Friday, October 31, 2014

White anchor's "how come they can say it" argument still going . . . .

Burlington v. News Corp. is a great case for highlighting "reverse discrimination" claims. A white news anchor used the n-word in a meeting and got fired. Sounds reasonable, right? The problem is that he claims black employees used the same word and were not terminated. Suddenly, he has something that sounds like a discrimination lawsuit.

The Eastern District of Pennsylvania denied full summary judgment in this case back in 2010 - so, I assumed it was over by now. I was wrong. The Court just issued another opinion last week. Short version: Plaintiff can go to trial on a Cat's Paw theory of discrimination.

What was the hold-up? I guess they were waiting for the Supreme Court to issue its opinion in Staub v. Proctor Hospital, explaining Cat's Paw discrimination (which is generally when a non-decisionmaker proximately causes an adverse employment action and does so with discriminatory animus). Although even that was more than three years ago.

In any event, another reminder to employers that white men are protected by discrimination statutes too. Do I think this guy's "how come they can say it" (my name for his theory, not his) will be successful at trial? I'd be surprised. But I guess we'll see.

Tuesday, October 28, 2014

PBA Formal Opinion: Ethical Obligations for Attorneys Using Social Media

The PBA Ethics Committee issued a formal opinion on Ethical Obligations for Attorneys Using Social Media (HT: Dan Siegel on Legal Intelligencer). The opinion is jam-packed with 18 pages of social media goodness on 10 main issues.

Spoiler Alert! The committee concludes that:
1. Attorneys may advise clients about the content of their social networking websites, including the removal or addition of information. 
2. Attorneys may connect with clients and former clients. 
3. Attorneys may not contact a represented person through social networking websites. 
4. Although attorneys may contact an unrepresented person through social networking websites, they may not use a pretextual basis for viewing otherwise private information on social networking websites. 
5. Attorneys may use information on social networking websites in a dispute. 
6. Attorneys may accept client reviews but must monitor those reviews for accuracy. 
7. Attorneys may generally comment or respond to reviews or endorsements, and may solicit such endorsements. 
8. Attorneys may generally endorse other attorneys on social networking websites. 
9. Attorneys may review a juror’s Internet presence. 
10. Attorneys may connect with judges on social networking websites provided the purpose is not to influence the judge in carrying out his or her official duties.
Check out the full opinion for further analysis and explanations.

Friday, October 24, 2014

More Transgender Discrimination as Sex Discrimination

Well, add another case to the growing body of law regarding whether transgender discrimination is sex discrimination. This time from the U.S. military. The U.S. Office of Special Counsel issued this Report of Prohibited Personnel Practice in August, but just now released a redacted version to the public.

Technically, the report concludes that:
[T]he Agency's discrimination against Doe on the basis of her gender identity, including her gender transition from a man to a woman, constituted a PPP (prohibited personnel practice) under 5 U.S.C. § 2302(b)(10)(discrimination based on conduct not adverse to work performance) . . . . OSC makes no determination regarding Doe's sex discrimination claim, [but] OSC relies on pertinent EEO law for appropriate context.
But, the report notes at the outset that transgender discrimination " likely constitute[s] a PPP of sex discrimination." The report also relies on Title VII precedent for "guiding principles."

Bottom line: Although the report technically makes no determination on the issue of sex discrimination, it does so in a way that makes pretty clear that the office believes transgender discrimination is sex discrimination.

Wednesday, October 15, 2014

Employment Law Blog Carnival #ELBC Rolls in to Manpower

Mark Toth from Manpower Group hosts this month's edition of the Employment Law Blog Carnival (#ELBC for the hashtagging cool kids): Blog Carnival: Halloween Edition. Check it out!

Monday, October 13, 2014

Surprise! "Anonymous" Apps . . . Not-So-Anonymous

Yik Yak bills itself as a "local bulletin board." It allows users to post messages, and only people in a certain geographic area can see the messages. Users can up-vote or down-vote messages (too many down-votes and the message disappears), and even reply.

One interesting aspect of Yik Yak: it's anonymous. Well, sort of. Users do not need to verify their identities via email, register an account, or sign their messages in any way. You can just download the app to your phone and start posting and no one will know who you are - at least that's how it looks.

Apparently, someone posted this on Yik Yak in the vicinity of Penn State (aka where I live and teach) on Saturday night:

Screen Shot 2014-10-12 at 1.24.54 PM
(screen grab courtesy of Onward State).

Well, it turns out Yik Yak has a policy for such things:
Yik Yak may disclose user account information to law enforcement – without a subpoena, court order, or search warrant – in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone (for instance, in cases involving kidnapping, bomb threats, school shootings, or suicide threats).
And, it turns out they store:
  • The IP address from which the message was posted; 
  • The GPS coordinates of the location from which the message was posted; 
  • The time and date when the message was posted.
And, within about 24 hours, we're at HUB Shooting Threat Suspect in Custody.

It's not just Yik Yak - see also, "the Snappening" in which a bunch of "sexts" were intercepted from Snapchat, the supposedly ghost-like messaging service. Don't be stupid - these "anonymous" apps have a way of becoming not-so-anonymous (especially when nudity or criminal threats are involved).

2014-15 SCOTUS Employment Law Preview

Our beloved United States Supreme Court (aka SCOTUS) kicked off the new season last week (okay, technically they entered a few orders before that). Here are the labor and employment law issues currently on their docket (case name links to SCOTUSblog page with all filings to date):

Notice Requirements for a Workplace Religious Reasonable Accommodation
EEOC v. Abercrombie & Fitch
SCOTUS just granted cert a couple weeks ago. You can read my more-detailed description of the issue here. Generally speaking, the case involves the required notice for imposing the reasonable accommodation requirements of Title VII on an employer in the hiring context.

Workplace Pregnancy Accommodations
Young v. UPS
Issue: Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” My brief summary of the issue here.

Compensability of Security Screening Time
Integrity Staffing Solutions v. Busk
Issue: Whether time spent in security screenings is compensable under the Fair Labor Standards Act (FLSA), as amended by the Portal-to-Portal Act. SCOTUS heard oral arguments last week. Transcript here and audio here.

Mandatory EEOC Conciliation
Mach Mining v. EEOC
Issue:Whether and to what extent a court may enforce the Equal Employment Opportunity Commission's mandatory duty to conciliate discrimination claims before filing suit.

Vesting of Retirement Benefits Under Collective Bargaining Agreement
M&G Polymers USA, LLC v. Tackett
Statement of case:
When employees and unions bargain with employers for retiree health-care benefits, those benefits— and the conditions for receiving them—are set out in collective bargaining agreements. The agreements almost never, however, explicitly address the duration of those benefits. The circuits have badly split over how to construe that contractual silence . . . . The Sixth Circuit construes silence or ambiguity in a collective bargaining agreement as creating an “inference” or “presumption” that the agreement vests a right to lifetime, contribution-free benefits in the absence of extrinsic evidence to the contrary. The Third Circuit applies the opposite presumption and requires a clear statement in collective bargaining agreements that the parties intend the benefits to continue indefinitely. And the Second and Seventh Circuits (among others) have staked out a middle ground between those diametrically opposed positions . . . requiring at least some language in a collective bargaining agreement that can support interpreting that agreement to provide health benefits indefinitely.
And, now some cases that I call "second-tier" - they're either not directly employment law cases, or too narrow in scope to draw too much interest for the average employer.

Admin Law: Procedures for Agency Interpretive Rulemaking
Perez v. Mortgage Bankers Association
Issue: Whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation. This case specifically deals with the Department of Labor's interpretation of its FLSA regulations as applied to mortgage-loan officers.

Whistleblower Protection for Intentional Disclosure of Sensitive Security Information
Dept. of Homeland Security v. MacLean
Issue: Whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

Wednesday, October 8, 2014

BREAKING: EEOC Loses Separation Agreement Lawsuit on Technicality

This just in . . . the opinion in EEOC v. CVS. I blogged about two weeks ago that the EEOC had lost this case. Now we know why. Unfortunately, it has nothing to do with the terms of CVS's separation agreements (i.e. the basis for the lawsuit, explained here). Instead, the Court ordered judgment for CVS on the basis that the EEOC failed to participate in the conciliation process.

A rather disappointing ending to an otherwise exciting case. Will the EEOC float another test case? Or is the "war on separation agreements" over before it ever began? I guess we'll see . . . .

HT: Jeff Nowak via Twitter: