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Is it retaliatory to fire an employee who acts out in mediation?

August 12th, 2013  |  Joy Waltemath  |  Add a Comment

Because retaliation charges were the number one charge received by the EEOC in fiscal 2012 — 38 percent of all charges filed — they are worrisome for employers, notwithstanding this summer’s Supreme Court Nassar decision tightening the proof requirement to but-for causation. Against this backdrop, the Seventh Circuit recently decided a retaliation case that is raising eyebrows.

“Take this job and shove it.” In Benes v AB Data, Ltd, an employee who had worked for only four months filed an EEOC charge of gender discrimination. During EEOC-arranged mediation, the parties went to separate rooms; as is typical, the mediator would shuttle back and forth to relay offers and counter-offers. The employee became so upset with a proposal that, against protocol, he stormed into the room occupied by the employer’s representatives and loudly said: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Having said his piece, the employee stalked out, leaving the room’s occupants shaken. Within an hour, the employer accepted his counterproposal — it fired him.

Firing as sanction for mediation misconduct. In the employee’s subsequent Title VII retaliation suit (he abandoned his sex discrimination claim – surprise), the Seventh Circuit concluded that the employee was fired for misconduct during the mediation, not for making a charge of discrimination. If misconduct during litigation can form the basis for sanctions, why should misconduct during mediation be consequence-free? After all, Title VII only forbids employer actions that would dissuade a reasonable worker from making a charge or participating in an investigation of discrimination. Being fired for an egregious violation of mediation protocols wouldn’t discourage a reasonable worker from making or supporting a charge of discrimination any more than sanctions for misconduct in court discourage the filing of lawsuits, reasoned the court. What those sanctions discourage is the misconduct.

Employees aren’t insulated from their conduct that takes place within an investigation of discrimination if that would warrant termination outside an investigation, it said. Think about it: If the employer would have fired an employee who barged into his supervisor’s office, in the presence of others, and said what the employee said, then the employer was entitled to fire him for doing the same thing in mediation. Title VII “does not create a privilege to misbehave in mediation,” the court concluded.

Who imposes the sanctions? Nor did the Seventh Circuit make much distinction between court- or mediator-imposed sanctions for mediation misconduct, and employer sanctions — one party to the mediation unilaterally imposing its own “self-help” remedy.

And what was the misconduct? The court’s opinion was fuzzy about how it defined the parameters of the misconduct here. On the one hand, it seems like the court found the actual breach of mediation protocol (ignoring of the shuttle-diplomacy approach and barging into the employer’s representatives’ room) was the actual misconduct. Characterizing the employee’s conduct as sabotaging the mediation session, the court said: “Put to one side what he said there.”

However, the court said that if an employer could fire an employee “who barged into his superior’s office in violation of instructions, and said what Benes did, then it was entitled to fire someone who did the same thing during a mediation” (emphasis added). Given the Seventh Circuit’s reliance on its earlier opinion in Hatmaker v. Memorial Medical Center, in which it held that participation in an employer’s purely internal investigation doesn’t insulate an employee from being fired for “making comments” that “demonstrated bad judgment,” including “making frivolous accusations,” it appears that the court was extending its holding. Was it just the breach of mediation protocol? Or was it the words spoken?

But this was mediation. Wait. This didn’t happen in the supervisor’s office, actually. Nor did it occur in the context of an employer’s internal investigation. This took place in mediation; EEOC-arranged voluntary mediation, which, as Francine D. Schlaks, Ph.D., J.D., a federal mediator with significant agency experience, pointed out, “is strictly voluntary. As such, there should be no sanctions at all for misconduct that sabotaged the mediation session. The entire idea of mediation is for people to be able to talk, discuss and negotiate in complete confidentiality, using their own negotiation techniques,” she said.

Sanctions for mediation misconduct. David Wachtel, of Bernabei & Wachtel, a Washington D.C., law firm representing employees, suggested that mediator sanctions in a voluntary mediation could themselves be troubling; mediation should be “a uniquely safe environment.” Both Wachtel and Schlaks agreed that they would draw a line by only imposing sanctions for misconduct during a mediation that involved “violence, realistic threatened violence, and breach of confidentiality.” Additionally, in court-ordered mediation, Schlaks would add to that, “not showing up to a mandatory mediation and, possibly, failure to bring a person with authority to the mediation.”

Should mediators impose sanctions? Wachtel pointed out that in “a voluntary process, the biggest threat to parties is that if the mediation fails, they will both spend money and time in litigation. It shouldn’t take more than that to get cooperation.” Schlaks concurred. “In a voluntary mediation, there should be no sanctions,” she said. “In a court-ordered mediation, perhaps they should be responsible for the mediator’s fees and any court costs.”

Wachtel found the result troubling, given that either “barging in” or “heated language” during a voluntary mediation are part of protected activity. That’s not to say that anyone is suggesting the employee’s behavior in mediation was appropriate.  “If Benes had barged into his supervisor’s office, rather than a mediation room, and said, ‘take this job and shove it,’ I would have ruled the same way the Seventh Circuit did,” Wachtel said. “If he disrupted a meeting and ranted for 20 minutes, at anything but a mediation,” he stressed, “I would also have ruled for the defense.”

Stressing the mediation context, Schlaks offered this example: “What about the 23-year-old female who gets overwrought in a joint session and refers to the boss who groped her as ‘that bastard?’” she asked “After this case, is there no longer a clear line saying she can’t be fired for referring to her boss with disrespect?”

What’s good for the goose is good for the gander. What can employers learn from this case?

  1. Your conduct in mediation could be subject to sanctions as well. Make sure that employer representatives in mediation have familiarity with the facts and settlement authority. Remember that employer actions, including making unrealistically low offers or frivolous accusations, could also be seen as “sabotaging the mediation” under the Seventh Circuit’s approach.
  2. Fire in haste, repent in leisure. Notably, the employer here took just one hour after the employee’s outburst to fire him. That earned it a trip not only to district court but also to the Seventh Circuit, with the attendant time, expense, and distraction that litigation (and an appeal) entails.
  3. Resist the temptation to resort to self-help. What might have happened if the employer had allowed the mediator to handle the employee’s misbehavior: to institute a cooling-off period or reschedule the mediation? It’s impossible to know. However, not all courts might be as willing to find that what an employee did during voluntary EEOC mediation of a Title VII charge was not protected activity.

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Push for comprehensive immigration reform heats up as Congress returns home during August recess

August 9th, 2013  |  Pamela Wolf  |  Add a Comment

By Pamela Wolf, J.D.

The press for comprehensive immigration reform, including a path to citizenship, is in full swing while Congress is in recess this August. Unions and other groups are taking the fight to the home states of congressional representatives. House Democrats have also made a move calculated to get things moving in the Republican-controlled House.

Unions and partner organizations. Communications Workers of America activists and its partners across the country will be flooding town halls, meeting with their members of Congress, and holding rallies in support of a comprehensive immigration reform bill that includes a path to citizenship for some 11 million undocumented immigrants, according to a CWA release.

This week in Los Angeles, the AFL-CIO’s Maria Elena Durazo joined Mayor Eric Garcetti and more than 100 community organizations and leaders from the faith, labor, LGBT, student, civic engagement, business, and immigrant rights sectors to demand a vote on immigration reform.

In Iowa, more than 50 members of Iowa Citizens for Community Improvement packed a meeting with Representative Tom Latham (R-IA) to share their stories and demand action on the pathway to citizenship.

In Texas, almost 50 immigration reform activists from TexasRITA and other groups gathered at Representative Blake Farenthold’s district office to deliver 10,000 petitions asking him to support immigration reform and a path to citizenship.

Facebook CEO Mark Zuckerberg’s immigration reform group, FWD.us, is also bombarding TV airwaves with a six-figure ad-buy aimed at on-the-fence members of Congress over the recess.

Democratic coalition issues ultimatum. The New Democrat Coalition, a group of 53 moderate pro-growth House Members, sent a letter issuing an ultimatum to House Speaker John Boehner on August 2, telling him that if a comprehensive immigration reform bill with a pathway to citizenship is not introduced by September 30, the leading group of moderates in the House of Representatives will advance on a fix to the nation’s broken immigration system. The letter is signed by 39 coalition members.

After releasing principles for a comprehensive immigration reform package in April, the coalition has maintained its effort to build support for a measure that will create American jobs, lower the deficit, and provide an earned pathway to citizenship for millions of undocumented Americans with a series of summits with leaders in the technology industry and key figures in the immigration reform debate, including Representative Luis Gutierrez (Ill.) from the bipartisan Gang of Seven in the House and Senator Michael Bennet (Colo.) of the Senate Gang of Eight.

In the face of no action on a bipartisan bill, the New Dems are pushing for action from House Republican leadership. “We are frustrated that there was not a bipartisan immigration reform bill introduced prior to the August recess,” they wrote, citing broad bipartisan support for comprehensive immigration reform legislation.

“As New Democrats, we want to convey to Speaker Boehner that it is critical he fulfill his commitment to passing immigration reform legislation that will fix our broken immigration system once and for all,” said New Dem Immigration Task Force Co-Chair Representative Jared Polis. “We agree with the American public that immigration reform must include a pathway to citizenship. We are confident that there is the support for such legislation in the House of Representatives and have let Speaker Boehner know we stand ready to work with his members in a bipartisan fashion to pass comprehensive immigration reform this year. Let’s stop kicking the can down the road.”

A wide gap to bridge. Although the Senate has passed a bipartisan comprehensive immigration reform bill (S. 744), the House has dragged its feet, taking a piece-meal approach. The Migration Policy Institute has issued a side-by-side comparison of the Senate bill and the individual bills introduced in the House. The differences in the way the two Chambers have treated the various components of immigration reform is considerable, with the House having covered much less ground; huge gaps remain.

It will be interesting to see if the pressure in their home states will motivate House Members to return after the August recess more willing to tackle immigration reform on a more comprehensive basis.

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Recapping the reconstituted NLRB

August 6th, 2013  |  David Stephanides  |  Add a Comment

Now that the NLRB is back to its full complement of five members after much give and take between the Senate and the White House, here’s a brief rundown on each appointee and the span of their individual terms. On August 1, President Obama also nominated former Member Richard Griffin to serves as General Counsel, as detailed below.

Mark Gaston Pearce, Chairman: Democrat. A founding partner of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux. In 2008, Pearce was appointed by the New York Governor to serve as a Board Member on the New York State Industrial Board of Appeals. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, New York. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University. Pearce initially received a recess appointment set to expire at the end of the Second Session of 111th Congress. On August 27, 2011, President Obama designated Pearce Chairman. Reappointed for a term ending on August 27, 2018.

Nancy Jean Schiffer, Member: Democrat. A former associate general counsel to the AFL-CIO from 2000 to 2012. Prior to working for the AFL-CIO, she was deputy general counsel to the UAW from 1998 to 2000. She had previously worked as associate general counsel for the UAW from 1982 to 1998. Earlier in her career, Schiffer was a staff attorney in the Detroit Regional Office of the National Labor Relations Board and worked as an attorney in private practice. Ms. Schiffer received her B.A. from Michigan State University and her J.D. from the University of Michigan Law School. Appointed for a term of five years expiring December 16, 2014, replacing Craig Becker.

Kent Hirozawa, Member: Democrat. Formerly chief counsel to Chairman Pearce. Before joining the NLRB staff in 2010, Hirozawa was a partner in the New York law firm Gladstein, Reif and Meginniss LLP. Hirozawa previously served as a field attorney for the NLRB from 1984 to 1986. He was a pro se law clerk for the U.S. Court of Appeals for the Second Circuit from 1982 to 1984. He received a B.A. from Yale University and a J.D. from New York University School of Law. Appointed for a term of five years expiring August 27, 2016, replacing Wilma B. Liebman.

Harry I. Johnson, III, Member: Republican. Formerly a partner with Arent Fox LLP, a position he has held since 2010. Previously, Johnson worked at Jones Day as partner from 2006 to 2010 and as an associate from 1994 to 2005. In 2011, he was recognized by The Daily Journal as one of the “Top Labor & Employment Attorneys in California.” Johnson received a B.A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School. Appointed for a term of five years expiring August 27, 2015, replacing Terence Francis Flynn.

Philip A. Miscimarra, Member: Republican. Formerly a partner in the Labor and Employment Group of Morgan Lewis & Bockius LLP, a position he held since 2005. Since 1997, Miscimarra has been a senior fellow at the University of Pennsylvania’s Wharton Business School. Miscimarra worked at Seyfarth Shaw LLP as partner from 1990 to 2005 and associate from 1987 to 1989. Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School. Appointed for a term of five years expiring December 16, 2017, replacing Brian Hayes.

For General Counsel, the nomination of Richard F. Griffin, Jr. has been sent to the Senate. If confirmed, Griffin would serve for a  four-year term, replacing embattled Acting General Counsel Lafe Solomon. Griffin saw his nomination to the NLRB withdrawn by the President as part of an eleventh-hour deal with Senate Republicans in the face of their staunch opposition. Griffin, who earned a J.D. from Northeastern University School of Law, was previously general counsel of the International Union of Operating Engineers (IUOE).

A recent lawsuit filed in a federal court in California may cast a shadow over Griffin’s confirmation. The suit charges that Griffin helped to cover up embezzlement at his former union by terminating employees who attempted to expose the alleged embezzlement plot. The complaint, filed by members and officers of Local 501 of the IUOE, alleged numerous violations of the Racketeer Influenced and Corrupt Organizations Act, and names, among others, the union and Griffin, IUOE’s former general counsel, as defendants.

This is not the first time that Griffin’s involvement with the IUOE has drawn scrutiny from lawmakers. Senator Orrin Hatch (R-Utah), a member of the Senate Committee on Health, Education, Labor, and Pensions, sent a letter in July 2012 to Griffin asking about ties to members of union locals convicted of various crimes during his time at the IUOE. In that letter, Hatch asked Griffin for a list of all issues he had worked on while general counsel pertaining to “fraud, embezzlement, or other financial misconduct” by officials at IUOE or its locals.”

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CFAA claims are already uphill for employers and may disappear under reform legislation

August 2nd, 2013  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

The Computer Fraud and Abuse Act (CFAA) prohibits a person from knowingly and with intent to defraud accessing a protected computer without authorization, or exceeding authorized access in order to further the intended fraud or obtain anything of value. In the employment context, the typical CFAA claim involves an employer’s allegation that employees downloaded confidential information to personal devices or email accounts before leaving to join a competitor; in many cases breaching confidentiality agreements. The problem with such claims is that the CFAA does not define “without authorization.” Further, it defines “exceeds authorized access” but the parameters of “authorized access” are elusive. Courts disagree on how to interpret these terms but a clear majority is emerging that makes employer CFAA claims an uphill battle. Moreover, legislation was introduced in June that may foreclose most employment-related CFAA claims.

Conflicting interpretations

A federal district court in Massachusetts recently explained the conflicting interpretations of the term “exceeds authorized access” (Advanced Micro Devices, Inc v Feldstein, June 10, 2013). The narrow approach reflects a technological model; the scope of authorized access is defined by the barriers preventing it. If an employee was authorized to access a server, any data accessed was with authorization no matter how it was used. By contrast, the broad interpretation defines access in terms of agency and use. If an employee breaches a duty or contract, or acquires an interest adverse to the employer, authorization to access information on the employer’s computer ends. Finding that the broad interpretation pulls trivial contract violations into the realm of criminal penalties, the court adopted the narrow interpretation.

Majority view emerging

Adopting a similar view, a federal district court in Minnesota dismissed an oil recovery company’s CFAA claim against a former employee who downloaded its customer information, presumably to be shared with her inlaws’ newly formed company (Lube-Tech Liquid Recycling, Inc v Lee’s Oil Service, LLC, June 3, 2013). The employee had never accessed information that was off-limits, and, in fact, one of her main duties was to implement a software program to catalogue the customer list for the employer.

A federal district court in Pennsylvania also adopted the narrow approach to the definition of “exceeds authorized access,” dismissing CFAA claims against employees who started working for a competitor before resigning, during which time they downloaded thousands of documents to external devices (Dresser-Rand Co v Jones, July 23, 2013, Brody, A). Because the employees were authorized to access their work laptops and download files, they could not be liable even if they subsequently misused the documents to compete with the employer.

Most recent cases involving similar CFAA claims against employees and former employees meet the same fate and it appears that the narrow interpretation of the term “authorized access” may be the majority approach. Now for the kicker — this debate may become an academic exercise if Representative Zoe Lofgren (D-CA) has her way.

CFAA reform: Aaron’s Law

On June 20, 2013, Lofgren, along with Reps. James Sensenbrenner (R-Wis), Mike Doyle (D-Pa), Yvette Clarke (D-NY), and Jared Polis (D-Colo), introduced a CFAA reform bill, H.R. 2454, which essentially adopted the narrow interpretation of the terms “without authorization” and “exceeds authorized access” set forth by the Fourth Circuit in WEC Carolina Energy Solutions, LLC v Miller (July 26, 2012, Floyd, H). The appeals court held that employees who violated a use policy to download an employer’s confidential information could not be liable under the CFAA; such liability was limited to individuals who access computers without authorization or obtain or alter information beyond the bounds of their authorized access.

Under Aaron’s Law (named in honor of the late Internet innovator and activist Aaron Swartz), the term “exceeds authorized access” would be stricken and replaced by the term “access without authorization,” which would be defined as follows: “(A) to obtain information on a protected computer; (B) that the accesser lacks authorization to obtain; and (C) by knowingly circumventing one or more technological or physical measures that are designed to exclude or prevent unauthorized individuals from obtaining that information.”

As Lofgren’s summary of the measure explains, the “proposed changes make clear that the CFAA does not outlaw mere violations of terms of service, website notices, contracts, or employment agreements. The proposed definition of ‘access without authorization’ includes bypassing technological or physical measures via deception (as in the case with phishing or social engineering), and scenarios in which an authorized individual provides a means to circumvent to an unauthorized individual (i.e., sharing login credentials). Examples of technological or physical measures include password requirements, cryptography, or locked office doors.”

Companion legislation was introduced in the Senate by Ron Wyden (D-Ore), who explained that the reform is meant to clarify “a vague and outdated statute initially intended to protect government computers from malicious hacks but is now interpreted so broadly as to criminalize harmless and commonplace infractions.”

While the emerging majority view and the pending legislation may provide clarity for employers pursuing CFAA claims, this is cold comfort. Employers will largely be relegated to trade secret law, interference torts, and contract law when seeking redress for the harm caused by employees who take confidential information and use it to help a competitor.

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Despite media hype, AMA labeling obesity a disease is unlikely to change much

July 31st, 2013  |  Lorene Park  |  1 Comment

By Lorene D. Park, J.D.

Much has been made in the media of the American Medical Association recently adopting a policy recognizing obesity as a disease. Indeed, commentators have proclaimed that the policy would spur a “spate” of new suits, starting with Whittaker v America’s Car-Mart, Inc, a complaint filed July 19, 2013 (E.D. Mo.). Forget for a minute that the ADA has an administrative exhaustion requirement (meaning the plaintiff asserted his claim to an agency before the AMA’s announcement) and that the complaint does not refer to the AMA. Let’s assume he filed suit because his position was backed by the AMA. What does that change? Not much.

It is great that obesity discrimination is getting more press, and perhaps such plaintiffs will find support in the AMA’s labeling obesity as a “disease.” However, obesity discrimination suits have been around for years and the issues with which the courts have struggled in post-ADAAA cases are unlikely to change after the AMA’s announcement. Why? Because, with any impairment (including obesity), an ADA (or similar state law) plaintiff must show that it substantially limited one or more major life activities (or was regarded as such). And the assessment of whether a person is disabled must be done on an individualized basis, not based on a general conclusion by a national association.

Post-ADAAA cases already changing.

Significantly, the judiciary’s view on obesity discrimination has already been changing after the ADAAA’s enactment. Exploring the topic last year in a July 10, 2012 blog, I noted that, historically, obese employees had trouble asserting they were disabled unless they proved the obesity was caused by a physiological disorder. However, the ADAAA significantly broadened the definition of “disability,” and there have been results.

In one case, a plaintiff had a job offer rescinded due to the “health and safety risks associated with extreme obesity.” Looking to the ADAAA and EEOC interpretations, the Montana Supreme Court concluded that, under a similar state law, obesity that is not the symptom of a physiological disorder or condition may constitute a “physical or mental impairment” if the individual’s weight is outside “normal range” and affects “one or more body systems” as defined by 29 C.F.R. Sec. 1630.2(h)(1) (BNSF Railway Co v Feit, July 6, 2012). In an Illinois case, a federal court denied an employer’s motion to dismiss an ADA claim based on the allegation that the employer failed to accommodate an employee’s obesity and osteoarthritis by providing him assistance with physical labor (Budzban v DuPage County Regional Office of Education, January 14, 2013). In light of these and similar cases, it is clear that the issue isn’t whether an employee’s obesity is a “disease” but whether it substantially limits a major life activity or is regarded as such and not much will change in the ADAAA analysis after the AMA announcement.

Weight as protected category?

Quite apart from the question of whether obesity is a disability covered by the ADA, I would like to see more discussion from commentators on whether discrimination based on weight should be prohibited generally (e.g., under Title VII). Currently Michigan is the only state to make it illegal to discriminate on the basis of weight yet this is a nationwide issue. For example, the Yale Rudd Center for Food Policy & Obesity at Yale University has reported that overweight people:

  • earn less than non-overweight people in comparable positions;
  • get fewer promotions;
  • are viewed as lazy, less competent, and lacking self-discipline by employers and coworkers; and
  • can be fired, suspended, or demoted because of their weight, despite good job performance and even though weight is unrelated to their job responsibilities.

Furthermore, an article published by the Rudd Center shows that the prevalence of reported weight discrimination among obese individuals nationwide has increased by 66% over the past decade and is now comparable to rates of racial discrimination in the United States, especially among women.

Sex-plus discrimination?

Those are pretty serious numbers and I think worthy of further discussion. Indeed, I’m just waiting for one creative attorney to take these numbers (and the conclusion that weight discrimination is more prevalent against women) and argue that an employer’s policy of discriminating against obese individuals has a disparate impact on women. Perhaps such an attorney might also assert a “sex-plus” discrimination suit.

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