WIRTW #52

Happy 1-year anniversary to my first attempt at a weekly column, What I'm Reading This Week. Thanks to all of my fellow bloggers who have given me ample links to post each and every week. On to this week's batch of links for everyone's betterment.

Work Matters reminds everyone to beware the dreaded "cc:" on company e-mails.

The Non-Compete and Restrictive Covenants Blog gives some practical information of the dangers in trying to enforce a non-compete agreement.

Wage & Hour - Developments & Highlights reports on the spate of class action lawsuits affecting the financial services industry, as if that sector needs another worry.

The steady and reliable Connecticut Employment Law Blog digests the new federal rules on attorney-client privilege.

World of Work discusses pending legislation that could become a reality after January, the Employee Misclassification Prevention Act.

The Pennsylvania Labor & Employment Blog, meanwhile, discusses another employee-friendly piece of legislation, the RESPECT Act.

The FMLA Blog reports on a case that I hope is an anomaly, in which an employer was put on notice of an employee's need for FMLA leave because she was crying.

The HR Lawyer's Blog warns against the dangers of snooping on employees' private e-mails and other electronic information.

The Word points out the distinction between gender differences and gender discrimination.

Old news is bad news for businesses: Labor & Employment cases remain most popular targets

Fulbright & Jaworski has published its annual report on litigation trends, and the news is scary for American businesses. Labor and employment cases remain the most numerous type of case pending in 2008. 47% of U.S. companies surveyed reported being sued in a labor or employment case. When you focus just on the Midwest, the number jumps to 54%.

Other highlights of interest to employers:

• Wage-and-hour lawsuits spiked 19%.
• After wage-and-hour, companies saw big increases in five other areas of workplace litigation: discrimination, employee privacy, ERISA, disability claims, and age discrimination.
• Of all of the different types of employment litigation, U.S. companies singled out race discrimination cases as creating the highest financial exposure, followed by sex discrimination, wage-and-hour violations, age claims, harassment, retaliation, disability, non-compete cases, and FMLA violations.

There are a lot of lessons that businesses can draw from these findings. I'd like to focus on two. First, especially in a down economy, it is naive for employers to think that claims brought by employees will decrease or even flat-line in 2009. If anything, these claims will increase even more.

There is no way to prevent yourself from being sued. But, there is one surefire way to limit the risk, which brings me to my second lesson -- training and preventative measures are key. Has your handbook recently been reviewed and updated? Have you done harassment and EEO training in the past two years? Are you supervisors and managers up to date on how to effectively discipline employees? Will your myriad wage and hour practices pass legal muster? If you answer "no" to even one of these questions, your company is at risk in becoming a stat in Fulbright's 2009 survey.

Think before you e-mail

E-mail is a dangerous thing. It's impulsive, it's hard to get rid of, and when you get rid of it judges use nasty words like spoliation. It's exactly because it's so easy that it has quickly become the preferred mode of business communication. Often, it used for a lot of things it shouldn't be used for, like stealing trade secrets, disparaging the boss, and sexually harassing co-workers. And don't get me started on the dangers of "reply all." A good rule of thumb is before you send any e-mail that might be the least bit controversial or dangerous, save it in a draft folder for 24 hours and revisit the next day when you've cooled off and can decide whether you really want to send it.

Now, Google thinks it has the answer, "Mail Goggles":

Sometimes I send messages I shouldn't send. Like the time I told that girl I had a crush on her over text message. Or the time I sent that late night email to my ex-girlfriend that we should get back together. Gmail can't always prevent you from sending messages you might later regret, but today we're launching a new Labs feature I wrote called Mail Goggles which may help.

When you enable Mail Goggles, it will check that you're really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math problems after you click send to verify you're in the right state of mind?

Is this tongue in cheek? I think it's a legitimate tool, but I'm not really sure. But the lesson in a good one to take to heart. E-mail is a powerful tool that I cannot imagine how I lived without (like my DVR and HDTV, but for very different reasons). With great power, though, comes the responsibility. Think before you email, always. Your company's risk manager will thank you for it.

[Hat tip: Lowering the Bar]

Do you know? Breastfeeding at work

Today, I start what will become a weekly feature, which I am calling, “Do you know?” I have a lot of different sources from where I get ideas – recent cases, newspaper articles, other blogs, search terms, or something else that happened to catch my eye. Often, I use one of these sources to give people some general information about a specific area of employment law. For example, take a look at recent posts on FMLA intermittent leave, or meal and rest breaks under the FLSA.

Starting today, and hopefully every Tuesday from now on, I’m going to be presenting a general refresher on a different topic. Today’s topic: breastfeeding employees.

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Did you know? Ohio has one of the most liberal breastfeeding laws in the country. R.C. 3781.55 provides:

A mother is entitled to breast-feed her baby in any location of a place of public accommodation wherein the mother otherwise is permitted. “Place of public accommodation” has the same meaning as in section 4112.01 of the Revised Code.

In April 2007, the Ohio Civil Rights Commission issued its first probable cause finding under this statute, against a fitness club that prohibited a member from breast-feeding her 6-month-old son in its daycare area.

Does this provision prohibit an employer from stopping a lactating employee from taking time out of her day to nurse or pump. Under 3781.55, the question hinges on the definition of a “public accommodation.” A “place of public accommodation” is any “inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.” This provision typically covers public areas that have to be accessible to the disabled. Because private work areas are not generally open to the public, this provision typically does not apply to employees. So, although there are cases on this issue, my best guess is that 3781.55 does not apply to the employer/employee relationship.

Just because 3781.55 might not protect a mother’s right to nurse at work does not mean that a company should immediately prohibit the activity. To the contrary, a company has to take a look at its other similar policies. A no-breast-feeding policy will, by its very nature, only apply to women. What other similar policies might a company have? Does it allow bathroom breaks during the work day? Smoke breaks? Other personal time? If so, a ban on nursing during the work day very well might be deemed discriminatory on its face, because it is necessarily targeted only at women. In other words, before you discipline that employee for taking break to pump, stop and think whether you want to risk the likely lawsuit and the bad publicity that will probably go along with it.

Spurned employee loses retaliation lawsuit for lack of protected activity

Alshafi Tate cleaned offices for Executive Management Services. He also had a year-long sexual relationship with his supervisor, Dawn Burban. Indeed, according to Tate, he and Burban had consensual sex two or three times per week, sometimes at work and other times at the home of a co-worker.(1) Tate decided to end the relationship after he got married, but Burban would repeatedly call his home, and would tell him that if the relationship ended, he would lose his job. When Tate rejected her ultimatum, Burban instigated an altercation that ultimately led to his termination for insubordination.

Tate sued the company for sexual harassment and retaliation. A jury found against Tate on the harassment claim, but in his favor on the retaliation claim. Despite the favorable verdict on the retaliation claim, the jury awarded him $0 in compensatory damages. The judge later awarded him $7,830 in back pay, and his lawyers $65,129.39 in fees and costs.

EMS appealed the verdict on the retaliation claim. In Tate v. Executive Mgmt. Servs., Inc. (7th Cir. 10/10/08), the 7th Circuit reversed the verdict on the retaliation claim, finding that Tate had not engaged in a protected activity:

In order to engage in protected conduct, Tate only has to show that he reasonably believed in good faith the practice he opposed violated Title VII. ...

Even if we assume, for purposes of argument, that there may be circumstances in which a person who rejects his supervisor's sexual advances has engaged in a protected activity, Tate has not shown that he "reasonably believed in good faith the practice [he] opposed violated Title VII." ... There is simply no evidence in the record that Tate believed that Burban's actions were unlawful. In fact, the only statements that Tate made to Burban were that they "were not good with each other" and he "was not messing with her anymore," statements which do not indicate that Tate believed he was being sexually harassed. ...

We do not dispute that Tate protested about Burban's behavior; the problem is that he did not necessarily believe that her behavior was illegal at the time. ...

The Court dodged the real issue - whether a person who rejects a supervisor’s sexual advances has engaged in a protected activity. More often than not, I think they would be.

This case, however, points out the importance of character in employment cases. An employment lawsuit often is a morality play, and the judge and jury will determine the case on the character of the actors. Did the employee perform worthy of keeping his or her job? Did they employee behave as the jurors would have in his or her situation? Did the employer treat the employee fairly? Did the employer treat the employee as the jurors would have liked to be treated?

In this case, there is little doubt that the jurors punished Tate for what it perceived as amoral behavior. He slept with his boss, cheated on his wife, and then sued only when it backfired on him. He was not a sympathetic character to whom the jury could relate. While the jury may have believed that the employer did not fairly treat him, they were more put off by Tate's own misconduct. Thus, the zero dollar verdict, and the appellate opinion that skirted the real issue.

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(1) I'm reminded of the following exchange from the Seinfeld episode, The Red Dot:

Mr. Lippman: It's come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
George: Who said that?
Mr. Lippman: She did.
George: Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon... you know, cause I've worked in a lot of offices, and I tell you, people do that all the time.

WIRTW #51

It's impossible to escape news about the economy. The Connecticut Employment Law Blog lists 5 laws employers should be thinking about in today's economy. Meanwhile, Know HR lists 5 things employers should be telling their employees about their 401(K)s.

I've written previously on the ADA Amendments Act. Overlawyered discusses one attorney's argument that under the new ADA amendments, "being male" might qualify as a protected disability. Let me be the first to say that I'll eat my hat if any court ever says that my maleness qualifies as a disability.

The Delaware Employment Law Blog instructs on the handling of permanent replacement employees during a labor strike.

The Workplace Prof Blog discusses oral argument in a 3rd Circuit case on the issue of gender stereotyping under Title VII versus sexual orientation discrimination. The male plaintiff, who by all accounts acted very effeminate, argued that he was discriminated against because he did not conform to his co-workers' sexual stereotypes. The district court dismissed his sexual harassment claim because discrimination on the basis of sexual orientation is not unlawful. The appellate court will decide whether anti-gay discrimination is more based on sexual orientation or gender stereotyping. For my thoughts on this issue, see D.C. Court rules in favor of transgendered job applicant.

Work Matters argues that women should stop taking advantage of their sexuality by making bogus harassment claims to take revenge on men that had jilted them.

George's Employment Blawg talks about the importance of defining the terms of an independent contractor arrangement in a written agreement. I've also written before on this issue.

HRWorld writes on working through cancer.

The Privacy Law Blog reports on a 3rd Circuit decision which held that it was illegal for a labor union to access driver records for union organizing purposes.

Next week we'll celebrate the 1 year anniversary of this column, and announce a new weekly feature that will be joining the blog.

Supreme Court hears oral argument in Crawford v. Nashville - asks whether participating in an investigation equal protected activity

The Supreme Court started its term this week, and wasted no time hearing its first employment case. Yesterday it heard oral argument in Crawford v. Metropolitan Government of Nashville, which is out of the 6th Circuit. Crawford asks if Title VII's anti-retaliation provision protects an employee from being fired because she cooperated with her employer's internal sexual harassment investigation.

Vicki Crawford was terminated after she participated in an internal investigation of a sexual harassment claim made by a co-worker. The 6th Circuit held that her employer had no retaliated against her because participation in a purely internal, in-house investigation, in the absence of any pending EEOC charge, is not a protected activity. The Court reasoned that a contrary result would chill employers' investigations because they would not interview witnesses for fear of potential retaliation liability. Crawford, not surprisingly, has argued the converse, that employees will likely avoid aiding employers with internal investigations if they believe they can be fired for do so, which will chill the investigations.

The Workplace Prof Blog has a thorough analysis of the oral argument. The Justices' questioning seems to indicate that case can go either way. The Justices were clearly bothered by a couple of things. First, the opposition clause would only protect those who take the employee's side, and not those that might support the employer. Practically, this should be a non-issue because those employees that support the employer should not have to fear retaliation. Secondly, the Justices expressed a real fear about opening the floodgates to federal court with a slew of retaliation claims based on purely internal investigations.

It is here that I agree with Professor McCormick from the Workplace Prof Blog. Ultimately, this is a policy driven, and not statutory driven, case. It should come down to whether five of the Justices value protecting the sanctity of internal workplace investigations. It seems that the employee has the better of the argument. Employees already perceive that they can be fired if the company doesn't like what they have to say. As one who's done his fair share of internal investigations, take it from me that it's hard enough as is to get employees to voluntarily cooperate. Assurances of no-retaliation are usually necessary to get them to open up, if at all. A ruling for the employer in this case would make internal investigations all that much harder to conduct. Because internal investigations are essential to our harassment jurisprudence, the Court would be sending the wrong message by coming down on the employer's side in this case.