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.

Do you know? Are your employees getting Unvarnished?

What is Unvarnished? It’s a website (currently in private beta) that you should be very concerned about. TechCrunch describes it as a website where “any user can create an online profile for a professional and submit anonymous reviews. You can claim your profile, but unlike LinkedIn, you have to accept every post, warts and all. And once the profile is up there’s no taking it down.” In other words, it's akin to a virtual bathroom stall wall, where anyone can write anything about anyone else, with a cloak of anonymity and without real fear of repercussion.

TechCrunch also nicely summarizes the dangers businesses face from this type of anonymity:

This could be the place to anonymously settle vendettas: co-worker swipes a promotion, go to Unvarnished, boss dishes out a small bonus, go to Unvarnished, the vice president makes an ambiguous pass at your girlfriend, go to Unvarnished…you get the idea.

Here's CNET's take on the dangers of Unvarnished:

The thing I dislike most about this idea is that it gives someone else all the power to exert his or her will or personal preference on the reputation of another. Just because you don't like your boss doesn't mean you should have the power to affect his or her future employment prospects. After all, it's possible you're the jerk, not your boss. And so what if you can counter a negative review? If it hasn't risen to the level of outright defamation, it's just a matter of opinion, and the presence of that opinion could cost you a job.

Here’s what a particularly scathing review on Unvarnished looks like (again, courtesy of TechCrunch):

Whether Unvarnished catches on remains to be seen. For now, it's still in private beta and not available to the general public. Yet, as employers try to navigate the daily changes of the social media landscape, they need to be aware that sites like Unvarnished exist. Employees are on the Internet, bad mouthing each other and their employers. Better to at least have a policy directing employees to the responsible use of these tools than having them posting, without regulation, from your workplace and about your workplace.

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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.

Does the punishment fit the crime in your workplace?

Last week, this happened at a Philadelphia Phillies game:

 

A fan ran onto the field, and was promptly tasered by the police.

“What does this have to do with employment law,” you might be asking yourself? The Philadelphia police department is in he middle of a debate as to whether its use of a Taser was necessary or excessive. While your employees are likely at-will, you will be embroiled in the same debate when you defend a termination in court. While you have the legal right to terminate an employee at any time for any reason, juries will be asking themselves if the punishment fits the crime. If it does not, they will look for another reason for the punishment—such as discrimination.

When you make the difficult decision to terminate an employee, ask yourself: Do the actions really warrant termination? How have we treated other employees under similar circumstances? Is there a lesser punishment we can live with? Or, is the action so bad that termination is necessary? Judges and juries will be asking these questions when they decide your case. It is probably a good idea for you to also ask them of yourself.

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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.