The Employer Handbook Blog

I got this as a Google Alert on Monday. The case is Davids v. Novartis Pharmaceuticals Corp. Allow me to set the stage for you.

• Plaintiff sues, claiming ongoing suffering from osteonecrosis of the jaw (if you click the link, don't look at the picture on the right. Ewwwww)


• Defendant corporation realizes that plaintiff has a Facebook account and serves a request for production of Facebook documents.


• Plaintiff produces only those documents that are available publicly (i.e., those to which access is not otherwise restricted through Facebook privacy controls)


• Not satisfied with the production, defendant moves to compel plaintiff to turn over her Facebook login information

The basis for the motion?

Defendant argues that Plaintiff's log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant's claim is predicated on Ms. Davids' profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids' social networking activity at her deposition. (my emphasis)

Sounds like someone didn't read my chapter in Think Before You Click. Comparing the situation here to cases from PA,  NY, and another from NY the court denied the motion to compel:

If only the Defendant had laid a better foundation with additional discovery as to the overall scope of what the plaintiff had in her Facebook account, this could have ended differently.

Well, at least that's what a federal court recently told a defendant-employer in this ruling.

In Tompkins v. Detroit Metropolitan Airport, the plaintiff suffered a slip-and-fall and later claimed back and other injuries. She sued her employer, who subsequently demanded that Tompkins provide full access to her Facebook account. Acknowledging that Facebook information that a user shares only with a few Facebook friends may still be discoverable, the United States District Court for the Eastern District of Michigan, emphasized that there are limits to the Facebook discovery that a party may pursue:

[M]aterial posted on a "private" Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. [T]here must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.

As I've discussed on this blog many times before (e.g., here and here) employers may not engage in the proverbial fishing expedition, in the hope that there might be something of relevance in a plaintiff's Facebook account. The far better practice is to first lay a foundation that the social-media account may contain relevant information and then pursue that information or, if you're feeling lucking, full access to the account.

(h/t: e-Discovery Case Law Update)

Image credit: frank.itlab.us

I've been slacking, folks.

Not since November have I blogged about a defendant's motion to compel a motion to compel an individual's social-media content. Since then, several more Pennsylvania courts have weighed in on this burgeoning area.

I'm sorry to each and every one of you. I have let you down. Will you ever stop judging forgive me? 

Oh, let's kiss and make nice. I'll get you caught up on the social-media-litigation goings-ons after the jump...

Continue reading "PA remains a hotbed of social-media discovery disputes" »

What a whirlwind 12 months it's been for Edith Employee! Or, should I say, Edith "former" Employee?

Last year, she was an employee for ABC Company. This year, she is suing ABC for sexual harassment. Among other things, Edith claims damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life.

And, right now, we find the parties entrenched in some scorched-earth discovery. ABC Company has just requested "all of plaintiff's Facebook records compiled after the incidents alleged in the complaint, including any records previously deleted or archived."

Can ABC do that? Will Edith have to turn over all of these records? The answer follows after the jump..

Continue reading "Can you access an ex-employee's Facebook posts if she sues?" »

Today is Rosh Hashanah (ראש השנה), the Jewish New Year. I'm Jewish. So, I'm not taking a deposition today. And if you are involved in a case with Jewish parties or attorneys, you shouldn't be either.

However, according to this article, these plaintiff's attorneys didn't get the memo. So, defense counsel filed this motion. And the Court entered this Order, rescheduling the deposition and sanctioning the plaintiff's attorneys "in an amount to be determined."

Oy vey and L'shanah tovah.

h/t Above the Law and South Florida Lawyers

Welcome back to "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post". But before I dispense with the brevity, allow me to pat myself on the back as, yesterday, both the ABA Law Journal and the Wall Street Journal recognized one of my recent blog posts.

***A-thank you. Thank you very much. You're all too kind.***

On the heels of this case from the Second Circuit that I read about yesterday, I figured that today we should discuss releases. Cue the music...

Let's begin with a hypothetical. Robert Rank-And-File has sued his former employer, Pennsylvania-New Jersey-Delaware, Inc., asserting various discrimination claims against the company (race, age, retaliation). After months of scorched-earth litigation, the two sides agree to settle. Pennsylvania-New Jersey-Delaware, Inc. prepares a settlement agreement which provides that in exchange for a settlement sum, Robert agrees to release all claims against the company. The agreement even includes the language, "THIS IS A GENERAL RELEASE."

Guess what, folks? If that is the extent of the release language, then Pennsylvania-New Jersey-Delaware, Inc. likely just funded the balance of Robert's age discrimination action against the company because Robert has not released his age-bias claim.

How could that be? Well, in 1990, Congress amended the Age Discrimination in Employment Act (ADEA) to impose specific requirements for releases covering ADEA claims, so that a person waiving rights under the ADEA would do so in a manner that is both "knowing and voluntary." In order for an ADEA waiver to be both "knowing and voluntary," it must contain seven elements:

1. A waiver must be written in a manner that can be clearly understood. EEOC regulations emphasize that waivers must be drafted in plain language geared to the level of comprehension and education of the average person eligible to participate. So dump the legalese and technical jargon. 
2. A waiver must specifically refer to rights or claims arising under the ADEA. EEOC regulations specifically state that the waiver must expressly spell out the Age Discrimination in Employment Act by name.
3. A waiver must advise the employee in writing to consult an attorney before accepting the agreement. This is an easy one to take for granted if you know that the employee has already retained counsel. But, you still need it in the agreement.
4. A waiver must provide the employee with at least 21 days to consider the offer. If the employee wants to sign the agreement before Day 21, that's fine. But, if material changes to the final offer are made, the 21-day period starts over. (Note: if a waiver is requested in connection with an exit incentive or other employment-termination program offered to a group or class of employees, the individual gets 45 days in which to consider the agreement).
5. A waiver must give an employee seven days to revoke his or her signature. Whereas, the employee may waive the 21-day requirement above by returning a signed a agreement before Day 21, the 7-day revocation period cannot be changed or waived by either party for any reason. 
6. A waiver must not include rights and claims that may arise after the date on which the waiver is executed. This provision bars waiving rights regarding new acts of discrimination that occur after the date of signing, such as a claim that an employer retaliated against a former employee who filed a charge with the EEOC by giving an unfavorable reference to a prospective employer.
7. A waiver must be supported by consideration in addition to that to which the employee already is entitled. For example, withholding an employee's last paycheck on the condition that he/she agrees to release any potential age discrimination claim will not work.

Although not technically a requirement, a best practice when settling the claims of a current or former employee is to call a capable employment-law attorney.

In an employment discrimination action asserted under federal law, an employee-plaintiff may recover a reasonable attorney's fee if the plaintiff prevails. So too may an employer-defendant recover fees if it prevails and the court determines that the plaintiff's suit is frivolous.

But what happens if an employee-plaintiff asserts multiple claims against an employer-defendant and only some of them are deemed frivolous? What, if anything, may the defendant recover in attorney's fees?

The answer after the jump...

Continue reading "Supreme Court limits an employer's ability to recoup attorney's fees" »

If, in a pending civil action, the defendant requests to Facebook "friend" the plaintiff in order to learn more about the plaintiff's claims, must the plaintiff accept the friend request?

This is precisely the issue that a PA Court of Common Pleas recently faced.

So, what happened? Find out after the jump.

Continue reading "Court bars Facebook "friending" in discovery" »

Earlier this month, a Pennsylvania federal court held that plaintiffs in a contractual-dispute matter must reimburse the defendants, who prevailed on summary judgment, for all costs that the defendants incurred in the production of e-discovery.

Now that's a hammer!

More on this decision and how it might apply in an employee lawsuit against an employer, after the jump.

Continue reading "Did you know? A prevailing defendant may recover e-discovery costs" »

By now, hopefully, you've read my post "How Facebook Can Make Or Break Your Case." I wrote it primarily for my fellow members of the defense bar. So, if you haven't yet read it, and you generally represent employers, shame on you! Stop reading this and go read it now. RIGHT NOW!

Otherwise, keep reading this post to see what plaintiffs' lawyers should be doing with social media to help advance their clients cases.

Continue reading "How Facebook Can Make or Break Your Case: The Plaintiff's Arsenal" »

I love the last week of the year. Most people take vacation. Not me. When work is slow, I like to be in the office. It's when the office gets crazy that I take my vacation, because I know there is always someone else around to shoulder the burden. I'm a team player like that.

But regardless of whether you're like me and you worked during the final week of 2010, or you took the week off, we can all agree that this week -- when everyone comes back to work -- is the worst of the year.

Lots of people are in bad moods this week. And what is one thing you never want to do when you are in a bad mood? Draft a work email or letter to someone who may be responsible for putting you in that bad mood. You see, I'm a firm believer in the "24-hour rule" when sending strongly-worded correspondence. That is, I draft the communication, file it away, and re-read it 24 hours later to determine whether I should really be sending it. Nearly every time, I trash it.

This rule has few exceptions.

Here is one of them. Enjoy and have a nice weekend!

UPDATE: David Lat at Above the Law shares a story originally reported in the St. Petersburg Times about two lawyers who did not heed my "24-hour" rule. If only I had written this post sooner. Oh well.

I am not related to Carnac the Magnificent.

Several months ago, when I posted How Facebook Can Make or Break Your Case, I offered a series of tips about how attorneys representing companies can use Facebook to sleuth out some A-1 information about employee-plaintiffs.

Continue reading "Facebook makes a damn fine litigation tool" »

Over at Texas Lawyer, Mike Maslanka has a short, but very important post about a recent case out of the United States District Court for the Eastern District of Virginia.

In Francisco v. Verizon South, Inc., 2010 U.S. Dist. LEXIS 77083, the court sustained a plaintiff's motion to strike affirmative defenses that an employer-defendant raised because the defenses failed to meet the federal pleading standard enunciated by the Supreme Court in Bell Atlantic Corp. v. Twombley and Ashcroft v. Iqbal. In all, the court struck ten affirmative defenses:

Continue reading "A wake-up call to employers who raise vanilla affirmative defenses" »