Friday, October 29, 2010

McDonald's Employees Told if Republicans Don't Win, They Will Not Receive Benefits or Raises

A McDonald's franchise owner in Canton, Ohio somehow thought it would be an ok idea to place a note in his employees' paychecks recently that strongly hinted at how they ought to vote in the upcoming election:
"As the election season is here we wanted you to know which candidates will help our business grow in the future," reads the letter. "As you know, the better our business does it enables us to invest in our people and our restaurants. If the right people are elected we will be able to continue with raises and benefits at or above our present levels. If others are elected, we will not. As always, who you vote for is completely your personal decision and many factors go into your decision."
As you may have guessed, such a tactic is a blatant violation of both federal and state election laws and an attorney in Ohio, Attorney Allen Schulman of Canton law firm Schulman Zimmerman & Associates, after one of the employees contacted him, decided to turn the documents to local prosecutors, asking them to "investigate this matter for a criminal violation."

On Friday, franchise owner Paul Siegfried apologized in a written statement, saying the communication was "an error of judgment on my part." "Please know it was never my intention to offend anyone," he added. "For those that I have offended, I sincerely apologize."

Hat tip: The Huffington Post

Failure to Fill a Position Does Not Give Rise to an Inference of Discrimination

Earlier this week in my weekly Employment Case Law Update, I made mentioned of a case out of Connecticut where a district court judge held that being placed on paid administrative leave does not amount to an adverse employment action. The same district court judge this time has held that a company's failure to fill a posted position with any employee does not give rise to a discrimination claim.

From the Connecticut Employment Blog which has the story on the case:

The case, Roncallo v. Sikorsky Aircraft Corp. (download here) is not your typical Title VII case. Indeed, the plaintiff is a white male who claims, in part, that the company chose not to fill a posted position (which would have given him a promotion) because there were not enough diverse candidates that either applied or were qualified.

Ultimately, the court concluded that:

Although the fact that the company decided to close the position following [a manager's] recommendation of four white male candidates may be sufficient to give rise to "speculation and conjecture," it is not sufficient to defeat Sikorsky's lawful explanation for its action or to support an ultimate inference of unlawful discrimination.

Indeed, while the court's final decision rested on this ground, it pointed out other issues with the Plaintiff's case too. For example, of the twenty similar-level positions posted in the plaintiff's division in 2008, seven were also left unfilled and twelve were filled with white males. Those statistics, obviously, hardly show a bias against white males.
The plaintiff in this case is a white male which means he was essentially alleging what has been termed "reverse discrimination." You may recall that the Supreme Court dealt with this issue in Ricci v. DeStefano where it was held that an employer can invoke fear of "disparate impact" litigation by minority applicants as a defense to a charge that discarding the results was itself an act of unlawful discrimination. The lead opinion written by Justice Kennedy announced that the defense is only available where the employer has a "strong basis in evidence" for fearing disparate impact liability. However, this was not at issue in Roncallo because the employer in this case closed the position and did not hire anyone. This, Roncallo alleged, was done in discrimination against white male applicants.

Courts in this jurisdiction have considered whether closing a position may serve as an adverse employment action and have held that it may constitute an adverse employment action for the purposes of Title VII. However, the district court judge here found Roncallo distinguishable.

Thursday, October 28, 2010

Follow Enochs Law Firm on Twitter!

I decided to enter the world of Twitter. Here is my profile link. Feel free to leave your address so I can follow as well.

I was Terminated, the Handbook had a Progressive Discipline Policy that Was Not Followed. What Can I Do?

I was recently reviewing a case out of Minnesota involving this situation (Stagg v. Vintage Place Inc. A09-949 (Minn. Ct. App. 2010)), and was somewhat shocked to learn that in Minnesota, courts have decided that when an employee handbook includes specific disciplinary steps to be taken prior to termination (e.g., a progressive disciplinary policy), an employee’s “at-will” status is modified and some job security is presumed. This is great for employees in Minnesota because a lot of employers, especially bigger companies, at least in Wisconsin, have such progressive disciplinary policies and they are often center stage in unemployment compensation hearings.

Well, what does Wisconsin say about this topic? In Young v. Nakoma Golf Club, 418 F. Supp. 2d 1052 (D. Wis. 2006), a case not exactly on point but with discussion on the topic, the court stated:
Therefore, the only question is whether defendant Nakoma was bound to use the progressive disciplinary policy in its employee handbook. Plaintiff cites no authority to support its argument that the rules in the employee handbook constituted terms of a contractual relationship between plaintiff and defendant Nakoma. Defendants cite Mursch v. Van Dorn Co., 851 F.2d 990, 994 (7th Cir. 1988), a diversity action in which the court of appeals, applying Wisconsin law, stated that an employee handbook does not convert an at-will employment relationship into a contractual relationship governed by the handbook's terms unless the handbook "contains express provisions from which the trier of fact may reasonably infer that the parties intended to bind each other in a different relationship."

Despite its age, Mursch continues to be an accurate statement of Wisconsin law. Wisconsin adheres to the at-will employment doctrine, under which an employer may terminate an employee at any time with or without good cause. Wolf v. F & M Banks, 193 Wis. 2d 439, 449, 534 N.W.2d 877, 881 (Ct. App. 1995). In Ferraro v. Koelsch, 124 Wis. 2d 154, 368 N.W.2d 666 (1985), the Wisconsin Supreme Court held that an employee handbook may change an at-will employment relationship into one that is governed by the terms set out in the handbook. The court found that the Hyatt Corporation's employee handbook was "an express contract replete with stated consideration -the promise of employment on stated terms and conditions by Hyatt and the promise by Ferraro to continue employment under those conditions." Id. at 164, 368 N.W.2d at 671-72. Hyatt agreed that it would discharge non-probationary employees only for just cause; in return, Ferraro agreed to accept Hyatt's policies and rules as a condition of his continued employment and to give two weeks' notice before leaving employment.

In cases decided after Ferraro and Mursch, Wisconsin courts have held that a personnel manual will convert an at-will employment relationship into a contractual one only if it "contains express provisions from which it reasonably could be inferred that the parties intended to bind each other to a different relationship [from one that is at-will]." Olson v. 3M Co., 188 Wis. 2d 25, 54, 523 N.W.2d 578 (Ct. App. 1994) (citing Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 979, 473 N.W.2d 506, 508 (Ct. App. 1991)); see also Helland v. Froedtert Memorial Lutheran Hosp., 229 Wis. 2d 751, 756, 601 N.W.2d 318 (1999)(employee handbook did not create contract of employment; employer reserved right to take any disciplinary action against employees it deemed appropriate regardless of procedures in handbook and to modify handbook unilaterally and provided explicitly in handbook that it did not create any contractual rights).
Thus, Wisconsin holds that at-will employment, despite the presence of progressive discipline, is still the presumption and rule UNLESS the handbook contains "express provisions from which it reasonably could be inferred that the parties intended to bind each other to a different relationship [from one that is at-will]." Usually, that is not the case.

I find this to be a pretty unfair concept though I can understand the policy behind Wisconsin's stance on the at-will doctrine. Employees are heavily governed and bound by handbooks and they are conveniently used to terminate employment with the vaguest of language sometimes. It seems to be a one-way street because employers don't necessarily have to follow it at the risk employees do. Perhaps continuing to put up this argument and fight may convince Wisconsin courts to re-consider because all of the cases cited above have been distinguished or criticized at some point.

Wednesday, October 27, 2010

ALM Webinar: Web 2.0: Hiring and Firing Decisions Based on Social Media Postings

This looks like a pretty interesting webinar considering all the litigation lately surrounding social networking websites. Here is a description of the webinar:
Are employers free to use information placed on social networking sites as a basis for hiring and firing decisions? Is an employer's failure to use online information grounds for a claim of negligent hiring or retention?

In this lively, interactive presentation, a leading expert discusses how far employers can go in using personal details gleaned from the Internet in employment decisions' and the potential pitfalls. Topics include:

-What are the rules regarding employers' use of personal data posted online?
How reliable are the data? What if the information is inaccurate? Is any of this information privileged?
-Can employers search employees' usage of social networking sites?
What happens when an employee's first amendment rights conflict with an employer's interests?
-Must applicants be told that the employer will Google all applicants?

This Webinar addresses these and other vital legal and practical questions. It's a must for employment lawyers, executives, and human resources professionals who need to stay on top of the latest developments.

Most Bizarre Excuse to Call in Sick? is noting that more and more workers are calling in sick with bizarre excuses, likely the result of worker burnout. In conducting a survey to reveal a result that 29 percent of workers played hooky his year, calling in sick even when they were well, CareerBuilder also asked employers what some of the more unusual excuses they received were:
1.Employee said a chicken attacked his mom.
2.Employee's finger was stuck in a bowling ball.
3.Employee had a hair transplant gone bad.
4.Employee fell asleep at his desk while working and hit his head, causing a neck injury.
5.Employee said a cow broke into her house and she had to wait for the insurance man.
6.Employee's girlfriend threw a Sit 'n Spin through his living room window.
7.Employee's foot was caught in the garbage disposal.
8.Employee called in sick from a bar at 5 p.m. the night before.
9.Employee said he wasn't feeling too clever that day.
10.Employee had to mow the lawn to avoid a lawsuit from the home owner's association
11.Employee called in the day after Thanksgiving because she burned her mouth on a pumpkin pie.
12.Employee was in a boat on Lake Erie, ran out of gas and the coast guard towed him to the Canadian side.

Tuesday, October 26, 2010

Minimum Wage is Unconstitutional?

Republican Senate candidates John Raese of West Virginia and Joe Miller of Alaska argue that Congress has no power to adopt a minimum wage despite the fact the Supreme Court of the United States upheld it in a unanimous vote in 1941 in United States v. Darby, 312 U. S. 100 (1941).

The ABA Journal has a very short article on the bizarre topic here.

Muslim Truck Driver Files Title VII Religious Discrimination Claim After Refusing to Deliver Alcohol Products

Upon receiving his right-to-sue letter from the EEOC, a former truck driver for Green Bay-based Schneider National, Inc., filed a claim pursuant to Title VII alleging religious discrimination, failure to accommodate religious beliefs and retaliation after he was told to resign or be fired for refusing to haul a load of Miller Lite.

A copy of the complaint is available here and Professor Eugene Volokh, a First Amendment scholar, offers his opinion on the matter here. Volokh notes:
An employer must give religious employees special exemptions from generally applicable job requirements if (1) the requirements interfere with an employee’s sincerely felt religious obligations and (2) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison, 432 U.S. 63 (1977).
Volokh believes the first requirement is met by the plaintiff but questions the second but cites several cases where Title VII does apply to religious exemptions to behavior that is a small part of one’s duties. The plaintiff's complaint states, "21. Upon information and belief, in June of 2009 less than 5% of the loads Defendant transported contained alcohol and/or tobacco." Thus, the Plaintiff is asserting that these loads could easily be delegated to a non-objector. Indeed, the complaint list an instance where this was done but two days later when told to transport alcohol again, he was told do it or resign.

It'll be interesting to see if the employer can show that this accommodation would be an undue hardship. The Plaintiff made its allegations based upon "information and belief" which means, "we're not 100% sure, but relatively certain." Then, as with most cases, it may settle before we get any answers.

Monday, October 25, 2010

Is it legal for my employer to require me to use PTO?

I am a member of several websites where the lay and the like are able to submit various legal questions for members of the legal community to take a stab at (without creating a client-attorney relationship, of course). I often see the same question asked repeatedly from all areas of the country. One such question involves paid time off ("PTO") and whether or not employers can legally require employees to take time off and force them to use PTO against their will--or have to make up a 40-hour work week by using PTO.

The short answer: "yes, this is legal." The typical, but true, lawyer answer: "yes, with exceptions." PTO is a benefit not required under law, therefore, not governed by law. Employers generously provide for this benefit to employees for when they have to miss work unexpectedly (and expectedly) and, therefore, may be applied anyway they sit fit unless they apply it in a discriminatory manner. That is, employers must apply the policy uniformly and not in a discriminatory manner nor may they violate the Family and Medical Leave Act ("FMLA") by requiring you to use paid leave when you on leave and drawing disability benefits like worker's compensation. See Repa v. Roadway Express, Inc., 477 F.3d 938 (7th Cir. Wis. 2007)

Employment Case Law Update

--Cooper v Connecticut Dep’t of Corr., DConn, October 19, 2010: Employer, Connecticut Department of Corrections, is granted summary judgment after a former employee, Brian Cooper, a Jewish former Commissary Officer, fails in asserting that his being placed on administrsative leave amounts to an adverse employment action. Cooper was placed on leave after he complained about the extent of the punishment a coworker received for drawing a cartoon of him wearing a yarmulke, holding a fishing rod and placing a bag of ice on his back (Cooper had been out on worker's compensation). The coworker received a five-day without pay suspension.
The Court initially questioned whether the Plaintiff could prove 3 out of the 4 prongs neceessary in a Title VII retaliation claim but utimately held that he failed to assert an adverse action:
Applying the Joseph standard here, the Court concludes that the Department's decision to place Mr. Cooper on paid administrative leave pending an inquiry into his fitness to remain in his position was a reasonable enforcement of a preexisting disciplinary policy. Mr. Cooper's Collective Bargaining Unit Contract provided that the Department had the authority to place him on leave pending an investigation of any alleged action that, if verified, would constitute grounds for dismissal.
--Magnus v St. Mark United Methodist Church, NDIll, October 19, 2010: All of Plaintiff's claims but one are dismissed pursuant to Rule 12(b)(6) of the FRCP. The Court found that the Plaintiff adequately satisfied the pleading standard for an ADA association claim.
As a side note, the Court notes the sloppy drafting of the Plaintiff's complaint with respect to numbering. Proofread your work, lawyers!

--Robinson v Farmers Servs, LLC, DKan, October 14, 2010: Plaintiff's FMLA interference and retaliation claims lose to summary judgment because the Plaintiff admitted in her complaint to obtain medical certification despite the employer's request. The Court noted, "An employer must provide a reasonable opportunity for the employee to cure a deficiency in certification before terminating the employee." The Plaintiff's failure to cure the certification documentation likewise killed her retaliation claim.

--Hamovitz v Santa Barbara Applied Research, Inc., WDPa, October 19, 2010: In an issue of first impression out of Pennsylvania, a Court there held that, along with his USERRA claim, an employee may pursue a common-law tort claim for wrongful refusal to hire. Therefore, because his USERRA remedies were not exclusive, the plaintiff could seek punitive damages. Note that the Court formerly held that punitive damages were not available to the plaintiff under USERRA.

Thursday, October 21, 2010

Employment Case Law Update

--Smith v AirTran Airways, Inc., MDFla, October 12, 2010: In a case of "how on earth can you ever show pretext?", employer AirTran is granted summary judgment after submitting several outrageous acts of misconduct on part of the plaintiff, Kersaundra Smith, who alleged Title VII retaliation, hostile work environment based on her race and race discrimination generally. Smith had been terminated once before after several acts of misconduct and filed with the EEOC which issued a Right to Sue letter. AirTran then agreed to re-hire Smith--partially in response to her grieving the matter through her union--and was placed on a 24-month probationary period. Smith then had a no show and another customer complaint and AirTran still declined to terminate. However, what finally pushed AirTran over the edge was Smith placing her dog in a baby stroller in an attempt to avoid paying the pet travel charge and, once caught, claiming that the dog was her "Emotional Support Animal."

--Herbert v City of New York, SDNY, October 7, 2010: A school teacher who was demoted from her probationary position as an assistant principal survived Defendant's Motion for Summary Judgment on her pregnancy and gender discrimination claim, but not on her whistleblower claim.

--Wong v Brigham Young Univ., DUtah, October 13, 2010: An employee of Pacific Islander descent in a state that is predominately Caucasian (Utah), who was given a “Letter of Understanding” and then was discharged for tardiness and performance issues, failed to present sufficient evidence to proceed with his Title VII and Utah law claims of racial bias and hostile work environment after the employer successfully showed that that Caucasian employees received the same treatment when they violated the same policies. The Plaintiff also had a marked record of performance-related issues that was detrimental to his claims.

--Vasquez v Potomac Hosp., Inc, EDVa, October 8, 2010: A male security officer who had a history of work rule violations was unable to pursue his Title VII claims of race bias, hostile environment sexual harassment, and retaliation for initiating an internal complaint of harassment and filing a complaint with the EEOC. First, Plaintiff's race claim was dismissed because it wasn't alleged in the EEOC complaint which renders the Court without jurisdiction. Secondly, the sexual harassment claim had a last incident outside of the 300-day time period to file. Thirdly, Plaintiff's retaliation claim failed because the Court ruled that the Plaintiff did not engage in legally protected activity when he performed his duties in a manner that his supervisor found objectionable. Lastly, the Court also rejected his assertion that his employer retaliated against him by “terminating” him when it chose to accept his resignation as effective one week early. Acceptance of an employee’s resignation prior to the employee’s intended last day does not convert a resignation into a termination, held the court.

EEOC Holds Public Meeting to Address Use of Credit Histories in Pre-Employment Screening

Yesterday the Equal Employment Opportunity Commission ("EEOC") held a public meeting to hear testimony from representatives of various stakeholder groups as well as social scientists and the Federal Trade Commission on the growing use of credit histories as selection criteria in employment.

From the press release on the meeting:
“High unemployment has forced an increasing number of people to enter or re-enter the job market,” said EEOC Chair Jacqueline A. Berrien. “As a result, an ever increasing number of job applicants and workers are being exposed to employment screening tools, such as credit checks, that could unfairly exclude them from job opportunities. Today’s discussion provided important input into our agency’s work to ensure that the workplace is made free of all barriers to equal opportunity.”

The Commission heard from a diverse set of experts. Chi Chi Wu of the National Consumer Law Center (NCLC) expressed grave concerns that the use of credit histories is mushrooming at the time of economic instability for many Americans, noting that the use of credit histories “create[s] a fundamental ‘Catch-22’ for job applicants,” especially during this period of high unemployment and high foreclosures, both of which have a negative impact on credit.” She observed, “You can’t re-establish your credit if you can’t get a job, and you can’t get a job if you’ve got bad credit.” This view was echoed by several of the witnesses.
Representatives from the business community—Michael Eastman of the U.S. Chamber of Commerce, Christine V. Walters of the Society of Human Resources Management (SHRM) and Pamela Quigley Devata of the law firm Seyfarth Shaw, LLP—told the Commission that the use of credit histories is permissible by law, limited in scope, and predictive in certain situations of reliability.

Walters of SHRM said that “13 percent of organizations conduct credit checks on all job candidates … [and] another 47 percent … consider credit history … for select jobs,” but for those employers, “credit histories are but one piece of the puzzle.” It is the experience of SHRM member companies that very few utilize credit histories for every single job opening. Devata asserted that the use of credit histories is driven, in part, by the need for background information on potential employees in a current environment when it is difficult to obtain any but the most basic information in job references.
Only four states currently have specific legislation against the use of credit history in the employment context (with exceptions, of course), with Illinois becoming the newest state. Wisconsin has always been progressive with respect to employment law legislation and has proposed it in the past with no success. Perhaps a renewal is in the works?

UPDATE: The Wall Street Journal has a short article on the meeting.

Tuesday, October 19, 2010

NLRB Weekly Summary of Cases

For the week of October 12-15.

Monday, October 18, 2010

Employee Granted All FMLA Leave, Court Still Allows Interference Claim to Proceed

In an interesting decision out of the Court of Appeals for the D.C. Circuit, a former legal secretary's FMLA interference claim was remanded back to trial court and summary judgment was reversed even though the employer granted all of the employee's FMLA leave request.

Usually when an employer grants all of an employee's FMLA leave a court grants summary judgment. So where's the twist? Well, her employer, the Ballard Spahr law firm, allegedly misinformed the plaintiff, Vanessa McFadden, about her entitlement and harassed her for taking too much time off. As a result, the plaintiff took less time off than she was entitled to take, and she paid her sister to care for her husband when she did not take off work. (She originally took leave to care for her husband who was suffering from cancer).

In 2003, the plaintiff began to have her own health problems. After exhausting all available paid and unpaid leave, she was terminated when she indicated that she could not perform the essential functions of her secretarial position on her return to work. She then sued, alleging, inter alia, FMLA interference. In doing so, the D.C. Circuit carved out an exception!

The case is McFadden v. Ballard Spahr Andrews Ingersoll LLP, NO. 08-7140 (Fed. Cir. June 29, 2010).

Milwaukee Journal Sentinel Top Workplaces of 2011 Deadline 2 Weeks Away!

The deadline is approaching for nominating the best workplaces in southeastern Wisconsin for the Milwaukee Journal Sentinel's Top Workplaces project for 2011. Here are the requirements for a nominee:
At least 50 employees in southeast Wisconsin. Organizations may be public,
private, government or nonprofit.

Eligibility: Workplaces in these
counties: Milwaukee, Waukesha, Washington, Ozaukee, Racine, Kenosha, Walworth,
Sheboygan, Jefferson, Dodge.

Nomination deadline: Oct. 29

How to
: Go to, or call (414) 376-5560.

The results will be posted in May.

Wisconsin Court of Appeals Upholds LIRC's Finding of Misconduct After Claimant is Incarcerated on Lunch Break

In a short and simple opinion, the Wisconsin Court of Appeals upheld the Labor and Industry Review Commission's ("LIRC") determination that a claimant who was found to have been terminated for misconduct connected to their employment after she was pulled over and incarcerated for failing to report and serve a previously imposed sentence.

The basis for the decision is also simple:
Based on these factual findings, the Commission concluded that Gandy's absences from work constituted misconduct under the statute because they were Gandy's fault; she was incarcerated due to her conviction of a crime and subsequent failure to appear for her previously imposed sentence. This conclusion is consistent with other decisions in which the Commission has held that intentional behavior that leads to an employee's incarceration and absence from work constitutes misconduct under WIS. STAT. § 108.04(5). See, e.g., Albrecht v. Farm & Fleet of Monroe, Inc., UI Hearing Decision No. 05003647JV (LIRC November 28, 2007). Gandy has not shown that the Commission's decision was unreasonable. Therefore, we affirm the Commission's conclusion that Gandy's absences from work due to her incarceration constituted misconduct.
Thus, though it may have technically have been the police's fault that the claimant was handcuffed and taken to jail, it's the claimant's fault she was eligible to be carted off to jail and, therefore, this amounts to "misconduct" for purposes of denying unemployment benefits.

The case is Gandy v. LIRC, 2009AP2157.

Sunday, October 17, 2010

Wisconsin Supreme Court Remands Milwaukee's Paid Sick Leave Ordinance Issue

Split evenly, the Supreme Court of Wisconsin has now vacated the order granting certification in Metropolitan Milwaukee Association of Commerce v. City of Milwaukee, 2010 WI 122 (Oct. 14, 2010), sending the case back to the appeals court to determine whether to affirm or reverse the circuit court.

MMAC v. City of Milwaukee is the case concerning the voter-approved ordinance initiated by Milwaukee 9to5 that would have provided for paid sick leave for employees within the City of Milwaukee. The ordinance didn't take one breath before challenged in Circuit Court where it was struck down as invalid, unconstitutional, and unenforceable because the ballot question before voters did not adequately describe the ordinance, among other conclusions.

Now we'll have to await the court of appeals decision. Stay tuned!

Recent Court Decision Holds Employee Had No Reasonable Expectation of Privacy in Facebook and Myspace Content

A plaintiff alleging permanent physical injuries sought to prevent discovery of contents from her Facebook and MySpace pages which displayed content in direct contradiction to her claims that she had sustained permanent injuries. The defense sought to discover and use this evidence against the Plaintiff. However, the Plaintiff set her privacy settings so that "only friends" could view the content but a Supreme Court of New York (remember Supreme Court in New York is trial-level and each county has a Supreme Court) said that did not matter and allowed for discovery of the content. From the opinion:

Thus, it is reasonable to infer from the limited postings on Plaintiff’s public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny Defendant an opportunity access [sic] these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.

Romano v. Steelcase, Inc., No. 2006-2233, 2010 NY Slip Op 32645U, *5 (Sep. 21, 2010). The Plaintiff could not even be saved from prior content that she may have deleted. The court granted defendants access to plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted or archived content (which defendants could obtain from Facebook and MySpace directly).

The issue was one of first impression for the New York court and in seeking guidance in their ruling, they looked to Facebook's privacy policies:
Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.
Romano, 2010 NY Slip Op 32645U, at *7.

This case is somewhat disturbing in that virtually everyone in this day and age has a Facebook or some other form of social networking website profile. What if the employee had deactivated their account in anticipation of litigation? It seems as though the content would still be discoverable. Obviously employees should not file cases that they know are less-than-honest and this evidence will potentially lead to more accurate decisions and verdicts, but will this then lead to the downfall of social networking website membership? This may be an issue on a likely path to argument in the Supreme Court of the United States and we can only hope the Justices will have an easier time with it than they did with employee privacy in the text message arena.

The case is Romano v. Steelcase, Inc.

Wednesday, October 13, 2010

DWD Unemployment Compensation Clinics

The Wisconsin Department of Workforce Development ("DWD") has three upcoming labor law clinics across the state which have proven to be very informative and helpful for everyone, including nonattorneys. Here are the dates and locations:

■October 20, 2010 - Kimberly
■November 9, 2010 - Janesville
■December 1, 2010 - Milwaukee

For more, click here.

NLRB Weekly Summary of Cases

For the week of October 4-8.

Tuesday, October 12, 2010

Unemployment Compensation Claim Fraud on the Rise

Earlier today a session in the Legislative Council study committee on fraud in public benefit programs revealed that fraud in unemployment compensation claims is likely to rise this year for the third consecutive year in a row as claims themselves rise. From the Milwaukee Journal Sentinel article on the issue:
Fraud in Wisconsin's unemployment insurance program between 2007 and 2009 more than tripled to $17.7 million, according to state figures. That figure will likely grow in 2010 as more jobless workers file for benefits amid continued high unemployment, increasing the opportunities for fraud, Bergan said. ...

Members of the committee such as Sen. Bob Jauch (D-Poplar) and Sen. Alberta Darling (R-River Hills) talked about the need to devote more state resources and effort to detecting fraud. They also discussed the possibility of empowering a state agency such as the Department of Justice to help prosecute some cases of benefits fraud that overworked district attorneys are currently unable to handle.
I have seen an increase in the number of telephone calls to my office of people being accused of fraudulently misreporting their unemployment claims and are distressed at the Unemployment Insurance Division's demand of repayment of large sums of money and the potential of criminal charges brought forth. I always advise people before they considering filing to ensure they are eligible because receiving benefits does not always mean you are eligible as the Department sometimes makes errors or the employer appeals demanding a hearing where an administrative law judge can overturn the investigator's decision which would result in repayment.

If I am on FMLA Leave, May My Employer Discontinue My Health Insurance?

This is a common concern and worry many employees have when they take leave pursuant to the Family and Medical Leave Act ("FMLA"). The answer may not be obvious but the point of FMLA leave is to protect covered employees so that they can take leave and not be retaliated against. Discontinuing health insurance can be considered retaliation on the part of the employer.

Under the FMLA, an employer always must maintain the employee's existing level of coverage (including family or dependent coverage) under a group health plan during the period of FMLA leave, provided the employee pays his or her share of the premiums. An employer may not discriminate against an employee using FMLA leave, and therefore must also provide such an employee with the same benefits (e.g., life or disability insurance) normally provided to an employee in the same leave or part-time status.

For more, see the EEOC's Fact Sheet on this topic.

Monday, October 11, 2010

Supreme Court Denies Cert in Donning and Doffing Case

The Supreme Court of the United States denied cert in a case out of the Court of Appeals for the Fourth Circuit involving time spent donning and doffing protective gear at a unionized poultry processing plant. The Fourth Circuit, in Sepulveda v. Allen Family Foods, Inc., held that the protective gear constituted “changing clothes” within the meaning of Section 203(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and, thus, was not compensable time for which the employees must be paid.

Donning and doffing is increasingly becoming a split issue among the circuit with the Sixth Circuit recently ruling that it was going to disregard the DOL's opinion letters on the topic, that ear plugs could be considered "clothes" and that the burden is on the plaintiff to establish entitlement to wages under the FLSA.

Stay tuned!

Employment Case Law Update

It's Summary Judgment Week, apparently:

--McGhee v Sovereign Healthcare of Bonifay, LLC, NDFla, October 4, 2010: Employer's motion for summary judgment denied after plaintiff presented enough evidence that the Americans with Disability Act could apply to her alleged discrimination based upon her depression. Likewise, the employer's motion for summary judgment on the plaintiff's FMLA claims were also denied because, "[w]hen viewed in the light most favorable to Plaintiff, these assertions are sufficient to maintain a cause of action."

--Adams v Northstar Location Services, LLC, WDNY, October 4, 2010: Employer's motion to dismiss is granted in part and denied in part. A female HR director, who was suspended and eventually discharged after allegedly persuading management not to fire certain minority employees, sufficiently pled her Title VII and FMLA retaliation claims and withstood the employer’s motion for summary judgment. However, the plaintiff's Title VII action alleging gender discrimination was dismissed for failure to present evidence that that her suspension and discharge occurred under circumstances giving rise to an inference of gender discrimination and her Equal Pay Act was likewise dismissed for failure to show that the male comparator performed “equal work on jobs requiring equal skill, effort, and responsibility” nor has she established both jobs “are performed under similar working conditions.”.
Noted in this case is the close temporal proximity between the protected activity and the adverse employment actions and the Court's granting that certain paragraphs of the complaint be stricken.

--Hird-Moorhouse v Belgian Mission, SDNY, October 5, 2010: Employer's motion for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, to dismiss is denied. A 54-year-old secretary-receptionist, who was terminated after more than 19 years on the job, could proceed with her ADEA, New York and New York City law claims of age bias after she was replaced with a 16-year-old and after the employer made age-based comments, two days before her discharge, that he needed a “younger image” and that she was “too old for her job.” The employer's defense that the comments were merely "stray" remarks insufficient to give rise to liability under the ADEA also failed.

Tuesday, October 5, 2010

Employment Case Law Update

--Noel v The Boeing Co., 3rdCir, October 1, 2010: in an issue of first impression in the Court of Appeals for the Third Circuit regarding the Lilly Ledbetter Fair Pay Act of 2009, the Court holds that the appellant's Title VII discrimination claim was untimely. The appellant failed to file his claim within Pennsylvania's 300-day time period but he claimed that the FPA started the clock anew each time he received a paycheck less than his equal counterparts in a discriminatory manner which then revived his claim. In upholding the grant of summary judgment in favor of the defendant, the Third Circuit held that the appellant's failure-to-promote claim did not constitute “discrimination in compensation” and that the FPA does not apply to failure-to-promote claims.

--Gairnese v King Pharm, Inc., NDCal, September 27, 2010: Although a returning serviceman established a prima facie case of unlawful termination in violation of USERRA and state law against his former employer, he was not entitled to summary judgment on the issue of his employer’s liability on either claim. It was undisputed that the serviceman was eligible for coverage under USERRA, as he had served for more than 180days in Afghanistan and was terminated within one year after the date of his reemployment. However, there was a genuine issue about whether his discharge was based on conduct that the employer had notice would constitute reasonable cause for discharge. In addition, the employer pointed to evidence of the serviceman’s negative attitude and behavior toward his supervisor as additional grounds for his discharge. Although the serviceman met or exceeded sales goals, the court could not find, as a matter of law, that the decision to terminate him was objectively unreasonable. Moreover, the sufficiency of the supervisor’s verbal warning as notice to the serviceman that his conduct was cause for discharge also remained in dispute. Because there were genuine issues of material fact on notice and cause, the court denied the serviceman’s motion for partial summary judgment.

--Schuler v PriceWaterhouseCoopers, LLP, DDC, September 22, 2010: An employee who filed suit as an individual, non-class plaintiff could not maintain an ADEA “pattern and practice” claim, ruled a federal district court in granting the employer’s motion for summary judgment on remand. This case is more concerned with the practice of filing as a class than it is about the substance of a pattern of age discrimination claim. Because the employee was pursuing a pattern and practice claim as an individual, non-class plaintiff, just as he and his co-plaintiff did in a 2002 lawsuit, collateral estoppel barred the instant lawsuit. The court rejected the employee’s argument that his ADEA “collective action” should be treated differently than Title VII class action lawsuits because the former involves an opt-in class rather than an opt-out class. The court determined that because the employee failed to take the essential first step of moving for notice to potential class members, no allegedly similarly situated employees ever opted in for a class, and, therefore, there was no class of plaintiffs, thereby rendering any purported differences between class and collective actions irrelevant.
The Lilly Ledbetter Fair Pay Act also makes an appearance and is once again shotdown because it does not apply to failure-to-promote claims.

--Wasek v Arrow Energy Servs, Inc., EDMich, September 29, 2010: A male oil rig employee was unable to pursue his Title VII and Michigan law claims that he was subjected to same-sex sexual harassment by a male coworker and retaliated against for complaining, because he failed to show that the harassment was due to his gender.

NLRB Weekly Summary of Cases

For the week of September 27, 2010-October 1, 2010.

Changes to CCAP Coming Soon?

For years court records pertaining to adult criminal matters have been available on the internet on the Wisconsin Circuit Court Access website (also commonly referred to as "CCAP") and while the website has plenty of good value and use, it also has a way of damaging future job and housing prospects, often times unlawfully. Though Wisconsin is one of the few states that has specific protection against arrest and conviction record discrimination in employment, that still does not prevent employers from not hiring otherwise qualified applicants or landlords from renting to harmless tenants.

In an administrative meeting of the Wisconsin Supreme Court this past Monday, Justice David Prosser suggested the court needs to change the online availability of records in "some cases." From the Milwaukee Journal Sentinel article on the story:
"Some people are actually innocent, and they shouldn't be disadvantaged forever" by online records, Prosser said.

The court is not unified on the issue, and Justice Patience Roggensack said she was worried making the records less accessible would conflict with the state's open records law.

"I have some real concerns with trying to play hide the ball with Wisconsin's records," Roggensack said.

She also said if the court doesn't make records fully available online, private vendors will gather the information on their own and sell it to the public.
As a practicing attorney who focuses on employment law and who utilizes CCAP for non-discriminatory purposes such as looking up case statuses, I tend to agree that something has to be done to undo and prevent a lot of unintended harm that comes from CCAP. Employers are not (often times) dumb enough to let an applicant or employee know that are not being hired or terminated because of their arrest and/or conviction record but I often receive phone calls from people who can't think of any other reason for their adverse employment action. If CCAP is modified to some degree, I hope there is still a way for lawyers and the like to have access to records for the good that CCAP serves. I would be willing to pay a price for access if it meant more deserving people being able to get the jobs they deserve and need.

Sunday, October 3, 2010

Working Families Flexibility Act

Former Senator Ted Kennedy was partially well-known for his highly progressive and innovative labor & employment law legislation. A former bill proposal of his has been re-born in the Senate via Bob Casey (D-Pa.) and Tom Harkin (D-Iowa), S. 3840: Working Families Flexibility Act. Similar legislation was introduced in the House but has gone nowhere.

The bill proposal is pretty interesting in that it authorizes an employee to request from an employer a change in the terms or conditions of the employee's employment if the request relates to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work; or (3) where the employee is required to work. The legislation does not require the employer to grant such requests but merely sets forth a duty for the employer to hear the request(s) and makes it unlawful for interference of rights under the legislation.

Hat tip: The Delaware Employment Blog