You know, maybe I should have gone with the porta-potty-harassment post that I originally had planned for today. Nah. My analytics tell me that my best-received posts have a common theme: crotch and Brazil. Besides, everyone knows that nothing says Friday like a porta-potty post. Just wait 'til Friday.
So today, after the jump, let's wax poetic, shall we?
You see, in certain instances, a trial witness's social media breadcrumbs may undermine her credibility and score points for your client. But when the witness -- and the lawyer trying to impeach the witness with her social networking activities -- display as much combined tech savvy as J-Lo's PR machine,
hilarity trouble may ensue:
You're hiring for an engineer position. To assist, you engage a search firm, which finally locates an ideal candidate. After a telephone conversation, and a subsequent tour and in-depth interview, you know that you have the right person for the job. So, you prepare and send an offer letter.
The offer letter includes a summary of the position, responsibilities, location, base salary, benefits, effective date, and confidentiality. The letter also states: "You will also be asked to sign our employment/confidentiality agreement. We will not be able to employ you if you fail to do so. In addition, the first day of employment you will be required to sign an Employment Agreement with definitive terms and conditions outlining the offer terms and conditions contained herein."
The offer letter does not contain any mention of a non-competition agreement.
Your candidate signs and returns the offer letter. On his start date, you ask the candidate to sign an employment/confidentiality agreement, which does contain a non-competition restrictive covenant. The candidate reads and understands the non-competition covenant, signs it without objection, and goes to work for you.
If, a few years later, this employee decides to leave to work for a competitor, will that non-competition agreement be enforceable? Or will you be out of luck because the offer letter said nothing about it?
According to this recent opinion from the PA Supreme Court, you're a-ok.
That is, there are enough elements to the offer letter to show that the letter is evidence of negotiation and not a contract itself: (i) it was intended to summarize the position; (ii) it references a subsequent employment/confidentiality agreement; and (iii) it confirms that the definitive terms in the employment agreement will control.
Plus, because the restrictive covenant at issue was contained within the employment agreement, it was ancillary to the taking of employment and therefore supported by consideration.
The PA employer here got lucky. Don't make the same mistake. If you're in PA and you want an employee to enter into a non-competition agreement as a condition of initial employment, reference it in the initial offer letter and have that employee sign a separate non-competition agreement immediately upon commencing employment with the company. Also, don't overreach. Make sure that the restrictive covenant is carefully tailored in time and geographic scope to protect your legitimate business interests.
(Betcha didn't see that lede coming...)
So, let me take you back to late December 2012 -- a time when my blog was blowing up. Back then, I wrote this post about Melissa Nelson. Ms. Nelson had worked as an assistant to dentist James Knight. That is, until Dr. Knight fired her in 2010 based on concerns from both he and his wife that if Ms. Nelson continued to work for Dr. Knight, he'd have sex with her and it would ruin their marriage.
So, Ms. Nelson sued for gender discrimination.
[Folks, rather than soundtracking this post with "Dr. Feelgood" or "Simply Irresistible," I was this close to breaking new, "don't come back to work on Monday", ground with a Two Live Crew single. This close. Then again, the whole collecting a paycheck thing...]
Ultimately, the Iowa Supreme Court ruled unanimously in this opinion that Ms. Nelson's claim should be construed as one of "sexual favoritism," rather than "gender discrimination." -- "treating an employee unfavorably because of such a relationship does not violate the law." Indeed, Dr. Knight fired Ms. Nelson, not because she was a woman, but because of her "irresistible attraction." (Dr. Knight replaced her with a less attractive woman).
Well, Jeff Eckhoff at the Iowa Des Moines Register reports here that the Iowa Supreme Court has withdrawn its unanimous decision in the Nelson case to reconsider it:
On Monday, Chief Justice Mark Cady signed an order resubmitting Nelson's lawsuit for reconsideration by the court effective 9 a.m. Wednesday. Cady's order says the case will be reopened for discussion by the court; there will be no further oral arguments or additional input from Knight. Nelson's appeal will simply be re-evaluated based on previously submitted evidence and legal briefs.
A new decision could come as early Friday, when justices theoretically are scheduled to wrap up all pending cases submitted during the prior term.
An Iowa Supreme Court spokesman said it's "rare" for justices to grant petitions to rehear a case. Five such requests have been granted over the past decade.
Now, I'm no expert on Iowa civil judicial procedure, but I cannot imagine that this unanimous decision will be overturned. Indeed, I think they got it right on the law. But, the Eckhoff article indicates that one of the Iowa Justices may have changed his mind. (The original decision came from 9 male Justices). Maybe, someone will find that while the termination does not constitute gender discrimination, it still violates public policy.
(h/t my friends at @SJEmpEssentials)
Want an explanation of yesterday Supreme Court decision regarding challenges to California's ban on same-sex marriage and the federal Defense of Marriage Act, check out Amy Howe's analysis "In Plain English" at SCOTUSblog.com.
And for more on yesterday's decision and the impact it may have on your business, check out:
- Lyle Denniston's recap at SCOTUSblog.com
- Danielle Kurtzleben's report on the impact DOMA may have on your workplace
- "DOMA Ruling Means Changes Loom for Employers" from Lauren Weber at WSJ.com
- "Post-DOMA, Employers Face HR Challenges" from Shannon Green at Corporate Counsel
- "Now What? Employer Benefits Obligations Post-DOMA" from Stephen Miller, CEBS at SHRM.org
[Whichever one of you had the voodoo doll positioned in such a way that wouldn't allow me to pun this lede, I'm gonna git you sucka!]
In Hayes v. Erickson Air-Crane, Co. (opinion here), a male plaintiff was constantly barraged with small penis nicknames from his male co-workers ranging from "little jimi" to "tiny tim" to "dodgeball" (based on Ben Stiller's White Goodman character). He didn't like it, and sued.
The Court found that, based on this behavior, a jury could find that the plaintiff could potentially prevail on his sexual harassment claims because a jury may find that he was subjected to unwelcome sexual comments that were pervasive enough to create a hostile work environment.
But, hold on here. Notwithstanding the appalling alleged treatment of the plaintiff, I can't help but wonder if the employer could have escaped liability here.
A few times (here and here) we've talked about cases involving same-sex harassment. In each instance, the court was tasked with determining whether a same-sex harassment case had merit. And, each time, relying upon the U.S. Supreme Court's three-part test in Oncale v. Sundowner Offshore Services, Inc., the court determined that it didn't.
In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:
- credible evidence that the harasser was homosexual;
- evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or
- comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.
Also, check out the dissent in Rene v. MGM Grand Hotel.
In Hayes, the employer argued that the small-penis nicknames were neither severe nor pervasive enough to constitute a hostile work environment. Instead, it strikes me that since all of Hayes's harassers were male, the plaintiff may have lacked sufficient evidence to satisfy any one of the three Oncale criteria. Game. Set. Match.
Employment lawyers, what do you think? Too much sun for me on vacation? Or amirite?
(Got Sledgehammer in there; obscure enough to elude the power of the voodoo doll).
This week, I am on vacation. The Supreme Court didn't get my memo. Fine. But, I'm not putting down my beer to write this post. So, you get a one-handed rundown of the two employment-law decisions the court issued yesterday.
Pardon my typos after the jump...
* * *
Every so often, I get a call from an employee. The call goes something like this:
"I need an employment lawyer. Are you an employment lawyer?"
"Good. Because I am dealing with a hostile work environment."
"Well, I generally only represent employers. So---"
"--- But, my hostile work environment is bad. My manager is so mean. He yells at me. He gives me lots of work. He's terrible. Do I have a case?"
"How did you get my number?"
"I found it on the internet."
*** curses internet ***
Folks, I'm right there with you. Mean bosses suck. And who likes having to do a lot of work, especially when you're getting yelled at? But this is not what the law recognizes as a hostile work environment.
But don't just take my word on it. Consider the Third Circuit's recent opinion in Fichter v. AMG Resources Corp. In this case, the employee cited 14 examples of what she believed created a hostile work environment, ranging from her male manager asking that she finish her work quickly and being required to tell her male manager if she would be arriving to work late or leaving early.
In denying the plaintiff's claim for hostile work environment (based on gender), the Third Circuit underscored what the manager was asking of Ms. Fichter is what managers generally ask of their employees. So nothing here amounted to a Title VII violation.
Title VII doesn't guarantee a perfect working environment. But, calls like the one above suggest that, while your workplace may not violate discrimination laws, there could be some problems worth address. As evidenced by the Fichter case, some lawyers don't have the same filters that I do.
And, last time I checked, it'll cost you money to defend a discrimination lawsuit -- even if it's meritless.
*** hugs gold bars ***
Who would've guessed that, in June 2013, we'd have 11 states with social media privacy laws. I mean what are the odds? That'd be like Kanye West and Kim Kardashian deciding to name their baby daughter 'North West'.
Now, if you'll excuse me, I need to check why my Twitter is blowing up.
Oh, good God!
Well, at least they didn't name the kid, 'Knorth.' Because that would be plain weird. And well...
It's cute how you can spell "the worst" with the letters from North West's name.-- Suri's Burn Book (@surisburnbook) June 21, 2013
Last week, the State of Nevada amended one of its existing employment laws to prohibit an employer from conditioning the employment of an employee or prospective employee on his or her disclosure of the user name, password or any other information that provides access to the employee's or prospective employee's personal social media account. However, there is an exception for employers to request this information if necessary to comply with a state or federal law or regulation.
The new law goes into effect on October 1, 2013, and you can find more information on it here.
P.S. - For those of you still hatin' on 'North West', what direction would you have named your newborn?
DISCLAIMER: Since I'm getting the fodder for my post from RadarOnline (via the National Enquirer), consider the sources, and remember that what you are about to read are allegations. Plus, Ms. Deen's team subsequently told Entertainment Tonight that Ms. Deen does not condone or find the use of racial epithets acceptable. So make of this what you will and don't shoot them messenger...
Remember back when I reported here that a former employee of one of celeb chef Paula Deen's restaurants had accused both Deen and her brother of race discrimination and sexual harassment? You'd expect that Ms. Deen would cast aside these "allegations" -- especially the ones about her using the N-word and having black waiters perform as slaves at a wedding party -- as slanderous accusations.
You'd expect that wouldn't you?
Well, RadarOnline reports here that, at her deposition, Ms. Deen didn't so much deny certain allegations as she did admit them.
When asked by [the plaintiff's] Atlanta-based attorney if she'd ever used the N-word, Paula responded, "Yes, of course," and gave examples of times she used the offensive term.
In terms of telling racist jokes, Paula said, "It's just what they are -- they're jokes...most jokes are about Jewish people, rednecks, black folks...I can't determine what offends another person."
And when asked if she wanted black men to play the role of slaves at a wedding she explained she got the idea from a restaurant her husband and her had dined at saying, "The whole entire waiter staff was middle-aged black men, and they had on beautiful white jackets with a black bow tie.
"I mean, it was really impressive. That restaurant represented a certain era in America...after the Civil War, during the Civil War, before the Civil War...It was not only black men, it was black women...I would say they were slaves."
Here's a free piece of advice for my readers: Please never resort to the ole "I can't determine what offends another person" defense. Trust me, the law doesn't recognize it, because it's ignorant.
UPDATE: Paula Deen Enterprises has released a statement to TMZ in which Ms. Deen does not condone the use of the N-word, but, then again, she was born in the south during the 1960s. So, cut her some slack, ok? (Just so we're clear, that's me being sarcastic.)
Email from spokesman: "Food Network will not renew Paula Deen's contract when it expires at the end of this month."-- Julia Moskin (@juliamoskin) June 21, 2013
It's that time of year.
You're hiring summer interns and I'm
shaving a spoked B into my playoff beard looking for an excuse to recycle my six keys to keeping unpaid internships from becoming a hot wage & hour mess.
See what I just did there?
Oh, you saw the lede and thought I was actually going to give you 28 ways?
See what I just did there?
Oh, quit your whining. Here are 22 others:
- "Black Swans and Trojan Horses: Why That Internship Program May Not Be Legal" from Dan Schwartz at the Connecticut Employment Law Blog.
- "You should pay attention to this post if you have unpaid interns" from Jon Hyman at the Ohio Employer's Law Blog.
- "Using Unpaid Interns May be Illegal" by Renee Inomata at The In-House Advisor.
- "New Case Shows Use of Unpaid Interns Can Be a Costly Employment Decision" from Diane Kimberlin and Joseph Lazazzero at Wage and Hour Counsel
- "Why the New Internship Ruling is Bad for College Students" from Evil HR Lady
- "Do You Have to Pay Summer Interns?" from Mark Wilkinson at Wage and Hour Insights
- "Work for free and maybe meet a celebrity? Probably not a lawful internship!" from James M. Paul at the Ogletree Deakins blog.
Are we up to 28 yet?
Update: I feel
bloated awful about shorting you on the the summer intern links. So, here is the latest edition of the Employment Law Blog Carnival: The Summer Blockbuster Edition. Thank you for hosting, Jon Hyman.
The Americans with Disabilities Act (ADA) limits when an employer can require an employee to take a medical examination. Specifically, the ADA forbids employers from requiring medical exams (and cannot otherwise inquire into the nature or severity of a disability) unless the exam or inquiry is shown to be "job-related and consistent with business necessity."
The U.S. Equal Employment Opportunity Commission (EEOC) advises (here) that an exam is permissible where the employer "has a reasonable belief based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."
So, let's assume that you have an employee about whom you receive multiple reports of emotionally-erratic workplace behavior. At what pointy can you require that employee to seek counseling?
For that answer, let's turn to a recent case in Michigan, where the plaintiff, an EMT, asserted ADA claims because her former employer required that she complete psychological counseling to keep her job. The company had received first-hand reports that the plaintiff was having a tumultuous affair with a married co-worker, often crying in (and out of) the workplace, texting while driving an ambulance, and ignored a request to administer oxygen to a patient.
Based on these facts, the court concluded that not only did it appear that the plaintiff's ability to perform her job had been compromised by her erratic behavior, but her actions also created a direct threat to others; namely, the patients for whom she was required to care. Consequently, the court determined that the employer had a reasonable basis to require psychological counseling.
[Based on guidance from the Sixth Circuit, the lower court assumed that a psychological examination is the type of medical exam contemplated under the ADA]
The key in the Michigan case, as it will be in your workplace, is to brush aside the unreliable reports about emotional employee behavior. Rumors aren't much better. However, follow-up on rumors. Squash them if they have no support; but, document reliable firsthand information.
Ultimately, it's the objective, reliable information upon which you may rely to relying -- rather than rumors and hunches -- to require a psych exam as a condition of continued employment.
Barbara Joy McElmurry worked for the Arizona Department of Agriculture. In a Complaint she filed in federal court, she alleged that her supervisor forced her into a field work position in which she would not be able to drive vehicles because she was too short (4'10"). So, McElmurry asserted a claim for discrimination on the basis of disability, namely, her short stature.
So, could height (or lack thereof) be a disability?
Well, under the Americans with Disabilities Act, a person is disabled if she suffers from "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." An employer could also regard an employee as disabled, even if she isn't; that too would bring the employee within the scope of the ADA.
Thus, the Court addressing Ms. McElmurry's ADA claim on the employer's motion to dismiss, concluded (here) that she may have a valid ADA claim:
McElmurry, however, has alleged that her height is outside the normal range. She stands around 4'10"...It is plausible that "short stature" could, in some contexts, "substantially limit[ ] one or more of the major life activities of an individual."
Consequently, the Court denied the defendant's motion to dismiss the ADA claims.
We've already seen weight can be a disability. So, I suppose it's only fitting that height too may be an issue. Of course, as the Court noted, an employer may prefer taller employees without regarding the short ones as disabled:
An employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment--such as one's height, build, or singing voice--are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.
While employer preference may not create a regarded-as claim, the expansive nature of the recent amendments to the Americans with Disabilities Act render just about any borderline "disability" an actual disability. Ultimately, employers need to be aware of obvious and the not-so-obvious conditions that may qualify as a "disability" under the Act.