WIRTW #182 (the “Oscar the Grouch” edition)

Last summer, I asked a simple question: “Have we devolved into a society of assholes?” Today, I offer the empirical proof, courtesy of a survey conducted by Weber Shandwick and Powell Tate in partnership with KRC Research, as reported by Roger Simon at Politico.com (c/o Workplace Diva). The results are not surprising, but nonetheless sobering:

Some 86 percent of Americans say they have been victims of incivility…. About six in 10 Americans admit they themselves have been rude….

More than four in 10 Americans have experienced incivility in the workplace, with 65 percent blaming their bosses for it, and 59 percent blaming fellow employees. Younger employees were blamed by 34 percent, and access to the Internet by 25 percent (Is Angry Birds making people angrier?). Older employees did best, blamed for incivility by only 6 percent.

On the positive side, when asked to assign a degree of incivility to 25 American institutions, the workplace finished better than 21 others, sandwiched between President Obama and Oprah. Good company to be in, I suppose.

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

Wal-Mart v. Dukes

• Wal-Mart v. Dukes: What The Class-Action Decision Really Means for Employers – from Dan Schwartz’s Connecticut Employment Law Blog
• Why the Walmart Ruling is Good For Everyone – from Evil HR Lady
• Wal-Mart Stores, Inc. v. Dukes—A Sigh of Relief – from Michael Fox’s Jottings By An Employer’s Lawyer
• Wal-Mart Ruling Reinforces Fundamental Principles of Fairness – from The ChamberPost
• “$7 million to sue Wal-Mart”? – from Ted Frank’s PointOfLaw Forum
• Why Wal-Mart Matters, But Perhaps Less Than You Think – from Workplace Fairness
• Five Reasons Why the Walmart Decision Doesn't Affect Your Discrimination Case – from Donna Ballman writing at AOL.com

Social Media & Workplace Technology

• NLRB Continues Aggressive Response to Employers’ Social Media Policies It Deems Overbroad – from Social Networking Law Blog
• Update: NLRB Continues To Closely Probe Employer Terminations Following Employee Complaints On Social Media – from Hunton Employment & Labor Law Perspectives™
• Fired for having a sassy Web page? – from HR Cafe
• Now Your Embarrassing/Job-Threatening Facebook Photos Could Haunt You For Seven Years – from Kashmir Hill’s The Not-So Private Parts
• Prosecutor’s Facebook postings did not warrant overturning conviction – from Evan Brown’s Internet Cases
• How To Respond To A Social Media Crisis or Scandal: Don’t Be A Weiner – from Shear on Social Media Law
• Even More Social Stats – from Mark Toth’s Manpower Employment Blawg
• Grandparents Are Using Social Networks – from Social Media Today

Employee Relations & HR

• “So You Got My Letter” – from Walter Olson’s Overlawyered
• Hire Slow, Fire Fast – from Michael Haberman’s HR Observations
• Does Your Employment Separation Agreement Mean What You Think it Means? Michigan Court Addresses Meaning of “Disparagement” – from Michigan Employment Law Advisor
• Keeping The Pirates At Bay: How To Avoid And Deal With Poaching – from Trade Secret / Noncompete Blog
• Goodyear Tire Sues Continental Tire On Invevitable Disclosure Via New Hire Theory – from Trade Secrets Blog
• Protecting Trade Secrets: Confidential Information and Customer Relationships Audits – from Trade Secrets & Non-Compete Blog
• GOOD RIDDANCE! Just what can you say about that ex-employee of yours? – from Employment and Labor Insider
• What to expect from a background check – from The Work Buzz

Labor Relations

• BEWARE EMPLOYERS: Overhauled union-election rules may be near – from Eric Meyer’s The Employer Handbook Blog
• More on NLRB’s Proposal to Expedite Union Representation Elections – from Seth Borden’s Labor Relations Today
• NLRB Proposes Significant Changes to Election Process – from Washington D.C. Employment Law Update
• Obama Administration Issues Two Proposed Regulations Designed to Promote Pro-Union Agenda – from Employer Law Report
• Attorneys are more influential than they thought… or maybe the DOL is giving us too much credit – from HR HQ
• Big Brother Watching You? DOL Demands More Information from Employers About Union Avoidance Activities – from Vorys on Labor

Wage & Hour

• Conjunction Junction, What’s Your Function? The Ninth Circuit Finds Junior Accountants And Other Non-Licensed Professions May Be Exempt – from The Wage and Hour Litigation Blog
• A Brief FLSA Refresher Course – from Employment Essentials
• Firing replacement workers to allow striking employees to return is not a “mass layoff” under WARN Act – from Employment Law Matters
• Happy Father’s Day: Dad Claims He Was Terminated After Taking FMLA Leave for Bonding with Newborn Child – from FMLA Insights

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC holds public meeting on 21st century hiring discrimination … and misses the biggest issue

There is perhaps no issue more important to the topic of hiring in the 21st century than social media. Yet, yesterday the EEOC held a public meeting entitled, “Disparate Treatment in 21st Century Hiring Decisions,” and completely ignored this key issue.

In fact, it’s hard to find much of anything new or cutting edge presented by the EEOC at the meeting. Instead, the meeting provided a rehash of longstanding principles against hiring discrimination. Nevertheless, the advice provided by management-side attorney Grace Speights to employers to help avoid hiring discrimination is worth repeating and taking to heart:

1. Develop strong EEO policies, train managers on the policies and the law, and hold managers responsible for failing to follow the policies.
2. Increase HR’s participation and oversight in the hiring and promotion processes as a form of checks and balances to monitor compliance with company policies and legal requirements.
3. Implement diversity training for employees.
4. Identify and remove perceived barriers to hiring and promotion, such as by advertising open positions in sources that reach a more diverse applicant pool.
5. Conduct periodic self-analyses to determine whether current employment practices are tied to job requirements, job performance, and business necessity.
6. Foster training and mentoring programs that provide all workers the opportunity, experience, and information necessary to qualify for promotions.

If you want to learn more about the role of social media in the vetting and hiring of employees, and the impact the discrimination laws have on these practices, pick up a copy of HR and Social Media: Practical and Legal Guidance, available from Thompson Publishing in the coming weeks. And, if you find yourself at SHRM 2011 in Las Vegas next week, stop by Thompson's Booth (#1468) for more information.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Wal-Mart v. Dukes does not equal barefoot and pregnant

I thought that I had my final say on Wal-Mart v. Dukes yesterday. Then, I read more of the commentary on the decision. For example, this clip from MSNBC argued that the Wal-Mart case marks the end of women’s equality in the workplace:



Or consider this quote, courtesy of Joanne Bamberger at the Huffington Post:

The 5-4 decision that is at the heart of this national employment crisis is the over-stepping of the right wing of the court to stretch a procedural case to change substantive law in a way that adversely impacts today's majority of breadwinners—women.

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson.

Writing for the majority, Justice Scalia said, “[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.” Justice Scalia might be three decades removed from the workplace, but he’s not off base. In 2011, the overwhelming majority of companies do not intentionally discriminate. Companies may have rogue supervisors, managers, and even executives, who discriminate, for which their companies can be held responsible. Indeed, in a company as big as Wal-Mart, it would be surprising if there weren’t employees who suffered discrimination. As an institutional matter, though, most companies try to do right by their employees by combating workplace discrimination, even Wal-Mart.

So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

The 7 key points for employers from the Supreme Court’s Wal-Mart v. Dukes opinion

Yesterday, the Supreme Court unanimously reversed the certification of the class action in Wal-Mart Stores, Inc. v. Dukes. Recall that Dukes sought the certification of a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide “policy” of sex discrimination. The reversal was expected; the unanimity of the result (albeit not of the reasoning), however, was not.

The majority grounded its decision on the lack of commonality among the potential class members. Here are the seven key takeaways from the Court’s opinion:

   1. Commonality requires more than an alleged common violation of the same law:

“Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.” [p. 9]

   2. Class certification often requires some analysis of the merits of the underlying claims:

“Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” [pp. 11-12]

   3. When a company has an announced policy against discrimination, and the alleged discrimination consists of management’s deviation from that policy, it is difficult, if not nearly impossible, to find commonality among those individual decisions:

“[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements…. And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” [p. 15]

   4. The larger the proposed class, the more difficult it is to establish a practice common to the class:

“In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” [pp. 15-16]

   5. General statistical evidence is insufficient to establish commonality, without something extra to tie those stats to an issue common to the class:

“Other than the bare existence of delegated discretion, respondents have identified no ‘specific employment practice’—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.” [pp. 17-18]

   6. Anecdotal evidence also must tie narrowly to a common issue:

“Respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores…. Even if every single one of these accounts is true, that would not demonstrate that the entire company ‘operate[s] under a general policy of discrimination,’ … which is what respondents must show to certify a companywide class.” [p. 18] “A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.” [p. 18, fn. 9]

   7. Class action damages that must be individually litigated (such as backpay) cannot be litigated in a class action that seeks injunctive relief as its unifying point across the class:

“When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, ‘a district court must usually conduct additional proceedings … to determine the scope of individual relief.’ … At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have…. The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula…. [A] class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.”

What does all this mean for businesses? It means that class actions alleging employment law violations must be narrowly tied to a specific policy or practice. It means that the best defense against a class action might be a policy directing decision-makers to follow the law. It means that class actions in cases alleging intentional discrimination just became a lot more difficult to establish, and that going forward we will see many more certified classes in disparate impact cases than in disparate treatment cases.

Most importantly, it is not the “unmitigated disaster for historically oppressed employees seeking large-scale workplace justice against their employers,” as argued by Professor Paul Secunda on the Workplace Prof Blog. Instead, I agree with Walter Olson, writing at Cato at Liberty who summed it up best:

To sweep hundreds of thousands of workers (or consumers or investors) into a class as plaintiffs even if they personally have suffered no harm whatsoever— to use sexism at Arizona stores to generate back pay awards in Vermont, and statistical disparities to prove bias without allowing defendants to introduce evidence that a given worker’s treatment was fair—bends the class action mechanism beyond its proper capacity. Also to the point, it is unfair.

Dukes means that corporate America can exhale a huge sigh of relief—a Court that has been surprisingly employee-friendly saved its biggest decision to flex its pro-business muscles.

The Wal-Mart Stores, Inc. v. Dukes opinion is available for download as a pdf form the Supreme Court’s website.

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.