Even terminations over “genitalia sandwiches” can generate lawsuits

The court properly granted summary judgment because reasonable minds could only conclude that appellant’s actions in photographing an inmate placing his penis on a sandwich and then feeding the sandwich to another inmate were manifestly outside the scope of employment.

I can promise you read that sentence correctly. It is the Ohio Supreme Court’s digest summary for Cantwell v. Franklin Cty. Bd. of Commrs. (Ohio Ct. App. 5/22/12) [pdf] You can do a double-take, a triple-take, or as many takes as you need. It is still going to say that a Franklin County jail guard, while delivering bologna sandwiches to inmates, asked an inmate to place his penis on a sandwich, took of cell phone photo of said penis sandwich, and fed said sandwich (sans penis) to another unsuspecting inmate while taunting him.

The lawsuit concerned whether these actions were in good faith, and not manifestly outside the scope of Cantwell’s employment or official responsibilities, which would determine whether the county had a duty to defend Cantwell in the prisoners’ subsequent civil rights lawsuits.

What could Cantwell possibly argue?

It was commonplace for jokes and pranks to take place at the Franklin County jail between inmates, as well as hazing to take place between deputies, and such, if not condoned, were certainly not discouraged. Thus, appellant contends, because these jokes were encouraged, promoted, and tolerated, his “joke” to give Copeland a genital-tainted sandwich was not manifestly outside the scope of his employment.

The explanation is a whole lot funnier than the joke. Needless to say, none of this amused the court, which affirmed the trial court’s dismissal of Cantwell’s claim.

From this mess of a case, I draw the following lesson. You cannot always guard against lawsuits by ex-employees. I am certain that given these facts, the county never dreamed it would be defending a lawsuit by this employee. Yet, he found a reason to sue. No termination (no matter the reason) is bulletproof. Even the most rock-solid termination can result in a lawsuit. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons. The best you can do with any termination is to make sure every “i” is dotted and every “t” is crossed (with the help of counsel, if needed), and let the chips fall where they may.

Radio/Podcast appearance: Being Smart About Social Media in the Workplace

This Thursday, May 24, at 3 pm, Molly DiBianica (proprietor of the Delaware Employment Law Blog and tweeter extraordinaire @MollyDiBi) and I will be guests on The Proactive Employer, hosted by Stephanie Thomas. 

We will be discussing all things social media for employers, including providing tips on workplace social media policies, offering suggestions on how to ensure employees are using social media safely, and talking about how companies can be be smart about social media.

We will also be taking live questions, both via Twitter with the hashtag #TPE, and via call-in at (866) 472-5790. If you can’t join us live, the episode will also be available for streaming or download.

Molly and I go way back in the blawgosphere. She also contributed the chapter on privacy to my social media book, Think Before You Click, Strategies for Manging Social Media in the Workplace. Please tune in for what should be a very engaging and interesting conversation.

The obligatory post about the EEOC’s charge filing data

The EEOC has released state-by-state charge filing statistics for the past three years. Which types of discrimination are popular (and not so popular) with Ohio employees?

• Race discrimination: 35.4% of all charges
• Retaliation: 32.9%
• Disability: 29.6%
• Age: 28.6%
• Sex: 27.3%
• National Origin: 5.3%
• Religion: 3.5%
• Color: 1.7%
• Equal Pay: 0.9%
• Genetic Information: 0.3%

These numbers shouldn’t be that much of a surprise to any businesses.

What is more interesting (at least to me) is how Ohio fairs when compared to the other 49 states. For fiscal year 2011, there were 3,137 total charges of discrimination filed with the EEOC in Ohio. Overall, that number comprises 3.1 percent of all charges filed nationwide, placing Ohio 12th among the 50 states.

Ohio is 7th in overall population, yet 12th in EEOC filings. Is is possible that Ohio is more friendly to employers than smaller states such as Georgia, North Carolina, Virginia, Tennessee, and Alabama, all of which rank ahead of Ohio in the number of EEOC filings per year? Probably not. Instead, let me offer a different explanation. Ohio’s employment discrimination statute is quirky. It allows employees to proceed directly to court without first exhausting their administrative remedies by filing a charge with the EEOC (or its state equivalent).

Ohio businesses are facing their fair share of discrimination claims; they are just facing them in courts instead of in the agencies. This quirk fails Ohio businesses. Employees are able to bypass the EEOC’s crucial role in filtering out frivolous claims. Until Ohio’s legislators step up to the plate and fix this anomaly of our discrimination statute, our state’s business community will continue to be disadvantaged by defending the bulk of discrimination claims in a more costly and time-consuming judicial venue.

Can a poor performance review count as an “adverse action?”

For an act to be considered an “adverse employment action” sufficient to support a discrimination claim, it must constitute
”a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Traditionally, a negative performance review does not constitute an adverse employment action, unless “the evaluation has an adverse impact on an employee’s wages or salary.” Or does it?

In Goldfaden v. Wyeth Laboratories (5/14/12) [pdf], the Sixth Circuit concluded that a warning letter issued to an employee constituted an “adverse action” even though the employee quit her job before she could suffer any consequences from the warning:

She received a warning letter in September that limited her year-end performance evaluation to a three on a scale of one to five. However, she never made it to the year-end evaluation, as she resigned three weeks after receiving the evaluation. The parties dispute what the effect of the lower evaluation would have been…. We cannot know for sure what would have happened, but there was a possibility that she would have received a lower bonus. This doubt is sufficient to survive summary judgment….

This result is even more troubling because the same opinion affirmed summary judgment for the employer on Goldfaden’s constructive discharge claim. In other words, the warning letter was not so intolerable that it compelled Goldfaden to quit, but it nevertheless could rise to the level of an adverse employment action because it could, maybe, have resulted in a lower year-end bonus.

It’s cases like this one that make it so difficult (and often frustrating) to attempt to predict outcomes for clients.

WIRTW #226 (the “press 9 for more options” edition)

You’d think that with all the posting I do about Labor & Employment Law, it’s the only area in which my law firm—Kohrman Jackson & Krantz—practices. You’d also be very wrong. Our diverse practice also covers, for example, telemarketing law.

In fact, my parter, Brett Krantz, recently co-published an article on this issue:

Brett Krantz, Chair of the Litigation group, and associate Melissa Yasinow have co-authored an article with Mark Rasch, the director of Cybersecurity and Privacy Consulting at technology company CSC. The article, entitled Please Press #5 Now: How Businesses Can Use UETA and E-SIGN to Create Signed, Written Contracts Over the Telephone, explains how businesses can use recent federal and state pro-technology laws to create signed, written contracts over the telephone. Connections Magazine, the nation’s premier magazine for the telemarketing and teleservices industry, will be publishing a shortened version of the article in its upcoming July/August Issue. The full article has already been published online in Connections Magazine’s “White Papers” Section. Please click here to access the full article.

Enjoy!

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

Discrimination

• Is Being Gay a Choice? Should It Be Protected at Work? — from Jessica Miller-Merrell’s Blogging4Jobs
• “Teacher fired over pregnancy can sue religious school” — from Howard Bashman’s How Appealing
• EEOC now publishes charge data, by state. Have a look… — from Eric Meyer’s The Employer Handbook Blog
• New Decision On The EEOC’s Pre-Suit Investigation Requirement, Giving Nod To Investigation And Conciliation Tactics Criticized By Eighth Circuit — from Workplace Class Action Litigation
• EEOC, alcoholism and discrimination: an interesting new persepctive — from Employment Law Bits
• Hiring manager: “How old are you?” — from CareerDiva by CareerDiva, Eve Tahmincioglu
• Texas Federal Court Decision Addresses ADA and FMLA Issues Arising From Employee's Return From Alcohol Rehab — from Employer Law Report
• New York EEOC Intends to Enforce “Ban the Box” — from employeescreenIQ Blog
• Funding Blocked for EEOC Enforcement Guidance on Criminal Records — from National Review Online

Social Media & Workplace Technology

• Use social media? Memorize these vital 12 words — from Evil HR Lady, Suzanne Lucas
• A Call for Lean and Mean Social Media Policies — from Social Media Today
• HR Struggling with Facebook Snitches — from SHRM
• Social Media background checks: Big brother in reverse — from Mike VanDervort’s The Human Race Horses
• Relax – You’ll Never, Ever be Asked For a Facebook Password — from TLNT
• Why Delaware’s Proposed Workplace Privacy Act Is All Wrong — from Molly DiBianca’s Delaware Employment Law Blog
• Slowly Stripping Away Privacy Rights? — from Social Media Employment Law Blog
• Are Employees’ Social Media Connections The Property Of Their Employer? — from Eric Welter’s Laconic Law Blog
• Alleged voyeur boss cannot pursue Computer Fraud and Abuse Act claim — from Internet Cases
• Mobile Stats — from HR Examiner with John Sumser
• Avoiding an E-discovery Nightmare in a Workplace Investigation — from i-Sight Investigation Software Blog

HR & Employee Relations

• Could You Handle Being an Employee? — from You’re the Boss Blog
• Gratuitous Sex or Sex for Gratuities? An HR Story — from Robin Schooling’s HR Schoolhouse
• How to Remove Lies From Your Resume (and LinkedIn) Without Getting Fired… — from The HR Capitalist, Kris Dunn
• Lies, Statistics, and Resumes — from costofwork
• Lessons from Yahoo’s CEO debacle: Look into EVERY job candidate — from HR Cafe
• Terminated for Minor Offense Committed 40 Years Ago — from The Proactive Employer Blog
• Dear Evil Skippy: Should We Allow Dogs At Work? — from Evil Skippy at Work
• Carefully Defining “For Cause” Termination in Employment Contract Critical to Avoid Paying for Misconduct — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• When can an employer fire an employee for medical leave fraud? — from Robin Shea’s Employment and Labor Insider
• Two Health Conditions Combine to Qualify for FMLA — from Phil Miles’s Lawffice Space
• Seventh Circuit: Pharmaceutical Sales Reps Are Exempt Administrative Employees — from Healthcare Employment Counsel
• Seventh Circuit Concludes that “Travel Time” Following Clothing Change Is Not Compensable, Setting Up a Circuit Split — from Wage & Hour Counsel
• Compensatory Time Is Only For Exempt Employees, As Law Firm Class Action Settlement Illustrates — from Wage & Hour - Development & Highlights
• Wage-and-hour litigation outpacing all other workplace class actions — from Business Insurance

Labor Relations

• District Court Strikes Down National Labor Relations Board's New “Quickie” Election Rule — from Seth Borden’s Labor Relations Today
• NLRB Suspends New Election Rules After Court Ruling — from Dan Schwartz’s Connecticut Employment Law Blog
• Your “At-Will” Policy is in Danger! — from Mike Haberman’s Omega HR Solutions

6s wild! 6th Circuit affirms contractual 6 month limitation for employment claims

Between the following two options—a federal statute or a private employment agreement—which wins?

• The federal statute (USERRA), which, at the time, provided for a four-year statute of limitations, and which states that it “supersedes any … contract, agreement, … or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter.”

–or–

• The employment agreement, which provides, “I … agree that any action, claim or suit against [Defendant] arising out of my application for employment, employment, or termination including, but not limited to, claims arising under State or Federal civil rights statutes must be brought within one hundred and eighty (180) days of the event giving rise to the claim or be forever barred. I waive any and all limitation periods to the contrary.”

In Oswald v. BAE Industries (5/16/12) [pdf], the 6th Circuit ruled that the contract trumped USERRA.

After returning from serving with the Marines in Iraq, Jerome Oswald claimed that BAE limited his duties and responsibilities compared to his pre-deployment work, failed to give him a raise, transferred him to a lesser position, and ultimately fired him.

Unfortunately for Oswald, he waited until almost three years after his termination to file suit against BAE. The 6th Circuit concluded that his feet-dragging doomed his lawsuit:

Plaintiff’s employment contract does not eliminate all procedural rights in that it only shortens the time frame that Plaintiff can raise a USERRA claim. Because the contractual period of limitations diminished a right under USERRA that was merely procedural, [it] does not override the contractual limitations period on that basis….

Because Plaintiff’s complaint was untimely under the 180-day period in the contract, the district court did not err in granting summary judgment to Defendant….

There are two key takeaways from this case:

1. This case might no longer good law under USERRA. In 2008, the Veterans’ Benefits Improvement Act provided that there “shall be no limit on the period for filing the complaint or claim” under USERRA. If there cannot exist any “limit on the period for filing,” it is unlikely that a contract can impose such a bar.
2. Even if employers no longer can shorten the statutory period to file a claim under USERRA, this case serves as a good reminder that employers can use contractual provisions to shorten the statutory period for host of other claims. In a state like Ohio, which has a six-year limitations period for all discrimination claims except age, the ability to significantly shorten the filing period is a powerful weapon that too few employers deploy.

Terminated CFO illustrates the confidentiality risks social media pose

According to a recent survey by Intel (h/t: Lifehacker), 85% of American adults share information about themselves online, while 90% think others are sharing too much. Maybe the former CFO of Francesca’s Holdings Corp., Gene Morphis, should have heeded the latter and shared less about his company’s inner workings.

On Monday, Francesca’s announced that it fired Morphis for improperly communicating company information through social media. A quick review of Morphis’s Twitter feed and (very public) Facebook Wall offers some possible suspects.

Maybe it was this tweet:

Or maybe it was this one:

Or maybe this one:

Or, maybe it was this Facebook post:

Or, maybe it was this one:

Social media presents a real risk of corporate breaches of confidentiality. It is easy to tell your employees, “Think before you click.” (Hey, that’s a catchy title for a book.) Yet, 76% of the Inc. 500 lack a social media policy for their employees, and 73% of all employers conduct no social media training. If you aren’t educating your employees about the risks and benefits of social media, both in and out of the workplace, you are not only missing a golden opportunity, but you also leaving yourself exposed to breaches of confidentiality such as that which befell Francesca’s. These issues are not going away.

Businesses that ignore the possibility that their employees can divulge trade secrets and other confidential and proprietary information via Twitter, Facebook, and other social media do so at their own peril. Did Morphis’s disclosure harm his ex-employer? Probably not. But, the company’s swift and decisive reaction to any breach of confidentiality will make it easier down the road for it to protect its confidential information when it really matters. Mark my words. The day will come when a court will invalidate a corporate trade secret because of a lax social media policy.

As an aside, I’m leading off tomorrow’s NLRB Region 8 Labor Law Conference [pdf], discussing social media policies and protected concerted activity. NLRB Acting General Counsel Lafe Solomon is the lunch speaker. I am very interested to hear his thoughts on how employers can balance their right to limit disclosures of confidential information against his perception that social media policies that prohibit such disclosures violate the NLRA.