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Employers: What third-party commitments did you make via your electronic communications policy?

September 4th, 2014  |  Joy Waltemath  |  Add a Comment

Let’s say you have an electronic communications/computer use policy at your workplace (as recommended by employment counsel) and it provides, among other things, that employees are prohibited from sending or viewing inappropriate, obscene, harassing, or abusive language and materials on your systems and equipment. Your policy reserves your right to monitor and inspect communications sent, received and stored on your systems and equipment; it also reserves management’s discretionary right to take disciplinary action against employees who violate your policy.

Did you just buy yourself a wrongful death action?

An August Illinois state appellate court, treading carefully to emphasize it was only ruling on a motion to dismiss for failure to state a claim, said well, maybe.

In a case involving tragically horrible facts (and which engendered a CBS 48 Hours episode), an individual employed by an evangelical ministry in what the court termed “high-level security positions” was charged with, convicted of, and sentenced to life in prison for the murders of his wife and  two sons. In the months before their deaths, this employee apparently used his work computer to email harassing notes and death threats directed at himself, his wife and sons, and the ministry. (Allegedly, these notes and death threats were part of a plan to distract the police from viewing the employee as a suspect in his family’s murders.)

Voluntary undertaking. The administrator of the estates of the deceased family members sued the ministry for wrongful death on the basis of “negligence in the performance of a voluntary undertaking,” which is an exception to the general principle that ordinarily, a person has no affirmative duty to protect another from harmful or criminal acts by a third person. The complaint alleged that the ministry was aware of the death threats to its employee and his family, including the fact that some threats had been delivered to their home mailbox and some through the employee’s email. (There was also a negligent retention claim, but the appellate court agreed it should have been dismissed.)

The appellate court decision itself (Regions Bank dba Regions Morgan-Keegan Trust v Joyce Meyer Ministries, Inc) spells out this voluntary undertaking exception as set forth in Sections 323 and 324A of the Second Restatement of Torts, both of which are recognized in Illinois, among other states. These sections address potential liability when one undertakes to render services to another “which he should recognize as necessary for the protection of the other.”

Duty to provide security services? Although the trial court granted the motion to dismiss with prejudice, the appellate court disagreed in part. According to the estate, the ministry recognized, or with reasonable care should have recognized, that in light of life-threatening emails by the employee, providing security services was necessary for the protection of the family. The theory seemed to be that, based on the ministry’s policy that it would monitor and inspect communications sent, received, and stored on its electronic communications equipment, and that it would conduct any necessary follow-up investigation regarding the content and source of those communications (including disciplining employees who violated policy), the ministry “undertook to provide security services for the protection and safety” of the family members here.

According to the complaint, the security services voluntarily undertaken by the ministry allegedly included taking disciplinary actions for policy violations (including terminating the employee), stationing security at the family’s residence, installing a security alarm and surveillance equipment at the residence, and informing local authorities of the death threats. However, the ministry as employer apparently did not do those things, because the complaint alleged the ministry breached its “voluntary undertaking” by failing to monitor and investigate its communication systems, take appropriate disciplinary action, provide security for the family, monitor the family’s residence, and inform law enforcement of the death threats. This allegedly increased their risk of harm and resulted in actual harm to the family who, according to the estate, relied on the employer’s promises. (Media reports of the murder suggest that the police had been informed of the threats and had increased patrols in the neighborhood.)

Employer’s responsibility to identify source of threats. “When pared to the core,” stated the appeals court, the complaint alleged that the employer voluntarily undertook to investigate the source of the death threats that were made through its electronic communications systems and equipment and to provide security to protect the family and that it failed to perform, or negligently performed, these undertakings. That was sufficient to allege a duty of care under the voluntary-undertaking theory.

Was this really foreseeable? In dismissing the complaint initially, the trial court struggled with the reasonable foreseeability part, saying it couldn’t agree the ministry was “responsible for not having foreseen the brutal murder of this family” by its employee. But it was enough, said the appellate court, if, at the time of the ministry’s action or inaction, some harm could have been foreseen. Because the death threats specifically targeted the family (as well as the employee and the ministry itself, although the court didn’t mention that), it was objectively reasonable for the employer to anticipate some harm might come to them.

Duty to conduct investigation. From the complaint’s allegations, it was reasonable to infer that the ministry failed to conduct an adequate investigation of its own communications systems, “essentially electing to remain ignorant of facts concerning the source of the threats, when a reasonable person may have conducted an internal investigation,” said the court. In other words, if the ministry had figured out the employee was making the threats, would the result have been different? Accordingly, the court found the complaint stated a cause of action for wrongful death based on a voluntary-undertaking theory and should not have been dismissed.

Wow. I’m willing to bet most employers, in drafting and implementing electronic communications policies, didn’t think their exercise of discretion to monitor or investigate employees’ email use (or not) potentially would lead to defending themselves against the tragic consequences of an employee’s murderous rampage.

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Employer warning: Cultural disconnects can be costly, even deadly

September 2nd, 2014  |  Pamela Wolf  |  Add a Comment

By Pamela Wolf, J.D.

In the wake of events that spiraled out of control in Ferguson, Missouri, after an unarmed black teenager was shot by a white police officer, it seems the whole country has become intensely focused on race. Specifically, what happens when a workplace — in this case the police department — employs a workforce that is almost exactly opposite the racial composition of the community? The cultural disconnect can be very costly, even deadly, as it arguably was in Ferguson. And it’s a problem that still persists all too often across the United States. In fact, sad to say, there are groups who regularly run diversity contests to encourage employers to face the problem and take action to make their own workplaces more inclusive.

Take a look at the employment landscape for African-Americans; the picture isn’t much to write home about. According to the latest data (July 2014) compiled by the Bureau of Labor Statistics, the national unemployment rate for African-Americans age 16 or older is 11.4 percent, compared to 5.3 percent for whites and 7.8 percent for Hispanics or Latinos. The EEOC’s latest data on the federal workforce show that the participation rate in federal jobs as compared to the civilian workforce for black men was 7.71 percent in 2011 versus 38.98 for white men. For black women, the 2011 participation rate was 10.26 percent as compared to 26.22 percent for their white counterparts.

A recent lawsuit underscores some of the problems that black workers still face. Whether the allegations are true or not, they show a workplace premium on white workers who will reflect white culture. Conversely, that means black workers are undervalued and black culture is deemed not worthy of representation.

Prize-winning black journalist. The plaintiff is an African-American journalist who began her tenure with Time, Inc., as a news editor for Essence Magazine, where she apparently performed very well and rose up the ranks, earning some 28 awards that included one of Time’s most prestigious ones. Tatsha Robertson also ran the magazine, and her coverage of the White House and Barack Obama’s 2008 election win was so stellar that it was reported by the New York Times, MSNBC, and CNN, according to the complaint. Prior to that, People Magazine was always the Times publication recognized for its top White House Coverage.

Cultural clash. But things went south after she accepted a senior position with People Magazine, another Time publication, where she was the only black senior editor on the Human Interest team in the history of the publication. The complaint alleges that a former Time executive warned her that African-Americans had experienced problems with the culture at People Magazine. Robertson details a number of alleged discriminatory incidents, beginning with a comment by her boss, Betsy Gleick, at her first performance review: “You need to talk like everyone else here. You’re not at Essence anymore.”

Robertson took the comment to mean she was not white enough. Since she holds a degree in English, a Masters in Journalism, and is an Adjunct Professor at New York University, she had difficulty understanding how her communication skills were legitimately at issue. And despite having worked under five Pulitzer Prize-winning editors, she said her communication skills previously were never called into question.

Worse than that, according to Robertson, her boss cancelled or missed meetings to the extent of interfering with her ability to do her job, including her ability to pitch stories. Gleick also allegedly left Robertson off important emails about stories she was working on and excluded her from lunch invitations — issues that the boss’ white direct reports never had to confront. Gleick also purportedly let other editors cover stories within Robertson’s topical area, undermining her role at the magazine, while at the same time chiding her if she pitched a story even remotely related to a topical area covered by a white senior editor.

Black community excluded. The scope of the magazine’s interest area also openly included only “White middle class suburbia,” the complaint says. Robertson cited the example of a murdered black model whose husband was a person of interest to the police. It was a story widely reported, including by CNN, but Gleick allegedly refused to let Robertson pursue the story, referring to the victim as a “slut” and refusing to run the story because she was black. “You know the rule — White suburban women in distress,” Gleick purportedly said. A less compelling story about a white victim was worth covering, however. A similar story about a woman killed by her husband got a lot of traction, including from a top executive, until it was discovered when her picture became available that she was black, according to the complaint.

Another story that Robertson had pitched on the impact on children of gun violence at school in light of recent school shootings reportedly captured Gleick’s interest until it was discovered that the majority of available examples of gun violence involved minorities in urban settings as opposed to “White middle class suburbia.”

Robertson also cited her count on the number of times black people have been featured on the cover of People Magazine — since 2010, only 14 of 265 covers. She also alleged that when black people have made the cover, many have accused the magazine of airbrushing to make their skin look lighter and “more white.” Her complaint also suggested, if true, an astounding lack of African-American diversity throughout the ranks of People Magazine.

High performer pushed out. Ultimately, even though Roberston allegedly won awards while at People Magazine, had more cover stories and second cover stories than anyone else on her team, and had never been disciplined, she was terminated in a purported restructuring in May 2014. She was the magazine’s highest-ranking African-American at the time.

Not as deadly as the story of discrimination and inequality that recently played out in Ferguson, but pretty egregious nonetheless, if true. Here, when Robertson decided to take things into her own hands, she did so with a lawsuit — turning to Section 1981 and the New York City Human Rights Law for relief. If she wins, the cultural disconnect could be rather costly for the magazine.

Exception more than the rule. When Gallup asked New Yorkers whether their city or area is a good place for racial and ethnic minorities (People Magazine’s office is in New York City), 83 percent said it was — right in sync with the national average, according to the Gallup 2013 50-state survey. Fortunately, Robertson’s alleged experience at People Magazine, assuming her allegations are true, is more the exception than the rule, it seems.

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NLRB partners with other agencies on enforcement efforts

August 28th, 2014  |  David Stephanides  |  Add a Comment

On August 8, National Labor Relations Board Associate General Counsel Anne Purcell announced in Memorandum OM 14-77 that there may be occasions during the processing of an NLRB charge where it also would be appropriate to apprise a charging party or a witness of his or her right to contact OSHA and/or the Wage and Hour Division (WHD) of the Department of Labor to discuss the filing of a complaint with those agencies. Purcell’s memorandum compliments an earlier directive (Memorandum OM 14-60, “OSHA Referred Charges”) wherein it was announced that the NLRB had entered into a program with OSHA under which that agency will notify all complainants who file an untimely OSHA retaliation charge of their right to file an unfair labor practice charge over the same conduct with the NLRB.

In her latest memo, Purcell stresses that “regional staff are not expected to be experts” in the construction of the OSH Act or the FLSA, or the rights that either agency protects. Board agents should invoke the procedures under the memorandum only where they believe that a possible violation of the OSH Act or the FLSA presents itself.

These memos, clearly indicating the Board’s continued staunch commitment to worker rights, have spurred words of caution from practitioners across the country. Noteably, Board agents only have to suspect a violation of the OSH Act or the FLSA. Employers have been warned that other agencies could become involved once an unfair labor practice charge has been initiated. Example: An employee, a union member, complains to a Board agent that she has been disciplined for using break time for nursing mothers; time that is lawfully set aside in FLSA, Sec. 207(r). Given the potentially illegal infringement her FLSA rights, this employer may expect an investigation from both the NLRB and the DOL WHD.

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How to get sued for sex discrimination

August 26th, 2014  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Perhaps I’m just jaded by the number of discrimination and harassment cases I read but I’m a bit underwhelmed these days by cases with bosses who proposition subordinates for sex or pat an underling’s derriere. As bad as those cases are, it takes really egregious facts to raise my eyebrows. However, a fairly ordinary sex-based discrimination suit gave me pause this week because it was a veritable “how-to” on getting sued by your female employees. The employer, a multi-national pharmaceutical company, is facing individual and potential class claims of disparate treatment and impact as well as a pattern-or-practice claim because it allegedly:

  • Paid the plaintiffs’ male colleagues, who had the same qualifications and same position, a higher base salary. Since the company awards raises as a percentage of salary, the disparity was exacerbated with each raise. (This could be an argument for employers to think twice before simply awarding percentage “merit” increases without looking at where employees stand with respect to each other in performance and in salary.)
  • Only allowed job-sharing for the lowest sales position, causing some female employees to give up higher level positions so they could job-share. (Is it only me or does everyone think it should have been obvious to the employer that women would be more strongly impacted by this practice?)
  • Failed to pay bonuses to female employees who earned them due to a policy prohibiting sales reps “who are on leave for a period of more than six weeks” from receiving bonuses distributed during the leave period. The employer argued that males taking medical leave were also subject to the policy, but the court found the disparate impact claim plausible because the policy “disproportionately disqualifies women from receiving bonuses earned prior to their maternity leave.” (Gee, ya think?!)
  • Treated female employees with family caregiving responsibilities worse after they inquired about job-sharing.
  • Gave substantial weight to manager-supplied assessments (which impacted bonuses and raises) in an environment where managers allegedly lowered performance reviews of women who inquired about job-sharing, who got pregnant, and who took maternity leave.

Adding insult to injury, the employer also allegedly ignored several of the plaintiffs’ repeated sexual harassment complaints made to human resources and to its employee hotline. It likely comes as no surprise that the court largely denied the employer’s motion to dismiss the class and individual claims of the female sales reps. However, it did narrow the putative class by dates of employment (Barrett v Forest Laboratories, Inc).

In light of the roadmap provided by the foregoing case, I’m awfully tempted to set out the usual short checklist of considerations that attorney/editors like me provide. However, this time I think I will simply suggest that employers and supervisors (HR professionals in particular) review their policies on wages and benefits and ask themselves if the policies are less favorable to a particular group of individuals (especially those who fall within a category protected by Title VII or other employment laws). Common sense is key to this inquiry, people! Remember that merely having a facially neutral policy may not be good enough if you do not have a legitimate business reason for the policy.

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Cop with ADHD: Cantankerous jerk or disabled under ADA?

August 21st, 2014  |  Kathy Kapusta  |  Add a Comment

Did it just get a little more difficult for an employee in the Ninth Circuit to assert a substantial limitation on the ability to interact with others? In a case involving an alleged mental disability, a divided Ninth Circuit panel found that a municipal police officer who was diagnosed with ADHD as a child, and who stopped taking medication at the age of 12 but nonetheless continued to experience interpersonal problems throughout childhood, adolescence, and in his job, including being described by his peers as “tyrannical, unapproachable, noncommunicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” was not substantially limited in his ability to work or to interact with others within the meaning of the ADA.

The officer joined a city police department in 1995 after passing a battery of tests, including psychological evaluations. At that point, he did not disclose his childhood ADHD diagnosis. During his time with the department, he had communication issues, was seen as abrasive and intimidating, and was removed from a detective team because of personality conflicts with another officer.

Communication issues. When he was subsequently hired by the Hillsboro Police Department in 2006, he disclosed what he described as “intermittent interpersonal communication issues” he experienced at the other department. He also disclosed his history of ADHD. While his first year evaluation at HPD was generally positive, his supervisor admitted that a few members of the department considered him to be arrogant.

A year later, he was promoted to sergeant. He continued to have communication issues, however, and in 2009, he was placed on leave after a subordinate filed a grievance against him. While on leave, he met with a clinical psychologist who concluded that he suffered from ADHD. The officer then contacted the city’s HR director, informed her of his diagnosis, and requested all reasonable accommodations, including reinstatement to his position as an active-duty sergeant.

Termination. Despite his request, the officer was terminated when an investigation into the grievance revealed that he had created and fostered a hostile work environment for his subordinates and peers. According to the investigator, the officer “has demonstrated time and again unacceptable interpersonal communication that suggests he does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.”

Jury verdict. The employee then sued, alleging among other things that the city fired him because he had an impairment that limited his ability to work or interact with others. Although a jury found that he was disabled, and the court below denied the city’s motion for judgment as a matter of law, the panel majority reversed.

No limit on ability to work. The Ninth Circuit first found that the evidence did not show that the officer was limited in his ability to work compared to “most people in the general population.” To the contrary, there was evidence showing that he was in many respects a skilled police officer. Not only did he and his psychologist testify that he developed compensatory mechanisms that helped him overcome the impediments of ADHD and succeed in his career, his supervisors recognized his knowledge and technical competence and selected him for high-level assignments.

In addition, the panel majority noted, before receiving any treatment for adult ADHD, he was promoted to sergeant. In 2009, a psychologist and a physician/psychiatrist both deemed him fit for duty as a police officer. Given the absence of evidence that his ADHD affected his ability to work, and in light of the strong evidence of his technical competence as a police officer, the appeals court found that a jury could not reasonably have concluded that his ADHD substantially limited his ability to work.

Mere trouble getting along with coworkers. As to his assertion that he was disabled because his ADHD substantially limited his ability to interact with others, the court noted that unlike many of its sister circuits, in McAlindin v County of San Diego, it specifically recognized interacting with others as a major life activity. In McAlindin, however, the court cautioned that this “of course does not mean that any cantankerous person will be deemed substantially limited in a major life activity. Mere trouble getting along with coworkers is not sufficient to show a substantial limitation.”

Limitation must be severe. Rather, the court cautioned in McAlindin, the limitation must be severe. For instance, the Ninth Circuit pointed out, it held in Head v. Glacier Northwest, Inc., that a plaintiff who avoided crowds, stores, large family gatherings, and even doctor’s appointments and who did not leave the house for weeks after losing his job, offered sufficient evidence of disability to survive summary judgment.

No substantial impairment. Finding that the evidence here differed starkly from McAlindin and Head, the panel majority noted that while the officer experienced recurring interpersonal problems throughout his life, which had significant repercussion on his career as a police officer, those problems did not amount to a substantial impairment of his ability to interact with others within the meaning of the ADA. While the court found that his ADHD “may well have limited his ability to get along with others,” that was not the same “as a substantial limitation on the ability to interact with others.”

Unlike the plaintiffs in McAlindin and Head, the court pointed out, the employee here was able to engage in normal social interactions. His interpersonal problems existed almost exclusively in his interactions with his peers and subordinates, the court stated, observing that he had little difficulty comporting himself appropriately with his supervisors. “As we wrote in McAlindin, a ‘cantankerous person’ who has ‘[m]ere trouble getting along with coworkers’ is not disabled under the ADA,” the court explained.

Citing to the Second Circuit’s decision in Jacques v. DiMarzio, Inc., the court observed that one who is able to communicate with others, though his communications may at times be offensive, “inappropriate, ineffective, or unsuccessful,” is not substantially limited in his ability to interact with others within the meaning of the ADA. “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.” Thus, the court concluded, no reasonable jury could have found the employee disabled under the ADA.

Dissent. In a lengthy dissent, however, Judge Callahan argued that while, to the casual observer, the officer may not have appeared disabled, “that doesn’t give a panel of appellate judges license to brush away the contrary medical evidence and jury findings. Mental disabilities that cause socially unacceptable behavior are less obvious than physical disabilities, but the Americans with Disabilities Act protects those suffering from either form of disability equally,” the judge wrote.

Judge Callahan pointed out that a jury of the officer’s peers sat in a courtroom for four days, observed and listened to him as well as his coworkers, doctors, and wife, dutifully deliberated on the evidence, and found that he was disabled and that he was discharged because of his disability in violation of the ADA. “Now on appeal, the majority decides that it knows better. It reweighs the evidence on a cold record and issues its own diagnosis: [the employee] isn’t disabled, he’s just a jerk. Therefore, the City was free to fire him.”

In coming to this conclusion, the dissent argued that the majority usurped the jury’s role, gutted McAlindin, and replaced “our circuit’s standards with those announced in another circuit’s patently incompatible decision, Jacques v. DiMarzio, Inc.” Stating that the majority may not have liked the employee, “or at least the picture of him that it paints based on a cold record,” Judge Callahan wrote that “the outcomes of our disabled litigants’ cases should not turn solely on the amount of sympathy they inspire. The law protects the disabled, not the likeable.”

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