One of the biggest worries of lawyers defending against employee lawsuits is the stray statement in an e-mail that can be blown up or taken out of context.    We are constantly warning clients that, before they click "send",  they should think about how an e-mail will look to a jury. 

However, the recent acquittal of two former Bear Stearns executives accused of securities fraud provides an important lesson on the limitations of e-mail as evidence.   The government’s case against the Wall Street executives relied heavily on statements they made in e-mails.   It seems the strategy backfired, and the e-mail turned out not to be the holy grail the prosecutors thought it would be.  According to one lawyer,  the "texting, twittering, Blackberry toting jurors of today understand that an e-mail capturing a concern, doubt or momentary distress does not reflect thought over time, much less a vetted public statement,  "Skilled lawyers can help pull some of the sting out of the most seemingly damning emails, it seems, by working hard to place them into a broader context."  

While it is still a good idea to think twice before clicking "send", it it good to know that common sense and context is capable of overcoming a damaging e-mail statement. 

Thanks to Molly DiBianca of the Delaware Employment Law Blog for including us in the 2009 list of Top Employment Law Blogs.  One of the things I have most enjoyed since launching this blog last April is the collegiality among bloggers and the willingness to share ideas and information. 

Always a good source of practical information, the HR Daily Advisor had two posts this week  dealing with employee’s abuse of FMLA leave.   The first addressed the abuse of intermittent leave, and the second tackled the problem of "pattern absences" (such as taking leave on Mondays or Fridays). 

Jon Hyman at Ohio Employer’s Law Blog discusses an interview with Phillies’ starter Cole Hamels after game 3 of the World Series.   Media reports of the interview contained a quote from Hamels that made it appear he had given up on the Series after his poor game 3 performance.   When considered in the context of the entire interview, however, it was clear Hamels was looking forward to the opportunity to redeem himself in game 7 (alas, a game which never was played).    The lesson for employers: be careful what you say and how you say it, because it is easy to take words out of context, especially for cross-examining lawyers. 

Megan Erickson of the Social Networking Law Blog has two recent posts (here and here) on factors employers should consider before drafting a social networking policy.   With the explosion in social networking over the past year, this has become a hot topic for employers.   See our related posts on this subject here and here.

H1N1 seems to have subsided among school age children in the local area, but now is hitting more adults.   The Washington D.C. Employment Law Update reports that two members of the House of Representatives have introduced a bill that would permit employees five paid sick days if they contract H1N1.  The Emergency Influenza Containment Act would apply to employers with fifteen or more employees.  It would permit both full and part time employees to be paid if sent home by their employer because of the flu. 

Finally, are employers under siege by the EEOC?  This post on Workplace Prof Blog reports on a human resources meeting in Detroit where many attendees reported facing EEOC charges for the first time.   The EEOC denies it is cracking down.   However, there is little doubt that charge statistics are up, and the EEOC’s own press releases report the filing of substantially more lawsuits now as compared to one year ago. 

On October 30, the Iowa Civil Rights Commission (ICRC)  issued its annual report for 2009.   Once again this year, complaints of employment discrimination constituted the vast majority (85%) of the charges.   The non-employment charges (in the areas of credit, education, housing, and public accommodations) make up the remaining 15% of the charges.

The total number of complaints alleging employment discrimination increased by 13% over the prior year, from 1453 in 2008 to 1644 this year.   The rate of increase in charges filed with the ICRC is comparable to the increase in those filed with the federal EEOC.   Of course, most charges filed with the ICRC that alleged employment discrimination are also cross-filed with the EEOC. 

The category with the largest number of complaints was sex (717), followed by race, (694), disability (562) and age (368).   There were 55 claims of religious discrimination, and six alleging discrimination on the basis of sexual orientation or gender identity.   Despite the publicity relating to the Iowa Supreme Court’s decision legalizing marriage among persons of the same sex, there was no increase in charges in the sexual orientation category. 

The largest increase in the type of claim was retaliation.   Retaliation claims increased 30%, from 435 last year to 567 this year.   Although retaliation is a separate category of complaint, charges alleging retaliation are frequently accompanied by a charge of discrimination.

 

The EEOC has revised its "Equal Employment Opportunity is the Law" poster.    The poster was revised to reflect new federal employment laws, including the ADA Amendments, and the Genetic Non Discrimination in Employment Act ("GINA").  Employers can either obtain a new poster, or a supplement their existing poster.   The new posting is mandatory effective November 21, 2009.  Up to ten posters can be obtained from the EEOC free of charge, or can be printed from the EEOC’s website.

The FMLA Blog reports on amendments to the FMLA the president signed this week.   Among the changes: military care giver leave will now apply to for veterans of the Armed Forces under certain circumstances.  In addition, Qualifying Exigency Leave is expanded to cover members of the regular military who are deployed to a foreign county.  Under existing law, such leave applied only for covered military members in the Reserves or Guard.

The best way to avoid workplace problems–avoid bad hires in the first place.  Two posts this week on HR Daily Advisor (here and here) identify five steps for gathering critical background information about prospective employees without breaking the bank, and while respecting the privacy rights of the applicant. 

A woman in Missouri sued Wal-Mart and other establishments under the ADA for denying access to her Bonnet Macaque monkey.   The Plaintiff claimed the monkey was trained to assist her with anxiety and agoraphobia, and she could not function in public unless the monkey was with her. The U.S. District Court in the Western District of Missouri granted summary judgment  to the defendants, finding that Plaintiff was not disabled, nor was her monkey a "service animal" under the ADA for which the establishments were required to provide reasonable accommodation.

This Bud’s for you.  A former Chief of Communications at Anheuser-Busch (now Anheuser Busch in Bev)  filed a lawsuit against the company for gender discrimination.   The former executive claims the company maintains gender bias in pay and promotions, excludes women from social networks, and promotes few women to top jobs and committee posts.   Most shocking to any viewer of beer commercials is this allegation:  that the company fostered a locker room and frat party atmosphere in the workplace.  

 

We have provided links before to  EEOC’s Guidance to employers concerning compliance with the ADA during a pandemic.  Now that we seem to officially be in the midst of one, it is a good time to revisit what is permissible for an employer to do help contain the spread of H1N1.

Section III (B) of the EEOC document contains guidance on what employers can do during a pandemic.   Some of the very practical questions addressed include the following:

1.  May an employer send an employee home who displays influenza like symptoms?  Answer: yes; if there is a pandemic asking such workers to go home is not a disability related action.  Even if there was no pandemic, if the influenza resulted in a direct threat to the health or safety of the employee or others, the employee may be sent home.

2.  How much information can an employer request from employees who report feeling ill or call in sick?  Answer: employers may ask if the employee is feeling influenza like symptoms, such as chills or a fever and a cough or sore throat.   Any information obtained through such an inquiry must be treated as a confidential medical record. 

3.  May an employer require employees to wear personal protective equipment (e.g. face mask, gloves, or gowns)?  Answer: yes, however, it must be noted that if a person needs a reasonable accommodation to wear such equipment (e.g. non-latex gloves), the employer should provide these, absent undue hardship.   

4.  May an employer compel its employees to obtain influenza vaccine?  Answer: employees may be entitled to exemptions from mandatory vaccination because of a disability, or because of a sincerely held religious belief.   Whether or not the employee is exempt would depend upon if not taking the vaccine would be a reasonable accommodation of the disability or religious belief.

It is important to note that it is the pandemic condition that gives employers the right to make certain inquiries.  If there is not a pandemic situation, or if you are unsure, you should seek advice from your employment counsel before taking any action relating to H1N1. 

Wage and hour collective actions remain active in Iowa.  A Judge in Clinton County just approved a collective action settlement in which Wal-Mart agreed to pay $11 million to settle claims that it failed to pay overtime, properly account for breaks, and altered time records.   Employees and former employees who worked for Wal-Mart in Clinton between 1999-2009 will receive between $25-300 each. 

Flu season is officially underway, and the H1N1 virus has been back in the headlines.  Ogletree Deakins has published an informative Question and Answer document concerning an employer’s rights and obligations in dealing with employees who have the H1N1 virus.    In addition, the EEOC recently published a technical advisory entitled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act."

Also from the EEOC, the Agency released on October 6 an informal opinion letter concerning employee health risk assessments.   The letter, authored by EEOC assistant legal counsel Peggy Mastroianni, takes the position that requiring employees to answer personal health questions as a condition of receiving an employer provided health reimbursement expense benefit violates the ADA.  Although an informal opinion letter is not binding, it provides insight into how the Agency evaluates these issues.   For more analysis see this post at the Washington D.C. Employment Law Update.

Are you a lawyer who regularly uses motions for summary judgment in defending employment claims?  Before you file your next one, check out this post at Workplace Prof Blog.  Lawyers for United Airlines filed a motion for summary judgment in a race discrimination suit pending in California state court.  The Court noted the motion sought "adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages."   Once the plaintiff’s resistance and the defendant’s reply were considered, 5,415 pages of material were presented to the trial judge. The Appellate Court characterized this as  "what may well be the most oppressive motion ever presented to a superior court ".   

In reversing the trial court’s ruling granting summary judgment, the Court spared no criticism of the trial judge.   The reason for the reversal: "what apparently happened is that the trial court did not read all the papers."   However, in the end, the Court gave the trial judge a break: "While not reading the papers cannot be condoned, it can perhaps be understood, as we hesitate to speculate how long it would take a trial court to meaningfully digest over 2200 pages of separate statements, analyze and rule on 764 objections set out in 325 pages, review it all in light of the applicable law, and then write a proper order."

The Court concluded with an admonition we all should heed the next time we file one of these motions: "The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard."

Finally, Molly DiBianca at the Delaware Employment Law Blog reports on a survey of employers concerning their use of social networking media as part of applicant screening.    45% of respondents reported using social networking for background checks, with 35% of those having rejected a candidate for what they found there.   What will disqualify a potential employee?  Among other things, provocative photos or information; depiction of drinking or drug use; lying about your background or qualifications; or discriminatory comments.

 

Des Moines Register columnist Marc Hansen writes about an interview he had with Jack Gross, the plaintiff in Gross v. FBL Financial, Inc., decided by the U.S. Supreme Court last June.   Mr. Gross was in Washinton, DC last week to testify before the Senate Judiciary committee that is considering amendments to the ADEA that would effectively overrule the Gross decision.   

Lawyers and judges think and talk about cases in terms of how the "law" applies to the "facts."  It is easy to forget these controversies involve real people with interesting backgrounds, stories, and motives.   Any good trial lawyer knows the likelihood of success in a lawsuit often depends more on the people involved and how they present themselves, rather than obscure legal rules or abstract "facts."   

Jack Gross’ case is now back in the Southern District of Iowa, waiting for a new trial.   The jury instructions will be slightly different this time around (assuming Congress has not changed the law by then).  It will be interesting to see if it makes any difference in the outcome. 

EEOC statistics for the year ended September 30, 2008, the most recent data that is available, show that charges of retaliation increased by 23% compared to the prior year.   In addition, more than 1/3 of the charges filed with the Agency allege retaliation as one of the claims.   According to this article in The Wall Street Journal, retaliation claims have tripled since the EEOC started keeping track of them in 1992.   The statistics don’t include data for the year ending 2009, but anecdotal evidence from lawyers and human resource professionals suggests the trend continues to accelerate.

One reason retaliation claims are so common is that it is easier to prove retaliation than discrimination.   An employee who charges retaliation does not have to prove that he was discriminated against–only that he engaged in what is called "protected activity", and as a result the employer took some adverse action against him.  

"Protected activity" includes a broad range of actions, from filing a formal charge with the EEOC or state civil rights commission, complaining to an HR official about harassment, giving an interview in connection with an internal discrimination investigation, or providing testimony in support of another employee who claims discrimination.

A 2006 U.S. Supreme Court decision, Burlington Northern v. White, also made it easier for employees to prove retaliation.   In White, the Court held that the "adverse action" to which an employee is subject does not have to involve something substantial like a termination, demotion, or cut in pay.  Rather, the employer’s action need only be "materially adverse" to a "reasonable employee".  What does that mean?  According to the Supreme Court, "materially adverse" means anything that would have "dissuaded a reasonable worker from making or supporting a charge of discrimination"

In Iowa and many other states, an employee may file a retaliation lawsuit if they were terminated for exercising certain legal rights or fulfilling legal obligations.  Examples include reporting an on the job injury, filing a workers’ compensation claim, or serving on a jury.  This type of claim is known as "wrongful discharge in violation of public policy."  It is slightly different than retaliation based upon discrimination because it requires an actual termination; some lesser action will not suffice.

This is a lesson most employers and HR Professionals have heard, but it bears repeating: be cautious and deliberate when taking any action against an employee who may have engaged in protected activity.  That does not mean avoiding discipline or other action that is necessary, but it does mean making sure you have legitimate and documented reasons for whatever action is taken. 

More signs this week that the federal government is ramping up enforcement of employment laws.  The Department of Justice Civil Rights Division is seeking a $22 million budget increase for 2010, and is seeking to hire 50 new attorneys.   Law Memo Employment Law Blog reports that the EEOC has been very active recently in filing lawsuits.   The Agency  filed 32 lawsuits against employers during one seven day period in September.  Add to that 13 new lawsuits filed or announced on September 29 alone.   The Department of Labor is in the process of hiring 250 new investigators to look for wage and hour violations, particularly in the areas of overtime requirements, minimum wage, and employee breaks.   If you have not done so already, now would be a good time to conduct an audit of your employment practices and procedures. 

This post on HR Daily Advisor offers practical advice on how to avoid retaliation claims.  The first rule: don’t let managers or supervisors take adverse action against employees who have complained without first checking with HR.

Washington DC Employment Law Update reports that Senate Judiciary Committee Chairman Patrick Leahy (D, VT) announced his committee is going to hold a hearing to investigate whether the Supreme Court has been misinterpreting laws designed to protect workers from discrimination.  On the witness list, Jack Gross, the plaintiff from Des Moines in the case Gross v. FBL Financial Services, Inc.  (See our related post on this subject here, as well as this one from Workplace Prof Blog).   Gross held that an age discrimination plaintiff must prove that age was the "but-for" reason for the adverse employment action; in other words, the employment action would not have been taken "but-for" the employee’s age.  Before Gross, most courts required the plaintiff to prove only that age was "a motivating factor".   Amending the ADEA to lower the burden of proof for employees may be added to Congress’ list of pending employment legislation.

Are lawyers giving bad advice about the impact of new technology in the workplace?   In this post on the Fistful of Talent blog, Kris Dunn complains that lawyers too often advise clients only about the perils of social networking and other cutting edge communication tools.  She contends this type of legal advice only scares HR professionals away from modern technology, rather than empowering them to use it effectively.   Attorney Anthony Zaller of California Employment Law Report  proposes this solution: if you want practical legal advice about social networking technology, make sure your employment lawyer uses Facebook, LinkedIn or Twitter,  or at least uses a Blackberry or iPhone.   I’m not sure a lawyer’s own use of social networking technology will allow them to give better advice on the subject;  but, the point is well taken that clients need solutions to the legal issues this technology presents, not merely warnings about the inevitable lawsuits.  

Next Friday (October 9) I will be presenting a talk entitled "the Brave New World of Employment Law: What’s New in 2009 and What to Expect in the Year Ahead" at the 3rd Annual American Corporate Counsel Association (Iowa Chapter) Annual Seminar in Iowa City.  This has become a marquee event for corporate counsel in Iowa, and I look forward to seeing many of you there.

The biggest news this week is the EEOC’s release of the proposed regulations for the ADA Amendments Act of 2009.   This post from Jackson Lewis provides some of the highlights.   Note that these are proposed regulations.  There is a 60 day period during which the EEOC will receive comments.  After considering the comments, the EEOC will publish the final regulations and the date the regulations will become effective.   Stay tuned for more information and analysis.

Pop quiz: how many new federal employment laws have been passed by the 111th Congress in 2009 and signed into the law by the President?  Answer: one (the Lilly Ledbetter Fair Pay Act signed into law January 29, 2009). 

With all the buzz in the employment law community about the anticipated changes in 2009, some may be surprised by that answer. Employers should not rest on their laurels, however, because there are plenty of bills in the pipeline.   In this post, Dennis Westlind of World of Work blog identifies thirteen employment related bills that were introduced in 2009 and remain pending, including the Employee Free Choice Act (permitting union recognition by "card check", among other things;  Employment Non-Discrimination Act (prohibiting discrimination on the basis of sexual orientation or gender identity); Paid Vacation Act (mandating employers with 50 or more employees to provide paid vacation), and Paycheck Fairness Act (providing for "enhanced enforcement" of equal pay requirements between male and female employees).

Unpaid internships illegal?  In this post, Dallas Mavericks owner Mark Cuban rails against the Federal Wage and Hour Regulations that make the traditional "foot in the door" experience unlawful.  

Is there a looming crisis with wage and hour litigation?  Dan Schwartz at Connecticut Employment Law Blog and Jon Hyman at Ohio Employer’s Law Blog show that, despite the buzz about wage and hour suits, the actual number of federal labor cases filed in their jurisdictions has remained steady.    The real concern is that many of these cases are collective actions, which can result in substantial monetary liability.   In May 2009, local convenience store chain Casey’s General Stores paid over $11 million to settle two wage and hour collective actions filed by 7,600 former management level employees and 76,000 non-management employees.

Finally, according to the U.S. Department of Justice, the federal government has the right to read even the personal e-mail of its employees.    Notes one commenter on the ABA Journal site: "At least somebody is reading the emails I send to federal government employees…."