Friday, February 25, 2011

Attorney-Client Privilege Goes Both Ways in PA - COTW #29

On Wednesday, the Pennsylvania Supreme Court issued its opinion in Gillard v. AIG Insurance, Co. The Court considered "whether, and to what degree, the attorney-client privilege attaches to attorney-to-client communications." It's the Lawffice Space employment law Case of the Week, although clearly it will have huge ramifications for all attorneys across the state of Pennsylvania.

Pennsylvania statute provides:
In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.
42 Pa. C.S. § 5928 (emphasis added). This provides a significant textual roadblock for protecting communication by the attorney. Although, the Pennsylvania Constitution grants the Supreme Court the broad "power to prescribe general rules governing practice, procedure and the conduct of all courts." Pa. Const. Art. V s. 10(c).

The 5-2 majority opinion concluded:
We hold that, in Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.
It's hard to find a clearer holding than that!

HT to my colleague, Jon Stepanian, who authored a great post on this topic on his Defense of Medicine blog: Attorney-Client Privilege a Two-Way Street After All.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, February 23, 2011

SCOTUS to Decide When Arbitration Waiver Becomes Binding

Yesterday, the Supreme Court granted certiorari (i.e. agreed to hear the case) in Stok and Associates v. CitiBank. The Court seems pretty excited about arbitration issues lately. Here, the question presented by Stok in its petition for certiorari is stated as:
Under the Federal Arbitration Act ("FAA"), should a party be required to demonstrate prejudice after the opposing party waived its contractual right to arbitrate by participating in litigation, in order for such waiver to be binding and irrevocable?
The gist of this is that parties often waive their arbitration agreements to resolve matters in court. When does that waiver become irrevocable? When one party wants to revoke its waiver, must the other party show prejudice to prevent such revocation?

One interesting note: Stok appears to be representing itself, which is super awesome (that's a term of art). HT to SCOTUSblog which always has mind-bogglingly amazing coverage of the Supreme Court.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, February 22, 2011

Why isn't Sex Discrimination Disappearing?

Why are sex discrimination claims so prevalent in a supposedly enlightened age? Yeah, it's a pretty tough question and there is no way I'm going to be able to definitively answer it in a blog entry. Nor is it possible to pinpoint reasons in a magazine article. But Judy Greenwald does a nice job of identifying some major factors and theories in Gender Bias Claims Not Slowing Down (Business Insurance, may require subscription).

She identifies several possibilities for the continuance of sex discrimination claims: more women in the workplace, poor economy, increased litigiousness, more aggressive enforcement agencies (EEOC, DOL), a shift to subtler discrimination, technology-based harassment, different familial roles... oh, and who's this guy?

Philip K. Miles III, an associate with law firm McQuaide Blasko in State College, Pa., said in addition, “Although we do live in a more enlightened age, you still have just the remnants” of earlier times.

“Management and leadership in business today are still comprised of people who maybe grew up in a different time in which gender discrimination was more prevalent,” said Mr. Miles.
There's certainly no shortage of theories, and several factors likely play a role. Check out the full article for a great overview.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, February 21, 2011

Yes Pennsylvania, There is a Presidents' Day

Lawffice Space readers may recall two posts I published last year explaining that "Washington's Birthday" is a federal holiday and "Presidents Day" is not. See general history and a gentle criticism of some misreporting. Well fear not Pennsylvania, there is a Presidents' Day and it is today!

Pennsylvania has a statute designating holidays that specifically includes "the third Monday of February, known as Presidents' Day." 44 Pa. Stat. Ann. § 11. I find it interesting that Pennsylvania uses the possessive form, indicating that the day belongs to the presidents. By contrast, the federal holiday, Veterans Day, does not use an apostrophe indicating possession. The theory is that it is a day to celebrate all veterans (plural, not possessive). However, here too, Pennsylvania has designated it Veterans' (possessive) Day.

So, happy Presidents' Day Pennsylvania.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, February 17, 2011

Med Mal Retaliation as Wrongful Termination - COTW #28

We all know (I hope) that the federal employment discrimination statutes prohibit retaliation against employees who file discrimination complaints. The latest employment law Case of the Week is a Pennsylvania case with a different kind of retaliation claim... medical malpractice ("med mal" to the cool kids) retaliation. In Haun v. Community Health Systems, Inc., 2011 WL 166324 (Pa. Super. Jan. 19, 2011), the Court appears to recognize that med mal retaliation is a cognizable claim in Pennsylvania.

The plaintiff, Mr. Haun, was the CFO of Phoenixville Hospital, and his wife gave birth to twins at the same hospital. Sadly, in the ICU, one twin became disconnected from his IV and suffered severe and irreversible injury to his central nervous system. So, Mr. Haun filed a med mal claim against the hospital. The hospital later terminated him because he was "an adversary of the company and it's too much risk."

Next stop for Mr. Haun? A "wrongful termination in violation of public policy" claim. The hospital filed a preliminary objection because "Haun failed to plead a recognized public policy exception to Pennsylvania's employee at-will doctrine." The trial court overruled the objection, which brings us to the Superior Court decision. The Court held that:
[D]oubt exists as to whether [the hospital's] demurrer to [Mr. Haun's] claim of wrongful termination of at-will employment in violation of public policy should have been sustained. Thus, we resolve that doubt in favor of overruling the preliminary objections.
Hardly a ringing endorsement of med mal retaliation... but they're sayin' there's a chance.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, February 16, 2011

Huntingdon County Added to Pennsylvania Courthouses Photo Album

I added the Huntingdon County Courthouse to the Pennsylvania Courthouses Photo Album. Yes, the pictures from the trip I recounted in Do Smartphones Increase Productivity. It's another beauty, with a nice clock tower and small town appeal. As an added bonus, it has its own parking lot where visiting attorneys can park while conducting business at the Court.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, February 15, 2011

NFL v. Players Association - NLRB Complaint

I'm still recovering from watching my beloved Steelers lose the Super Bowl, and I'm already getting worried about next season. If you haven't heard, labor relations seem a little rocky these days. Yesterday, the League filed an unfair labor practice charge over the Players Association's plan to decertify (NBC Sports).

For the technical details, here's a copy of the actual Complaint. Credit where it's due, Seth Borden and Labor Relations Today have great coverage and provided the Complaint in NFL Files Unfair Labor Practice Charge Against NFLPA. The specific charges include delaying the scheduling of bargaining sessions, failing to respond in a timely and/or meaningful manner to contract proposals, inducing proposals that are then categorically rejected, insisting upon disclosures of financial data and suspending negoatiations absen such disclosures, and more.

As the NBC Sports story describes it:
The NFL believes that the union has engaged in "surface bargaining," along with tactics designed to avoid reaching an agreement before the CBA expires, so that the union can file antitrust litigation.
They better get things straightened out so the Steelers can make another run at seven!

HT Eric Meyer via Twitter for the link to the Complaint; and Donnell Thompson via Facebook for the NBC Sports story.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

My New Post on ELinfonet: 3rd Party Retaliation Exists... But When?

I posted a new entry on the Employment Law Information Network (ELinfonet): Supreme Court Holds that 3rd Party Retaliation Exists… but When? I discuss the Supreme Court's decision in Thompson v. North American Stainless, and highlight the difficulty in determining which relationships are covered. Enjoy!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Saturday, February 12, 2011

Do Smartphones Increase Productivity?

Last week, I had two hearings scheduled a few hours apart in Huntingdon, Pennsylvania. It didn't make sense to come back to the office between them, so I was stuck in my mobile office (aka my car) with some free time. I spent a good bit of time pouring over the file for my afternoon hearing, but in retrospect, I also got a lot done with my iPhone:

  • After the morning hearing, I sat in my car and used Dragon Dictation on my iPhone to dictate a memo about that hearing. Then I emailed it to myself so when I got back to the office it was ready to paste into a Word memo form and deliver.
  • I took some pictures of the Huntingdon County Courthouse for the Pennsylvania Courthouses Photo Album (they'll be added to the album soon!).
  • Then I pulled up my contacts and retrieved the number for opposing counsel in a case we've been working to settle. I called him up and talked about the case and a hearing that was scheduled for the following week.
  • I used Google Voice Search to find the nearest McDonald's and then used Maps to get there (OK, I don't know if that counts as "productivity" but I wanted some McGriddles, and I barely function without coffee).
  • I sat in McDonald's and retrieved an email with a 50-page .pdf attachment of a contract I'm reviewing. I was able to review it from my phone right there.
So, do smartphones increase productivity? Seems that way to me!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, February 10, 2011

The Judge has Sent You a Facebook Friend Request - COTW #27

This week's Case of the Week involves an unconventional take on in camera review. The case is Barnes v. CUS Nashville, LLC from the Middle District of Tennessee. A discovery dispute arose over pictures on Facebook. In discovery disputes, it's not unusual for a judge to review the material in question ("in camera") and decide whether it should be provided. In this case, the judge took an interesting approach:
In order to try to expedite further discovery regarding the photographs, their captions,and comments, the Magistrate Judge is willing to create a Facebook account. If Julie Knudsen and Michael Vann will accept the Magistrate Judge as a “friend” on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties.
I guess the question is: Will he issue an order indicating which photos and comments must be coughed up, or will he just "Like" them?

While we're on the topic, Facebook unveiled a new layout for its Fan Pages. The Lawffice Space page has already been upgraded, so check it out. And if you like it then... well, "Like" it.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, February 7, 2011

NLRB Settles Facebook Case

Remember Case of the Week #15, Is Facebook a Protected Activity? The NLRB issued a complaint alleging that an ambulance service employee was terminated for posting negative comments about her supervisor on Facebook, and responding to comments from her co-workers. According to the NLRB, that was protected activity under the National Labor Relations Act (NLRA).

Today, the NLRB announced that it has reached a settlement agreement with the employer:
[T]he company agreed to revise its overly-broad rules (regarding blogging, Internet posting, and communications between employees) to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.
A separate, private agreement was reached with the individual employee in question.

This was not really the best test case for NLRA social media protections in my opinion. The "protected activity" was, frankly, juvenile (and possibly defamatory) name-calling instead of legitimate workplace grievances. That said, employers should be mindful that Facebook posts (and other Internet postings) could be protected activity.

Also, note that the settlement takes aim at the employer's "overly-broad" policies. It may be time for employers to examine their policies regarding social media and disparagement of co-workers. It's a tough line to walk between protecting civility and infringing on protected activity.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Sunday, February 6, 2011

3rd Party Retaliation on The Proactive Employer Podcast

I appeared on The Proactive Employer Podcast on Friday to discuss Thompson v. North American Stainless, the recent Supreme Court case. The Court held that an employer could be liable for third party retaliation under Title VII for firing the fiance of an employee who filed an EEOC charge.

You can listen to the episode in the player below:
For email subscribers, if the player is not displaying properly click here to listen online.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Saturday, February 5, 2011

Waterboarding Case: The Movie?

Remember Case of the Week #19, Waterboarding, Fake Mustaches, and Other Workplace Motivational Exercises? David Foley, blogger at LaborRelated, has a great post on the case. And, it includes a movie!



If the video is not displaying for email subscribers, click here to view online.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, February 4, 2011

NLRB's "Preemptive Strike" - COTW #26

Let's say an employee approaches her manager with a complaint. She claims she heard a rumor that someone who quit was brought back and given a higher salary. She says something like, "the whole unit should quit and come back with a raise!" To date, she has not acted in concert with anyone to address this issue. If the employer fires her, does she have a claim under the National Labor Relations Act (NLRA)? That's the setup for this week's employment law Case of the Week - Parexel International, LLC and Theresa Neuschafer, 5-CA-33245.

The NLRB held:
If an employer acts to prevent concerted protected activity — to "nip it in the bud" — that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more . . . . [L]ines of Board precedent [have held] that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action.
This decision is a warning for employers that launching a "preemptive strike" against an employee who merely intends to engage in concerted activity is a no-no.

HT: Jon Hyman of Ohio Employer's Blog: One is the loneliest number - unless you've filed an unfair labor practice charge. Jon sees some potential for this to be a pro-employer decision while covering commentary from others that this gives employees a cause of action any time an employee complains and gets fired.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, February 3, 2011

E-Discovery - Litigation Hold Rule on the Way?

Corporate Counsel has a great piece on a potential new amendment to the Federal Rules of Civil Procedure detailing e-discovery duties in litigation: In the Long Winter of eDiscovery, a Glimmer of Spring.  The highlight for me was a link to thoughts on a new rule from an all-star panel, including Judge Scheindlin of Zubulake fame. The memo is available here.

While I think you should just read the whole thing, here's a high level overview of whet they think a new e-discovery rule should address:
  • Triggers: When is the duty to preserve electronically stored information (ESI) triggered?
  • Scope: What must be preserved, relevant timeframe, form in which to store it, etc.
  • Duration of the hold
  • Ongoing Duties
  • Litigation hold is evidence of due care
  • Work product/privilege issues
  • Consequences for failure (ex. Sanctions)
  • Judicial determination of issues
I think they did a great job of identifying the major issues that need to be addressed. As is, parties are left doing 50% legal research 50% guesswork on a lot of these issues (rough estimate).  Of course, identifying the problems is only half the battle...

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.