Take heed—the mere dropping of f-bombs in the workplace will not subject you to harassment liability:
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 like what you read? Receive updates two different ways:
Subscribe to the feed or register for free email updates.
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...
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 like what you read? Receive updates two different ways:
Subscribe to the feed or register for free email updates.
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
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 like what you read? Receive updates two different ways:
Subscribe to the feed or register for free email updates.
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.
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 like what you read? Receive updates two different ways:
Subscribe to the feed or register for free email updates.
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.
Social networking content is not shielded from discovery merely because it is “locked” or protected as “private”.
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.”
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.
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]
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 like what you read? Receive updates two different ways:
Subscribe to the feed or register for free email updates.
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.
Is there an existing preservation/destruction policy, and how regularly are documents and electronic information destroyed?
Do you need to tell IT to stop destroying certain information"?
How is data stored? How can you retrieve the information? How would it be preserved? How much would it cost to restore documents?
Is any cloud computing used?
Do any employees have access to destroy or alter evidence?
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.
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 like what you read? Receive updates two different ways:
Subscribe to the feed or register for free email updates.
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
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 like what you read? Receive updates two different ways:
Subscribe to the feed or register for free email updates.