More on discovery of social networks: Subpoenas to websites proving to be difficult

A few weeks ago I discussed the discovery of social networks (Facebook, MySpace, etc.) in employment cases. EEOC v. Simply Storage Management concerned discovery requests by an employer for a claimant’s social network pages. Rebuking any claims of an infringement of the plaintiff’s privacy, the court stated:

The production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings. As one judge observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”

In Crispin v. Christian Audigier, Inc. (C.D. Cal. 5/26/10) [Hat tip to Eric Lipman at Legal Blog Watch, which includes a link to the opinion], a different federal court confronted the issue of the discovery of social networks from the websites themselves via a subpoena. Most of the 37-page opinion deals with the technical issue of whether and to what extent third-party providers such as Facebook are covered by the Stored Communication Act. What is of interest, though, is the distinction drawn by the court based on privacy expectations and privacy settings.

Essentially, social networks offer three possible types of information:

1. Information made public via a social network—such as something posted on one’s Facebook wall or on Twitter).

2. Information not readily available to the general public via option privacy settings.

3. Private messages passed between users of the social networks, with the website used merely as a conduit to facilitate the private communications.

Only the first category may be discoverable via a subpoena, while the latter two may be worthy of protection by the provider:

With respect to webmail and private messaging, the court is satisfied that those forms of communications media are inherently private such that stored messages are not readily accessible to the general public…. Those portions of the … subpoenas that sought private messaging are therefore quashed. With respect to the subpoenas seeking Facebook wall postings and MySpace comments, however, the court concludes that the evidentiary record … is not sufficient to determine whether the subpoenas should be quashed. The only piece of evidence adduced was a Wikipedia article stating that Facebook permits wall messages to “be viewed by anyone with access to the user’s profile page” and that MySpace provides the “same” functionality. This information admits of two possibilities; either the general public had access to plaintiff’s Facebook wall and MySpace comments, or access was limited to a few.

What are the lessons to be learned from this case?

1. This case does not provide much in the way of relief. The prize isn’t information that is already publicly available, since you can just go to Facebook and get that information on your own. The prize is the private information to which you do not have access, and which this court suggests is protected from disclosure.

2. The Stored Communication Act is very technical, and makes it very difficult to obtain any stored information directly from a social network or Internet provider without the users written consent.

3. Provided that you are seeking information about a party to the litigation (for example, the plaintiff), you will be much better served simply asking for it in a Rule 34 document request. If the information is no longer accessible, a court can compel the party to sign a release so that you can seek the information directly from the website without having to worry about the Stored Communication Act. In other words, if the information had been requested directly from the party instead of trying to get it from the website, the Stored Communication Act is not an issue, and this case likely has a different result.

Bottom line – if the lawyers handling your employment case are not on top of these issues, you are missing a valuable piece of the puzzle in putting together your defense.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Double check data before termination to insulate from discrimination exposure

Pattison v. W.W. Grainger, Inc. [pdf], decided last week by the Cuyahoga County Court of Appeals, illustrates the need to analyze, confirm, and verify data before using the information as a justification for a termination decision.

Grainger terminated Wally Pattison (age 51) for allegedly failing to meet sales goals. At the time of his termination, Pattison held the position of Territory Manager, servicing accounts in the Greater Cleveland area. Pattison claimed that shortly after Sam DiMeo became his immediate supervisor, he took numerous adverse employment actions against him, including performance warnings for not meeting sales goals when younger employees who also were not meeting sales goals did not receive performance warnings. Pattison also claimed that DiMeo terminated him despite a significant rise in his performance numbers shortly before his termination, and despite the retention of younger employees with worse performance numbers.

The trial court dismissed Pattison’s age discrimination claim on summary judgment, finding that Grainger terminated Pattison solely for failing to meet legitimate business goals for five consecutive years. The court of appeals, however, in reviewing Pattison’s sales numbers in comparison to the 12 other Territory Managers who worked in the Cleveland district under DiMeo’s supervision, found that one could reasonably conclude that age motivated Grainger’s decision.

• According to DiMeo, the Cleveland district routinely failed to meet sales goals, being below goal for the three years prior to Pattison’s termination, and five out of the previous seven years.

• Despite the subpar performance of the entire Cleveland district, Pattison’s sales numbers consistently ranked in the mid-range of the 13 Territory Managers.

• At least five substantially younger Territory Managers had sales numbers worse than Pattison’s, yet were not terminated.

• One Territory Manager, 20 years Pattison’s junior, was below goal for half the time, but was never even threatened or reprimanded.

• Another Territory Manager, six years younger than Pattison, was promoted even though he had sales numbers four points lower than Pattison.

• Grainger lacked of any written (or even verbal) policies, procedures, or practices covering the number of years a Territory Manager could fail to meet sales goals before being terminated.

Based on this evidence, the court concluded: “Grainger claimed that it fired Pattison because of his poor performance; however, Grainger’s dissimilar treatment of significantly younger employees, whose performance figures were lower than Pattison’s, belies its assertion.”

Data can be very persuasive. The employer in this case, however, is now facing a jury trial because its explanation for the termination conflicted with the underlying numbers. You can almost guarantee that the employee’s attorney, a state or federal EEO investigator, a judge, and a jury will all spend time pulling apart your numbers to see if they jive with your legitimate non-discriminatory reason. Do yourself a favor and double-check for yourself anytime you plan to use the information in a termination decision.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? It is legal to retaliate against an employee for opposing a sex-toy party

At least according to Ohio’s 2nd appellate district in Davenport v. Big Brothers & Big Sisters of the Greater Miami Valley, Inc. (6/4/10) [pdf]:

Davenport asserts on appeal that retaliation against her for opposing the sex-toy party is discrimination on the basis of her sex and religion, bringing her complaint within the scope of R.C. 4112.02. As an initial matter, we note that the private party was hosted by a woman, planned by two women and open to everyone, which militates against an inference of sex discrimination. But more importantly, retaliation against an employee for opposing a sex-toy party simply does not constitute retaliation for opposing unlawful discrimination on the basis of religion or sex. We fail to see how a woman holding a tawdry after-hours party constitutes religious or sexual discrimination against other female employees. In any event, Davenport’s complaint does not allege that she did anything to “oppose” the party. She simply did not attend. … We cannot reasonably construe Davenport’s failure to attend a sex-toy party as opposition to religious or sexual discrimination prohibited by R.C. 4112.02.

Words to live by. Whether your employees should be advertising this type of party at work is an entirely different issue.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Don't put it in writing if you don't want it on the front page of the New York Times (literally)

I’m guessing that when Wal-Mart hired a prominent law firm to examine gender disparities in pay and promotions, along with its vulnerability to a discrimination lawsuit, it did not expect the results to be splashed on the front page on the New York Times business section 15 years later. Given the results, though, maybe it should have expected to be defending a class action sex discrimination case. Quoting Steven Greenhouse from the Times’s article:

The law firm … found widespread gender disparities in pay and promotion at Wal-Mart and Sam’s Club stores and urged the company to take basic steps—like posting every job opening and creating specific goals to promote women and minorities—to avoid liability.

The 1995 report said that women employed by Wal-Mart earned less than men in numerous job categories, with men in salaried jobs earning 19 percent more than women. By one measure, the law firm found, men were five and a half times as likely as women to be promoted into salaried, management positions.

Without significant changes, the lawyers said in their confidential analysis, Wal-Mart “would find it difficult to fashion a persuasive explanation for disproportionate employment patterns.”

It is likely that Wal-Mart and the plaintiffs will wage World War III over the discoverability of this report. If a jury hears that Wal-Mart’s own lawyers agree with the plaintiffs that widespread pay and promotion disparities exist, the plaintiffs will have a much easier liability case. And, if the plaintiffs can further show that that Wal-Mart ignored its lawyers’ advice, we’ll be talking punitive damage numbers that will shake you to your core.

While I traditionally subscribe to the motto, “Don’t put in writing if you don’t want it on the front page of the New York Times,” as an attorney I am deeply troubled by the prospect that confidential advice I provide to my clients could be discovered in a later lawsuit, let alone used at trial. The advice we give our clients should be sanctimonious. If I’m investigating a sexual harassment complaint, I understand that because the company’s response to the complaint is an element of the claim and its defense, my finding will become part of the case. But, if I am asked to perform an independent audit of my client’s HR practices, I have no reason to think that it will ever become part of later litigation. Businesses should have attorneys involved in proactively monitoring their workplace policies and procedures, and should do so without fear that the advice they receive will be used against them.

For more coverage of this story, I recommend Stephanie Thomas’s The Proactive Employer, and Dan Schwartz’s Connecticut Employment Law Blog.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best of… Do you know what to do when your company get sued?

Do you know what to do when your company gets sued in an employment case? “Resist the D.I.Y. urge and lawyer-up as soon as you find out you’ve been sued.” Here’s six more things to consider immediately:

Do you know? What to do when you get sued

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best of… Court sanctions may be opposite effect on employers

Viscerally, I enjoyed reading about the EEOC getting tagged for $4.5 million in sanctions. Yet, I can’t help but see the cloud in this silver lining:

“Sue first” mentality costs EEOC $4.5 million in sanctions, yet I question whether this is a good thing

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best of… Title VII and vulgar language

Take heed—the mere dropping of f-bombs in the workplace will not subject you to harassment liability:

Warning – vulgar language ahead: 11th Circuit decides whether tasteless workplace behavior is actionable as sexual harassment

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best of… Workplace bullying legislation

Last Wednesday, Sarah Needleman at the Wall Street Journal ran a story on New York’s efforts to pass workplace bullying legislation. For my thoughts on the correlation of the anti-bullying movement and the end of at-will employment, check out the following, which I wrote three years ago: Sticks and stones may break my bones...

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #129

Surprise. "What I'm Reading..." is running one day early this week. Tomorrow is a much needed off-day for me, which will be followed by "Best of" all next week. I'll return with brand new content for everyone on June 7.

This week brought us two momentous events – the series finale of the greatest television show of all time (IMHO), Lost, and an employment decision from the U.S. Supreme Court that will impact corporate document retention programs nationwide.

For some analogies between Lost and employment law, I recommend the following:

• LOST and Employment Law: Live Together or Die Alone – from Dan Schwartz’s Connecticut Employment Law Blog

• Lost’s Moments of Clarity and the Prisoners’ Dilemma – from Victoria Pynchon’s Settle It Now Negotiation Blog

• Lessons From LOST – from Mark Toth’s Manpower Employment Blawg

For coverage of Lewis v. City of Chicago, which greatly expanded the statute of limitations for disparate impact discrimination claims, take a look at these blogs:

• Employees can sue over older policies – from Jay Shepherd’s Gruntled Employees

• U.S. Supreme Court Issues Unanimous Opinion Allowing African-American Firefighters To Sue City Of Chicago Asserting Racial Discrimination Disparate Impact Claims – from the Pennsylvania Labor & Employment Blog

• Supreme Court Ruling Expands Statute of Limitations for Title VII Claims – from Human Resources News

• Disparate-Impact Claims Get a Boost in Unanimous Supreme Court Opinion Written by Justice Scalia – from Fitzpatrick on Employment Law

• U.S. Supreme Court on Timeliness of Disparate Impact Claims – from What’s New in Employment Law

• Supreme Court Decides Disparate Impact Case – from Nolo’s Employment Law Blog

• Supreme Court: Disparate Impact Plaintiffs Can Sue Based on the Application of the Discriminatory Practice – from World of Work

• SCOTUS: Firefighters win disparate impact case – from LawMemo

• Supreme Court: Disparate Impact Arises Upon Application of Employment Practice – from Philip Miles’s Lawffice Space

• U.S. Supreme Court Reverses Disparate Impact Win for Employer – from Texas Employment Law Update

• S. CT: Disparate Impact Claims Start To Run When Results of Job Test Applied by Employer – from Paul Secunda at the Workplace Prof Blog

• Important Procedural Decision from the Supreme Court – from Maryland Employment Law Developments

Here's the rest of what I thought was interesting this week:

Social Networking

• 10 Things Every HR Practitioner Should Know About Social Media – from Frank Roche’s KnowHR Blog

• Legal Dangers of Disciplining over Social Media – from HR Daily Advisor

• 11th Cir: Admission of MySpace Evidence Harmless Error – from Molly DiBianca’s Going Paperless

• Opening the Door to Facebook: Severe Emotional Distress May be the Key – from Michael Fox’s Jottings By An Employer’s Lawyer

Discrimination

• The War on Moms – from Chris McKinney’s HR Lawyer’s Blog

• Discrimination in the workplace: Who's most likely to trigger a lawsuit? – from HR Cafe

• In-House Question of the Week: How Do You Make Frivolous Plaintiffs Go Away without Litigation? – from Settle It Now Negotiation Blog

• Bat Fellatio and the Ambiguity of Sexual Harassment – from The Word on Employment Law with John Phillips

• Employers May Be Liable For Violating ADA Based On Vague And Overbroad Medical Questionnaires – from Labor Employment Law Blog

• Employers don’t need to tolerate difficult employees – from Jennifer Hays at the Warren & Hays Employment Law Blog

HR

• Top 10 List: Why Supervisors Do NOT Need Basic Legal Training – from Human Resources News

• An Eye On New York Workplace Bullying Legislation – from New York Labor and Employment Law Report

• Your Least Favorite (or Favorite) Policy – from Evil HR Lady

• HR Summer Checklist – from Where Great Workplaces Start

• When the Star Fires the Boss... – from Kris Dunn, The HR Capitalist

• Zero Tolerance Policies Have Limited Utility – from San Antonio Employment Law Blog

Wage & Hour

• DOL Increases Penalties for Child Labor Violations – from Wage & Hour Counsel

• Telecommuting on the Rise – from Florida Employment Law Blog

• Momentous Development In FLSA Class Action Law – from Wage & Hour - Development & Highlights

• Conducting Internal Audits To Ensure Employees Are Properly Classified – from Hunton Employment & Labor Law Perspectives™

• How Much Should Workers Know About Classification Decisions? – from Fair Labor Standards Act Law

• Tipped Employees: Dual Employment – from Fitzpatrick on Employment Law

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

A weighty lawsuit: Hooters sued for asking waitress to shed a few pounds

Last September I asked whether “fat” was the new protected class. A lawsuit filed earlier this week in Michigan seeks to answer this question in the affirmative. Cassandra Smith—5’8” and 132.5 pounds—claims that Hooters put her on a 30-day “weight probation” as a condition of keeping her employment. That probation followed a performance evaluation counseling her about the fit of her uniform and advising her to join a gym to fit better into the required uniform. The Wall Street Journal Law Blog has the details, along with a copy of the lawsuit.

Unlike Michigan, Ohio’s statute does not include “weight” as a protected class. Nevertheless, decisions based on an employee’s can be discriminatory under the right circumstances. Morbid obesity can be a protected disability if it manifests in or is the result of a physiological condition. Weight could also be categorized as gender discrimination on the basis of sexual stereotyping.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Discovery of social networks in employment disputes

I’ve long preached that employees should not enjoy an expectation of privacy in information they voluntarily place on the Internet, including social networks like Facebook. What they make available for the others to see should be fair game for employers to use in making employment decisions. According to one federal court in Indiana, it is also fair game for employers to use this information in defending against discrimination lawsuits. Because there are so few cases discussing this developing issues of the discoverability of social networking information, this case is helpful in defining the scope of these issues.

EEOC v. Simply Storage Management (S.D. Ind. 5/11/10) concerns two employees’ sexual harassment claims, and in particular their claims of depression, stress, and other psychiatric disorders stemming from the harassment. In discovery, Simply Storage sought the following information from the claimants’ social networking pages on Facebook and MySpace:

• All photographs or videos posted by the claimants or anyone on their behalf on Facebook or MySpace.

• Electronic copies of the claimants’ complete profiles on Facebook and MySpace (including all updates, changes, or modifications to their profiles) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including, but not limited to, “How well do you know me” and the “Naughty Application”).

The EEOC objected to the discovery on the grounds that the requests were not relevant, improperly infringed on the claimants’ privacy, and would harass and embarrass the claimants. Simply Storage claimed that discovery of these matters was proper because the claimants put their emotional health at issue beyond that typically encountered with “garden variety emotional distress claims.”

The court agreed with the employer and ordered the discovery. In doing so, it made four key observations about the discovery of social networking in discrimination cases.

1. Social networking content is not shielded from discovery merely because it is “locked” or protected as “private”.

2. However, all social networking content is not necessarily relevant or discoverable in all cases; the information must still be relevant to a claim or defense in the case. The court used the following example to illustrate this difference: “If a claimant sent a message to a friend saying she always looks forward to going to work, the person to whom she sent the message and the substance of the message are what should be considered to determine whether the message is relevant…. But the mere fact that the claimant has made a communication is not relevant because it is not probative of a claim or defense in this litigation.”

3. Allegations of depression, stress disorders, and similar injuries will manifest themselves in some social networking content. An examination of that content might reveal whether and when onset occurred, the degree of distress, and other stressors that could have produced the alleged emotional distress.

4. Because discovery is meant to be liberal, the producing party should err in favor of production if there is any doubt over the arguable relevance of social networking information.

The court also specifically addressed the employees’ privacy concerns:

The court agrees with the EEOC that broad discovery of the claimants’ SNS could reveal private information that may embarrass them. Other courts have observed, however, that this is the inevitable result of alleging these sorts of injuries. Further, the court finds that this concern is outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings. As one judge observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”

In other words, if it is fit to share with your Facebook friends, it is fit to be disclosed in discovery (as long as it’s relevant). As these issues become more prevalent in litigation, these guideposts will become more fleshed out. In the meantime, consider including requests for social networking information in all employment disputes.

[Hat tip: Fitzpatrick on Employment Law]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

6 tips for handling electronic information in litigation

Zubulake v. UBS Warburg LLC is considered the standard-bearer of lawyers’ and their clients’ responsibilities to preserve electronic information for litigation. A litigant or potential litigant has a duty to preserve relevant or discoverable information in pending or reasonably anticipated litigation. The Spring 2010 edition of the ABA’s Employment and Labor Relations Law Newsletter has an article entitled, Nuts and Bolts of Ethics in Employment Litigation [ABA membership required to view]. The article discuss what steps a business should take to ensure that all possible information is preserved as early as possible. Here’s six good suggestions for your consideration in defending against your next employment claim.

1. Is there an existing preservation/destruction policy, and how regularly are documents and electronic information destroyed?

2. Do you need to tell IT to stop destroying certain information"?

3. How is data stored? How can you retrieve the information? How would it be preserved? How much would it cost to restore documents?

4. Is any cloud computing used?

5. Do any employees have access to destroy or alter evidence?

6. Provide detailed instructions to all key employees via a preservation letter, instructing them about their obligation to preserve documents, what kind of documents should be preserved, how they should be preserved, and who should be contacted to handle questions.

A good takeaway for business in handling electronic data in litigation or in anticipation of litigation – these are complex issues that need a trained eye. The earlier counsel is engaged, the earlier preservation measures can be put in place to guard against the inadvertent destruction of evidence and the catastrophic sanctions that can flow from it.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #128

Another week, and another compilation of the best of the labor & employment blawgosphere that I didn’t write.

• Is Bad Taste the New Taste? Social Media is Changing Our Sense of What's Acceptable—and What's Not – from Case Western Reserve University’s Think magazine

• From the CBIA HR Conference: What Happens On Facebook May Not Stay on Facebook – from Dan Schwartz’s Connecticut Employment Law Blog

• Employee Fired When Her Sex Blog Is Discovered by Her Boss – from Molly DiBianca at the Delaware Employment Law Blog

• Small Business Summit - Leveraging Social Media to Build New Relationships – from The ChamberPost

Discrimination

• Employees Harassed by Third-Parties: Male Prisoners Harassing Female Correctional Employees – from Fitzpatrick on Employment Law

• Hearings on Bill in Response to Gross v. FBL – from Iowa Employer Law Blog

• Employers must be prepared for GINA claims – from Jennifer Hays at the Warren & Hays Employment Law Blog

• Family Responsibility Discrimination – from Stephanie Thomas’s The Proactive Employer

• Meeting your ADA requirements starts with a simple chat – from Stephen Meyer’s HR Cafe

• Inability to get along with co-workers can be sufficient basis for adverse employment action – from Employment Law Matters

• Workplace bullying law passes NY state senate – from PointOfLaw Forum

• “Blood Typing” in the Workplace? Some GINA Issues to Consider – from Prima Facie Law Blog

• Man Wins Pregnancy Discrimination Suit (Seriously.) – from Deliberations

Wage & Hour

• Proactive Measures Employers Should Take to Protect Themselves Against the DOL – from CPEhr

• When Interns Make Sense – from WSJ.com: Small Business

• Adverse References to FMLA Leave Usage Sufficient to Defeat Employer's Claim that it Terminated Employee for Performance Deficiencies, Not Exercise of FMLA Rights – from The FMLA Blog

• Employees Paid on a Piece Rate Basis are Entitled to Overtime – from Overtime Advisor

• Conditional Certification Defeated: A Rare Occurrence! – from Wage & Hour - Development & Highlights

HR

• Save the Workplace: Fire Bad Supervisors and Managers – from The Word on Employment Law with John Phillips

• Old Criminal Records Can Haunt You – from Jason Morris at the employeescreenIQ Blog

• Tell “At-Will” Employees They Are “At-Will” – from Minnesota Labor & Employment Law Blog

• CNN’s Campbell Brown Departs With Class – from Bob Sutton

• How to spot a liar, and why doing so might be harder if he’s the boss – from Mike Maslanka’s Work Matters

• “Concerted Activity”: Why NonUnion HR Needs to Know About It – from Mike Haberman’s HR Observations

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Quarter-billion dollar verdict in sex discrimination suit highlights risks of family responsibility discrimination

In October 2009, Working Mother magazine named Novartis Pharmaceuticals one of its 100 best companies for working families, lauding its flexible work schedules, job-sharing, telecommuting, and customizable child-care offerings. According to a federal jury in Manhattan, all was not what it seemed at Novartis. That jury found that Novartis had discriminated against women over pay and promotions. The cost to Novartis: $3.3 million in compensatory damages to the 12 name plaintiffs, and another $250 million in punitive damages to a class of 5,600 female sales reps and entry-level managers. The allegation that perhaps led the jury to award more than a quarter-billion dollars was this gem from a Novartis manager explaining his preference against hiring young women: “First comes love, then comes marriage, then comes flex time and a baby carriage.” That statement has not only cost Novartis a whopping 2.6% of its annual revenue, but also its reputation as a great workplace for working moms.

One of the very first posts I wrote on this blog (almost three years ago to the day) discussed a $2.1 million verdict handed down by a Cuyahoga County jury against Kohl’s. In that case, the plaintiff claimed discrimination because of her parenting role for her two young children. Witnesses testified at trial that as she was being passed over for promotion after promotion, managers asked questions like: “You’re not going to get pregnant again, are you?” and “Did you get your tubes tied?” Following the trial, the Cleveland Plain Dealer quoted one juror’s explanation for the multi-million dollar verdict: “I think she was very poorly treated because she was pregnant, because she wanted to have a family.”

Ashby Jones, writing at the Wall Street Journal’s Law Blog, quotes Mike Delikat, the chair of Orrick’s employment law practice, who thinks that this verdict is the beginning of a dark age for employers:

“It should clearly cause the employer community to sit up and look at its potential exposure in this area,” said Delikat. “You’re going to see more class-actions filed, and more individual claims of gender and race discrimination. It could be a bonanza.”

Delikat said that the Novartis ruling was a “game changer,” in that it provided a new arrow for plaintiffs lawyers to tuck into their quivers. “How many employers are going to be willing to take a case now that we have a case like this on the books?” he asked. “The case is going to encourage even more defendants to settle—and pay a lot more than they used to.”

While I’m not ready to go as far as Mr. Delikat, there is real danger that lurks for employers in these types of cases. People think that women are entitled to have a career and a family, and juries continue to punish employers that prioritize the former over the latter. If employers have not been paying attention to family responsibility discrimination, they better be now.

For more coverage of this story, I recommend the perspectives of my fellow bloggers: Delaware Employment Law Blog, HR Lawyer’s Blog, Maryland Employment Law Developments, San Antonio Employment Law Blog, UndercoverLawyer, LawMemo Employment Law Blog, and Jottings By An Employer’s Lawyer.

For more on issues and trends in family responsibility discrimination, I recommend a few of my earlier posts:

• Caregiver discrimination, three years later
• EEOC releases “Employer Best Practices for Workers with Caregiving Responsibilities”
• Is the glass ceiling self-imposed?
• Is mommy bias real?
• “Maternal Profiling” listed as buzzword of 2007

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

A textbook example of Facebook firing

I spent the summer between my junior and senior years of high school bussing tables in a nursing home dining room. Not the world’s most glamour job, but it paid $8 an hour, which in 1989 was a lot of money. Needles to say, we had our fair share of difficult people to deal with. One of my co-workers would retaliate by spitting in the resident’s food. Had he been caught by management, there is no doubt he would have been fired.

Flash forward 21 years – social media is the new spitting. Unlike spitting, however, social media is public, and much easier to discover. When a waitress at a Charlotte restaurant was stiffed on a tip from a difficult table, she took her grievance to Facebook, “Thanks for eating at Brixx, you cheap piece of ---- camper.” Two days later, her managers fired her for violating company policies against speaking disparagingly about customers and casting the restaurant in a negative light on social networks.

There are three important lessons to take away from this tale that is becoming all too common.

1. Your employees are on Facebook, Twitter, blogs, and myriad other websites, saying things both good and bad about your business. Your business needs to harness the good and discourage the bad.

2. If an employee makes disparaging comments about your business on the Internet, you are within your rights as an employer to fire that employee.

3. But, you are selling your business short if you don’t have a policy that warns employees of the potential punishments for illegitimate and irresponsible uses of social media, as well as instructs them about legitimate and responsible uses.

For more on putting together an appropriate social media policy, check out my earlier thoughts on 7 must-haves for your policy.

For more on this story, I recommend Philip Miles’s Lawffice Space, The Word on Employment Law with John Phillips, Megan Erickson’s Social Networking Law Blog, and Molly DiBianca at the Delaware Employment Law Blog. And thanks to Joe Lustig for bringing this to my attention.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Admissibility of settlement offers

Sometimes, employers are blindsided by a lawsuit. The first you might learn that an ex-employee is suing you is when you are served the complaint and summons. Other times, however, the filing of a lawsuit is preceded by a back-and-forth between attorneys hoping to resolve the dispute outside of court. To what extent can you freely communicate with an ex-employee’s attorney without fear that your words and statements will come back to haunt you in a trial if the negotiations break down? Eid v. Saint-Gobain Abrasives (6th Cir. 5/12/10) [pdf] provides some guidance.

After his termination from Saint-Gobain, Kenneth Eid retained counsel for the purpose of asserting an employment discrimination claim. Prior to filing a claim, Eid’s attorney sent a letter to Saint-Gobain announcing Eid’s intention to pursue a claim but inviting a negotiated resolution. Saint-Gobain’s associate general counsel responded in writing with a discussion of Saint-Gobain’s internal investigation into Eid’s allegations and witnesses interviews. The responses concluded that the “termination was handled in our judgment in an appropriate fashion,” and “[t]here is no basis for the organization to consider a settlement with your client.”

Prior to trial, the court excluded the general counsel’s letter under Evidence Rule 408. Following a defense verdict, Eid appealed that decision.

Evidence Rule 408 prohibits a party from introducing into evidence:

• offers to settle; and
• conduct or statements made in settlement negotiations regarding the claim.

The 6th Circuit found that the trial court properly excluded the letter, despite the refusal to engage in any further settlement negotiations:

A party will often adopt a hardline position at the beginning of negotiations in order to extract greater concessions from an opponent. It would ignore the realities of negotiation to hold that such a position necessarily means that the parties are not engaged in compromise negotiations. Such a rule would also run contrary to the purposes of Rule 408, as it would invite undue caution in settlement negotiations, and would facilitate the admission of communications that contain puffing, posturing, and various irrelevancies.

The 6th Circuit also found that the discussion of the internal investigation was within the protections of Rule 408.

In other words, you can respond to an employee’s pre-suit settlement overtures with a reasonable degree of confidence that a jury will not some day be reading your lawyers comments about the strengths and weaknesses of your case.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

What employers need to know about EEO

On Friday, I had the pleasure of appearing on Newton Software’s podcast, Equal Employment Opportunity & Affirmative Action: What Every Employer Needs to be Aware of and Why. For a half-hour, host Joel Passen and I talked about the proactive steps employers can take to stay ahead of curve on EEO compliance issues. If you missed it, you can catch up either on Joel’s blog, on BlogTalkRadio, or on iTunes. The latter two also allow you to subscribe to Joel’s excellent and informative weekly podcast.

Thanks to Joel for inviting me to appear, and I look forward to taking you up on your invitation to return.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #127

The nomination of Elena Kagan to the Supreme Court was the top legal story of the week. Here’s a snippet of the blogosphere’s commentary on the nomination.

• The Employment Law Decisions of Supreme Court Nominee Elena Kegan – from Michael Fox’s Jottings By An Employer’s Lawyer

• Out-of-context quotes and Kagan (II): Miers, Media Matters, Jon Stewart, and Me – from PointOfLaw Forum

• A “Diverse” Supreme Court? – from Discriminations

• Constitution Requires Ivy Credentials – from The Word on Employment Law with John Phillips

• Kagan and the Magic Number Three – from Settle It Now Negotiation Blog

• It’s Official, It’s Kagan - New SCOTUS Nominee – from Philip Miles’s Lawffice Space

• Dumbing Down the Narrative – from Popehat

• Kagan the Next Supreme? – from Manpower Employment Blawg

As for the rest of the best of the week…

Social Media

• The NLRB and Social Media Policies – from Labor Relations Today

• Using Social Media for Selection – 3 Things Employers Should Consider – from Where Great Workplaces Start

• Facebook Privacy: More Changes & Controversy (Weigh In!) – from Megan Erickson’s Social Networking Law Blog

• 25 Things About Me (and My Visit to Facebook Headquarters) – from Dan Schwartz’s Connecticut Employment Law Blog

Discrimination

• Got Milk? Understand the Link Between Federal & State Breastfeeding Laws – from Mindy Chapman’s Case In Point

• Not Just Any Release Will Do: Drafting Valid Releases for a Reduction-in-Force – from New York Labor and Employment Law Report

• Accommodating family status in the workplace: the great prima facie case debate – from Donna Seale’s Human Rights in the Workplace

• Federal Bill Aims to Ban Credit Reports for Employment Screening – from Nick Fishman’s employeescreenIQ Blog

• Third Cir. Rules that Side Effects from Treatment May Be an ADA Impairment – from Maribeth Minella at the Delaware Employment Law Blog

• Washington’s Next Acronym?: POWADA—the Gross v. FBL Financial Services, Inc. Override – from Fitzpatrick on Employment Law

• Title VII Sex Discrimination and Retaliation/Subject Matter Jurisdiction re Attorneys’ Fees – from The Labor and Employment Law Blog

Wage & Hour

• Plaintiff’s Attorney’s Fees Can be Very High – from San Antonio Employment Law Blog

• Increased DOL Enforcement Calls for Proactive Measures – from CPEhr

• DOL Plans To Amend Regulatory FLSA Recordkeeping Requirements – from Hunton Employment & Labor Law Perspectives™

• The Offer Of Judgment: Sometimes The Magic Works, Sometimes It Doesn’t – from Wage & Hour - Development & Highlights

Miscellaneous

• Are They or Aren’t They Confidential? Performance Review Content Now Under Public Scrutiny – from Becky Regan at Compensation Cafe

• Trade Secrets on Copy Machine Hard Drives? – from Trade Secrets Blog

• Big Brother, Big Implications: Creating an Employee Monitoring Policy Without Creating Additional Legal Liability – from Pennsylvania Labor and Employment Blog

• NLRB - The National Union Encouragement Board – from The ChamberPost

• DOL Announces “Plan/Prevent/Protect” Business Compliance Program – from Washington D.C. Employment Law Update

• Unauthorized Access Doesn’t Apply to E-Mail, Judge Rules – from Law.com

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Presenting: The Top 5 Issues Confronting Your HR Practices

Yesterday, KJK's Labor & Employment Group presented our first Breakfast Briefing of the year, The Top 5 Issues Confronting Your HR Practices. We had an ambitious agenda, covering the classification of employees, health care reform, workplace technology, the ADAAA, and hiring. Thanks to everyone who attended and helped make our event successful. For those that could not attend, below are the PowerPoint slides. Keep you eyes on this space for updates on our next Breakfast Briefing later in the year.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Battle of the accommodations

Almost a month ago, I wrote about how businesses should go about opening their doors to employees’ pets. At the time, I flagged potential ADA issues as one possible risk to having a pet-friendly workplace:

If an employee is allergic to animals, pet owners must understand that they may have to leave their animals at home as a reasonable accommodation. Other possible accommodations include creating sufficient separation between the allergic employee and the pet, segregating the pet to a specific part of the facility, or improving ventilation. Ignoring the pleas of an allergic employee, though, will open you up to potential ADA liability.

In response to my post, Stephanie Thomas, who follow each other on Twitter, asked the following question:

I dismissed it as an academic question. Perhaps I was being too hasty. Yesterday, Walter Olson’s Overlawyered brought us a story that illustrates this exact problem. According to an article by Steven Greenhouse in the May 10 New York Times, the city of Indianapolis has gotten itself into trouble with the EEOC for allowing a disabled employee to bring a service dog into work that caused a co-worker to have an asthema attack. From Mr Greenhouse’s story:

On the first day Ms. Kysel took Penny to work, one of her co-workers suffered an asthma attack because she is allergic to dogs. That afternoon Ms. Kysel was stunned when her boss told her that she could no longer take the dog to work, or if she felt she could not report to work without Penny, she could go on indefinite unpaid leave…. Ms. Kysel filed a complaint with the Equal Employment Opportunity Commission, asserting that her employer had discriminated against her by failing to accommodate her disability.

According to the EEOC (as quoted by Mr. Greenhouse):

When you have two people with disabilities … you don’t treat one as inherently more important than the other. What the employer has to do is work out some sort of balance between the accommodations needed.

In other words, not even the EEOC knows how to handle this perplexing situation. The lesson for employers is two-fold: 1) employment law is the land where bizarre happens; and 2) when in doubt, call your lawyer. We may not know the answer, but we can at least give you the peace of mind that you’re not totally crazy in not knowing what to do.