Important Safety Tip: Transcribed Voicemails and Protecting Internal Information

An employment discrimination case involving a major law firm in Boston highlights the importance of protecting internal investigations and assessments from searches by people in the general company workforce. In this case, I think it’s going to be an expensive lesson for the law firm, and it has important lessons for any employer that uses digital storage of wordprocessing documents. .

It also highlights a stunning lack of technological sophistication on the part of firm management with respect to its own confidential information.

NOTE:  The case is reported in the Massachusetts Lawyers' Weekly, here, but you'll need a subscription.

A female associate of the firm raised an internal complaint that she was being sexually harassed by her supervising partner. The firm assigned another partner to investigate her claim. Unfortunately, the investigating partner had some issues that apparently raised concerns about his objectivity with respect to the female associate’s complaint. The law firm’s diversity chair, a lawyer herself, spoke with the investigating partner, and then at 5:30 AM one day left a detailed message on the voicemail of the firm's managing partner. Her message indicated that the investigating partner was overly defensive and automatically discounted complaints from firm employees about their working conditions.  She also strongly criticized the firm for its knee-jerk reaction in ignoring or not taking seriously sexual harassment complaints.

For whatever reason, the managing partner felt that it was appropriate to transcribe this oral message into a document that was then preserved in the firm's digital wordprocessing files. It was not password protected, or otherwise segregated from other documents in the system, and, incredibly, was open to search by anyone with access to the system. Of course, the female associate found it, copied it, and is using it as evidence in the discrimination case she ultimately filed against the law firm.

The law firm has tried to prevent the use of this document, with its highly damaging admissions, by claiming it was a confidential attorney-client privileged document, or, at the very least, that the female associate violated her ethical obligations as a lawyer by removing firm property for her own personal use.

The state court official overseeing discovery disagreed. The transcription did not contain legal advice to the firm (which would have made it attorney-client privileged, at least) nor did it discuss specific aspects of defending or prosecuting the discrimination charge, which might have made it protectable as work product. Instead, the official found that the transcription simply discussed the law firm's environment with respect to diversity and gender at the time when the female associate worked there.  The matter goes before the trial judge next week for another review.

The managing partner who ordered the transcription opined recently that the female associate "was in for a very important lesson in the law" if she thought that just because his doors were open and his files were in his office that she was authorized to go get those files.  But that seems to me to be a completely wrong analogy. The female associate wasn't in his office going through his files, she was working in a common access area open to lawyers, secretaries, paralegals, and God knows who else at the firm. Moreover, even though it would have been relatively simple to protect the transcription with a password, the managing partner didn't think to do that. And finally, fundamentally, who transcribes and makes a permanent record of a message like this? This is precisely the kind of internal assessment information that should be transmitted orally and kept that way, or done with clear attorney client privilege attributes.

Further complicating things is the fact that the Massachusetts Board of Bar Overseers has recommended that the female associate receive a reprimand for taking a document that she should have realized was confidential and not intended for this use.

Well, duh.  Smoking gun documents admitting that your company is ignoring sexual harassment complaints are never intended to be used in a lawsuit.  At this point, the document is admissible evidence. Also, at this point, it's quite clear that the law firm would never have released this as part of its normal discovery responses, or even revealed its existence.  Given that the firm did not take even the basic steps necessary to protect the alleged confidential nature of the information, it's hard for me to see this as an ethical violation, even a minor one.

The lesson here is obvious: some information is best transmitted without a permanent record being established, but if you establish such a permanent record, at least be smart enough to protect it so that a litigant in your employ can’t wander across it in your generic document files.

Disability Hiring Quotas on the Way for Federal Contractors

Along with what has to be one of the more disingenuous press releases I've read recently (and in Chicago, that's saying something), the OFCCP issued proposed rules for federal contractors that effectively mandate that 7% of their workforces will be people with disabilities, or else.

The rules require particular efforts by contractors to recruit and hire disabled workers, along with the associated burdensome record-keeping, similar to what is already in place under the OFCCP's affirmative action requirements for women and minorities.  The proposed rules also include requirements for written disability accommodation procedures and annual job description reviews.

What's particularly interesting is the OFCCP setting a "goal" of having 7% of a workforce classified as "disabled" under federal law.  The OFCCP leadership is saying that this figure is only "aspirational".  But it's very clear that the "goal" is actually a hard floor for companies that want to avoid the expense of a full OFCCP audit.  Apparently frustrated at the fact that the relatively higher unemployment rate for disabled workers has resisted the four decade-long combined efforts of the EEOC, the courts and state law, the OFCCP has now decided that it's not enough to oversee and tune the process of hiring and promotions--it wants the outcome to resemble some federal best guess of what the workforce should look like.

In a particularly ironic statement, the OFCCP Director says that what gets "measured" gets done. But of course, there is no "measure" for disabled employees.  The OFCCP has no idea how many people who qualify as disabled are actually working in federal contractor jobs.  No one does.  Unlike gender or racial differences, many disabilities (especially  mental or psychiatric conditions) do not manifest themselves to employers, and employees rarely go out of their way to identify themselves as disabled.  What is clear is that whatever the official number is now, it is certainly lower than the actual value.  This fact not only means that the OFCCP's program appears to be a solution in search of a problem, it means that it will be impossible to verify compliance, absent some type of highly intrusive inquiry of employee health conditions.  Exactly the type of inquiry that is currently illegal under federal law.

Another reason to avoid contracting with the federal government.

Ticket Scalpers and Gold Diggers Everywhere Breathe a Sigh of Relief

Trading World Series tickets for sex isn't prostitution, as a matter of law.  Although the article makes the proposed swap sound pretty innocuous, the actual transaction, as alleged, was a good deal more salacious than a simple generic offer.  The court's decision is here.

The article is from the WSJ, where they worry about this stuff (not too surprising, given the frequency with which NYC baseball teams make it to the Series; this type of transaction is more of a theoretical issue here in Chicago).

The Dumbest Employees of 2011

Hmmm.  This is from AOL, and these folks are all fairly dim, but the guy who did a Lorena Bobbit on himself is the clear winner in my view.

And of course the year is not over by a long shot, especially if you consider all the misconduct, foolishness and substance abuse likely to take place at office parties and workplaces between now and the New Year.  So even though I think it will be hard to top the English patient, I am not counting anything over until 1/1/12.

No Harm, No Foul (Lawsuit)

Say you're a large employer using an electronic payroll system that is hacked by nefarious persons unknown. Suddenly, your employees' Social Security numbers, birth dates, earnings history, withholdings, and home and business addresses are now presumed to be open to exploitation. What's worse, the hack occurred as a result of a heretofore unknown but readily discoverable flaw in your corporate IT firewall that, once it was exploited, opened all of the employees' personal data to review by third-party.

Eschewing the traditional pitchforks and torches, a group of your employees file suit alleging potential identity theft, increased costs to monitor credit activity and significant emotional distress as result of the threat of having their financial futures ruined. Big trouble for you, right?

Probably not. A recent decision of the Third Circuit discusses a very similar situation involving a contract payroll processing firm that also suffered a significant breach of security, resulting in tens of thousands of employment records being opened to unauthorized review. But, as the District Court found and the appellate court affirmed, the plaintiffs in this case did not have standing to sue because their allegations of hypothetical future injury were not sufficient to satisfy the requirement that there be an actual injury in fact for a lawsuit to proceed. Or, as the court noted with respect to the plaintiffs' still speculative claim that a hacker took their personal information with the intent to commit a future criminal act involving their identity, "unless and until these conjectures come true, appellants have not suffered an injury; there has been no misuse of the information, and thus, no harm." 

This is probably music to the ears of many companies that maintain large amounts of sensitive personal data that is always under the threat of revelation. The short answer is that simply suffering a data breach like this does not open the door to liability; there has to be some manifestation of harm before court will agree to review the case or award a remedy.

Diplomas and Job Selection Standards

One of the things that has always puzzled me is why the various federal discrimination agencies (not to mention plaintiffs' attorneys) have not attacked employers on the high school/college diploma requirement for hiring or promotion. It isn't like there hasn't been some hint that this might be a lucrative area for a disparate impact type claim-the Griggs case from the early 1970s was a clear warning by the Supreme Court that generic education standards for employment might not hold up under any kind of systematic analysis.

Just think for a moment about the difficulty of justifying the need for a bachelor's degree with respect to many jobs. Especially in the liberal arts area. What exactly does a bachelor of arts degree mean with respect to a job such as marketing, insurance underwriting, medical technology, food service or financial management? In truth, aren't many of the skills people need for these positions learned on the job, as they move up through the ranks of blue and white collar America?

There may be some change on the horizon here. The EEOC recently issued what it refers to as an "informal discussion letter" in response to a query about the application of the ADA in situations where learning disabled students have difficulties on state required tests, that result in their being denied a high school diploma. Expanding on the question before it, the Commission opined that a qualification standard, test or other selection criteria such as a high school diploma requirement that effectively screen out an individual or class of individuals with a disability must be "job-related for the position in question and consistent with business necessity."

Those are ominous words inside the quotation marks, ladies and gentlemen. Because if you can't articulate why, exactly, a person needs a high school diploma to perform a specific job, or if your workforce contains examples of people without high school diplomas performing the work in question, or if it's possible to train people up to the necessary level of performance without them having a high school diploma, then you may be in trouble under the ADA with respect to people with learning disabilities. Moreover, it's a simple step from challenging high school diploma requirements to challenging college graduation requirements along the same lines. And there's no disputing the fact that a college graduation requirement has a significant disparate impact among certain populations, including minorities, and the disabled.

And now to make this issue really convoluted, a recent law review article from William and Mary Law school cites studies that convincingly demonstrate that the best predictors for job performance across the board are so-called "g" loaded standards that are heavily indicative of cognitive ability. Graduation from high school and from college are classic g loaded standards, and an employer applying these types of tests will, according to the research, end up with a significantly less diverse and more effective workforce.

Whether this type of broad-spectrum social science analysis would have any effect on a judge or jury in an actual disparate impact case, where the assumptions are that an impartial job selection process will result in workers from each protected class being hired or promoted in rough proportion to their numbers in the population (which the article categorically states is an incorrect assumption) remains to be seen. What is clear is that most employers would be hard-pressed to point to specific elements of any job in the workplace that are grounded in a high school or college diploma, even though these cognitive standards work well.

For now the floodgates for this particular type of litigation are still secure. But for how long?

Absolutely Inexcusable

The Browns admit that they didn't check their quarterback for a concussion after a helmet to helmet shot that obviously staggered him.

Idiotic and dangerous.

It goes to show that even in organizations with relatively small numbers of employees and plenty of resources to devote to a problem, getting a policy properly enforced takes focus, and accountability.  I hope there are both in Cleveland.

Downward Dogs for Everyone!

In what I'm sure will prove to be a key ruling for the leotard and Lycra set, it turns out that yoga poses cannot be copyrighted.

Personal Example As a Source of Athletic Success

I must say that although I'm a slight fan of the Denver Broncos, I'm not a member of the Tebow cult. Denver wins because of its terrific defense, its excellent kicker, a solid running game, and, yes, because of the efforts of its quarterback.

But after reading this Wall Street Journal article, I can certainly see how this single player inspires his teammates, along with an incredibly loyal fan base.  And I will continue to hope that the type of personal integrity detailed here is contagious.

UPDATE:  And it appears that what Mr. Tebow did in college he is continuing to do as a pro.  As Rick Reilly notes, it's Tebow's off the field conduct that merits admiration and emulation. Very impressive

The Best Laid Plans, Etc.

Being prepared and thinking ahead are critical in dealing with problematic, long-service employees. Most employers are not willing to terminate long-term employees, even ones who have a history of performance problems, except as a last resort. So it's not uncommon to find cases of companies setting up mechanisms to try to provide an incentive to these employees to behave. In extreme cases, these incentives take the form of so-called "last chance agreements", where employees are put on formal notice that one more episode of misconduct or incompetence will result in termination.

Which is where our story picks up in this case, and provides along the way a highly teachable moment. The last chance agreement offered to plaintiff by the employer contained a clause that probably meant well, but ultimately led to all kinds of unintended consequences. Specifically, as part of being allowed to continue employment, the employee had to agree not only to release the employer from any past claims against it (this is not uncommon and makes perfect sense), he had to agree not to commence any action against the employer under any employment law before any state or federal court or administrative agency, civil rights commission, etc. Failure to agree to these terms meant instant termination. Shortly after signing the agreement, the employee decided he could not agree to these terms; termination followed, QED.

Important safety tip.  It's illegal for an employer to prohibit an employee from filing a charge with the EEOC or from filing a lawsuit as a condition of continued employment, and especially with regard to future events. An employer may be able to, in certain circumstances, restrict an employee's ability to receive any benefit from an EEOC charge (and thus remove the incentive for filing same), but the Commission retains an absolute right to investigate on its own any and all claims within its jurisdiction.

The trial court evaluated two important issues-whether revoking the last chance agreement, with its illegal clause, was in fact protected activity (making the discharge illegal retaliation), and whether simply offering the agreement, with its threat of termination for engaging in protected activity, was a retaliatory practice.

Again, important safety tip-the company in this case knew that it could not legally prohibit its employees from filing charges of discrimination with the EEOC, or suing it for discriminatory conduct that occurred after the signing of the agreement. Notwithstanding this knowledge, management allowed this term to remain in the last chance agreement, apparently in the hope that the threat would dissuade employees from filing charges and lawsuits, even though the company had no ability to actually enforce the provision. Don't do this. If you have a provision in an agreement that is legally unenforceable, or that you do not intend to enforce, take it out.

With respect to the first issue, the court found a question of fact as to whether the employee was fired because he wanted to protect his civil rights or because he revoked the last chance agreement. That means the issue goes to a jury, which I expect would not be particularly receptive to the employer's semantics here. In other words, the difference between being fired for saying "I revoke my agreement to this document which takes away my civil rights" (the employer's position) and being fired for saying "I want to protect my civil rights" (the EEOC's and employee's position) is a subtle and risky enough distinction that it should not be allowed to occur.

The second issue was a little easier for the court. Threatening to fire people for engaging in protected activity is sufficiently discouraging for most employees that the threat itself is a retaliatory act prohibited by federal (and most state) law.  Accordingly, it's a bad idea to have such threats actually written into your employment documents. 

Making the Other Side Pay

One of the maddening inequalities in employment litigation is the fact that attorneys fees are routinely awarded as part of damages to a successful plaintiff; a successful defendant must bear its own attorney expenses and normally is only entitled to recover so-called "costs", typically things like filing fees, or document copying expenses. Only in the rare case are recoverable costs significant enough to offset in any meaningful way the attorney expenses borne by a successful defendant. The unfortunate truth is that a plaintiff's attorneys fees are often a significantly greater financial threat than the award of back wages, or other compensatory damages, and can be a major factor for defendants in determining whether to move forward with the case, or simply settle to avoid the risk of a large award.

Electronic discovery, however, offers opportunity for defendants to level this playing field a little. Several recent cases, admittedly in more commercial settings, have held that a prevailing defendant is entitled to recover its electronic discovery costs, including the costs associated with converting electronic data into mutually usable file formats, and costs associated with electronic discovery project management.

Now the typical employment case does not involve the production of thousands of pages of information, or require significant e-discovery efforts. But in situations where a defendant is opposing a class-action with several hundred or even several thousand potential plaintiffs and their associated personnel files or wage payment records, recoverable e-discovery costs could easily top $30-$40,000. Confronting an employment plaintiff with a threat of having to pay that amount in the event of a loss would be a powerful tool for settlement purposes.

Several examples are here and here. And this case actually involved an employment claim; the defendants sought the award of discovery costs to potentially offset any award of attorneys fees as a result of the plaintiff's successful ERISA claim.

So keep track of e-discovery efforts and costs in litigation--they might be as useful a lever for resolution as a piece of important evidence.

And This Is Why It Is a Mistake to Date Coworkers

Especially married coworkers with a penchant for obsessive-compulsive behavior.  As a Duke grad, the young woman in this story should have had more sense.  Specifically, she should've picked up with somebody from Chapel Hill.

Tired Lips--All-Time Favorite Judges' Quotes, Part 10

"Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It's time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we've gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions."

Kim v. Westmore Partners, Inc., et al. (Calif. App., 4th Dist. 2011)

Retaliation Under Sarbanes-Oxley Can be Anything, Really

At one time, Sarbanes Oxley whistleblower claims were  projected to be the next "big thing" in employment litigation. Because of the fast track the claims were supposed to be on and the prospect for near immediate relief, it was envisioned that public companies everywhere would be inundated with serious claims about real or imagined SEC violations (or a host of other potential claims) that would open the gate to thousands of retaliation lawsuits. It hasn't worked out that way. But that doesn't mean that Sarbanes-Oxley cases don't still pose real difficulty for employers.

 

As with this case.   An employee raised concerns about Haliburton revenue recognition practices to the company's chief accounting officer. The CAO dismissed the concerns, as did the company and the company's outside auditors. Not satisfied, the employee then filed a confidential complaint with the SEC and Haliburton audit committee. In the process of notifying its management to retain documents pursuant to the investigation, the employee's name was revealed to other employee. In addition, the employee's complaint to the audit committee, which contained his identifying information, went to the company's general counsel, CFO and several others.

 

Not surprisingly, following the disclosure of the fact that the employee was reporting alleged wrongdoing by his fellow executives, many of his coworkers and the outside auditors refused to communicate with him. Ultimately, he resigned, although the SEC and the audit committee found that, again, there was no merit to his complaints.

 

The employee then filed a whistleblower complaint with the Department of Labor. The administrative law judge who heard the case determined that there was no adverse action taken against the employee because of his whistleblower status. The employee was not disciplined, demoted, or suffered any other kind of tangible company action. But on appeal to the DOL Administrative Review Board, the ALJ's decision was reversed.

 

And here is where it gets interesting - the ARB found that Sarbanes-Oxley prohibits "nontangible" retaliation activity, which is a much broader definition of retaliatory conduct than Title VII. Under this position, prohibited adverse action by an employer is not limited to economic or employment related activities--a significant expansion of whistleblower protection, and employer liability. The ARB determined that by revealing his name, the company breached the employee's confidentiality entitlement.  There is even a substantial argument to be made that unintentional and purely accidental actions by the company that have an unforseen but negative impact on an employee could be considered retaliation even if they have no tangible affect whatsoever. The ultimate effect of the ARB's ruling might be to totally insulate an employee from any type of action once he files a whistleblower complaint, something that is outside of normal employee retaliation law experience.  If so, then public companies will face a significant limitation on their ability to manage their workforces.

And Now, Some Helpful Words on Office Politics

They're going to be with you, always, and you need to know how to work them to get ahead.

From the Wall Street Journal.

Two Important Noncompete Cases

Two recent cases, one out of the federal court here in Chicago and one of out Illinois Supreme Court, highlight some important considerations for drafting and enforcing noncompete agreements. The federal decision is important because it highlights the necessity of careful planning in the sale or purchase of a business, while the Illinois Supreme Court case rewrites some fundamental rules for consideration of noncompete agreements in Illinois.

In the federal case the former employee, Harris, originally formed a company that distributed prelit Christmas trees and other seasonal material. He ultimately sold his business to New England Pottery, a holiday decor distributor and agreed to stay on as an employee subject to a 5-year employment agreement. In his capacity as an employee, Harris continued to interact with the suppliers and customers he developed for his own company.

NEP was ultimately sold to Central Garden and Pet company some 5 years later. Harris did not participate in the negotiations between Central and NEP and was not a signatory or party to their asset purchase agreement. Harris signed an employment agreement with Central on the date of the sale and on the date the sale closed he signed a noncompete agreement that prohibited him from working in the holiday decor industry or in any other industry in which Central operated for 5 years following the end of his employment with Central. During the course of Harris' employment with Central, there were no exclusive relationships between Central and its overseas suppliers--Central's suppliers were not prohibited from sharing information about orders placed by Central or other customers, and only Harris, of all the employees privy to Central's cost and pricing information, was required to sign a confidential information agreement relating to this information.

Harris ultimately left Central, and filed a lawsuit seeking to void his noncompete with Central. He also immediately started working in competition with his former employer.

The federal court first had to determine what standard to use in determining the viability of the noncompete. Harris claimed he was simply an employee when he signed his noncompete, but Central claimed that Harris' noncompete was part of its acquisition of NEP. Unfortunately for Central, its asset purchase agreement did not incorporate or even mention Harris' noncompete agreement or identify the noncompete as essential to the closing of the deal. As the court noted, once Central executed the asset purchase agreement, it became obligated to complete the purchase of any of these assets, regardless of whether Harris agreed to a noncompete. Accordingly, the court measured the noncompete under the far more restrictive (and less favorable for Central) "employee" standard, meaning that the agreement had to protect a legitimate business interest and be reasonable as to time, place, and scope of restricted activity.

Central claimed that it was seeking to protect a legitimate business interest--confidential information--in prohibiting Harris' employment with competitors (note that the standard used by the federal court changed about three months later, see below). Again , the court quickly disposed of this argument, noting that neither Central's customers nor any other Central employee, save Harris, was prohibited from discussing customer or pricing information. Under these facts, there was no confidential information because the company had not taken the adequate steps to safeguard it. The court found that the noncompete was therefore not protecting a valid business interest, and found for Harris.

Interesting aside - the company tried to rely on the confidentiality provision included in its employee handbook as evidence of its efforts to prevent disclosure of business information by its work force as a whole. The handbook provided no description of what information the company considered confidential with respect to this specific lighting business at issue, and the company admitted that it provided no guidance to the employees about the business information it considered confidential. Instead, Central hoped that its employees would use common "business etiquette" to keep its business information confidential. This argument barely passes the straight face test for me, but just so that there is no doubt, I give you the words of the court: "Relying on good manners to prevent disclosure of information will not do in creating a protectable interest in confidentiality". Good manners notwithstanding, get it in writing.

And, when you are in the process of negotiating a business transaction and you want the noncompete of a potential competitor to be a factor, put it in the agreement.

The Illinois Supreme Court case is more significant. The facts of the case are not as important as the court's analysis, which basically brings Illinois into conformance with a number of other states with respect to what can be used to justify the imposition of a noncompete on a former employee.
Under previous Illinois precedent, an employer can establish a legitimate business interest to preclude an employee from competing with it only when there was either a permanent customer relationship at issue or confidential business information. That was the analysis used by the federal court in the case above.

In this new case, the Illinois Supreme court considerably broadened the considerations an employer case use to justify preventing a former employee from competing with it. Now courts and employers must make their analysis using a legitimate business interest test that is far more flexible. A legitimate business interest is now judged on the totality of the facts and circumstances of each case. Factors to be considered in this analysis include (but are not limited to) the near permanence of customer relationships, the employee's acquisition of confidential information through employment, and time and place restrictions. The court specifically noted that none of these factors carry any more weight than any other, but that their importance will depend on specific facts and circumstances of the individual case.

As someone who has litigated noncompete cases in several states, I think that the court's decision is absolutely correct, and far closer to what is being used in states that have allowed their noncompete jurisdiction to evolve over the last few years. In fact, geographic restrictions have become less important, while the nature of what comprises protectable confidential business information has become far more flexible and time sensitive.

So, for employers in Illinois, the drafting of a noncompete should be undertaken with significant care and forethought. The restrictions cannot be too broad, especially in regard to the activities the company is trying to prohibit post employment. The best course of action is to carefully assess the role of the employee and what elements of that role the company can legitimately claim as proprietary. Then the company should determine how long and to what degree it can protect those business interests by always keeping in mind that for noncompete cases, less is more.

What Could Go Wrong?

The US Post Office has a well justified sensitivity to guns at its facilities. There have been enough shootings by postal workers in the workplace that the term "going postal" has a clear, if colloquial, definition.

So it's no surprise that the Post Office seeks to ban everyone from carrying a gun in its premises. That may be about to change. A federal judge in Denver is allowing a lawsuit challenging the gun ban to go forward. Two rural Colorado residents, who carry hand guns for self defense and with valid state concealed weapon permits, want to be able to carry their guns into the Post Office, on their person, when they pick up their mail. They don't get home delivery, and are arguing that having to leave their guns in their vehicles parked on a side street is not a reasonable restriction on their Second Amendment rights.

Well, I guess you can make an argument that you are just as likely or even more likely to encounter an armed shooter in a post office as you are wandering around generally, but this seems to be asking for trouble. Maybe the Post Office can put in a drive-by, er, drive-through window.

FMLA Standards are "Standards" in the 7th Circuit

A case last week out of the District Court in Illinois highlights something I have long maintained with respect to the Family Medical Leave Act, namely, that the best way employers can prevent misuse of FMLA leave is to require employees to play by the rules. With the recent revision in FMLA regulations, the rules can be as onerous for people trying to misuse leave as they can for employers trying to abide by the FMLA requirements.

Plaintiff here is a Polish interpreter at a county hospital (the Chicago area has almost as many Polish speaking people as Warsaw, so this was someone who had plenty to do). On August 4, 2008, he asked for a month's vacation leave from August 11 to September 11. The employer denied this request based on timing and staffing. The employee then promptly turned in an FMLA leave of absence request three days later, claiming he needed time off for chronic depression and lower back pain, and asking for a three month leave of absence, beginning at the same time as his denied vacation.

What a coincidence.

After some back and forth over his medical certification, but before any FMLA leave was approved, the employee left town. But not before he told a couple of his friends that he was in fact headed for Mexico, a well known destination for therapy to relieve chronic depression and low back pain, although probably not at the same time.  The employer ended up firing him for job abandonment.

The federal court disposed of plaintiff's FMLA interference and retaliation claims easily. The judge noted that plaintiff failed to provide the required 30 days of notice, and because his medical conditions were chronic and there was no indication of an emergency, the failure to do so was ample basis for the employer to deny leave. Moreover, the court determined that plaintiff did in fact go to Mexico, recreated with friends, and spent time in several other vacation destinations, which justified the employer canceling the leave even if had been properly noticed. And once the judge ruled that plaintiff was not entitled to FMLA leave because of no notice and misuse of the leave, she then dumped plaintiff's retaliation claim on the ground that where is no entitlement to FMLA leave, there can be no retaliation for taking it.

Many FMLA situations arrive on short notice, so 30 days of notice is not always practical. But where an employee is simply using FMLA to augment a vacation entitlement, the notice requirement and other procedural mandates can be a powerful tool to close off abuse.

"Too Feminine Looking" Discrimination?

Discrimination claims based on appearance usually involve an allegation that a plaintiff is not dressing or acting appropriately for his or her gender role. Classic Supreme Court Law in this area notes at least one case in which a plaintiff was not selected for promotion to accounting firm partner because she did not comport herself in a feminine enough manner. Cases on the flip side of the equation typically contain allegations that the plaintiff is harassed because his appearance wasn't "manly" enough.

So it was a surprise when I came across this case recently coming out of New York. A female junior high school custodian (now there is a job fraught with challenges) was not selected for a promotion. She alleged the novel argument that she was not selected because she appeared to be too feminine, i.e. she wore makeup, and dressed in clothes that, to use the words of the opinion, "accentuated her femininity." The factual basis of the claim was that one of her managers said at one point that the woman did not appear as an authoritative figure, which the plaintiff claimed was an allusion to her highly feminine appearance (totally irrelevant aside--somehow I missed out on highly feminine janitors working at my junior high school).

These so-called "gender plus" cases frequently turn on phrases that are found to be code words for some type of gender bias. The New York federal judge, however, found that "unauthoritative" does not equal "feminine" and noted that there was no other evidence to support the plaintiff's claim that the more "matronly" (is this a polite word for "manish"?) woman that was selected for the promotion was chosen based on her less polished appearance.

The employer's basis for the promotion choice? The allegedly more feminine applicant appeared hesitant and lacked confidence during her interview. The Court found that this was a proper and legitimate explanation for the employer's choice.

Gender plus cases don't apply only to appearance situations, of course. As male and female work and domestic rules continue to evolve, I expect we will see variations of this case continue. At some point, however, the so-called traditional male or female stereotypes may just disappear. Perhaps that day is not too far off.

An Odd Use of Title VII's National Security Exemption

While we are on the subject of odd and unusual discrimination claims, the Mandarin Oriental Hotel in Washington, DC has been accused of discriminating against a Muslim employee by barring him from serving a visiting Israeli delegation.

 

My immediate reaction to this was so what?  From a purely legal perspective (and hey, that's what the blog is really about) unless it affected a promotion or wage circumstance, there would be virtually no damage from such a work assignment and thus no violation of the law. A discriminatory assignment could be used as evidence in a case filed down the road for other conduct, but claiming discrimination for not being given a particular service assignment in a hotel sounds like a loser to me.

 

The case gets more interesting after the hotel filed its response, which claimed a so-called "National Security Exemption" for the hotel's actions. The hotel claimed that it was required by the State Department to provide a list of potential servers for the Israeli group. The State Department uncovered "irregularities" with several hotel employees, including the plaintiff in this case. The State Department then instructed the hotel to prohibit these employees from having any access to the Israeli group during its stay at the hotel.

 

Title VII expressly provides that an employer can fail or refuse to hire an employee for a position if the employment position is subject to any requirement imposed in the interest of national security, under any security program in effect or administered under any law or executive order. So it looks like the hotel, if they really were told by the State Department not to put these employees in contact with the Israeli delegation, is off the hook.

 

The broader question is whether it's right for foreign delegations to impose their prejudices here in the United States via the simple expedient of having their embassy raise the issue with US State Department. There are very few procedural or due process protections in such a situation. Stay tuned for further details.

Employee Expiration Dates

This is a fun read that hides a real truth-as companies change, their workforces need to change with them. When the employees in those workforces stay static, it becomes a drag on performance for everyone around.

The idea of expiration dates for employees is simply another way of saying that employers need to keep assessing their workforces, provide solid feedback and a path for improvement, and weed out people who either can't take the hint, or act in such a way that shows that they aren't willing to be part of the team. Identifying these people (putting an expiration date on them, to use the article's metaphor) is important, but putting together a strategy to keep refreshing and improving your workforce is even more important.