Thursday, April 29, 2010

Employee Email Privacy: Stengart's Chicken and Egg

Which came first, the chicken or the egg? In the world of privilege law, an expectation of privacy hatches into the attorney-client privilege. Enter Stengart v. Loving Care Agency. In this case, the New Jersey Supreme Court held that an employee had a reasonable expectation of privacy in personal, password-protected, web-based emails between her and her attorney, accessed on a company laptop.

An expectation of privacy arises from both a subjective and objective expectation. That is, the employee must personally expect privacy, and the expectation must be objectively reasonable. At one point, the opinion states:
[E]mployers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. Because of the important public policy concerns underlying the attorney-client privilege, even . . . a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee's attorney-client communications, if accessed on a personal, password-protected e-mail account using the company's computer system -- would not be enforceable.
The opinion presumes a chicken, even if there's no egg. That is, it protects the privilege even before there's an expectation of privacy. It essentially mandates that employers create and preserve an employee's expectation of privacy on the company's laptop. This judicially created zone of privacy is limited, however, to web-based, password-protected, personal emails between an employee and his or her attorney.

This is a New Jersey Supreme Court opinion so it has no binding precedential value outside of New Jersey. It is, however, a case addressing an emerging area of the law. As such, it may provide guidance to other courts in other jurisdictions in the future.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Wednesday, April 28, 2010

Today is Workers' Memorial Day

Today, April 28, marks Wrokers' Memorial Day. It is a day to remember those who were injured, became ill, or even lost their lives in the course of their work duties. Unfortunately, we all received a tragic reminder of workplace safety risks earlier this month with the Upper Big Branch Mine disaster, which killed 29 miners.

Richard Trumka, AFL-CIO President, used the holiday to push for expanding OSHA (Occupational Safety and Helath Act) and other safety regulations. Specifically, he endorsed the Protecting America's Workers Act (HR 2067, S 1580), invoking the holiday's mantra, "Mourn the dead; fight like hell for the living" (attributed to Mother Jones).

The Obama administration has been pushing for ramped up OSHA enforcement from the start. While Lawffice Space is not a policy advocacy blog, the reality for employers is that some combination of new safety regulations and increased enforcement of existing regulations is coming. Regardless of your position, or opposition, we can all take a moment to remember those who lost their lives just doing their jobs and recognize it as a tragedy.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, April 26, 2010

Arbitration Agreement Unconscionability Determination Hits SCOTUS

Today, the Supreme Court heard oral arguments in Rent-A-Center v. Jackson (transcript .pdf). I previewed this case when the Supreme Court granted cert. In short, the case revolves around whether the District Court must, in the words of the Ninth Circuit's opinion, "decide the threshold question of arbitrability when a plaintiff challenges an arbitration agreement as unconscionable."

Counsel for the Petitioner, the employer, opened with a concise statement of his argument:
The agreement between Antonio Jackson and Rent-A-Center should be enforced as written. There is no statutory impediment to the enforcement of the clear and unmistakable agreement that gives the arbitrator exclusive authority to decide Jackson's challenge to enforceability, nor is there any language in the Federal Arbitration Act that would prohibit the court from making the determination -- prohibit the arbitrator from making the determination of Jackson's challenge to unconscionability.
He then spent most of his remaining argument differentiating unconscionability as a post-formation complaint from actual formation complaints such as fraud in the inducement:
In contrast, unconscionability, and certainly the allegations we've seen here against the agreement, go to post-formation complaints, complaints about the fairness of the agreement. They do not go to the actual very limited making of the agreement.
He then restated his position that the express terms of the agreement should control:
[T]he primary purpose of the Federal Arbitration Act is to enforce arbitration agreements pursuant to their terms. Here there's no real dispute about what the terms are.
He ended early and reserved his time for rebuttal.

Counsel for the respondent opened with:
The Petitioner would have the Court adopt a rule whereby agreements to arbitrate are presumed enforceable before their validity has been determined by a court under section 2 of the Federal Arbitration Act. They would have people like Mr. Jackson waive their right to go to court through the use of a clause delegating this judicial function to the arbitrator.
His argument lacked focus and a central theme in the early-going, but his primary rationale became clear with a setup from Justice Breyer:
JUSTICE BREYER: But suppose . . . your client and the other side have absolutely agreed, clear as could be, under the arbitration agreement: We want arbitrated too whether the provision that these words are contained in is unconscionable. Can't they agree to that?

MR. SILVERBERG: Your Honor, the parties are -- don't necessarily have to take every issue to court, but should a party challenge that issue as unconscionable, that door should remain open.
His argument didn't really go beyond this policy concern, restating near the end:
[A]s long as that door is open under Section 2, then we don't have a concern about parties making the terms of arbitration so onerous or burdensome that they would not be able to access the arbitral forum.
The primary theme of access to the courthouse became clear by the Respondent's conclusion.

Justice Scalia
Justices Scalia offered a pretty pointed policy response to Respondent's argument:
JUSTICE SCALIA: Not much use signing an arbitration agreement then, not much for the employer, he is going to end up in court anyway, every one of them will be thought of as unconscionable . . . . Kiss good-bye to arbitration.

In his rebuttal, counsel for Petitioner cast Respondent's argument as "merely distrust of arbitrators."

Joe Bananas?
Justice Breyer brought up "Joe Bananas" multiple times today. For example, "Look, that is not my signature; that is the signature of Joe Bananas. We agree that's for the Court." The National Law Journal has more on Justice Breyer and Joe Bananas here.

Lawffice Space will keep you posted on this case, most likely providing analysis of the actual decision.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Thursday, April 22, 2010

Duty to Accommodate Commuting Difficulties Under the ADA

In Colwell v. Rite-Aid Corp. (.pdf), the Third Circuit held that "under certain circumstances the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work."

The Plaintiff worked part-time at Rite Aid and during the course of her employment went blind in one eye. She worked the evening shifts and had no problems, even after her vision impairment, with performing her work duties. She did have difficulty, however, with driving at night. She requested day shifts but Rite Aid refused, claiming it wouldn't be fair to other workers who had more seniority and/or worked full-time.

The District Court granted summary judgment in favor of Rite Aid:
"the accommodations that [Plaintiff] sought had nothing to do with the work environment or the manner and circumstances under which she performed her work, [and Defendant] had no duty to accommodate [Plaintiff] in her commute to work."
The Third Circuit disagreed:
"Instead, we hold as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates."
The Court quoted Congress:
"modified work schedules can provide useful accommodations" and noted that "persons who may require modified work schedules are persons with mobility impairments who depend on a public transportation system that is not currently fully accessible." H.R. Rep. No. 101-485(II), at 62-63 (1990), reprinted in 1990 U.S.C.C.A.N. 330, 345.
The Third Circuit reversed the District Court's grant of summary judgment as to Plaintiff's ADA reasonable accommodation claim and remanded for further proceedings.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Wednesday, April 21, 2010

Unpaid Internships Update

Earlier this month, I posted The 6 Requirements for Unpaid Internships. It has been a hot topic lately, and the Department of Labor is pushing the issue. Today, the DOL released Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act. It pretty much goes through the same 6 requirements I already listed in my blog entry but they changed the word "trainee" to "intern" and "training" to "internship." That said, there is some additional guidance following the list of requirements. It's also an indication that DOL continues to view this as an important issue. So employers, consider yourself warned.

HT: @jonhyman via Ohio Employer's Law Blog.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Tuesday, April 20, 2010

Now Appearing in ELinfonet

Exciting news! Employment Law Information Network ( asked me to join its collection of bloggers. Have no fear, I will continue to blog here at Lawffice Space. This is simply a new opportunity to publish my humble employment law writings, and possibly even attract some new readers to Lawffice Space. The entries on ELinfonet will be original publications and will not be reproduced here. However, I will alert my readers when a new post goes up.

I published my first entry today: Cat's Paw Coming to Supreme Court.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, April 19, 2010

Text Privacy at SCOTUS: Privacy, Policies, Privilege, and E-Discovery

The Supreme Court heard oral arguments in City of Ontario v. Quon today (transcript .pdf). On its face, the case deals with the Fourth Amendment, not generally considered a hot topic in employment law. But the first question presented (per the petitioner's brief) is:
Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.
There could be a number of implications in employment law and litigation generally.

The Supreme Court's opinion will likely address an employee's reasonable expectation of privacy under the circumstances presented in this case. A broad holding could set the standard for employee privacy in any number of electronic communications, including text messages on company-issued cell phones, email, social media, etc. This could affect common law privacy claims.

There are two aspects that could affect employers' policies. First, employers may need to edit their policies to protect any new privacy rights afforded to employees as described above. Second, the case may impact how courts address conflicts between "official" policy, and "informal policy."

Privilege analysis, most notably attorney-client privilege, often turns on the party's reasonable expectation of privacy. The Supreme Court's holding regarding the expectation of privacy in text messages on a pager may provide broader insight into other electronic communications involving the employer's equipment.

In 'Quon' Could Have Consequences for E-Discovery (.pdf), Farrah Pepper and Jeffrey Coren present a fascinating take on the case. In litigation, parties have a duty to preserve data in their possession, and possibly provide it to the opposing party in the course of discovery. As the article explains, if the Supreme Court recognizes a broad expectation of privacy, it could,
create confusion for private employers that seek to comply with discovery obligations without offending their employees’ privacy rights.
Employers may have trouble walking that line.

Quon has the potential to have a huge impact. That will depend largely on the holding. At the very least, it offers employers food for thought regarding technology, employee privacy, and the assorted legal issues they raise.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Friday, April 16, 2010

Selling Your Soul... Literally

Employment law is comprised of many things. Statutes, like Title VII and the ADEA. Case law, like Ricci and Gross. But at the very heart of our generally free market system, specifically as it pertains to employment, is the good old-fashioned contract.

Often employees don't even realize what they're getting into. Didn't you read the contract? ("Well, I looked at it..."). Do you know your employer's policy on such-and-such? ("I think I have some handbook from my first day..."). At this point, I'll stop to note that employers don't always know what's in the handbook, offer letters, supplemental agreements, and so on. Yet, these things regularly come up in Unemployment Compensation hearings and civil litigation.

With that being said, know your contract! FoxNews reports, not-so-shockingly, that not everyone reads their contracts. Especially online contracts. A British video game retailer added the following clause to its online order agreement:
By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from or one of its duly authorised minions.
Apparently, 7500 people accepted the terms of the contract and effectively sold their souls!

Now, a claim on someone's soul is not actually enforceable under U.S. law (I'm fairly certain that includes all states as well). But other clauses, very much enforceable, may be in there (ex. binding arbitration agreements). Employers need to know what's in their contract so they don't inadvertently generate litigation through breach claims. Employees need to make sure they're not selling their souls... literally or otherwise.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, April 12, 2010

Email Harassment - Jesse James Edition

The Jesse James-Sandra Bullock story continues to stay in the news, and why not? It has a celebrity couple, lurid affairs, allegations of Nazism, and a tattooed bikini model named "Bombshell." How could it possibly get any more interesting than that? If you said, "By adding employment law, of course!" Then congratulations, you're right!

In a Radar Online "Exclusive" the online entertainment site published emails between Jesse James and "mistress #5." She was an employee of James' West Coast Choppers who apparently sued him for sexual harassment. The story claims she settled "well into six figures," citing a "friend."

The emails are a little raunchy, but if they were in the midst of a consensual sexual relationship it may be hard to argue the emails were unwelcome. That said, I imagine settling a sexual harassment suit becomes a little easier when the alleged harasser is a celebrity... who is married... to one of the most famous actresses in the world.

There are two real-world lessons here (aside from the obvious - don't harass employees):

1. New technology provides a great way to communicate. Unfortunately, it also provides new opportunities for harassment whether by email as here, text messaging, or social media.
2. Include a confidentiality clause with teeth in settlement agreements!

Now, on point number 2, I would guess the agreement included one although I have no way of knowing for sure. Whether that will become an issue remains to be seen.

Image: Jesse G. James, American motorcycle manufacturer. Taken at the 2007 Scream Awards. This image was originally posted to Flickr by pinguino at This file is licensed under the Creative Commons Attribution 2.0 Generic license.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Sunday, April 11, 2010

The New Regime - SCOTUS, EEOC, NLRB

There has been a changing of the guard the past week or so. This will be a sort of catch-all post to highlight some of the changes.

Supreme Court
On Friday, Justice John Paul Stevens announced that he will retire from the Supreme Court this summer. Although Justice Douglas will retain the title for longest-serving Justice at 36 years 209 days, Justice Stevens's 34+ years is not too shabby. I'll keep everyone posted on Obama's second nominee (his first being current Justice Sotomayor), who has yet to be announced, from a labor and employment law perspective.

Justice Stevens recently wrote the dissent in Gross v. FBL and authored one of (if not the) most-cited Supreme Court cases in history, Chevron U.S.A. v. Natural Resources Defense Council. It's probably not famous outside of legal circles, but it's a monster in the field of administrative law (creating "Chevron Deference").

Equal Employment Opportunity Commission 
The EEOC issued a series of press releases last Wednesday and Thursday to announce its new leadership:

National Labor Relations Board
On April 7, 2010, Craig Becker and Mark Gaston Pearce were sworn in as the newest members of the NLRB. They are both Democrats and swing the balance of the Board to 3 Democrats to 1 Republican. One vacancy remains. President Obama appointed both of them as recess appointments. Becker is particularly controversial for his heavy union ties.

Some of you may recall that the Supreme Court heard oral arguments in New Process Steel v. NLRB a few weeks back. That case will determine whether a 2-member NLRB has authority to decide cases under the National Labor Relations Act (NLRA). Although the NLRB now has four members, the case is not moot (in other words, it still matters) because the Supreme Court will decide whether the 2-member board's decisions from the last two years still count.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Wednesday, April 7, 2010

Work Flexibility and Absenteeism

The White House Council of Economic Advisers issued a new report, Work-Life Balance and the Economics of Workplace Flexibility (.pdf). The new report contains some common sense, some empirical data, and some advocacy for certain workplace policies.

One particularly interesting section shows the effect a flexible work schedule program had on one subdivision of a large public utility. The chart shows absenteeism in that subdivision in comparison to other subdivisions that did not implement the flexible work schedule.
As you can see, the subdivision that implemented the program had a similar rate of absenteeism to the rest of the utility (actually a little higher) both before and after the temporary program. During the program, however, the rate in that subdivision dropped significantly. Granted this is a sample size of a whopping one employer. Still, it offers some evidence that flexible scheduling may save money by cutting the costs of absenteeism.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Lawffice Space #1 in PA... for now

Lawffice Space appears in numerous places across the Web. Just check out my Web 2.0 page for a few examples. Among the places in which it appears is a collection of Pennsylvania law blogs compiled by Justia. Earlier today, Lawffice Space reached number 1, as the most popular law blog in Pennsylvania:

A few caveats: 1. The popularity rankings fluctuate so #1 today may be #20 tomorrow; 2. Justia doesn't list every law blog in Pennsylvania; and 3. Lawffice Space is still #243 in overall rank (and #7 in employment law) so there's plenty of room for growth! Still, I owe the readers a debt of gratitude for continuing to increase Lawffice Space's visibility across the web. Thank you!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Tuesday, April 6, 2010

The 6 Requirements for Unpaid Internships

Are unpaid internships illegal? A recent New York Times piece suggests that many of them are. Nancy Leppink, acting director of the Department of Labor's Wage and Hour Division is quoted in the article as saying,
"If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law."
She pointed to the six federal legal criteria in a document published by the DoL.

This topic has been getting some coverage in the blog circuit from Volokh Conspiracy, NOLA, and Neatorama. The DoL document identifies a six-factor test under the Fair Labor Standards Act to evaluate whether a worker is a trainee (and therefore the FLSA's minimum wage and overtime provisions are inapplicable), or an employee:
1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees;

3. The trainees do not displace regular employees, but work under their close observation;

4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;

5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
Number four is a real doozy! I personally view unpaid internships as mutually beneficial transactions. Student gets experience, resume content, and instruction. Employer gets unpaid work. The FLSA framework creates more of a charitable giving scenario in which employers are expected to provide busywork (that is in no way actually productive) to students in return for absolutely nothing. That sounds less enticing to both parties if you ask me. But maybe it will prompt some employers to start paying their interns.

Update (4/7/2010): Time Magazine recently ran Working for Free: The Boom in Adult Interns (HT @TBEmploymentLaw). John Stossel has also offered his "Take" on the issue.

Update (4/21/2010): DOL Issued a Fact Sheet on this Topic.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, April 5, 2010

Unemployment Compensation Set to Expire Today

Federally funded emergency unemployment compensation programs begin phasing out today, April 5, 2010. As CNN reports:
"Extended unemployment benefits will temporarily expire for thousands of Americans on Monday because the Senate went on its spring recess without approving a one-month deadline extension."
COBRA premium reductions benefits are likewise set to expire today.

Of importance to Pennsylvanians receiving Unemployment Compensation, the Pennsylvania Department of Labor and Industry announced:
"Benefit payments will continue without interruption if Congress acts quickly to extend the program when it returns on April 12. If there are any benefit changes as result of the new legislation being considered by Congress, the department will notify the affected individuals."
So the ball's back in Congress's court when they return on April 12. The Pennsylvania DLI offers information regarding the phase-out of EUC/EB*, here.

*Emergency Unemployment Compensation (EUC), and Extended Benefits (EB).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Friday, April 2, 2010

Ledbetter - Document Creation and Retention on The Proactive Employer

I appeared on The Proactive Employer , hosted by Stephanie Thomas, this morning. A few weeks ago, I announced that I would be appearing to discuss:
"[C]ompensation decisions . . . [and] how the Ledbetter Fair Pay Act has affected recordkeeping and document creation and retention."
If you missed it, you can listen on the embedded Podcast Player below:

Player may not display properly in email. If not, use one of the following links:

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.