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.