BREAKING NEWS: SCOTUS reverses class certification in Dukes v. Wal-Mart

Just a few minutes ago, the Supreme Court delivered its opinion unanimously reversing the 9th Circuit’s class certification in the historically large Dukes v. Wal-Mart sex discrimination class action.

The full opinion is available for download here [pdf].

I will share my thoughts on the opinion tomorrow, but here’s a quick taste, via the opinion’s syllabus:

Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” … and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact the author, Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The countdown is on for HR & Social Media

Last week, the city of Vancouver erupted in violence after the Bruins eliminated the Canucks in the Stanley Cup Finals. Connor Mcilvenna, a suburban Vancouver construction worker, posted several pro-riot status updates on his Facebook wall, such as:

and

He also had his employer, Rite Tech Construction, listed on his Facebook profile. When the company learned of the comments, it fired Mcilvenna because of the potential impact on its reputation. CTV News quotes the company’s owner, Justin Reitz:

I just didn't feel like what was said was appropriate, and I didn't want any affiliation towards my company with the things he said on Facebook…. I had over 100 emails and out of the 100 emails, close to 30 of them were copies of his Facebook page which he sent out during the riots.

We are within a week or two of the publication of HR and Social Media: Practical and Legal Guidance, written by me and an all-star team of labor & employment blawgers and social media adopters. If you are attending SHRM’s Annual Conference in Las Vegas from June 26-29, visit Thompson at booth 1468 to order your copy. If you want to learn about your company’s rights in respect to employees’ social media activities, and how to protect your business from employees like Connor Mcilvenna, this book is a resource you cannot do without.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact the author, Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #181 (the “Spoonie Luv” edition)

Last week, Tracy Morgan got himself in trouble over a stand-up performance, during which he commented, among other things, that if his son was gay he’d stab him. Taken out of context, Morgan’s comments are hateful and contemptible. Taken in context, you could view them as in poor taste, biting satire on homophobia, or both. For his part (and likely in an attempt to save his job on 30 Rock following the public backlash), Morgan has apologized.

I bring up this story to highlight the following—if the court of public opinion can crucify a stand-up comic for words he uses in jest while performing on a stage, imagine what a jury comprised of those same people could do to your business in a lawsuit over words used in your workplace.

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

Discrimination

• To Prevent Lawsuits—Think the Way a Jury Thinks – from HR Daily Advisor
• Juries get it right 95% of the time? – from Deliberations
• Bayer Sexual Discrimination: Stop the Mommy Wars – from Evil HR Lady, Suzanne Lucas
• Weight discrimination - employers should be mindful of increasing legislation prohibiting this – from Employment Law Bits
• Mixed Ruling In EEOC Religious Discrimination Case Involving EEOC And Private Litigant Claims – from Workplace Class Action Litigation
• Halfway Measures Won’t Spare Employer Liability for Sexual Harassment – from Joe’s HR and Benefits Blog
• Does Title VII require work-life balance? – from Ted Frank’s PointOfLaw Forum
• Fact or fiction: Federal law recognizes “reverse age discrimination” – from Eric Meyer’s The Employer Handbook Blog
• The Cat’s Paw Strikes Again: Court Extends Cat's Paw Theory to Age Discrimination Claims – from Washington Workplace Law
• How the OFCCP’s Thirst For Data Will Impact You – from Stephanie Thomas’s The Proactive Employer Blog

Social Media & Workplace Technology

• 4 tips for using Facebook legally to conduct background checks – from Joan Goodchild at Network World
• Google Offers Up A Free ‘Online Reputation Monitoring’ Tool – from Kashmir Hill’s The Not-So Private Parts
• Employer Challenges to Developing and Enforcing Social Media/Web 2.0 Policies – from Workplace Privacy Counsel
• The New Danger of Limiting Employees’ Speech on Social Media Sites – from The Legal Intelligencer
• 5 Examples of Corporate Social Media Policies – from oneforty
• Why Can’t Public Figures Stay Out of Trouble on Twitter? – from Social Media Today
• When Social Media Is Abused, Can It Be Part of the Solution, Too? – from Augmented Legality
• Social Media Ethics, Politics, the First Amendment, and Twitter – from Shear on Social Media Law

Wage & Hour

• What To Do When the DOL Makes an Unannounced Visit – from Wage & Hour Insights
• The Other Wal-Mart Class Action – from Philip Miles’s Lawffice Space
• The Walmart Wage & Hour Train Rolls On – from Tim Eavenson’s Current Employment
• Walmart, Best Buy punch out time clock – from Eve Tahmincioglu’s CareerDiva
• What Is A “Workweek”, And Why Should You Care? – from Wage and Hour Laws Blog
• Fourth Circuit Affirms Judgment that Donning and Doffing Activities Are Compensable “Work” Under the FLSA – from Employment Class Action Blog

HR & Employee Relations

• Small Business HR: Yes There Are A Lot of Laws You Must Comply With – from Michael Haberman’s Omega HR Solutions
• For a Breach of Restrictive Covenant, Court Says No To Extending Duration As Remedy – from Dan Schwartz’s Connecticut Employment Law Blog
• 3 Things the LeBron James Flameout Shows Us About Workplace Dynamics – from TLNT
• Bankruptcy Found on Background Check is Fair Game – from Nick Fishman at employeescreenIQ Blog
• 8 Things Every Employee Should Know About Trade Secrets – from Screw You Guys, I’m Going Home
• Eleventh Circuit Holds Former Employer Should Have Used Present Perfect Tense to Restrain Employee In Disclosure of Confidential Information – from Trade Secrets Blog
• Two Key Considerations When Performing Background Checks – from Workplace Insights

Labor Relations

• Alarming Aspects of the NLRB’S Case Against Boeing: Part 1 – from Employment Essentials
• Media Round-Up: NLRB Complaint Against Boeing – from Seth Borden’s Labor Relations Today
• Senator DeMint Files FOIA Request Against NLRB for Information on Boeing Complaint – from Wisconsin Employment & Labor Law Blog
• Apple Store employee moves to create union – from Boy Genius Report

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact the author,
Jon Hyman, a partner in our Labor & Employment group,
at (216) 736-7226 or jth@kjk.com.

EEOC to explore disparate treatment in hiring

The EEOC has spent a lot of its time lately examining employers’ hiring practices. For example, it has held public meetings looking at whether certain neutral hiring practices—such as the use of credit, employment status, and criminal and arrest records—have a disparate impact based on race. It is also currently litigating a class action in federal court in Cleveland challenging an employer’s use of credit as a hiring criteria.

Next week, the EEOC will turn its attention from unintentional hiring discrimination to intentional hiring discrimination. It has announced that it will hold a public meeting entitled, Disparate Treatment in 21st Century Hiring Decisions. Little else is known about this meeting, including the specific hiring tactics and criteria the EEOC will examine. The use of “21st century,” however, suggests that the EEOC’s agenda may include current cutting-edge hiring practices, such as the use of social media by employers to vet potential candidates (a topic I’ve covered before).

I will have much more to say about this important topic after the EEOC publishes its agenda and speakers' commentary.

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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.

How does the Howard Stern Show handle sexual harassment training?

Last week, Howard Stern’s long-time producer Gary Dell’Abate paid Conan O’Brien a visit. Among the topics they discussed was how The Howard Stern Show handles sexual harassment training for its employees. The relevant portion runs from 4:16 until 5:29.

I guess if you take a job with Howard Stern you know what you’re getting yourself into?

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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.

Ohio Supreme Court to consider statute of limitations in workers comp retaliation cases

Ohio Revised Code section 4123.90 prohibits employers from taking any adverse action against an employee who files a claim, or institutes, pursues, or testifies in any proceeding under the workers’ compensation act. This statute is unique in that is has a two-stage statute of limitations:

1. Within 90 days “immediately following” the adverse action, the employer must receive written notice of a claimed violation from the employee; and
2. The lawsuit must be filed within 180 days “immediately following” the adverse action.

Both steps are required, and an employee’s failure to meet either deadline is fatal to a retaliation claim.

In Lawrence v. City of Youngstown (2/25/11), the Mahoning County Court of Appeals took up the issue of the meaning of “immediately following” in regards to the 90 and 180 day requirements. The court recognized an even split among Ohio’s appellate courts. Half of the courts that have considered the issue concluded that the 90 and 180 day requirements do not begin to run until the employee receives notice of the termination or other adverse action. The other half concluded that the effective date of the termination or other adverse action controls.

The Lawrence court sided with the latter, concluding:

This language clearly references the date of discharge, not notice of discharge. If the General Assembly had intended the time periods to begin to run upon notice of discharge, the statute could have easily been written to indicate as such. Accordingly, we find that the time limits begin to run on the effective date of discharge.

Last week, the Ohio Supreme Court agreed to hear this case [pdf] and resolve the split. Ohio employers should expect clarity on this important issue in the next 12 – 15 months.

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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.

“He grabbed her, threw her to the floor, pulled up her shirt, masturbated and ejaculated on her” = $95 million (wow)

The acts of sexual harassment alleged by Ashley Alford against her supervisor, Richard Moore, in Alford v. Aaron Rents, Inc. are among most horrific I’ve ever encountered (taken from the court’s opinion denying the employer’s motion for summary judgment):

• Shortly after Alford began working at Aarons, beginning in November 2005, Moore began intentionally and inappropriately touching her.
• Moore called Alford degrading pet names, such as “Trixie” and “Trix.”
• Moore gave Alford unwanted gifts for which he demanded “sucky-sucky.”
• Moore grabbed Alford by her ponytail, unzipped his pants, pulled her head back and hit her in the head with his penis, twice.
• Moore grabbed Alford, threw her to the floor, pulled up her shirt, masturbated, and ejaculated on her.

As reprehensible as these allegations are, what is perhaps more stunning is that Alford’s employer ignored her complaints for more than a year, and only took action after she involved the police.

Last week, a jury added up all of these facts and returned with one of the largest verdicts ever in a single-plaintiff harassment case—$95 million. The St. Louis Post-Dispatch quoted a representative of the company, who called the verdict “the work of a ‘classic runaway jury.’” I agree. The conduct proven at trial was horrendous, but no single-plaintiff employment case is worth $95 million. 

Nevertheless, this verdict underscores the importance of prompt and thorough investigations into complaints of harassment by employees. The jury did not subject the employer to this verdict because of the acts of a rogue supervisor, but because the company did not do anything about him when the plaintiff complained.

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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.