6th Circuit recognizes reasonable expectation of privacy in commercially-stored emails

Earlier this year, in Quon v. Arch Wireless, the Supreme Court dodged the question of whether one has a reasonable expectation of privacy in electronic communications. Yesterday, in U.S. v. Warshak (6th Cir. 12/14/10) [pdf], the 6th Circuit answered the question, at least as it pertains to one’s commercially-provided email account.

Warshak involves the criminal convictions of the distributors of the male enhancement herbal supplement Enzyte. Some the evidence used to convict Steven Warshak came from the government’s warrantless seizure of his emails account. Although the 6th Circuit affirmed the use of the emails in Warshak’s trial, the court, for the first time, recognized that individuals enjoy an objectively reasonable expectation of privacy in their commercially-stored email accounts:

Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life….

Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[ ] for self-expression, even self-identification.” … It follows that email requires strong protection under the Fourth Amendment….

Unlike Quon, Warshak is not an employment case. Nevertheless, it provides insight into court’s views of email and personal privacy. And, it gets the issue right. Employers should continue to take heed if they pry into employees’ personal (i.e., non-employer-provided) email accounts. Courts will likely continue to err on the side of protecting employees’ privacy rights in their own personal emails, and will likely take a long, hard look at businesses that invade that privacy.

---

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? ABA/DOL’s Bridge to Justice (or, Bridge Over Troubled Referrals)

A couple of weeks ago, the American Bar Association and the Department of Labor’s Wage and Hour Division announced an unprecedented collaboration called “Bridge to Justice.” It is an ABA-approved attorney referral system to connect those who file wage and hour complaints with the DOL to attorneys who will handle cases the DOL is not interested in pursuing. Here’s the quick and dirty, courtesy of the DOL’s website:

Beginning on December 13, 2010, when FLSA or FMLA complainants are informed that the Wage and Hour Division is declining to pursue their complaints, they will also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System….

In addition, when the Wage and Hour Division has conducted an investigation, the complainant will now be provided information about the Wage and Hour Division’s determination regarding violations at issue and back wages owed. This information will be given to the complainants in the same letter informing them that the Wage and Hour Division will not be pursuing further action, and will be very useful for attorneys who may take the case. The Wage and Hour Division has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.

Did I read that right? Will the DOL be providing the complaining party and the referred attorney “relevant case information and documents?” The DOL explains, in a short FAQ about its new attorney referral system:

Q: How does the ABA-Approved Attorney Referral Document Request process work?

A: A complainant who has received the toll-free number to the ABA-Approved Attorney Referral System after a Wage and Hour Division investigation will also receive a form to request the most relevant documents from her case file. These documents include the complainant’s own statement, the Wage and Hour Division’s back wage computations for the complainant, and copies of any documents the complainant provided to the Wage and Hour Investigator. The Wage and Hour Division will provide these documents expeditiously. The form also allows the worker or authorized attorney representative to request the case narrative from the file; however, it explains that requesting the narrative will delay the Wage and Hour Division’s response because it must be redacted. The letter sent to the complainant with notification of the Wage and Hour Division’s decision to not pursue the case will also include information about the violations found and back wages owed to the complainant.

In other words, the DOL will provide employees and the referred attorneys a roadmap to filing a lawsuit: the complainant’s statement, the nature of any violations found to have occurred, back wage computations, and the DOL’s own internal narrative.

It used to be that if the DOL declined to pursue a charge, there existed a better than average chance the claim would die. Now, lawyers will be lining up to receive a referral, along with a connect-the-dots claim. If this referral program doesn’t scare employers into conducting a proactive and comprehensive wage and hour audit to prevent these referral from taking place, nothing will.

---

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.

Prepare for the long hard winter and update your severe weather policy

Today is Cleveland's second big snowstorm in less than a week. I, along with myriad other workers around the greater Cleveland area, are going to have a devil of a time getting into work today. How does your business handle inclement weather? Last winter, I outlined some ideas for businesses to consider during weather events. Have a look and see how my tips compare to your own policies. And, please, drive safely.

---

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 #156 (the Guantánamo edition)

The story of the week is courtesy of the legal humor blog (and fellow ABA Blawg 100 honoree—don’t forget to vote) Lowering the Bar, which reports on the Utah Supreme Court’s reinstatement of an employee’s tort claims against his employer. The allegations are that the employer used waterboarding and other forms of physical punishment as motivational techniques:

Basically, Hudgens alleges that Prosper encouraged the use of, let’s say, “enhanced employee motivational techniques,” specifically, waterboarding. Hudgens alleged that at the time of the incident, his supervisor was already known for what the court called “questionable management practices”:

“Specifically, when an employee did not meet performance goals, [the supervisor] would draw a mustache on the employee using permanent marker or he would remove the employee’s chair. Additionally, he would patrol the employees’ work area with a wooden paddle, which he would use to strike desks and tabletops.”

Where do I sign up to work for that supervisor?

Here’s the rest of what I read this week:

Discrimination

• The new (and very activist) Obama EEOC – from Walter Olson’s Overlawyered

• Family Responsibilities Discrimination (FRD): The Next Big Field in Employment Law? – from Daniel Schwartz’s Connecticut Employment Law Blog

• Religion at Work – from Suzanne Lucas, the Evil HR Lady

• Hospital Sued Over English-Only Rule – from Joe’s HR and Benefits Blog

• Dollar Value of Employment Cases – from Tom Crane’s San Antonio Employment Law Blog

• Steak and sex: Fleming’s settles male-on-male harassment claim – from Sindy Warren at the Warren & Hays Employment Law Blog

• Male sexual harassment is on the rise. Does your policy include both sexes? – from Employment Law Bits

• GINA and Family Medical History: A Summary of Practical Concerns for Employers – from New York Labor and Employment Law Report

• Credit Check Lawsuit Signals Potential New Wave of Class Actions – from Workplace Privacy Counsel

Social Networking & Technology

• Discovery Granted: Give Opposing Counsel Your Facebook Password – from Philip Miles’s Lawffice Space

• The Trouble With LinkedIn Recommendations: Confidentiality – from Molly DiBianca’s Delaware Employment Law Blog

• Why WikiLeaks Matters More (And Less) than You Think – from HBR.org

• Tailoring A Social Media Policy: The NFL Example – from Rob Radcliff’s Smooth Transitions

• Employee Handbooks Not Relevant to Whether Computer Use Was Unauthorized Under CFAA (Accenture v. Sidhu) – from Legal Developments In Non-Competition Agreements

• Best Buy’s Boss on the Lessons of Social Media – from BusinessWeek

• The Top Ten Things You May Not Know About Social Media – from CAI News

• Discharge is Upheld for Facebook Postings by Employees in France – from TLNT

• Copy Machine May Be Storing Your Confidential Records – from HR Daily Advisor

• Ohio sets social-networking rules for judges – from James Nash at the Columbus Dispatch

• An Early New Year’s Resolution – Create A Social Media Policy – from Michigan Employment Law Connection

Employee Relations

• Can you fairly lay-off teachers? – from Rob Schwartz’s Fairness Matters

• EmployeeScreenIQ’s Top Background Screening Trends for 2011 – from employeescreenIQ Blog

• Holiday Party Horror – from Michael Haberman’s HR Observations

• Tips for terminating employees – from Michael Maslanka’s Work Matters

• Shh! Companies Spying On Sick Workers – from Workplace Diva

• Sick Leave and the FMLA: Should You Call Off Your Call-in Policy? – from Case In Point

• Boss had lots of documentation, but was he just papering the file? – from Stephen Meyer’s HR Cafe

• The Top 100 Movie Quotes for HR Pros: #90 is Dirty Harry: “Personnel? That's for A@@*LE$!!!” – from Kris Dunn, The HR Capitalist

Trade Secrets and Competition

• Noncompete cases not slowed by economy, legislation – from Jay Shepherd’s Gruntled Employees

• Trade Secret Statistics – from Fair Competition Law

• Roy’s Analysis of Quirky Question # 164; Who Owns Employees’ Ideas? – from Quirky Questions

• Top Ten Non-Compete and Trade Secret Concerns for Inhouse Lawyers and the Companies They Represent – from Trade Secrets & Non-Compete Blog

• Walmart Obtains Delaware Injunction Barring Former Exec From Working For CVS – from Delaware Non-Compete Law Blog

Labor Relations

• Video: Walt Disney World Union Workers Release ‘MouseTrapped 2010’ for Public Viewing – from StitchKingdom

• NLRB Upholds Dana Corp. Voluntary Recognition Agreement – from Workplace Prof Blog

• NLRB Dismisses “The Other” Dana Corp. Complaint; Finds Pre-Recognition Agreement Lawful – from Labor Relations Today

---

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.

6th Circuit places burden on a disabled employee to propose a reasonable accommodation

Despite the breadth of the 2009 amendments to Americans with Disabilities Act, not all disabled employees receive the benefit of the Act’s protection. Instead, the Act only protects those employees who are “qualified,” that is, able to perform all of the essential functions of the job with or without reasonable accommodation. If necessary to determine the appropriate reasonable accommodation, the ADA’s regulations require an employer to “initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”

Whose burden is it, however, to propose a reasonable accommodation to account for an employee’s disability? According to Jakubowski v. The Christ Hosp., Inc. (12/8/10) [pdf], the burden falls squarely on the employee.

Dr. Martin Jakubowski suffers from Asperger’s syndrome, a severe and sustained impairment in social, occupational, or other important areas of functioning, with a marked impairment in the ability to regulate social interaction and communication. Following his diagnosis, the hospital terminated his employment. Before the termination, the hospital met with Dr. Jakubowski to discuss various accommodations for his poor communications skills, all of which he rejected. Because he did not propose another accommodation, the hospital met its burden to engage in the interactive process, and he could not proceed on his discrimination claim:

Jakubowski contends that Christ Hospital did not act in good faith because it did not offer him a remediation program similar to the one offered to the previous, unnamed resident who exhibited similar deficiencies. Importantly, Jakubowski did not request a remediation program at the accommodation meeting with Christ Hospital….

Christ Hospital … met with Jakubowski to discuss his proposed accommodations, and told him that the hospital lacked sufficient resources to comply. [It] also offered to help him find a pathology residency because it would involve less patient contact…. Because Christ Hospital met with Jakubowski, considered his proposed accommodations, informed him why they were unreasonable, offered assistance in finding a new pathology residency, and never hindered the process along the way, we agree that there is no dispute that Christ Hospital participated in the interactive accommodation process in good faith.

The ADA does not require an employer to offer a disabled employee the most reasonable accommodation, or the employee’s preferred accommodation. Instead, it only requires the employer to offer a reasonable accommodation, one which enables the employee to perform all of the essential functions of the job. If an employer meets this burden, the employee cannot complain that the employer rejected a proposed accommodation that did not address all essential functions, or failed to implement an accommodation that the employee did not propose.

---

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 Justice Alito read my blog? Dissecting the oral argument in Thompson v. North Am. Stainless

Thompson v. North Am. Stainless is near and dear to my heart. This post marks the 8th I’ve written covering this important 6th Circuit retaliation case. Yesterday, the Supreme Court heard oral argument on the issue of whether Title VII prohibits an employer from retaliating by inflicting reprisals on a third party (such as a spouse, family member, or fiancé) closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own. The oral argument transcript is available for download [pdf] from the Supreme Court’s website.

When the 6th Circuit originally recognized a cause of action for associational retaliation (before the en banc reversal that led to the Supreme Court appeal), I worried, “How close is close enough?”

In Thompson, the relationship was a fiancée. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation? The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process?

While I’m not so vain as to think that Justice Alito reads my blog (just in case, hello, Your Honor), the theme of the slippery slope resonated heavily in his questioning of Mr. Thompson’s attorney:

That’s what's troubling to me about – about the theory. Where it’s a fiancée, it’s – that’s a relatively strong case, but I can imagine a whole spectrum of cases in which there is a lesser relationship between those two persons, and if – if –­ if – unless there’s a clear line there someplace, this theory is rather troubling. …

Can you help – can you help provide where the clear line is? Does it go – does it include simply a good friend? Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct? Are these all questions that have to go to a jury?

Justice Alito continued to hammer this theme when questioning the attorney arguing for the Justice Department:

Put yourself in the – in the shoes of an employer, and you – you think – you want to take an adverse employment action against employee A. You think you have good grounds for doing that, but you want – before you do it, you want to know whether you’re potentially opening yourself up to a retaliation claim.

Now, what is the employer supposed to do then? They say, … now we need to see whether this person who we’re thinking of taking the adverse employment action against has a … “close relationship” with any of those people. So what do you do? Do you call everybody in from the company and you say, now, is – you know, was – are these people dating? Did they once date? Are they good friends? What are you supposed to do?

Despite this Court’s perception as pro-business, it has proven itself to be a favorable venue for retaliation claims. This Court's pro-employee, anti-retaliation bent should hold form in this case. Notwithstanding Justice Alito’s (and my) concerns, reading the tea leaves I predict Thompson will be a victory for the employee. I cannot see this Court permitting an employer to fire an employee whose fiancée claims discrimination. There should be at least five Justices who will craft a standard workable enough to avoid Justice Alito’s slippery slope.

I don’t expect any bright lines to be drawn. Since Burlington Northern, it is clear that actionable retaliation includes any adverse action that is “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” I expect the Court to conclude that this test encompasses associational retaliation; we will be litigating the degree of closeness and its impact on the “reasonable employee” in future retaliation cases.

---

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? Wrongful terminations for attorney consultations

Because Ohio employees working without a contract are at-will, an employer does not need a reason—good, bad, or otherwise—for termination. Yet, do you know that an at-will employee who consults with an attorney may find himself or herself protected from termination? Ohio, like most states, prohibits employers from terminating employees in circumstances that jeopardize a clear and well-defined public policy. Ohio courts conclude that an employee’s consultation with an attorney is worthy of such protection.

Chapman v. Adia Servs., Inc., is the most oft cited case in support of this rule:

[W]e hold that it is repugnant to the public policy of this state for employers to terminate employees for exercising their right to consult a lawyer. The courthouse door must be open to the people of Ohio, and it is not ajar when citizens may be fired for entering.

Other cases have extended this protection to employees who threaten to consult with an attorney and to employees who inquire about an employer’s policy regarding employees who sue the employer.

Employers should treat employees who consult with an attorney or threaten to consult with an attorney the same as they would any employee who engages in any other legally protected activity—with care, diligence, and fairness.

---

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.