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Welcome citizens of the Utah.

I’d say welcome back, but, according my blog stats, so few of you have seen my blog a first time. How could that be? Some of my best posts involve the Beehive State:

dongle_scrapyard_00For much of the week, I’ve blogged about Adria Richards, the employee who got fired for tweeting complaints about discrimination. On Monday, I offered my legal analysis (here).

On Tuesday, I followed that up with this simple poll that purported to remove the law from the equation: Was the decision of Ms. Richards’s employer, SendGrid, to fire her “fair” or “unfair”? “Fair” and “unfair” were the only two answers and they were randomized such that either one could have appeared as the top choice when taking the poll.

Now the results are in. 129 of you responded and 70 of you (54%) said that the firing was fair. 59 respondents indicated that the firing was unfair (46%). 

I went back and forth on whether to include “BREAKING” in the title to this post. Twas a close call. Close, like that time Bar Rafaeli almost dialed my number by accident (and by almost, I mean she was 7 numbers off — out of 10).

No, feeling “maybe overworked” will not get you leave under the Family and Medical Leave Act. A Florida federal court recently confirmed this in Pivac v. Component Services and Logistics, Inc.:

The substance of the Plaintiff’s “evidence” is that she felt maybe overworked and wanted time off, first to visit her parents, but then just because she was crying and sad. She went to a doctor who provided her with no treatment, no referrals, no medicine, and no further appointments. The Plaintiff stated that she “told him [the doctor] she needed about seven days to get herself together and he gave her a `Medically Excused Absence’ form for the dates October 4, 2011 to October 17, 2011.” There is absolutely no evidence presented by the Plaintiff that she met the definition of “serious medical condition” at the time she took the extended unpaid leave. There are no medical records submitted, no indication of continuing treatment at the time of the Plaintiff’s being out of work from the 4th to the 17th of October of 2011, no evidence, other than the Plaintiff’s conclusory statements, that she suffered depression and anxiety as chronic health conditions. In fact, the only thing the Plaintiff has established is that she told the doctor she did not feel like working and he gave her a note to excuse her from working. There is just nothing here on which to find that the Plaintiff suffered a serious medical condition and without that the cause of action may not proceed.

Is this Retaliation 2.0?

Two weeks ago, Adria Richards attended an industry conference at which she overheard sexual jokes from two attendees sitting behind her during a session. So, she complained…on Twitter:

And then she blogged about it here. The social-media complaints resulted in one of the joke tellers getting fired. And, last Wednesday, Ms. Richards tweeted that her employer supported her.

That same day, SendGrid, Ms. Richards’s employer, fired her.

(Jon Brodkin at has the full story here).

We can argue about the propriety of using social media to publicize a harassment complaint, especially when a private complaint could have sufficed. Still, the SendGrid response certainly seems harsh and unfair.

But did SendGrid go so far as to retaliate (as a matter of law) against Ms. Richards?

Find out, after the jump…

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School teacher, Lawrence Smizer, is a regular Facebook wordsmith:

To all my family that fought my sister tooth and nail over some BULLSHIT (And you know who you are) FUCK YOU BITCHES!!!! HE IS GOING HOME WHERE HE BELONGS!!!!! HAHAHAHAHAHAH AHAHAHAHAH AHAHAHA AHAH HAHAH HAAH

Smizer was Facebook friends with two co-workers. They dimed him out to the school and Smizer was fired. So, he sued for reverse-race discrimination.

Reverse-race discrimination, mmm-kay. How do you think it worked out for him?

Find out after the jump…

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Your social media policy may be good when it comes to addressing legal risks. But getting that message across to your employees…

Not so much, according to a recent survey from Protiviti (here).

The Protiviti survey shows that more businesses are addressing employee use of social media — 57% of respondents have social media policies. And, generally, those social media policies do a good job of addressing legal risks. For example, 90% of surveyed companies with social media policies have provisions in those policies what address disclosure of company information.

Why just last week, I was hanging out with the ghost of John Houseman, who was blabbering on and on about making money the old-fashioned way. And while all this reminiscing of the old Smith Barney days was giving me the vapors, he just wouldn’t let me get a word in edge-wise.

That was until, someone pulled along side of us and asked for our Grey Poupon, which seemed strange at the time because we were driving around in the ’93 Ford Probe I drove in high school.

*** hears familiar sound of restraining orders being taken out ***

Sorry for the late post gang. Rough night last night.

Today, I’m punting the ball over to my blogging buddy Phil Miles at Lawffice Space who has the scoop on a new age-discrimination matter that the Supreme Court has agreed to address. You can read Phil’s post here.

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Of all employment claims presented to the Equal Employment Opportunity Commission, retaliation numero uno. It’s been that way since 2010.

There are three essential elements of a retaliation claim: (1) protected activity — opposition to discrimination or participation in the statutory complaint process; (2) adverse action; and (3) causal connection between the protected activity and the adverse action.

This post focuses on “opposition to discrimination.” Specifically, is withdrawing from what one perceives to be a sexual advance by one’s employer opposition to discrimination and, thus, a protected activity?

The answer after the jump…

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“Doing What’s Right – Not Just What’s Legal”
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