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Words wound and employers may be required to pay for those injuries

May 28th, 2015  |  Ron Miller  |  Add a Comment

There’s an old adage that “words are never a provocation.” But we all realize that words, in fact, can wound and leave deep and lasting scars on their victims. Courts have recognized that racial epithets and terms that conjure up racial stereotypes provide ample cause for an employee to feel the heat of a hostile work environment. Three recent decisions serve as a reminder of the seriousness of inappropriate “words” in the workplace.

Underscoring the seriousness of inappropriate language in the workplace, the Fourth Circuit, sitting en banc in Boyer-Liberto v. Fountainebleau Corp., held an African-American female who was called a “porch monkey” by a coworker on two consecutive days could pursue race discrimination and retaliation claims under Title VII and Sec. 1981. Looking to the Supreme Court’s pronouncement in Faragher v. City of Boca Raton, the appeals court concluded that an isolated incident of harassment, if extremely serious, can create a hostile work environment.

Relying on the Fourth Circuit’s precedent in Jordan v. Alternative Resources Corp., the district court had awarded summary judgment to the employer, concluding that “the two incidents of use of a racial epithet do not comprise either pervasive or severe conduct, however unacceptable they are.”

Severity of conduct. The en banc Fourth Circuit first considered whether the employee made the required showing that “the environment would reasonably be perceived, and is perceived, as hostile or abusive.” Although a viable claim often involves repeated conduct, an “isolated incident” of harassment can “amount to discriminatory changes in the terms and conditions of employment” if that incident is “extremely serious,” reasoned the court.

In measuring the severity of harassing conduct, the status of the harasser may be a significant factor. Thus, “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” The status of the harasser also is relevant to the fourth element of a hostile work environment claim: whether the harassment is imputable to the employer. For purposes of vicarious liability, the harasser qualifies as a supervisor, rather than a coworker, “if he or she is empowered by the employer to take tangible employment actions against the victim.”

Here, the court pointed out that before the incident occurred, the coworker repeatedly and effectively communicated to the employee that she had the owner’s ear and could have the employee fired. She berated the employee’s job performance and then obstructed her attempt to report the racial harassment to management.

Proper standard. The appeals court determined that the Jordan standards were at odds with the hope and expectation that employees will report harassment early, before it rises to the level of a hostile environment. The question, then, becomes this: What is the proper standard for determining whether an employee who reports an isolated incident of harassment has a reasonable belief that she is opposing a hostile work environment in progress? When assessing the reasonableness of an employee’s belief that a hostile environment is occurring based on an isolated incident, the focus should be on the severity of the harassment, concluded the Fourth Circuit. That assessment involves factors used to judge whether a workplace is sufficiently hostile or abusive for purposes of a hostile environment claim—specifically, whether the discriminatory conduct “is physically threatening or humiliating, or a mere offensive utterance.”

Applying this standard, the appeals court concluded that a jury could find the employee reasonably believed there was a hostile work environment in progress when she reported the manager’s use of the “porch monkey” slur. In the context of her retaliation claims, the employee had made the lesser showing that the harassment was sufficiently severe to render reasonable her belief that a hostile environment was occurring.

The “N” word. Racial epithets were also at the heart of the complaints of two African-American drivers for a moving company in Jackson v. Morse Moving & Storage, Inc. In that case, the employees also sued their former employer under Title VII and Section 1981 asserting that they were discriminated against and harassed on the basis of their race and retaliated against for complaining. Both employees claimed to have experienced racial discrimination from coworkers and supervisors, including being called a “big black n****r,” “a slow n****r,” a “dumb n****r,” a “f***ing porch monkey,” and a “black motherf***ing n****r,” among other slurs. The drivers informed the general manager about the slurs and were promised action, but the coworkers’ behavior did not change.

Although the employer argued that there was no evidence the employees’ complaints about racial animus caused their termination, the employees’ retaliatory discharge claims survived summary judgment.

Reviewing the employees’ claims under the direct method, the court concluded that they sustained their burden of showing a causal connection between their harassment complaints and their terminations. There was evidence that the GM said that he would not schedule them to work with the coworkers about whom they had complained, as well as evidence that when another worker protested the treatment of the two employees, his hours were cut. Moreover, the evidence showed that management had done nothing to address their complaints of racial harassment. Thus, the court found they sustained their burden of showing a causal connection between their claims and later discharges.

Pimpmobile. Additionally, words with no obvious racial connotation may still be found to have a racial component, ruled the court in Perkins v. National Express Corp. Here, the court determined that a reasonable jury could conclude from the context that the terms “a player’s” car and “pimpmobile” uttered to an African-American manager by his supervisor carried a racially discriminatory meaning. It thus permitted the employee to move forward on his claim that multiple drug tests within a nine-month period were racially discriminatory.

According to the employee, during his tenure with the company his supervisor made racially offensive remarks to him, including that the employee drove a “player’s” car or “pimpmobile,” and took discriminatory actions against him. He explained that he usually commuted to work in his 1994 Volvo. But when he drove his Mercedes-Benz to work, his supervisor made the comment that he was riding his “player’s” or “pimpmobile.” The employee testified that the statements referred to African-Americans in luxury cars and that he took the comment offensively.

It was precisely the ambiguity of the comment that created a genuine dispute of fact over whether the reference involved a discriminatory racial connotation, given the context. Given that the supervisor directed the “pimpmobile” comments to the employee specifically on the day he drove his Mercedes to work, a reasonable jury could find that the reference to “player’s” or “pimp” directed at an African-American male driving a luxury car carried a discriminatory meaning.

While litigants are often reminded that courts do not “sit as a super-personnel department” and that Title VII is not a “general civility code,” it is bears remembering that certain language remains out of bounds in the rough and tumble of the workplace.

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Accommodation compassion

May 26th, 2015  |  Joy Waltemath  |  Add a Comment

It was my turn to blog, so I wrote this traveling home from my brother-in-law’s funeral. Post-polio syndrome weakened his lungs and likely hastened his death.

Skip was five when he became ill with polio. Jonas Salk was still working on his vaccine, which wasn’t made available to the nation’s children until several years later. He spent months in an iron lung and returned home with crutches as his companion, until surgery shortened his good leg to match his bad. He wore a leg brace all his life.

Interference with functional independence. Post-polio syndrome affects an estimated 25 to 40 percent of polio survivors, mimicking the onset of the disease with progressive weakness, loss of mobility, and often diminished lung capacity. As the NIH page on the disease states, “post-polio syndrome is rarely life-threatening, but the symptoms can significantly interfere with an individual’s ability to function independently.”  Not well-understood, it seems to strike individuals in their 40s and 50s—in their prime earning years.

Skip worked as a med tech for many years. Soon after a new supervisor took over in his department, his performance was measured and found wanting; he was too slow; he made mistakes. By this time post-polio syndrome had begun to affect him. Post-polio syndrome is diagnosed by the following characteristics: already having had polio with paralysis; a period of partial or complete functional recovery, usually for at least 15 years or more; plus progressive and persistent new muscle weakness with decreased endurance, sometimes including general fatigue, muscle atrophy, or muscle and joint pain. After ruling out other causes, these symptoms must have persisted for at least a year before a diagnosis can be made.

Individualized inquiry. Usually an accommodation request from an employee triggers the duty to accommodate. But, if an employee with a known disability isn’t performing well, a manager or supervisor may ask the employee if an accommodation is needed. Skip likely would not have asked for an accommodation. His supervisor noticed he was too slow; did she wonder if he needed an accommodation? Yet even if she had, could his disability have been accommodated? He couldn’t move quickly from patient to patient; could the job have been restructured so that he spent more time in the lab running tests? I don’t know; I wasn’t there; I don’t know whether there was an individualized inquiry into his medical status and qualifications before Skip was fired.

He moved home with his parents and never really worked again, although he volunteered for a public health department outreach where he was particularly valued for his ability to do blood draws on difficult patients, like little kids. He sang in the choir and in a men’s chorale for years, until his lungs gave out and even performing in his wheelchair was too much for him.

Doing the hard thing well. I’ve managed people for over 25 years; in my experience, managing individuals with disabilities that require accommodation (note: not all disabilities do) can be challenging at best; unsettling and unsuccessful at worst. It requires management effort—sometimes a lot of effort; it always sucks up management time; it requires the cooperation of the organization; and it doesn’t always work. And until I read this paragraph over again while proofreading it, I did not realize my stated perspective completely lacked any consideration of the impact this process has on the individual with the disability.

Often, by the time an employee does seek a reasonable accommodation for a disabling impairment, he or she is frustrated. Managers or supervisors are likely frustrated too. Many times the employee’s coworkers are aware of the situation as well; they also may be frustrated. As managers and employment lawyers, when faced with such a situation, how do we react? Do we overreact, either by a knee-jerk “no, that will never work,” borne out of exhaustion, or by an over-accommodating “yes” to anything the employee asks because we feel compelled by unrealistic optimism? Either approach is a form of giving up, an urge we should resist. Instead, no matter how difficult, we need to respond to the individual in front of us with honesty, compassion, and understanding, whether or not accommodation is possible.

Skip’s life reminds me of the individual behind the disability, and so I remind you.

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HELP Committee Chairman expresses discontent with EEOC and its ‘Outstanding General Counsel’

May 21st, 2015  |  Pamela Wolf  |  Add a Comment

At a Senate Health, Education, Labor, and Pensions (HELP) Committee hearing on May 19, Chairman Lamar Alexander (R-Tenn.) expressed clear discontent not only with the recent direction and strategy of the EEOC, but particularly with its General Counsel, P. David Lopez, who was nonetheless named last year by the National Law Journal as one of America’s 50 Outstanding General Counsels.

Concern over agency’s direction. Alexander, in his opening remarks at the hearing, expressed concern that the EEOC is “pursuing investigations with no complaints while the backlog of complaints grows, receiving embarrassing court rebukes, and seems to be inventing ways to avoid following the law.” The senator also noted that six months ago he voted against Lopez’s re-nomination to serve as EEOC general counsel.

“I said then that I believed he had placed too much emphasis on litigating high-profile lawsuits at a time when there were more than 70,000 complaints of workplace discrimination that hadn’t been investigated,” Alexander said. “Since then the lawsuits have continued, the agency has suffered embarrassing rebukes from the courts, and the backlog has grown. We’re here today to find out why such an important agency with such a critical task has gotten so far afield of its mission.” Alexander outlined four chief concerns about the EEOC:

  • The commission is pursuing investigations that may not involve a complaint, while the backlog of complaints has grown to over 75,000. 
  • The commission is losing lawsuits and receiving strong rebukes from courts, wasting taxpayer dollars and commission resources. 
  • Instead of following the law, EEOC is focused on “developing the law” and creating regulatory guidance without any notice and comment.
  • After the agency initiated litigation against employee wellness programs—creating a conflict with the Affordable Care Act and ignoring the clear intentions of Congress and the president to encourage these programs—the agency’s proposed rule on the plans does not resolve all the issues it created.

Among the many criticisms that Alexander leveled against the agency was that it spends “too much time initiating lawsuits from investigations which were begun without any individual filing a complaint, and with a clear intention by the agency to achieve a maximum amount of publicity.” The Senator cited several examples of this and also revisited the several instances he outlined during Lopez’s confirmation hearing in which courts had strongly rebuked the EEOC.

Alexander also addressed what he thought was the agency’s lack of respect for the law. “…I am concerned that the commission and Mr. Lopez seem to be inventing ways to avoid following the law,” he said.

“In public speeches, Mr. Lopez has admitted that his attorneys take an ‘entrepreneurial approach’ to litigation and work to develop the law.’
“EEOC has pushed the bounds of the law by seeking out what the commission itself described in its fiscal year 2016 budget justification as ‘novel issues’ in the cases it pursues.”

Among other issues, Alexander also criticized the EEOC’s use of guidance, which he said is supposed to be a non-binding way to provide advice to individuals and businesses on how the agency interprets the law. “But twice in the past two and a half years, EEOC has set national workplace discrimination policy through guidance.

“Then they filed lawsuits based on this guidance, which tells me the agency thinks its guidance is binding even if the law says it isn’t.”

Great strides made. Ranking Member Patty Murray (D-Wash.), in her prepared remarks, emphasized what she thought were great strides that have been made by the EEOC. “For five decades, the Commission has made great strides in creating a more fair and more just society,” she said. “In fact, the EEOC’s success rate in litigation has consistently topped 90 percent, including more than 93 percent this past Fiscal Year.

“That success comes despite years of budget cuts and belt tightening that has whittled the agency’s workforce by more than 700 full-time employees since 1995. And it’s one more reason why we need to build on our bipartisan budget deal to continue rolling back the automatic cuts, so we can restore investments that expand opportunities for all families.

“I believe it is time for Congress to step up and give the EEOC the resources it needs to fight discrimination in our nation’s workplaces. That would help the agency reduce its severe backlog.”

Litigation as a last resort. Among the many points he made in prepared remarks, Lopez stressed that the EEOC sees litigation as a last resort. “While it’s my job as General Counsel to be the Agency’s chief litigator, let me be clear: I believe litigation should be the enforcement tool of last resort,” he said. “I do not believe in suing first, and asking questions later—and our statutory authority does not contemplate or permit this. In FY 2014, for instance, we litigated on the merits only .15 percent of all charges filed. That is about one-and-a-half lawsuits for every 1,000 charges filed. During my tenure as GC, I have focused on developing and filing critical cases, particularly those that further the public interest. We carefully and deliberately vet our potential litigation vehicles to ensure effective enforcement nationwide and across the statutes. And we seek approval from the Agency’s Commissioners—by law, a bipartisan group—consistent with the guidelines the Commission itself has adopted to govern the delegation of litigation authority.”

Non-litigation efforts. Lopez also discussed the EEOC’s non-litigation efforts. “As General Counsel, I, along with those under my direction, actively and enthusiastically support the Agency’s non-litigation enforcement efforts,” he said. “Voluntary compliance is an important component of those efforts and I have proudly defended our agency’s record on this front.”

Lopez noted that April 29, in Mach Mining v. EEOC, “the Supreme Court held in a unanimous opinion that ‘a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before suit[, but] the scope of that review is narrow.’ In particular, judicial review is limited to whether the EEOC has ‘inform[ed] the employer about the specific allegation’ and whether the EEOC has ‘tr[ied] to engage the employer in some form of discussion.’ Lopez stressed that in its decision, the High Court noted that Title VII is about substantive outcomes.

“The Supreme Court’s decision ends confusion in the lower courts about the standard of review and is a step forward for victims of discrimination because we can now focus our attention on the merits of the discrimination allegations in our litigation and ensuring workplace fairness,” Lopez said.

The General Counsel also said that during his tenure the EEOC has “engaged in unprecedented levels of outreach to various stakeholder groups across the country, including to bar and management groups.” The day after his confirmation hearing, he addressed and took questions from the U.S. Chamber of Commerce. “While often their positions, such as in Young v. UPS and EEOC v. Abercrombie and Fitch, express different views than ours, we appreciate and learn from the dialogue we’re able to have,” he said. “Further, although I believe we have a great story to tell in just about any area, we always welcome feedback and constructive criticism as an opportunity to improve our enforcement efforts. This is the only way we will become stronger and more effective.”

Lopez also pointed out that last year, he was named by the National Law Journal as one of America’s 50 Outstanding General Counsels—that award, however, “really belongs to my dedicated colleagues at the EEOC who inspire me every day,” he said. “I have seen up close and personal the unparalleled dedication and skill of these amazing civil servants. This award reflects the tremendous work of the program during an extremely challenging period when we endured a hiring freeze, significant attrition, and furloughs. Still, despite these particularly difficult times, we were able to continue to conduct a successful litigation program.”

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Proposed white-collar exemption rule on track, advances to OMB review

May 19th, 2015  |  David Stephanides  |  Add a Comment

As reported in Employment Law Daily on May 7, 2015, the Department of Labor, Wage and Hour Division has submitted its proposed white-collar exemption rule to the Office of Management and Budget (OMB) for review. The DOL has reviewed and made proposed revisions to the FLSA regulations that govern overtime pay eligibility at the direction of President Obama’s March 2014 memorandum to the agency.

Exactly what revisions have been made to the regulations are unknown at this time and will not be publicly available until the OMB completes its review and the DOL releases its proposed rule for public comment. While there is no minimum time period, the OMB’s Office of Information and Regulatory Affairs may take up to 90 days to review a proposed rule, with a one-time extension of not more than 30 days.

In the meantime, Noel P. Tripp, of the law firm Jackson Lewis, has penned an open letter to the DOL concerning its pending revisions. Tripp offers five suggestions that he stresses “would ensure more streamlined compliance with the FLSA’s requirements and reduce litigation and uncertainty for both employers and employees alike. This whole process serves no purpose if clarity is not provided for all stakeholders.”

Of Tripp’s five suggestions, I’ll highlight two here. First, he targets IT workers and suggests that the exempt status of these workers should be addressed “holistically” across the administrative, learned professional and computer professional exemptions. “These regulations desperately need to be modernized. The Department should define the duties test associated with all three of these exemptions to recognize that most information technology work, like the work of other white collar exempt employees, is exempt-level work.”

Second, Trip desires a de-emphasis of the duties tests and an increasing reliance on the compensation and salary basis prong in determining exempt status. “The DOL should establish a salary level that if met, qualifies for an exemption, regardless of duties. This standard could be calibrated with compensation levels based on cost of living data, perhaps that used by the federal government.”

For the remaining three insightful suggestions that strive to modernize very antiquated regulations, see Tripp’s post here.

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Social media and employment law—are courts catching up?

May 14th, 2015  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Remember back when the two biggest employment law issues involving social media were “ownership” of accounts and a backlash against requesting access to job applicants’ personal profiles? Times have changed, and legal issues have multiplied. But much like the older generation catches up with teenagers who readily adapt to rapidly changing technology, courts are developing precedent that shows a better understanding of how allegations involving the use of social media fit within long-standing law on trade secrets, labor relations, First Amendment rights, discrimination laws, and more. Below are a few emerging issues and court responses.

Discrimination, harassment, and retaliation. Many employment cases involve allegations of social media being used as a vehicle for harassing a coworker or other individual, and employers can be found liable. Facebook and other posts may also be evidence of unlawful intent:

  • Comments lamenting that a “f*cking indian” was made department chair and other racist Facebook posts by two professors who were allowed to vote on an employee’s tenure (which was denied) evidenced hostility that was prevalent in the department, a federal court in Oklahoma found, denying summary judgment on a hostile work environment claim. The employee’s retaliation claim also advanced, partly because the Facebook posts provided a causal link between the denial of tenure and his prior complaints of race discrimination (Hannah v. Northeastern State University).
  • A food service director, who complained that graphic sexual images of her drawn on a bathroom wall had been a topic social network sharing for a month and who lost her job soon after complaining, will take her sexual harassment and retaliation claims to a jury. The court found it significant that the supervisor knew workers were passing around cell phones to view the posts but blew off the employee’s complaints. The fact that the drawings were shared on Facebook during work also supported a finding that the alleged harassment was severe enough to create a hostile environment (Meng v. Aramark Corp.).
  • A court found a triable issue on whether a male EMT was fired in retaliation for reporting sexual harassment by a male coworker or because he refused to sign a letter agreeing to attend anger management after he wrote Facebook posts (the same day the coworker touched him near his crotch) threatening “the mother f***er who thought today was a joke” and stating he would “knock [that individual’s] f***ing teeth out, break [his or her] jaw [and] every bone in [his or her] left arm.” The employee claimed he told HR he was willing to do the training but refused to sign the letter because it purported to exonerate the company for the harassment (Verga v. Emergency Ambulance Service, Inc.).

Labor relations. Facebook, Twitter, and other social media comments can be protected concerted activity or union activity under the NLRA. An NLRB fact sheet explained that in 2010, the Board started receiving charges in regional offices about employer social media policies and specific instances of discipline for postings. In some cases, the agency has found that the communications were protected and that there was reasonable cause to believe an employer’s policies or disciplinary actions violated federal labor law. For example:

  • Although a car dealership cooperated with the NRLB in an investigation over its 2010 handbook provisions on social media, gave the NLRB proposed revisions, and issued a new 2013 handbook after the agency’s review, the Board, in a 2-1 decision found that publication of the new handbook did not effectively repudiate the offending provisions. Merely revising unlawful rules did not remedy unfair labor practices, absent notice to the affected employees that violations occurred and would not be repeated. The overbroad 2010 social media policy prohibited employees from disclosing information about employees or customers; required them to identify themselves when posting comments about the dealership; prohibited them from referring to it in a way that would negatively impact its reputation; prohibited any conduct that even had “the potential to have a negative effect” on the dealership; and allowed the dealership to request access to anything they posted on social media (Boch Imports, Inc. dba Boch Honda).
  • An employer violated NLRA Sec. 8(a)(3) by firing an employee for venting frustration with a manager by posting profanity-filled Facebook comments, ruled a three-member panel of the NLRB. The posting, which was protected and concerted activity, called the manager a “NASTY MOTHER F*CKER” and a “LOSER,” and ended with “Vote YES for the UNION!!!!!!!” His post was visible to Facebook “friends,” including some coworkers. The panel noted that he posted his comments while on break, there was no evidence they interrupted the work environment or relationship with customers, and the comments echoed employees’ prior complaints of disrespectful treatment of employees and encouraged employees to vote for union representation. Disagreeing with Member Johnson’s partial dissent, the majority did not view the use of profanity to be qualitatively different from other profanity regularly tolerated by the employer (Pier Sixty, LLC).
  • The D.C. Circuit refused to hold a union liable for failing to remove derisive and allegedly threatening comments on a Facebook page maintained for union members. Denying a non-union employee’s petition for review of the NLRB order dismissing his charge, the appeals court found it significant that there was no indication that union officials or agents posted the comments and only union members could post or view comments on the page. It declined to address whether the postings would be deemed “threatening” if made by union agents and emphasized that the Board was not foreclosed from ever finding a union guilty of unfair labor practices for postings on “closed” Internet sites (Weigand v. NLRB).

Background checks. Back when employers first started viewing the social media accounts of job applicants as a means of evaluating whether they would make good employees, legal experts cautioned that employers might learn information (such as religion, race, or disability) that could form a basis for a claim that they made employment decisions on prohibited bases. Although that remains a concern, other issues have arisen on the use of social media to evaluate applicants or employees.

For example, a federal court in California dismissed a putative class action under the Fair Credit Reporting Act (FCRA) by LinkedIn users who were allegedly rejected from employment after potential employers contacted individuals identified through LinkedIn’s Reference Search Function. The court explained in detail why search results did not constitute a “consumer report.” Among other reasons, the information was derived solely from LinkedIn’s transactions with the plaintiffs and not from third parties, LinkedIn was not a “consumer reporting agency” under the Act, and the list of possible references was not, itself, used or intended to be used for employment purposes (Sweet v. LinkedIn Corp.).

Class Action notice. Interestingly, social media may be considered by some courts to be an effective means of providing notice to potential class members in class actions. In an ongoing class action wage suit by Gawker Media interns, a federal court in New York granted the plaintiffs’ renewed (and revised) bid for approval of a plan to disseminate notice to potential opt-in plaintiffs via social media. The court had rejected their initial notice plan, concluding that it was overbroad and seemed bent on publicizing Gawker’s alleged wage infractions rather than targeting prospective class members. The court was satisfied that these defects were cured but told the plaintiffs they may not “friend” potential opt-ins on Facebook, and must “unfollow” from Twitter those who don’t join during the opt-in period (Mark v. Gawker Media, LLC).

Evidence, discovery issues. Facebook posts are fair game when it comes to discovery, much to the chagrin of individuals whose posts contradict claims they later make in litigation.

  • A federal court in Louisiana ordered an employee to produce an unredacted copy of his entire Facebook page, finding that his argument that he had deactivated his Facebook account was not persuasive—that was not the same as deleting it, and it was clear from other evidence that he knew how to reactivate his account. Moreover, the employer was entitled to analyze his Facebook messages, particularly given evidence that he messaged a coworker that he injured himself fishing, rather than in a workplace accident on the employer’s vessel, as he had alleged (Crowe v. Marquette Transportation).
  • In the ongoing saga of human-trafficking-related claims against Signal International, which has been accused of trafficking over 500 Indian guestworkers to the U.S. after Hurricane Katrina, a federal court in Louisiana ruled that Signal may not use a previously undisclosed Facebook picture of one plaintiff and his assumed wife as impeachment evidence. Though the picture purportedly conflicted with his deposition testimony that he had not seen his family in over seven years, whether he saw his family was relevant to damages and as such, was substantive. Regardless of its impeachment value, it should have been disclosed to opposing counsel and listed in the proposed pre-trial order; since it was not, it could not be used at trial (David v. Signal International, LLC).
  • In an ADA discrimination suit by the EEOC, Bank of America was denied a motion to compel production of all texts, emails, and social media posts by the complaining employee since 1998. Although discovery of the employee’s ability to communicate in writing was a central issue in the case, the request was overly broad (EEOC v. Bank of America).

Trade secrets. Social media contacts and control of groups linking professionals together based on a common interest can be considered trade secrets:

  • A former employee’s refusal to cede control of a professional LinkedIn group with a membership restricted to 679 of the employer’s current and potential customers supported his former employer’s breach of noncompete, Illinois Trade Secrets Act, and common law misappropriation claims, all of which survived his motion to dismiss. The federal court in Illinois noted that the names of group members would be “extremely valuable” information to competitors (CDM Media USA, Inc. v. Simms).
  • Fact disputes on whether an employee misappropriated trade secrets by maintaining LinkedIn contacts with a company’s clients after his termination precluded summary judgment on his former employer’s claim under California law. Although he argued that LinkedIn contacts do not constitute a trade secret because the employer encouraged employees to use LinkedIn, and because his contacts were viewable by any other contact, the court refused to take judicial notice of LinkedIn’s functions and concluded that a fact issue remained (Cellular Accessories For Less, Inc. v. Trinitas LLC).
  • An employer’s claims that its roster of employees who are touchscreen technology specialists was a trade secret misappropriated by a competitor in its effort to poach the employees was made in bad faith, considering the names of the specialists were obtained from publicly available sources, including LinkedIn. The employer was ordered by a California court to pay the competitor $180,000 in attorneys’ fees (Cypress Semiconductor Corporation v. Maxim Integrated Products, Inc.).

First Amendment cases. Social media posts are considered public speech, and in some cases even clicking “like” in response to someone else has been considered speech. Whether First Amendment protections apply, however, depends on the circumstances of each case.

  • An EMT/medical helicopter pilot, who repeatedly reported a lack of required federal certification of a Medstar helicopter to his employer before going to the FAA and social media, survived a motion to dismiss his First Amendment retaliation claim based on his termination. His speech was not part of his regular duties, addressed a public concern, and a federal court in Florida found no legitimate government interest in disciplining an employee for disclosing malfeasance, especially where he gave the county a chance to address the issues before going public (McAllister v. Lee County).
  • Only one of two police officers disciplined for an off-duty Facebook conversation about rookie cops in leadership positions was protected by the First Amendment. The federal court in Virginia found it significant that there was no showing that his comments created a “reasonable prediction of harm” to police operations. But the police chief was protected by qualified immunity since reasonable officials in his position would not know that disciplining an officer for a Facebook post under department policy would violate constitutional rights. The city was not liable because it never ratified the social networking policy (Liverman v. City of Petersburg).
  • A fired assistant attorney general did not engage in protected speech when he embarked on an online and televised crusade against a gay student affairs president, ruled a Michigan appeals court. His interest was outweighed by the employer’s interest, and the First Amendment did not require the Attorney General to “sit idly by” while he insulted those he was hired to serve and protect (Shirvell v. Department of Attorney General).
  • Finding that a police officer’s “hot-headed” Facebook posts criticizing the police chief’s leadership for failing to send a patrol car to a fallen officer’s funeral were made as a citizen, and perhaps stemmed from a “genuine desire to inform the community,” the Fifth Circuit refused to allow the “‘mere insertion of a scintilla of speech regarding a matter of public concern’ to ‘plant the seed of a constitutional case.’” Further, the department’s interests in maintaining discipline and preventing insubordination outweighed the officer’s First Amendment interest here (Graziosi v. City of Greenville Mississippi).

Other claims. Social media can be part and parcel of traditional harassment and discrimination claims, but cyber-harassment also can be a stand-alone claim in some cases. In addition, social media posts can be cause for a court to impose remedial measures to prevent abusive litigation tactics or to protect individuals’ privacy rights.

  • A California Court of Appeals upheld a restraining order against a CVS manager who allegedly cyber-harassed a former coworker by going through his girlfriend’s Instagram account and posting the coworker’s LinkedIn Profile along with disparaging remarks like “#kickedout” and “#joblessbitch.” The circumstantial evidence amply established that the former coworker was humiliated by the posting and reasonably worried about the impact on her professional reputation (Kwan v. Murcia).
  • A federal court in North Carolina found good cause existed to modify a protective order to require the removal of YouTube videos depicting the deposition of a corporate witness, along with commentary mocking her, which were posted by an employee over a year and a half after her employment discrimination suit was dismissed. Such public mockery implicated reputational and privacy interests of litigants and third parties. The court rejected the employee’s jurisdictional and First Amendment challenges (Springs v. Ally Financial, Inc. fka GMAC, Inc.).
  • Evidence that an employer suspended, fired, and then sued an employee for defamation because she spoke to the media, was featured on Facebook by the media, and complained to OSHA about workplace exposure to chemicals linked to breathing problems suggested to a federal court in Alabama that the Secretary of Labor was likely to succeed on a retaliation claim filed on the employee’s behalf under the OSH Act. The court enjoined the employer from taking adverse actions against employees who exercise rights under the Act (Perez v. Lear Corporation Eeds and Interiors).

State legislatures are also catching up. While courts are in the trenches dealing with individual disputes over the use and control of social media accounts, legislators have been busy crafting laws that also address emerging issues—though these mainly focus on the privacy rights of employees and job applicants. According to the National Conference of State Legislatures, as of April 14, 2015, legislation restricting employers from requesting passwords to personal Internet accounts and otherwise addressing social media have been introduced or considered in at least 22 states in 2015. For example, Virginia recently enacted a social media privacy law that prohibits employers from requiring current or prospective employees to disclose the username or password of their social media accounts and forbids them from retaliating against those who exercise their rights under the law. Employers also are prohibited from requiring an employee to add an employee, supervisor, or an administrator to the list of contacts associated with the employee’s social media account. Montana enacted a similar law, as have other states.

Social media policies generally. Clearly the proliferation of social media communications and images has given rise to an ever-growing number of employee complaints of harassment, discrimination, defamation, privacy violations, and other claims. Plus, there are employers’ interests in protecting the names of customers and potential customers, and in maintaining a positive public image on social media. Due to the changing legal landscape, variation among state laws, and the need to account for an employer’s unique circumstances, there is no one-size-fits-all social media policy that will protect an employer’s interests while ensuring compliance with applicable laws. As a consequence, employers are well advised to obtain legal advice from a local attorney experienced in both employment law and social media before adopting a social media policy and to regularly review their policies to ensure continued compliance.

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