest State to prohibit employers from requesting the passwords of employees and applicants. The N.J. Senate passed A2878 on October 25, 2012. The bill also prohibits employers from any kind of inquiry into whether the employee has an account on a social-networking site and from requiring that the employee or applicant grant the employer access to his or her social-networking account.
Although the Bill passed the Senate unopposed, the added exemption of law-enforcement agencies requires that the Bill be returned to the Assembly for approval before being sent to the Governor for approval, reports CBS New York.

Following Maryland, Illinois, and California, New Jersey is the fourth State in the country to pass a “Facebook-privacy” law applicable to employers.

New Jersey also passed a piece of sister legislation extending the prohibition to colleges and universities. That law passed the N.J. Senate unanimously and will prohibits educational instiuttions from requiring a student to disclose any user name, password or other means for accessing a personal social-networking site. Delaware and California are the only other states in the country with similar prohibiitons.

It’s no secret that I am hardly a fan of these laws, which attempt to vigorously legislate a problem that does not exist. When I think of my friends and loved ones who have just experienced the loss and devastation resulting from Hurricane Sandy, I can’t help but wonder whether the New Jersey legislature couldn’t have found something better to make laws about.

Northern Delaware managed to escape Sandy largely unscathed, I feel very lucky to say. Our thoughts are with those who are still without power and, especially, with those whose homes were damaged by the storm. I am grateful to be able to return to work, though. In the spirit of maintaining normalcy, today’s post is not going to focus on hurricanes, floods, or other natural disasters. Just employment law. Stay safe, everyone.

No federal employment law expressly prohibits discrimination against an employee because of the employee’s involvement in domestic violence. For many employers, the idea of intentionally discriminating against a victim of domestic violence may be difficult to envision, even. I have seen this issue manifested in a few different contexts.

First, there’s the employee who is chronically absent from work as a result of domestic violence at home. In that case, the employer wants to know whether it is lawful to discipline the employee for her absenteeism, or whether it must permit her some type of leeway because the absences are not merely a result of the employee playing “hooky.” This question is particularly difficult when the employer’s attendance policy distinguishes between “excused” and “unexcused” absences.

Second, there’s the employer who wants to terminate an employee who is involved with a violent domestic partner for fear that the partner will carry out a violent act in the workplace. This usually arises when the employer learns that the partner has been stalking the employee, often on or just outside the employer’s property. In that case, the employer is concerned about protecting its employees and wants to prevent a workplace shooting or similarly tragic event. This issue is as complicated as the first scenario, above, because it proposes that it is better to save the flock than a single sheep.

But where does Title VII and the ADA come into play in these and other situations involving domestic violence? The EEOC’s most recent fact sheet addresses this question and offers some thought-provoking answers. The fact sheet offers some examples of how the federal anti-discrimination laws may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. Many of the examples are not as much about domestic violence as they are about anti-retaliation and anti-harassment. For instance, the fact sheet explains that an employee who is given less favorable assignments after reporting that she was raped by a manager during a business trip. This example is, in my opinion, a bit obvious and not precisely within the framework of domestic-violence discrimination.

But a more provocative item on the fact sheet is the “Answer” that concludes that an employer who terminates an employee after learning she has been subjected to domestic violence, saying that he fears the potential ‘drama battered women bring to the workplace.’ On the whole, I would agree that this sort of gender-based stereotype likely violates Title VII. The trouble that I have with it, though, is that it’s a bit conclusory on the question of intent.

I can easily imagine a scenario like the one I described above, when an employer decides to terminate a female employee whose husband has appeared at the workplace and threatened the employee or even her coworkers. Worried about the likelihood of future disruptions and potential violence, the employer considers whether it owes a duty to its other employees to prevent such incidents by terminating the victim. Although it would be easy to assume the worst by concluding that the employer just wanted to avoid the “drama” associated with battered women, it may be a more legitimate fear that drives the employer’s decision.

Employment decisions are never easy. Employers often have to make tough calls and, rightfully so, worry that their choices will be later challenged as unlawful. The best starting point for these tough choices is to ask, “what’s fair?” It’s no coincidence that an honest answer to that question also is usually the most legally defensible position.

Hurricane Sandy is heading right for Delaware; Gov. Markell announced a state of emergency earlier today. The hurricane is forecasted to be the second worst in recorded history. Our neighbors in Pennsylvania, New Jersey, and Maryland are facing similarly treacherous weather conditions in the coming days. In light of the anticipated power outages, it’s likely that things on the blog will be quiet for the next few days.
sandy.jpg

Until then, here are some of our previous posts on emergency preparedness for employers:

State of Emergency: Liability for Employers During Inclement Weather

Workplace Crisis Management (Earthquake)

Must Exempt Employees Be Paid During Snow Days?

And one from Dan Schwartz in Connecticut relating to Hurricane Sandy.

Hopefully, we’ll be back up and running soon. In the meantime, we’ll be doing our best to stay dry.

Is an employee who is in the country illegally a covered “employee” under the Workers’ Compensation laws? That was the question of first impression presented to the Delaware Superior Court in Del. Valley Field Servs. v. Ramirez, (PDF) No. 12A-01-007-JOH (Sep. 13, 2012). The court concluded that the answer is “yes,” and ordered that the former employee, who has since been deported to Honduras, is eligible to receive benefits under Delaware’s workers-compensation statute.

Facts
The employee, Saul Melgar Ramirez, was hired in April 2010 as an “independent contractor'”–which the term the court uses to say that Ramirez was paid in cash. In January 2011, he was converted to a regular employee and added to the payroll. When told by his boss that he would need a Social Security number for his I-9 documentation, Ramirez bought a fake SSN card for $180. In February, the payroll service informed the employer that the number was false. Ramirez was deported in March.

In late January, shortly after he was converted to employee status, Ramirez fell down six steps and landed on his back. The company’s president, who witnessed the fall, reported the accident to the company’s workers’ compensation carrier and made arrangements for Ramirez to get medical treatment. The treating physician determined that Ramirez was totally disabled.

Issues
The Industrial Board awarded benefits to Ramirez. (See Cassandra Robert’s cleverly named post about the Board’s decision, The Dearly Deported–Illegal Alien Status Does Not Work a Forfeiture in Delaware). The employer appealed to the Delaware Superior Court, where it made several arguments, including:

  • the employee’s “fraudulent inducement” in obtaining the job disqualified him from receiving benefits;
  • because, pursuant to the federal immigration laws, Ramirez could not be lawfully hired, those laws preempted the State’s workers’ compensation laws; and
  • the employee’s exclusion from the U.S. was the equivalent of being incarcerated, which would result in the suspension of benefits.

Judge Herlihy rejected each of the three arguments in turn and concluded that, despite his status as an illegal alien at the time of his employment, Ramirez was not disqualified from receiving workers’ compensation benefits.

Nuts and Bolts
Regular readers may be mildly surprised to read that I actually side with the employee in this case. Not so much because of complicated legal reasons but more because of the basic facts. The employer hired Ramirez. The basic employment relationship involves the performance of services by the employee and the provision of certain compensation and benefits by the employer in return. One of those benefits is workers’ compensation insurance.

Here, there is no dispute that Ramirez performed the services for which he was hired. Thus, the employer received the bargained-for benefit of the employment relationship. Ramirez, in return, was entitled to receive, in exchange, the benefits for which he had bargained, including wages for work performed and workers’ compensation insurance.

There is no dispute that Ramirez was injured during the course and scope of his employment and there appears to be no dispute as to the extent of his injuries. Thus, it seems fair to me that he receive the benefits of the employment relationship, just as his employer did.

Feel free to disagree with me–I’m open to different opinions. Sean O’Sullivan reported the case in an excellent article in the News Journal today and notes that the case has been appealed to the Delaware Supreme Court. So we’ll keep you posted.

Under the Computer Fraud and Abuse Act (CFAA), an individual who wrongfully accesses information stored on a computer can be held civilly and/or criminally liable. Employers have attempted to use the CFAA to prosecute employees who steal the company’s confidential information. Different jurisdictions have come down differently on the question of whether the CFAA can be used in the employment context.

What many employers do not know, though, is that almost every State, including Delaware, has a statute similar to the federal CFAA. And some such laws, including Delaware’s, have provisions with even more severe penalties than their federal counterpart. Here’s an unusual example of a State statute similar to the CFAA applied in the employment context.

State ex rel Oklahoma Bar Ass’n v. Olmstead, is a case of lawyer discipline. The lawyer was an elected judge in Harper County, Oklahoma, when he downloaded a “tremendous” volume of adult pornography on his State-issued computer. When the conduct was discovered, the judge resigned and was charged with 19 felony counts under Oklahoma’s Computer Crimes Act, which would have required a prison sentence of between 30 days and 10 years for each count. The lawyer pleaded no contest to a single violation of the statute and was given a one-year deferred sentence.

After undergoing a mental-health evaluation, the trial panel recommended that the lawyer be subject to public censure for his violations of the disciplinary rules. The State Bar Association, though, argued that public censure was insufficient and urged the Oklahoma Supreme Court to issue a suspension under the State’s rules of professional conduct.

The State’s Supreme Court agreed, finding that the former judge’s conduct “brought such disrepute upon the legal profession and the judiciary that significant is warranted.” The Court went on to explain that “The act of downloading adult sexually suggestive materials in tremendous volume on a State owned computer is a very serious offense which should not be minimized.”

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