Being a jerk is a legal defense, so to speak.  An “equal opportunity jerk” is a boss who treats everyone badly, regardless of race, religion, gender, etc.  If his subordinates sue, alleging an unlawful hostile environment, they’ll likely have trouble establishing that the jerk was more of a jerk to one particular group of employees based on a protected characteristic.

It is a defense that defense lawyers prefer to not to have to invoke. Nevertheless, when the facts are there, even an unattractive defense can be a winner. Take, for example, the Third Circuit’s decision in Clayton v. City of Atlantic City. 

people backstabber_3The plaintiff was a police officer in the Atlantic City Police Department, who alleged that she was subject to the sexual advances of a senior officer.  This went on for a number of years until, eventually, she came under his direct supervision.

Does an employee who communicates with his lawyer from a company email account waive the attorney-client privilege with respect to those communications?  The answer is not terribly well settled-not in Delaware and not in most jurisdictions.  But a recent decision by the Delaware Court of Chancery gives Delaware employers and litigants a pretty good idea of the analysis to be applied.

The case, In re Information Management Services, is an unusual type of derivative litigation in that it involves two families, each suing the other for breaches of fiduciary duty.  Two of the company’s senior executives, who were alleged to have mismanaged the company in violation of their fiduciary duties, sent emails to their personal lawyers from their company-issued email accounts.  During discovery, the executives refused to produce the emails, claiming them to be protected by the attorney-client privilege.  The plaintiffs sought to compel production of the emails.

The court adopted the four-factor test first enumerated in In re Asia Global Crossing, Ltd. (Bankr. S.D.N.Y. 2005), and applied it to determine whether the executives had a reasonable expectation of privacy in the contents of the emails that they sought to protect.  The court determined that the executives did not have a reasonable expectation of privacy in the contents of the emails because the company’s policy expressly warned that employee emails were “open to access” the company’s staff.  The policy permitted personal use of the company’s computers “after hours” but warned that, if an employee wanted to keep files private, the files should be saved offline.  Thus, the policy was key in ensuring the company can now access emails between the executives and their counsel.

The NLRB issued another social-media decision last week, finding that an employer violated the National Labor Relations Act (NLRA) with respect to one “Facebook firing” but clearing the employer with respect to a second termination.  I’ll leave it to my blogging cohorts to write about the termination that didn’t get the employer into trouble and will focus in today’s post just the one that did.Employment Law Cookies_3

The Facebook firing that landed the employer, a Maryland ambulance company, in hot water was in response to an employee’s comment, posted on a former co-worker’s Facebook page.  The former co-worker, the complainant’s partner, posted on her Facebook page a note indicating that she’d been fired by the employer.  The complainant, William Norvell, and others, posted comments in response.  One of Norvell’s comments was a suggestion that his former co-worker get a lawyer and take the company to court.  Later, he added that she also “could contact the labor board.”  Someone turned over a printed copy of the posts to the HR Director who, after consulting with the COO, decided to terminate Norvell.

I hope it doesn’t surprise most readers that the Board was not happy about the decision to terminate and found that the termination violated the NLRA.  One of the basic foundations of employment law is this:

It’s seminar season again, which means I’m spending a lot of time preparing for upcoming speaking engagements.  For several of the engagements, I’m also preparing written materials that require a good deal of research.  I say this, in part, in the hopes that you’ll forgive my reduced posting schedule but, also, as a lead-in to today’s post.  I came across this case, which was decided in January, in the course of my recent research. Although it’s not hot-off-the-presses recent, it’s recent enough and important enough that it warrants a blog post.  So here goes.3d man surrounded by laptops_thumb

The case, In re Pfizer, Inc. Sec. Litig., was brought by a class of shareholders and related to two of the company’s pain-relief drugs.  The particular decision of interest was on motions brought by both sides seeking sanctions for failure to preserve electronic evidence.  The part that relates to employers specifically is the allegation of the plaintiffs that Pfizer failed to preserve employee “eRooms.”

An eRoom was “a collaborative application” for company employees to “share documents, share calendars, archive email, conduct discussions/instant messaging, and to conduct informal polls.”

Employee accesses her personal, web-based email account, such as G-Mail, from her employer’s computer. As a result, employer has access to the account. Employee resigns and sues the employer alleging unlawful discrimination, harassment, or other employment-related claim. May the employer lawfully access the emails sent by the employee that are now available via the employer’s computer?

It depends, of course. (You didn’t really think I was going to give you a straight yes or no, did you?)email_3

There are a number of factors that go into answering this question. And, although it’s tempting, I’m not going to discuss all of them here. Instead, I am going to discuss a case from a federal court in Ohio that involves some similar-and some different-facts with an important lesson for a holding.

New Jersey became the 12th state in the U.S. to enact a so-called “Facebook privacy” law yesterday, when Gov. Christie signed the bill into law. Keeping with the theme, here’s a post about an interesting new decision from a federal court in the Garden State, Ehling v. Monmouth-Ocean Hospital Service Corp., No. 11-03305-WJM (D.N.J. Aug. 20, 2013).how_to_permanently_delete_or_deactivate_facebook_account_thumb

Ehling worked for Monmouth-Ocean Hospital as a registered nurse and paramedic. She was not exactly a dream employee from management’s perspective. She was President of the Union and, in that capacity was “regularly involved in actions intended to protect [hospital] employees.” For example, she filed complaints with the state and federal EPA over the hospital’s use of a certain disinfectant that allegedly caused health problems for employees. She also testified on behalf of another employee is a wage-and-hour lawsuit.

Ehling, of course, had a Facebook account, which was viewable only to her Facebook friends. Although she was “friends” with many of her coworkers, she was not Facebook friends with any managers at the hospital.

The NLRB’s social-media war has been front and center for employers since 2010.  Decisions by administrative law judges and by the Board itself, as well as advisory memoranda from the Acting General Counsel have created an impossible patchwork of prohibitions and rules that, if followed, would make managing an efficient workforce effectively impossible.  And it doesn’t stop there.

But social media hasn’t been the only target in the NLRB’s sights. There have been a series of decisions and other events that, if taken seriously, make the NLRB seem more out of touch than ever.  The Board’s positions have become so extreme that, in my opinion, they’re likely to work to employers’ advantage as the public disgust grows. Here are a few of the reasons that I believe the NLRB is likely its own worst enemy.

NLRB Message No. 1:  Racist Language and Racially Insensitive Displays In the Workplace Are Perfectly Acceptable

The FLSA continues to wreak havoc for countless employers. I’ve written numerous times about the difficulties in defending against a claim brought under the FLSA or its state counterparts.  Even meritless claims can be incredibly costly to litigate, leaving many employers feeling like they have no choice but to settle. I believe the term I’ve used on more than one occasion to describe such situations is “legal extortion.”3d man with hammer_thumb

There are, however, some small glimmers of hope from the courts. I’ve written about a line of cases that have rejected plaintiff’s auto-deduction cases.  I also wrote recently about an 8th Cir. decision, Carmody v. Kansas City Board of Police Commissioners, in which the court awarded summary judgment against a class of plaintiff-police officers who failed during discovery to identify with specificity the hours they claimed to have worked but not been paid. This decision was a very big deal for employers.  Which is why a new decision from the 2d Circuit offers even more hope that the law will trend towards dismissal of meritless cases involving legal extortion.

In Dejesus v. HF Management Services, LLC, the plaintiff’s overtime claim was dismissed by the trial court because her complaint did not include “any approximation of the number of unpaid overtime hours worked, her rate of pay, or any approximation of the amount of wages due.”  Instead, her complaint merely alleged that she worked more than forty hours per week during “some or all weeks” of her employment.

BYOD at work is all the rage. What is BYOD, exactly? Well, it stands for “Bring Your Own Device” and, put simply, it means that an employee uses his own smartphone, tablet, or laptop for work as well as for his personal purposes.  BYOD policies raise several concerns, including increased security risks and wage-and-hour issues for work performed at home.  Another issue is one of particular interest to litigators like me-the question of how BYOD policies will affect e-discovery.  In other words, will an employer be on the hook for the preservation of its employees’ personal devices if those devices are used for work and for personal purposes?text alert_3

The answer to this question can have wide-reaching impacts. For example, if the answer is, “yes,” the employer would be responsible for ensuring that each such device is preserved immediately upon the threat of litigation. But telling your employees to submit their personal smartphones to the company’s lawyers is probably not going to go over so well.

A recent case from a federal court in Kansas gives hope to employers who want to permit employees to use their own devices without risking liability for failing to preserve those devices should litigation arise.  In Cotton v. Costco Wholesale Corp., the District of Kansas denied the employee-plaintiff’s motion to compel text messages sent or received by employees on their personal cell phones. The court’s decision was based on the fact that the employee had not shown that the employer had any legal right to obtain the text messages.  In other words, that the phones and the data they contained were not in the “possession, custody, or control” of the employer.

Yes, America, there is such a thing as too much information.  But, at least when it comes to social media, we’ve not yet figured that out.  Exhibit A: Alabama TV reporter, Shea Allen.

Ms. Allen wrote a blog post entitled, “Confessions of a Red Headed Reporter.”  And confess, she did.  For example, she admitted that she’d “gone bra-less” for an entire live newscast (although, according to her, no one was the wiser).  She also admitted that she really hates the elderly.  Well, she hates reporting about them, anyway.

She seemed to have realized that she may have over-shared because she pulled the post shortly after she posted it. But that moment of enlightenment didn’t last for long. She put the post back up but changed its title to: “No Apologies: Confessions of a red headed reporter.”

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