WIRTW #130

I love vacationing on Hilton Head Island. The beaches are pristine, the seafood’s fresh, the bars and grocery stores stock Yuengling (which, for reasons unknown, we cannot get in Ohio), and the wildlife is abundant. On one morning at the beach, a school of dolphins swam 50 feet offshore beneath a flock gulls diving for fish, while a half-dozen rays brushed my ankles at the shoreline. We also saw this behemoth lounging under a bike-path bridge—which is about as close as I ever want to get to a gator.

Anyhow, here’s what I read this week and last. 

Social Media

• The Nice Things Your Employees Are Saying Can Create Liability – from Minnesota Business

• Jury Instructions on Social Media (And Google Earth!) – from Molly DiBianca’s Going Paperless

• Can Social Recruiting Lead to Discrimination and Equal Opportunity Issues? – from Laurel Clay’s ERE Community Blog

• A Tale of Two Social Media Policies: “Vader’s Death Star” vs. “Don’t Embarrass Your Mom” – from Kris Dunn, The HR Capitalist

• Readers Comment: The Defensible Collection of Social Media Data in E-Discovery – from Ride The Lightning

• OSBA Recommends Judges Limit Jurors' Social Media Access – from Cleveland Law Library Weblog

Workplace Bullying

• Debating Workplace Bullying Legislation – from Workplace Prof Blog

• New York workplace bullying legislation is in the news – from David Yamada’s Minding the Workplace

• Bullying As a Cause of Action - One Large Step Closer – from Michael Fox’s Jottings By An Employer’s Lawyer

Technology

• The World Cup in the Workplace: Opportunities and Distractions – from Dan Schwartz’s Connecticut Employment Law Blog

• Reckless and Grossly Negligent Failure to Preserve Results in Sanctions for Defendant – from Electronic Discovery Law

• Former Employee Emails Linkedin Contacts and is Sued – from San Antonio Employment Law Blog

• $50 Million Connecticut Trade Secrets Award – from Trade Secrets Blog

Wage & Hour

• Passage of the Paycheck Fairness Act Could Legalize Employees’ Discussion and Disclosure of Their Wages with Co-Workers – from Fitzpatrick on Employment Law

• Will Your Company Be the Next Million-Dollar Wage & Hour Lawsuit? – from CPEhr Small Business HR Blog

• Claim or no claim? – from Work Matters

• Ohio H.B. 523 Would Unify Definition of Employee, Make it Easier to Find Misclassification – from Employer Law Report

• Practice Over Policy - Overtime Wages Are Due For All Hours Worked Even If Workers Disregard Company Policies Or Instructions From Supervisors – from Overtime Advisor

• When is Your Annual Salary Not Your Base Salary? – from Compensation Cafe

• Classes and Sub-classes Are Possibilities In FLSA Collective Actions – from Wage & Hour - Development & Highlights

• The Franchise Relationship: A New Front in the Attack on Worker Misclassification? – from GT LE Blog

• Free checklist on independent contractors – from Kiernan’s Corner: Preventive Law for Employers

Discrimination

• Too Hot v. Not – What’s an Iowa Employer to Do? – from Iowa Employer Law Blog

• “Don’t fire me because I’m beautiful” and A retaliation claim in the making: Loranzana’s new employer on thin ice – from Sindy Warren at the Warren & Hays Employment Law Blog

• Seinfeld as Real Life: Too Hot for Work – from Workplace Prof Blog

• The Too-Pretty Protected Class? – from Philip Miles’s Lawffice Space

• Looks in the Workplace – from Mark Toth’s Manpower Employment Blawg

• What Employers Can Learn from the Novartis Lawsuit – from Adria Martinelli at the Delaware Employment Law Blog

• ADA Discrimination: What do you do when performance plummets? – from HR Cafe

• Reacting to an Office Affair? Don't Forget the “Fair” Part – from Mindy Chapman’s Case In Point

Politics & Legislation

• Obama +1 – What’s Changed? – from Tim Eavenson’s Current Employment (welcome back to blogging, Tim)

• Kagan’s Brief on Cat’s Paw – from The Word on Employment Law with John Phillips

• Cy pres bill in Ohio House – from PointOfLaw Forum

• Employers on Strike from The ChamberPost

Labor Relations

• NLRB Explores Electronic Voting – from EFCA & Labor Law Reform Blog

• SEIU Elects New President – from WorkplaceHorizons

• NLRB Rules that Hospital Interns and Residents Are “Employees” With Right to Organize – from Washington D.C. Employment Law Update

• Teaching Assistant Case Headed for NLRB Review – from Labor Relations Today

• EFCA may be “dead” in Congress, but unions are running the NLRB – from LaborUnionReport.com

---

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.

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.

---

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.

---

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.

---

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.

---

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

---

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

---

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.