One More Time, Folks: E-Mail is Permanent

And here's a really good example of why you should not conduct romantic relationships with your paramour using the company's email system.  That goes double when you are a senior public employee, and all of your messages can be discovered through a state freedom of information request.

Holy Fifty Shades of Gray, Batman!

A Bright Line Retaliation Test, High Ranking Harassers, and Judgment Offers, All in One Case!

Every so often you read a case that has important concepts littered through it like those unpopped kernels at the bottom of the popcorn bag (I love those things).  Here's an example from the Second Circuit, involving harassment, retaliation, and some litigation strategy advice.

Retaliation claims in employment discrimination law are based on the concept of "protected activity."  This is not exactly the kind of protected activity discussed below under the NLRA  social media cases ("protected, concerted activity"), but rather activity in which an employee either complains about discrimination to management (because he experienced discrimination or observed it), or participates in some type of investigation or litigation activity in a way that undercuts or damages his employer's interest.

One of the issues that arises in "participation" retaliation cases is determining when the protected activity starts.  Generally, any employee participation in an EEOC or state fair employment practice agency investigation is protected.  But what about a situation where there is no EEOC charge or other formal claim of discrimination filed, yet?  Where the employer starts its own investigation of alleged discrimination, is participation in that process protected?

This case (and a number of others that it cites) says "no".  An HR director was terminated shortly after she commenced investigating a claim of sexual harassment against the company president's husband.  She claimed that she was fired because of her investigation, which was running before any EEOC or other process had been invoked by the harassment victim.

The Second Circuit Court of Appeals held that there was no liability here, because an employer investigation is not protected activity under the terms of Title VII.  An employee must be participating in a formal investigative process prescribed by statute before his conduct in that investigation becomes protected.

There are several other important points in the case.  Sexual harassment claims involving a supervisor of the victim are generally subject to the Faragher defense.  The defense is a doctrine that allows an employer to escape liability from a harassing supervisor if it can show that there was a systematic effort to prevent such harassment, complete with an adequate reporting system for victims, and that the victim unreasonably failed to avail herself of the opportunity to report the conduct.

But, as the Second Circuit, held, the Faragher defense is not available when the harasser is of such a high rank that he is effectively the alter ego of the corporate entity itself.  There is an excellent discussion of how much business authority gets you tagged as the equivalent of the company, but the short answer is that high level managers, especially those who report directly to the company president and who happened to be married to the president, are particularly bad defendants in harassment cases.  Their stature severely limits the ability of the company to defend itself.

Finally, there is an unusually clear discussion of the requirements and ultimate effect of an offer of judgement, a litigation tool seldom used by defendants, but that ought to be considered more often.  A offer of judgement under federal litigation rules allows a defendant to essentially place a bet on the amount the plaintiff will recover.  The defendant offers a specific amount of money at a pretrial stage; if the plaintiff rejects the offer, and doesn't recover at least as much as the offer (and the attorneys fees expended at the time of the offer) at trial, then the defendant can recover its costs (attorneys fees, for example) from the time the offer is made.

As noted above, the offer must account for the plaintiff's attorneys fees that have accrued at the time of the offer is made.  Here, the defendants made an offer that they thought would catch everything, and they would have been right, except that the trial court did not base its fee calculation on the rates charged in plaintiff's retainer agreement.  Instead, the court used (properly, the Second Circuit held) the prevailing fee rates in the community.  Those rates were higher than the contract rates, and pushed the award past the offer's value.  Thus, no recovery for the defendants.

So the lesson here is that offers of judgement must be calculated carefully--use the prevailing counsel rate, and be a little generous.

This is a highly highly instructive opinion.

Entitlement Mentality

It's not Penn State, or even Ohio State, but the latest college football scandal at UNC speaks volumes about how big time college athletics is run, even at non-factory schools.

Phony coursework and assignments for football players in the African-American studies department were so obvious that it should have been detected almost immediately, at least by the people providing academic oversight of the athletic department (this is nothing new, although easy courses for football players in my day were grounded a little more in the hard sciences, e.g. a "rocks for jocks" geology offering).  Perhaps the fact that the courses were being taught by the head of the department (make that the "former" head of the department) provided a smokescreen for what was actually going on.  But no one can read these accounts without thinking that the whole enterprise of major college athletics is corrupt and corrupting, from recruitment to graduation.

And it's that corruption and corrupting influence that we see on display now in Chapel Hill, and in State College, PA. Once a program sends the word that integrity doesn't matter, it's not much of a leap from wholesale academic fraud that no one bothers to report, to turning a blind eye to allegations of sexual assault.

There needs to be some serious housecleaning of this entire system.

I'm Not Your Wife--And a Good Thing, Too!

Here's an interesting article from the Atlantic, which raises a topic that seems to be getting some traction within employment discrimination litigation-the idea of unconscious, unintentional, discrimination, especially against women, as a result of culture, upbringing, etc. In this article, the thesis is that husbands embedded in traditional and neo-traditional marriages, compared to husbands in so-called modern marriages, exhibit attitudes, beliefs and behaviors that undermine the role of women in the workplace. Modern marriages are considered those where the wives are employed full-time and traditional / neo-traditional marriages are those in which the wives are unemployed.

Essentially, the authors of a study on which the article is based argue that men in traditional marriages unconsciously treat the women working around them as if they were their wives, seeking to protect them from risks and stress, and at the same time devaluing their ambition and ability to contribute to an organization.

There are couple of problems with this assertion, which, for all I know, is true. The first is that the same can be said equally of married women, I presume--that they view men in the workplace through the prism of their marital experience with their husbands. I don't know whether this has a positive or a negative effect, except to say that most married men would pity the poor buggers who were treated at work the same way their wives treated them at home.

Okay, I'm just kidding on that last sentence.  Really, just kidding.

The second point is more significant-I'm not sure we should care about what people think in their hearts or their heads, as long as it doesn't translate into measurable discriminatory conduct. Presumably, it is impossible to eradicate every single preconceived notion from our minds about our fellow human beings.  I'm not sure we want to anyway, and in many cases it can be a useful survival mechanism.  The best we can do is to try to deal with any manifested, improper behavior resulting from this preconception.  In other words, as a boss I don't care if your view of women in the workplace derives from The Clan of the Cave Bear; if you're treating them evenhandedly and as individuals (the same way you should treat your male coworkers), then what does it matter?  Thought crimes went out with 1984, at least in my opinion.

In any event, this is worth a read just to get us thinking about workplace attitudes, and their sources, and how or whether we ought to deal with them.

Feline Appendages and Individual Liability--A Lesson for HR Directors?

Readers will know that I have frequently commented on the "cats paw" model of employment discrimination in the last few months.  This is not because I am a fan of cats (to prove this, take a look at what constitutes a cat fan in my universe; although this is technically a cat rotor), but because there have been a number of these cases littering the legal landscape.

Get it?  Cats-paw--littering?  You have to be quick on this blog.

A recent 7th Circuit Court of Appeals case here in Chicago demonstrates yet another way that well-meaning human resources personnel can find themselves defendants in an employment discrimination lawsuit.  The HR director of a company was accused of facilitating the termination of an employee after he complained about race discrimination and went to see a lawyer.  Following the termination, the now ex-employee sued the company, his direct supervisor, and the HR director.

Note to potential plaintiff readers--while seeing a lawyer is frequently a good idea when you think your bosses are racist, telling your racist bosses that you are seeing a layer--while perfectly legal-usually gets a less than enthusiastic response.

The plaintiff brought his case not under Title VII, but under the so-called Civil War Civil Rights Act of 1866. This type of case is often referred to as a "Section 1981" action, and the law applies only to claims of race discrimination and has several key differences from Title VII.  The big difference for our purposes is that individual supervisors are liable under Section 1981 claims, while they are generally not liable under Title VII.  The plaintiff here sued the HR director personally, claiming retaliation under the cat’s paw theory, alleging that she had been at least partially responsible for manipulating the plant supervisor into firing him, although she did not have the authority to do so herself.

The unfortunate HR director, who had, of course, been involved in the plaintiff's termination because that's what HR people usually do, found herself in the litigation crosshairs after the company went bankrupt, cutting off any remedy, and the allegedly racist supervisor settled out his claim.

The Court issued two important holdings--the first is that cat’s paw liability can exist in Section 1981 cases.  That's big--if individual employees can be liable for race discrimination claims, then the cat’s paw application allows a plaintiff to reach far into a corporate structure to touch multiple defendants.  This makes HR personnel especially vulnerable since they can be accused of facilitation for almost any adverse employment action.

The second holding is also important, because it resulted in the HR director being let off the hook.  The court determined that there was insufficient evidence of retaliatory animus to allow the case to go forward against her.  In short, although you can be sued as a cat’s paw (or more properly, as a monkey, see here), the plaintiff still has to come up with evidence that your actions were motivated by race or retaliation.

And it has to be more evidence than just involvement in the employment decision. In this case, that fact of involvement was a given-indeed, for an HR director, it would've been unusual for her not to have been involved. What saved the HR is that there was no admissible evidence that she was retaliating when she processed the termination.  And in making this determination, the Court made what I consider to be a major evidentiary ruling: comments by managers with respect to an employment termination could properly be considered to be made in furtherance of a "conspiracy”, and therefore each manager's comment could be admissible against the other manager as evidence of illegal discrimination; but to establish the underlying conspiracy, there needs to be a showing of more than just normal corporate coordination in the process.

That's a mouthful, but here's what it boils down to-it's perfectly normal for an HR director to have multiple conversations with supervisors about a problem employee, and that employee's termination.  But HR directors and their staff must understand that if the employment decision is challenged as discriminatory, not only everything that they say, but everything the other supervisors say is potentially admissible against them to establish their individual liability to the plaintiff. The only saving element here is that normal, day-to-day interaction on employment situations is not sufficient to show a conspiracy; there has to be some type of showing that the HR staff and the supervisors were taking unusual or extreme measures, or focusing on the individual more than they normally would under the circumstances, or knew they were doing something improper.

So, this case is worth a read.  The decision identifies a number of potential avenues for personal liability in race discrimination claims, particularly for human resources personnel. My advice is to constantly monitor internal communications with respect to problem employees, and keep those communications on a professional level at all times—the people here got into trouble because there was a fair amount of personal dislike between the supervisor and the plaintiff that spilled over into their communications. Moreover, employers should be aware that in race discrimination claims, more than just company assets are on the line.

Breast Feeding Rights--Is There a Problem?

A recent Time Magazine cover photo stimulated, among other things, increased discussion about breast feeding rights for nursing mothers.  Specifically, the right to breast feed in public or at work, whether there should be mandatory accommodations for nursing mothers at work, and whether women should have a right to breast feed anywhere and with little or no requirement to cover themselves while nursing.

This is a touchy issue, of course.  I am aware of restaurants being besieged by angry, lactating women after the removal of a nursing mother because it (the nursing) made the patrons uncomfortable.  Retail sales establishments are no better--Target stores have been subjected to "nurse-ins" after one store asked a shopper to move to a more discreet location to nurse.

For employers, the breast feeding issue is a mixed bag. State breast feeding statutes vary dramatically.  In addition, the PPACA ("Obamacare") has a little known and seldom discussed provision amending the Fair Labor Standards Act that requires employers with more than 50 employees to provide nursing women unpaid work breaks and a suitable location (i.e., not a bathroom) to pump breast milk.  The regulations on this provision are still in flux, but employers should be aware of this requirement, as well as requirements of their localities, which are likely more onerous anyway.  A reasonably current listing of states where such laws are in place is here.

In Illinois, for example, women may breast feed, uncovered, anywhere except in churches or places of worship, where they are required to comply with normal dress requirements.  Since I practice in Illinois, I've often wondered how such an "uncovered" situation interplays with a company's obligations and policies on say, sexual harassment, or religious tolerance.  Does a woman who openly exposes her breast to her co-workers to feed her baby have a cause of action for hostile work environment if people stare at her?  Can she claim that comments about her breasts are "unwelcome" under these circumstances?  What about complaints by her co-workers whose religious beliefs or sensitivities are violated by the sight?  I don't know the answers here--there are analogies to be made for either side of the argument.  At least one federal court has ruled that breast feeding as a status is not a protected category (although you can certainly argue that nursing is so closely tied to pregnancy that it should be) and an employer could terminate someone for breast feeding at work.

The issue has also arisen in the relatively rigid environment of the US military.  I suspect that this photo is going to cause the people involved some problems, not so much because of the breast feeding, but because they are in uniform (or in this case, partially out of uniform).  While the military has made some accommodations to women with children, I'm guessing that DoD will draw the line at any public display like this.  But I could certainly see allowing soldiers to express milk in private while on duty, although not in forward areas, or while deployed.

Employer responsibilities here will continue to develop as state and federal courts take these cases.  Advice now--look to your state law for guidance, be aware of the federal requirements, and, as always, don't rush to make a decision.

UPDATE:  Apparently the powers that be took an appropriately dim view of the military moms.  Again, the issue isn't breast feeding as much as it is publicly doing it in uniform.

UPDATE II:  And now the woman who organized the inappropriate photo shoot has been fired from her regular job for misconduct.  This will get interesting.

UPDATE III:  More from the breastfeeding at work front.  Even pro-lactation types are opining against this professor's decision to breastfeed in class in front of her students.

More Unhelpful Social Media Guidance From the NLRB

If there's one thing the federal bureaucracy has demonstrated, it's a total inability to match legal concepts with a changing reality. Nowhere is this more true than the labor and employment law field, where large agencies like the EEOC or NLRB are full of people who presumably sit around and do little else but think about the laws they enforce, and yet consistently issue guidance to the private sector about these laws that is, shall we say, less than helpful.

Case in point: the recent NLRB Report that supposedly provides useful guidance on the interaction between the National Labor Relations Act, and social media. Never mind that electronic social media issues have been around for more than a decade, and that Facebook, MySpace, LinkedIn, YouTube, and the rest have had a stranglehold on the popular imagination for the last eight years or so, the NLRB is still treating these electronic gathering places like the office water cooler or coffee pot. As a result, the Board continues to regulate 21st century communications technology under 1940s and 50s standards relating to so-called "protected, concerted activity". The end result doesn't work very well because, at least in my humble opinion, the Board fails to account for the fact that posting something on Facebook is quantitatively and qualitatively different than talking to two or three people around the Keurig. An employer might have relatively little interest in restricting water cooler chat between two or three people; an employer could have a huge interest in preventing slanderous misinformation from being posted where it instantly becomes viewable by millions within an hour or so.

Important safety tip-while most of the NLRA relates to union activity, the provisions under discussion here cover any employer, unionized or not, with employees engaged in commerce, and that meets the statutory minimums in terms of gross business volume ($50,000 for non-retail establishments, $100,000 for shopping centers and office buildings, and $500,000 for retailers).

Employers are encouraged to have a policy on social media use because it puts people on notice with respect to the kind of conduct that the employer expects, and provides guidance on the use of a relatively novel software. Most companies by now are well aware of the dangers of unregulated social media access and use by their employees-harassment lawsuits, intentional and inadvertent disclosure of trade secrets, violation of Federal Trade Commission regulations, etc. Judging by the nature of the problems that arise in employment cases, however, companies' workforces are not so savvy. Thus the need for the policy. But in trying to guide employers on how to draft a policy that does not restrict protected, concerted activity, the NLRB does nothing but describe arbitrary, inconsistent, and hairsplitting standards that are so context-specific as to be almost useless.

Seriously, it appears as if this document was written by different people, at different times, and that no one bothered to read the assembled Report until after it was published, if then. There are lots of nuanced examples that seem at odds with each other, if not outright contradictory.  For example, a policy that prohibits release of confidential "guest, team member, or company information" is illegal, but a policy cautioning employees to be suspicious when asked to disclose confidential information is okay. A policy that directs employees to check with the company external communications or legal department if they are unsure about the information they are about to post , is illegal. So is a policy that precludes offensive, demeaning, abusive or inappropriate remarks. But a policy that prohibits employees from "harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between coworkers online…" is okay.

There's more.  Relatively conventional guidance like this in a social media policy is improper: "think carefully about' friending' coworkers"; "report any unusual or inappropriate internal social media activity"; "you are encouraged to resolve concerns about work by speaking with coworkers, supervisors, or managers"; and "don't comment on any legal matters, including pending litigation or disputes."

If I had to pick an overall theme of the Report, it would be that context is everything.  The Report specifically encourages employers to provide as many examples as possible of prohibited activity so that their employees understand that the social media prohibitions are not to be construed to prevent them from unionizing, talking about a union, bad mouthing their bosses, or complaining about their compensation.  And so the Report blesses a policy forbidding "statements which are slanderous or detrimental to the company" because it appeared on a list of prohibited conduct that included sex or race harassment and sabotage (now there's a word I don't hear very often in employment policies).  The Report noted that such a list communicated an intent by the employer not to restrict the employees from engaging in protected, concerted activity.

When the NLRB began this campaign against social media policies, most lawyers advised their clients to put language in their policies indicating that the policies were expressly not applicable to NLRA protected rights.  But without the contextual references mentioned above, it appears from the Report that a generic savings clause will not be sufficient.

There is a sample social media policy attached to the Report that is fairly bland and generic, and probably will not be of much use to the average employer.  But for right now this represents the only guidance that we have from the Board with respect to what it will tolerate in this area. Until the courts figure out exactly how social media actually interplay with the NLRA, the smart employer will look to this guidance, and its lawyers, in drafting guidance and dealing with social media issues.