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.

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 If, instead, she elects to stay home and watch soaps all day, she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.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.

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).

Being selected as a Top 100 Blawg by the ABA Journal again this year is such an honor. What makes this honor even more remarkable is the popularity of our field. According to the State of the AmLaw 200 Blogosphere report, Labor and Employment is the single most popular category for legal blogs among the country's largest law firms. Put that fact together with the fact that we are not a big law firm and I'm even more flattered than I dare express.

For those of you who have already cast your vote for us in the Labor & Employment category, thank you, thank you, thank you. If you haven't yet voted, there's still time--voting closes at the end of this week.

As I've said a number of times, blogging is a real labor of love. It doesn't pay--just the opposite, it takes time that I would otherwise spend doing billable work. So why do it? Honestly, there are more reasons than I could fit in a single post.

If you're considering starting a blog or if you just want to learn more about it, take a stroll around the newest blog written by Ernie Svenson. Ernie is a practicing attorney in New Orleans who also happens to be a prolific blogger. He's written a great new book for the ABA titled, Blogging In One Hour for Lawyers.

Ernie was kind enough to mention me in the book's Acknowledgment and has posted my answers to 5 questions he asked several law bloggers. Check out his blog post to get a sense of why I love blogging and how I got started. While you're there, be sure to check out the answers that other bloggers shared, as well.

And thanks again for your ongoing support of our humble endeavor at the Delaware Employment Law Blog!!

Lawyers' use and misuse of social media is, as many readers know, a topic that I love. Although it's been a while since I posted about a lawyer's social-media "fail," it certainly isn't because of a lack of potential stories. Here's a recent story that made the headlines of the Huffington Post.

Sarah Peterson Herr was employed as a research attorney for a Kansas Court of Appeals judge when she tweeted about that State's former Attorney General, Phill Kline. At the time of the tweets, Kline was appearing before the Kansas Supreme Court as part of an ethics investigation.

The tweets weren't exactly journalistic in nature. Nor were they very complimentary of the former AG. In one, Herr asked, "Why is Phil Klein (sic) smiling? There is nothing to smile about, douchebag." How charming. In another tweet, Herr predicted that the former AG would be disbarred for seven years for his conduct during investigations of abortion providers.

It's unclear where exactly Herr was when she posted the tweets but it does seem that, if she wasn't actually present at the hearing, she was purporting to be. Either way is problematic. Judicial staff, including staff attorneys, are prohibited from commenting on pending cases, as are the judges to whom they report.

When the story broke, Herr apologized, saying that she "failed to realize her posts were readable by all Twitter readers," reports the Huffington Post. She was suspended with pay on Friday but, by Monday, the Kansas Supreme Court's Chief Justice announced that Herr had been terminated and referred to the appropriate ethics offices.

Litigators love depositions. Well, at least this litigator does. There's something about the challenge of navigating the subtle ebbs and flows of a personality you know only through the written word. But as much as I enjoy them, depositions are exhausting endeavors.

The mental jumping jacks are made all the more exhausting when the deponent is uncooperative or hostile. Of course we never expect the deponent to be particularly helpful but there is a middle ground. Nevertheless, when the plaintiff in an employment-discrimination suit refuses to cooperate, I have to wonder.

Specifically, I have to wonder about her counsel. Is he asleep at the wheel? Good plaintiffs' lawyers know that, at trial, their client is the one with the burden of proof.
Refusal to cooperate at deposition and a sudden "inability to recall" basic facts can be a major weapon in a defense lawyer's arsenal at trial. When a jury hears (or, if videotaped, sees) a plaintiff playing dumb at deposition, they are far less inclined to be sympathetic and much more likely to see her as a manipulating fraud. And that suits me just fine.

So, when I am deposing one of these "charming" individuals, I don't waste my time trying to beat answers out of her. If she doesn't want to testify honestly, so be it. I tend to let her write her own ticket to defeat. And, in jurisdictions like Delaware, where such conduct is sanctionable, I may be inclined to seek reimbursement of my fees. In the Third Circuit, a deponent who is so evasive that she prevents the questioner from eliciting appropriate testimony can be sanctioned by the court. And so can her lawyer if he sits silent, allowing his client to play games with opposing counsel.

So how about this deponent? In the video, below, the famous rapper, Lil' Wayne, is being deposed and, let's just say, he's not exactly playing along. He is the plaintiff, so the burden is his but the questions he is being asked are hardly relevant to the case. Am I horrified by his refusal to cooperate and his apparent inability to recall his criminal history? Frankly, I am not.

Parents, if you have big dreams about your son or daughter taking up the law for a living, I encourage you to watch the video and reconsider. Really, do you want your precious angel sitting across the table from Lil' Wayne and having to deal with that nonsense for a living? It takes a very particular kind of personality to handle, nevertheless feel some modicum of satisfaction from, a day at the office that goes like this.

And, because it's Friday, I'd like to share one more thing before signing off. For the litigators in the audience--both plaintiffs' and defense--I encourage you to read this post from the blog, Abnormal Use. The title of the post says it all, "The Most Unwritten Rule: Depositions Should Start at 10 a.m." If you are one of the lawyers who feel compelled to notice a deposition to begin any earlier than 10 a.m., I hope this post makes you reconsider the idea.

I recently had a case in which a lawyer on the other side took no less than 10 depositions, almost all of them at his office, which was located more than 2 hours from mine. Despite knowing that the witnesses and counsel had to drive such a far distance, he insisted on beginning at 9 or 9:30 a.m. I managed it but still harbor some resentment about it. He will not be on my holiday-card list this year.

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 first case involves two New Jersey defense lawyers who are charged with violating the rules of ethics. The lawyers' paralegal is alleged to have friended the plaintiff in one of the firm's cases. The allegation arose after the lawyers asked "very specific" questions at the plaintiff's deposition, which indicated that they had somehow had access to the non-public portions of the plaintiff's Facebook profile. The defendant later supplemented its discovery responses with Facebook pages from the plaintiff and the plaintiff's friends.

The plaintiff filed an ethics complaint in which he alleges that a paralegal working for defense counsel friend him to get access to his non-public profile. The lawyers are reported to deny any knowledge of the paralegal's conduct. This does not immunize them from discipline, though. The rules of ethics impute liability for the acts of non-attorney agents to the attorney for whom they work.

One of the reasons that I find this case so interesting is that, in my opinion, it was bound to happen. Although several bar associations around the country (including Philadelphia), have issued advisory opinions that explain that friending a represented person would likely violate the rules of ethics, I still think it is just a matter of time before we see more cases involving similar conduct.

So what's the HR takeaway? Well, here's one: know what your HR staff is doing and how they're doing it. You may be surprised to find how many people in HR (and supervisors generally), conduct online searches of job applicants prior to an interview. Surprise or not--you and your organization will be on the hook for the conduct of your staff. But you won't know until you ask.

See Mary Pat Gallagher's article, When 'friending' is hostile, Daily Report on Law.com

Lesson 2: Be Aware of "Friendly" Conflicts
The second case comes from Florida, where a judge has been disqualified from a case because he was Facebook friends with the prosecutor. Florida has a rule that judges may not be Facebook friends with attorneys who will appear before them due to the potential appearance of impropriety. Whether you agree with the outcome of his case or not, employers--particularly HR professionals and supervisors--should again consider the propriety of being Facebook friends with direct reports. Sometimes it's not just whether there is a conflict; sometimes problems arise just from the perception of a conflict.

See Venkat Balasubramani's post at the Technology & Marketing Law Blog.

Lesson 3: You Can Breach Confidentiality Via Facebook
Our third case also comes from Florida, where a 31-year-old public defender has been terminated as a result of a picture she posted on her personal Facebook page. Specifically, the photo was of her client's leopard-print underwear. She took the picture when a corrections officer was inspecting the garment. Her client's family had brought the underwear and other clothes for him to wear to trial.

The client had requested new counsel on several occasions but was denied. Someone saw the picture and reported it to the judge presiding over the trial. The judge ordered a mistrial and the attorney was immediately filed.

There are multiple lessons to be learned from this story but I'll keep it to just one. People continue to believe that what they post on Facebook "stays on Facebook." This is simply not true. And the sooner we learn this, the better. Consider using this story as a "teaching moment" for your employees.  

See Martha Neil's article at ABA Journal

I take very seriously the job of interviewing potential candidates. There are certain things that a candidate can do or say to sabotage their chances at getting an offer. Many of these "offer killers" are more common than you might think. Many of the lawyers I've talked with have expressed frustration about similar behaviors from the candidates they've interviewed. In an effort to help future candidates, I humbly suggest some things to avoid.

Only Fools and Egomaniacs Submit a Less-than-Perfect Resume

No student should ever--and I do mean ever send out a resume that hasn't first been reviewed by several professionals. Whether it's through your school's Career Services department, through a formal resume-review program, or just by the smartest professional adults you know, there are plenty of resources for having your resume reviewed.

When I receive a resume that misses the mark in even the smallest way, I find it difficult to take the candidate seriously. It tells me that the candidate has one of two equally undesirable personality traits. He is either: (1) sloppy and lazy; or (2) thinks he is smarter than everyone else. There are no other explanations for a student who fails to have his resume reviewed (repeatedly) prior to submitting it. I do not want to work with a new lawyer who falls into either category.

One Error In a Cover Letter Is One Error Too Many

The same rules apply with respect to cover letters. I cringe when I think of the number of times I have seen a cover letter that starts with, "I am a second year law student" instead of the properly hyphenated, "I am a second-year law student." It's called a phrasal adjective, kids. It's ok if you don't know what one is but you'd better find someone who does so they can point out your mistake.

If a dork like me receives a cover letter that contains an error in the first sentence, you're facing an uphill battle. And not just because of your claim, two paragraphs later, that you have "outstanding writing skills." For me, the real frustration is that you could have gotten right, you just didn't bother to take the time to ask someone. You have a legal-writing teacher, don't you? Ask him or her to look at your letter and thank him or her profusely if they return it to you covered in red ink.

Get the Name Wrong and You've Got No Chance

The cardinal sin for cover letters, though, is not grammatical. It's far, far worse. Although far less common, I am still amazed when I read a cover letter that, at least once in the body of the letter, makes reference to the wrong firm.

Yes, it happens. Usually right around the third paragraph, which must be when students grow weary of editing their own work, the author reiterates how confident she is that she will be an attribute to Smith, Jones, and Smith, LLP. Except, I don't work for Smith, Jones, and Smith, LLP. Smith, Jones, and Smith, LLP, is my firm's competitor.

To me, this error demonstrates the candidate's lack of editing skills and, more important, lack of interest. Neither of which are positive qualities in a potential new hire.

Your Resume Is Not the Place to Demonstrate Your Creativity

Creativity is a desirable trait for a lawyer. But resumes are not the place to show us how creative you can be. Save it for your legal analysis. There are two common failures in this regard.

First is the Overly Long Resume. Legal resumes should be one page in length and no more. You are not, I guarantee, so amazing as to require additional pages. Brevity in writing is a skill, so start practicing.

Second is the Oddly Formatted Resume. Lawyers don't use crazy fonts. If you want to demonstrate your prowess for typeface, go into graphic design, not into the practice of law. Your resume is not the place to use distracting borders or other "fun" formatting techniques.

Mind Your Manners

Try to recall every lesson your mother ever taught you about proper etiquette. Then try harder to remember some more. And take them to heart.

My entire interaction with you is limited to a 20-minute interview. None of these 20 minutes should be spent slouched in your chair. Sit up straight. Look me in the eye when you are answering a question. And don't interrupt me when I'm speaking. The same rules apply in the courtroom and I don't want to have to teach these rules to you now--you've got plenty of other things to learn, trust me.

Speak Like a Grown-Up, Even If Your Interviewer Doesn't

Language matters. Word choice matters. We are lawyers and we care how you speak. Do not use any words such as "cool" or "yeah" during your interview. And, I know it's hard but try to limit the amount of times you say the word, "like." You wouldn't believe how many times a candidate utters that word during a short interview. It would make your head spin. I understand that this is a habit that is difficult to break. But try anyway.

Be wary if your interviewer is on the younger, cooler side of the lawyer spectrum. I am sure that I tend to come off as more casual than many of the interviewers that candidates meet. But don't let my preference for pink fool you. I still expect you to conduct yourself in the same way that you would if I was wearing black pinstripes.

I may be partly to blame for this casual leaning because of my inclination to be friendly and my desire to make the interviewee feel comfortable. But being comfortable in an interview is not the same as being comfortable in a college dorm room. Keep this in mind.

Some Parting Thoughts

Candidates of the future, you have been warned. Now that you know what bothers your interviewer, it's up to you to avoid these pitfalls. And, once you land the gig, consider reading this article about ways to make sure you get an offer to return. The cleverly named article was written by Ben Potts, an all-star summer associate who recently finished his first summer in our firm's summer-associate program. Take his advice, he writes from experience and his suggestions are dead-on.

As tempting as it may be to believe, judges don’t always get it right. Every lawyer has seen an opinion that misapplies the law or applies the wrong law altogether. And maybe that’s why we get so giddy when a court really nails it, particularly when the issue is complicated or novel or the law unsettled. Allegheny Court of Common Pleas Judge hit one of these legal homeruns in a 20-plus-page decision issued last week in Trail v. Lesko. The unsettled legal issue that Judge R. Stanton Wettick addressed was the discoverability of social-media content. 

The case arose from a motor-vehicle accident, from which the plaintiff alleged to have been seriously injured. The parties both sought to have the other side produce Facebook posts and pictures.  Neither side complied and both parties filed motions seeking to compel their opponent to turn over his Facebook password and username.

Put differently, “Ask me to show you mine and I’ll ask you to show me yours.”

Plaintiff’s Requests for Access to Defendant’s Facebook Account

The defendant denied driving the vehicle at the time of the accident and alleged that he did not remember who had been driving the vehicle at the time.  The  plaintiff sought access to the defendant’s Facebook account, arguing that it could be “relevant in determining defendant’s whereabouts or in uncovering any potential witnesses who could shed lights on the events in question.” 

After making the plaintiff’s request, though, the defendant admitted in his written discovery responses that he was the driver at the time of the accident. The defendant also admitted that he had been intoxicated while driving. Thus, the court found that any information that might be available on Facebook was rendered “seemingly irrelevant.”  Moreover, the court explained, the defendant’s own admission about driving under the influence of alcohol would render any of the Facebook information irrelevant to a claim for punitive damages.

Defendant’s Requests for Access to Plaintiff’s Facebook Account

And, as is usually the case in litigation, what’s good for the goose is good for the gander.  In other words, the defendant responded to the plaintiff’s Facebook request by issuing a Facebook request of his own.  The plaintiff had alleged that he was “disabled or limited in his normal activities” and that his disabilities were “possibly permanent.”

So the defendant sought access to the plaintiff’s Facebook account on the grounds that the account may contain evidence of the “extent and severity” of the plaintiff’s injuries. The defendant supported his motion with pictures of the plaintiff “socializing” at a bar and “drinking at a party,” which the defendant had obtained from the publicly available portions of the plaintiff’s Facebook account.

The court was not persuaded, though, explaining that the plaintiff had not alleged that he was so disabled that he was unable to leave his home and that the pictures were not “inconsistent with plaintiff’s alleged injuries.”

Motions Denied: Unfettered Access to Accounts Unnecessary

The parties’ cross motions to compel both sought to have the Court require the other party to turn over his username and password to his Facebook account.  Judge Wettick rejected the idea, ruling that a blanket request for log-in information is just plain unreasonable. A party does not get free-reign access to non-public social-networking posts of his opposing party merely because he asks the court for it. To enable a party to roam around in an adversary’s Facebook account would result in the party to gain access to a great deal of information that has nothing to do with the litigation and [] cause embarrassment if viewed by persons who are not ‘Friends'.’”

Before a requesting party will be granted “access” to a Facebook account, the party must show a “sufficient likelihood” that the non-public postings would contain information that is relevant to the litigation that is “not otherwise available.”  Otherwise, the court held, Rule 4011(b), which protects against discovery that is unreasonably annoying or embarrassing, prohibits unfettered access to a social-networking site.

Brava, Judge Wettick, Brava!

The ruling in Trail is a refreshing example of well-reasoned legal analysis applied with common sense.  It is a bad idea for any person to voluntarily turn over his password to any online account to another person.  And it is an equally bad idea to request that a court facilitate such a practice. Yet, much to my disappointment, this is a practice that has become more common in the past few years, as courts struggle to deal with questions relating to discovery of social media and other forms of electronic evidence.  The opinion’s holding sets an important baseline for discovery of social-networking content.  Specifically, a litigant will not be ordered to turn over his password or other log-in information to an opposing party to enable that party to gain unfettered access to the litigant’s social-networking site.

Trail v. Lesko, No. GD-10-017249 (Allegheny C.P. July 3, 2012).

A three-judge panel in Virginia has issued its decision in an important case for lawyers who blog or who are thinking of starting a blog. The case involved the appeal of a ruling by Virginia State Bar Association's disciplinary committee about a blog written by Virginia lawyer Horace Hunter. The committee originally pursued a complaint against Mr. Hunter when he refused to include the exact disclaimer required by the Bar Association.

I was lucky enough to appear on an all-star panel of speakers, including Mr. Hunter, a few months ago, when we presented a CLE hosted by the ABA, titled, Is Your Legal Blog Compliant? To learn more about the specific facts leading to the complaint, I'd strongly recommend the episode of the Legal Talk Network podcast, Lawyer 2 Lawyer, on which Mr. Hunter was a guest.

There were two issues before the panel. First, whether Mr. Hunter had breached his duty of confidentiality pursuant to Rule 1.6 by writing about his clients' cases on his blog. The information contained in the blog posts was publicly available. The panel overturned the finding of misconduct by the State Bar's disciplinary committee.

Second, the panel was presented with the question of whether Mr. Hunter could be required by the State Bar to include a disclaimer on his blog. The panel upheld the committee's determination that a disclaimer was required in accordance with the attorney advertising rules set forth in Rules 7.1 and 7.2. Specifically, the disclaimer must state that results may vary from case to case, depending on the facts.

All lawyers--even those who do not blog--should look more closely at this decision and at the facts and arguments leading to this point. Mr. Hunter's arguments regarding the First Amendment implications of attorney advertising, particularly in the context of legal blogs.

See also, VA Lawyers' Weekly; Washington Post's Capital Business Blog; and Above The Law.

As I wrote a few years ago, judges in Florida may not be Facebook friends with any lawyer who may appear before the judge.  (Opinion 2009-20, Nov. 17, 2009).  Last month, the Florida Judicial Ethics Advisory Committee made clear that this prohibition extends beyond Facebook.  In Opinion Number 2012-12, issued on May 9, 2012, the Committee opined that a judge may not be “connected” to lawyers who may appear before him on any social-networking site—including LinkedIn.  The inquiring judge had posited that Facebook and LinkedIn have distinctly different purposes—one for personal use and one for professional use.  Therefore, the inquiring judge asked, shouldn’t there be different standards for judges’ use of the two sites? 

The Committee did not agree.  Instead, it held that the relevant inquiry is not about the website or social-networking site or its purpose. Instead, the Committee determined that the process of selecting friends or connections “and the fact that the names of those friends or connections are then communicated – often, but not always, selectively to others – that violates Canon 2B, because by doing so the judge conveys or permits others to convey the impression that they are in a special position to influence the judge.”

Other States

Massachusetts judges also may not be “friends” online with any attorney who may appear before the judge.  (Op. No. 2011-6).  So can judges in California, although that State’s opinion seems more qualified.  (Formal Op. No. 66) (2011).  Ethics opinions from Kentucky and Ohio reached a similarly qualified “yes.”  (Op. JE-119) (Jan. 2010); (Op. 2010-7) (Dec. 2010).

Other states’ judicial-ethics committees have come out differently than the Florida committee.  For example, Judges in South Carolina are not prohibited from being Facebook friends with law enforcement officers and employees who work for the judge, provided there is no discussion of anything related to the judge’s official duties.  (Op. No. 17-2009) (Oct. 2009).  Judges in New York also are permitted to participate in social-networking, provided the judge otherwise complies with the rules of ethics.  (Op. 08-176) (Jan. 2009).

But, in a Pennsylvania decision rendered earlier this year, a court determined that a judge had abused his discretion by not recusing himself from a case in which he was Facebook friends with the defendant, a local politician.

And then there’s the example of the New York criminal judge who was transferred after some of the lawyers who appeared before him complained that the judge had sent them Facebook friend requests.

The exchange of initial disclosures between parties in a lawsuit brought in federal court is not generally considered the most useful endeavor. The parties have to exchange a few pieces of information but, for the most part, expect to get into the substance of the case only after formal discovery has begun in earnest.

Some practitioners and scholars believe that this early period of initial discovery is a time that could be better spent through the mandatory exchange of more meaningful information. To that end, the Federal Judicial Center has released its Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action.

What are the Protocols?
The purpose of the Protocols is to "encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery." Judges in federal District Courts will pilot test the Protocols and report back to the Federal Judicial Center.

The Protocols are designed to replace initial disclosures with initial discovery specific to employment cases alleging adverse action. The discovery would be provided automatically by both sides within 30 days of the defendant's responsive pleading or motion.

In Which Cases Would the Protocols Be Used?
The Protocols would be used in all employment-discrimination cases except the following:

• Failure to hire;


• Harassment / hostile work environment;


• FLSA;


• ADAAA failure to accommodate;


• FMLA;


• ERISA; and


• Class actions

What Documents and Information Must Be Supplied?

Both the plaintiff and the defendant in the case would be required to provide certain documents and information going back three years before the date of the alleged adverse action, unless an earlier period is provided.

Documents to be produced by Plaintiff

The plaintiff-employee would be required to produce to the defendant-employer the following documents and information without waiting for a formal discovery request:

• All relevant communications between the plaintiff and defendant;


• "Claims, lawsuits, administrative charges, and complaints by the plaintiff" that rely on any of the same factual allegations or claims at issue in the present lawsuit;


• All documents concerning the formation and termination of the employment relationship, irrespective of the relevant time period;


• Documents concerning the terms and conditions of the employment relationship;


• Diary, journal, and calendar entries maintained by the plaintiff relating to the allegations or claims at issue;


• Plaintiff's current resume;


• Documents relating to unemployment benefits that are "in the possession of the plaintiff;"


• Documents relating to the plaintiff's job-search efforts, including communications with potential employers; offer(s) of employment, job description, and income and benefits information;


• Documents relating to the termination of any subsequent employment; and


• Any other documents upon which the plaintiff relies to support his or her claim.

One of the most interesting items on the list is the second-to-last--documents relating to the termination of any job held by the plaintiff after his or her employment with the defendant. This category of document is not one that plaintiffs usually want to turn over, so the Protocols would eliminate any potential dispute about the discoverability. As a safeguard, though, the Protocols do provide that the defendant may not contact or subpoena a prospective or current employer without giving the plaintiff 30 days' notice and an opportunity to file a motion for a protective order or motion to quash.

The plaintiff also must provide the defendant with certain information, including the identity of "persons with knowledge," which also is required under the current standard for initial disclosures. Additionally, the plaintiff must describe the categories of damages claimed and disclose whether he or she has applied for disability and/or social-security disability benefits after the alleged adverse action, whether any such application has been granted and, if so, the nature of the award if any.

Documents to be produced by Defendant
The defendant must produce the same types of documents as the plaintiff, as well as the following additional types of documents:

• Relevant communications "among or between" the plaintiff's managers, supervisors, and/or the defendant's human-resources personnel;


• Responses to any claims, lawsuits, administrative charges, and complaints by the plaintiff that are based on the same allegations or claims at issue in the present lawsuit;


• The plaintiff's complete personnel file (both the official version and any "unofficial" versions maintained by a supervisor), irrespective of the relevant time period;


• Documents used in making the disputed employment decision;


• Workplace policies or guidelines relevant to the adverse action;


• Table of contents and index of any employee handbook or manual in effect at the time of the allegedly adverse action;


• Job description(s) for the position(s) held by the plaintiff; and


• Documents showing the plaintiff's compensation and benefits, such as retirement plan benefits, fringe benefits, employee benefit summary plan descriptions, and summaries of compensation.

The defendant must provide the same information required of the plaintiff, as well as the identity of:

• the plaintiff's supervisor(s) and/or manager(s); and


• the person(s) who were involved in the adverse decision.

In addition to the Protocols themselves, there also is a model standing order for use by the implementing judges and a model protective order that counsel and the judge can use as a basis for discussion. The model protective order contains important provisions, including:

• Counsel may designate documents or information as confidential when necessary "to protect the interests of the client;"


• Confidential information disclosed will be used only in connection with the case;


• In the event of a challenge to the confidentiality designation, counsel must make a good-faith effort to resolve the dispute before seeking the court's assistance;


• Production of confidential document or information does not constitute an admission that the document or information is relevant or admissible;


• Any document or information may be designated as confidential up to the latter of 14 days after the close of discovery or 14 days after production; and


• At the conclusion of the litigation, within 30 days after the entry of final judgment, all copies of confidential information must be returned to the producing party or certified as destroyed

Pilot Project Initial Discovery in Employment Discrimination Cases.pdf (PDF)

The U.S. Supreme Court approved the most recent set of amendments to the Federal Rules of Civil Procedure.  Here’s a copy of the transmittal letter and the changed rules (PDF).

As noted by Michael Fox in a recent post on his Employer's Lawyer blog,, an OFCCP Administrative Law Judge (ALJ) just released a 66-page decision in a case that began with an audit notice in 1993. The case was bogged down in large part due to the bank’s contention that it was not selected for audit in accordance with its constitutional right under the Fourth Amendment to be free from unreasonable searches and seizures. That claim was ultimately unsuccessful. As a result of the delay, though, the bank found itself litigating claims about hiring practices dating back to 1993. Not surprisingly, the recollections of key witnesses such as the recruiters were foggy on some points.

But, in essence, the trial boiled down to a battle of the experts, who each advocated his or her own method of statistically analyzing the hiring data. The analysis of the OFCCP’s labor economist/statistician disregarded several of the bank’s legitimate business reasons for rejecting applicants because of evidence provided by the recruiters regarding how they coded applicants.

For each applicant, the recruiters were to use a code to indicate the outcome of the application. For example, they used a certain code to indicate that the applicant was not interested in working the hours that were available, and another code to indicate that the applicant had failed the credit check. Unfortunately, the recruiters testified that they did not use the code consistently.

If someone told the recruiter that her or she was not interested in the hours and/or the wages being offered, the recruiters sometimes used the code for “no position available” rather than the code used to indicate that the hours or wages were not acceptable to the applicant. To the OFCCP’s expert, this justified treating the hours code as entirely unreliable.

He also disregarded the code the recruiters used to indicate that the applicant was rejected based on his or her credit report for several reasons: (1) the recruiters did not have a consistent system for screening based on a credit report, (2) there was no evidence validating the use of credit reports as a test for success in the job, (3) the bank stopped using credit reports in 1994, and (4) the use of credit reports as a screening device adversely impacted African-Americans. The bank had not retained copies of the credit reports, so it was not possible to determine whether the recruiters used the credit reports in a consistent way as between white and African-American applicants.

When the employer’s expert analyzed the hiring decisions and excluded the people who had been rejected based on hours preferences or the credit check, the outcome was that there was no statistically significant evidence of discrimination. When the OFCCP’s expert analyzed the same hiring decisions but included the applicants who had been rejected based on the hours and credit check results, there was strong statistical evidence of discrimination.

The ALJ also rejected the bank’s expert’s opinion that the bank had hired more African-Americans for the jobs in question than would be predicted if the analysis had been based on the overall availability statistics for the Charlotte metropolitan statistical area for 1993. The ALJ wrote that “it is well established that the applicant flow data, which documents the actual labor pool relevant to the hiring decisions at issue, is ‘highly relevant evidence of an employer’s labor market.’”

This proposition is one that, in my experience, is theoretically appealing but completely out of sync with reality. The reality is that applicants’ self-identification of race and gender by applicants is voluntary, and a large number of them do not self-identify. Consequently, the employer, the courts and labor economists running statistical analyses will never have an accurate picture of the racial characteristics of the “applicant pool” from which the hires were made. Given that the information about the race and gender of the “applicant pool” is always incomplete and inaccurate, it is difficult to understand how applicant flow data can be more relevant and reliable than census data.

Anyway, this case still is not over. The ALJ has to decide what the damages number will be, and after that, if the case does not settle, appeals seem likely.

For the uninitiated, electronic discovery has changed the nature of how litigation is conducted and the obligations imposed on litigants when it comes to the preservation of electronically stored information.  A litigant who fails to take the necessary steps to preserve his electronic data can be sanctioned for this conduct, also known as “spoliation.” 

Sanctions for spoliation can be extreme.  Stories abound and there are cases that show how severe the sanctions can be.  It’s not that common to read e-discovery cases in the context of employment litigation.  And, when e-discovery and employment law mix, it’s usually the employer that pays is on the receiving end of sanctions—most often by way of the improper deletion of e-mails. 

So, when a case comes along that deals with e-discovery and employment law but where it’s the employee-plaintiff who is being sanctioned, it’s particularly noteworthy.  Jason Shinn, at Defending the Digital Workplace, writes about just this type of case.  According to Jason, the Michigan Court of Appeals affirmed a trial court’s decision to dismiss a plaintiff’s sexual-harassment lawsuit with prejudice.

In Gillett v. Michigan Farm Bureau, Mich. Ct. App., No. 286076, (Dec. 22, 2009), the Court a Appeals affirmed the dismissal, which was granted as a sanction for  the plaintiff’s deletion of digital evidence.  The case began when the plaintiff’s attorney wrote a demand letter to the employer.  The employer’s attorney responded with a letter of his own, instructing the plaintiff to preserve his personal e-mails. 

To say that the plaintiff failed to preserve his e-mails would be putting it mildly.  To read the details about just how egregious this failure was, you’ll have to hop over to Jason’s informative post.  But the lesson that I want to emphasize here is simple: failure to preserve electronic data can lead to very serious consequences, including a total defeat in litigation. 

Do you have a document-retention and –preservation plan in place?  Do you have an action plan for communicating that a litigation hold has been issued, if the need arises?  If you don’t, now is the time to consult with your in-house IT professional and your employment or corporate counsel to get an effective plan in order.

As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10: