Why should employers care about what the EEOC has on its to-do list for the next four years? Well, you’ve heard the phrase, “keep your friends close and your enemies closer,” right? Kidding, just kidding, people! Geez!

But, seriously. The EEOC is working on a revised draft of its Strategic Enforcement Plan (SEP) for 2012-2016 and employers should pay close attention. The SEP offers employers important insight into the priorities of the EEOC. So don’t look a gift horse in a mouth. exercising their rights constitute systemic barriers to the legal system.

Class Warfare is EEOC’s Top Priority

New Jersey’s Facebook-Privacy law was released today by a Senate committee. The bill, like the laws passed in Maryland, Illinois, and California would bar employers from asking employees for information about their social-media accounts. Employers had shown support for the bill except for the provision that creates a private right of action against an employer who violates the law. The laws previously passed do not expressly provide that an employee may bring suit for a violation.

The committee also passed a similar bill that would prohibit colleges from requiring students for their social-networking-site passwords. Delaware was the first and, thus far the only, State to pass a password-privacy law applicable to academic institutions.

Delaware’s Court of Chancery is renowned as the country’s premier venue for business litigation. Law students across the nation are, at this very moment, reading a seminal case in a corporate-law textbook written by the Court of Chancery.

For the uninitiated, there are two critical things to know about the Delaware Court of Chancery. (For a real lesson on the Chancery Court, check out the blog, Delaware Litigation, written by Francis Pileggi and Kevin Brady. Francis tipped me off to the case I’m discussing today.) First, it is a court of equity. At the most basic level, this means that the rulings of the Chancellor and Vice-Chancellors are based on principles of fairness. In other words, they have far-ranging power to award relief. Second, the Court is known for issuing opinions with a literary flare of sorts.

In a 79-page decision issued yesterday, the Court lived up to all of these laudable traits. And the case is, at its roots, an employment-law case, to boot. The decision addresses breach-of-contract claims brought by an employee against his former employer and the employer’s counter-claims based on the same contract. The Facts section of the decision starts with this:

Legal-ethics issues in social media is probably my favorite subject. If that makes me an uber dork, so be it. Last week I had the pleasure of speaking on this topic to the Richard K. Herrmann Technology Inn of Court here in Delaware. And, on Friday, I’ll be heading to Charlottesville to present on the topic at the Virginia Bar Association’s Conference on Labor Relations and Employment Law, which I am looking forward to immensely.

Despite my interest in the subject, I don’t often post about legal ethics here because it doesn’t directly relate to employment law. Today’s post, though, is an exception to that self-imposed rule. And, because you’re indulging my side interests, I’ll return the favor and tie the lesson of the story back to employment law. There are three recent cases that got my attention.

Lesson 1: Know What Your Subordinates Are Doing On Your Behalf

The EEOC’s subpoena power is broad. But just how broad has been the subject of debate in recent years. On September 14, 2012, the Third Circuit Court of Appeals issued an opinion that definitely falls on the “broad powers” end of the spectrum.

The case, EEOC v. Kroger, involves allegedly discriminatory assessment tests used by Kroger as part of its hiring process. The tests were created by a company called Kronos, Inc. The district court ruled that the EEOC could not subpoena materials from Kronos that did not directly relate to the test it had developed for Kroger.

The EEOC appealed the decision and the 3d Circuit overturned it. The 3d Circuit ruled that Kronos had to produce such documents “even if not directly linked to Kroger” because they could “reveal that the assessment had an adverse impact on disabled applicants or they could assist the EEOC in evaluating whether Kroger’s use of the test constituted an unlawful employment action.”

The NLRB continues to whittle away the ability of employers to manage the operations of their businesses. In the past two years, the NLRB and its Acting General Counsel have issued a slew of opinions and advisory memoranda in which they’ve proclaimed various workplace rules to be in violation of the NLRA. Many of the rules they’ve found to be unlawful have been standard issue in workplaces around the country for many years. And many employers (and employers’ lawyers) believe that the NLRB’s interpretation of the Act is alarmingly overbroad.

The latest decision that threatens the workplace as we know it was issued last week, on September 7. In Costco Wholesale Corporation, Case 3A-CA-012421, 358 NLRB No. 106, Chairman Pearce and Members Griffin and Block overturned the ruling of an Administrative Law Judge. There were several workplace rules at issue in the case but the one of particular interest to me read as follows:

[S]tatements posted electronically . . . that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement may be subject to discipline, up to and including termination of employment.

Tattoos are intended to convey a message. Whether it’s an old-school-style pinup girl or the modern favorite “tribal language,” the tattoo bearer, presumably, gets inked because of the message that it conveys. Perhaps the message is meant only for the tattoo bearer but perhaps it is intended for those who see it. Maybe it’s a combination of both.

momtattoo.jpgEither way, residents of Arizona now have a First Amendment right to send a message via permanent body art, according to the Arizona Supreme Court. Last week, the court ruled last week that tattoos are a form of protected speech. In reaching its opinion, the court looked to an earlier decision by the 9th Circuit, which held that a tattoo is pure speech and that the act of tattooing is expressive activity.

The case was remanded to the Maricopa County Superior Court, which will decide whether the city has the authority to regulate tattoo parlors. The decision must take into consideration that the tattoo shops are engaged in constitutionally protected speech.

Miseta v. Stardock, (E.D. Mich.), is a great example of what not to do as an employer in response to a claim of sexual harassment made by an employee.

The employer, Stardock, launched a new video game, Elemental: War of Magicm in August 2010. The game proved to be a complete failure. (I promise, it’s relevant.)

Weeks before the launch, Stardock’s Marketing Manager, Alexandra Miseta, quit. Shortly after she resigned, Miseta filed a Charge of Discrimination with the EEOC, and later instituted a lawsuit.

Jason Selch worked as an investment analyst for his employer for 10 years. The company went through multiple mergers and acquisitions and eventually was bought by a Bank of America subsidiary. After the BoA merger, Selch learned that his friend and co-worker had been terminated after declining to accept a pay cut.  

Presumably in protest of his friend’s exit, Selch marched into a conference room where the COO and CIO were meeting.  He asked the executives if he was subject to a non-compete agreement.  When the CIO answered that he was not, Selch promptly dropped his drawers and mooned the two executives.

The two execs, to their credit, weren’t flustered by the demonstration and simply returned to their discussion and went on with the meeting. Later, at the COO’s instruction, HR issued Selch a final written warning, which stated that any subsequent violation would result in his termination.  

I spent my Labor Day weekend in the office. Yesterday, I spent my birthday (or 14 hours of it, anyway), in my office. This is not a result of some deeply-seeded self-loathing tendency or a lack of enthusiastic friends. It’s a different type of popularity that is keeping me tied to my desk these days–popularity with clients. Or at least that’s what I tell myself. Truth told, the real reality is that I’m just plain ole’ busy.

And that’s a good thing, or so I tell myself. But let me not feel too sorry for myself. [FN 1]

Misery does love company, after all. And I, apparently, am not alone.

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