Friday, July 29, 2011

HR and Social Media Podcast

Thomas Econometrics -
The Proactive Employer Podcast
By now, you're probably sick of me promoting the new HR and social media book, Think Before You Click: Strategies for Managing Social Media in the Workplace, and bragging about my chapter in it, "What is Social Media?" But, what if I told you that all of the authors participated in a very-special, two-part episode of The Proactive Employer podcast? Well, guess what....

That. Just. Happened.

Part I:

If the audio player is not displaying properly, click here to listen.

Part II:

If the audio player is not displaying properly, click here to listen.

For more information about the podcast and the awesome lineup of participants, check out the information page here. Once again, thanks to Jon Hyman for coordinating the book and Stephanie Thomas for having us on the podcast.

Reporting Sex in the Supply Closet Not Protected Activity – COTW #51

We have another bizarre fact pattern from the world of employment law in the latest employment law Case of the Week. A grounds worker was making his rounds, and collecting garbage. Of course, you can’t collect garbage without garbage bags, so he went to the supply closet… but it was locked. No problem, he had a key. So, he just unlocked the door and opened… oh dear… he “found the housekeeping supervisor and one of the housekeeping workers engaged in sexual activity.” That's enough to ruin your workday.

He reported the “incident” to the Facility Manager, but nobody ever followed up with him. There was never an investigation, and the culprits were never disciplined. So, the employee reported what he thought was a mishandling of the situation to human resources. A few months later, the employee was asked for his driver's license, which proved problematic. He was terminated for falsifying his application and not having a valid driver’s license. And, as is often the case in Cases of the Week, the “employee” became the “plaintiff.” Here, we have a retaliation claim. The plaintiff charged that he had been retaliated against for reporting the sex acts.

To state a claim for retaliation, a plaintiff must have “a reasonable, good-faith belief that the underlying conduct that [he] opposed violated Title VII.” The Court found that the employee witnessed an “isolated incident,” not pervasive sexual harassment. He “stumbled upon two persons engaged in sexual activity, which was not directed at him or his status as a man.” So, the Court held that “no reasonable person could believe that the incident opposed by Plaintiff constituted a violation of Title VII.” Retaliation for reporting two people having sex in the supply closet claim dismissed.

Citation: Zimpfer v. Aramark Mgmt. Servs., 2011 WL 2533021 (D. Utah 2011).

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, July 28, 2011

NLRB Issues Facebook Advice

The NLRB Division of Advice issued not one… not two… but three advice memorandums analyzing when employee Facebook posts constitute concerted activity, protected by the NLRA. Spoiler alert: the employee/charging party goes 0-3 this round. Three charges, no concerted activity, and three recommendations to dismiss the charges. Here's a rundown:

Martin House

In one case, Martin House (.pdf), the employee posted comments about patients with mental disabilities while working at a facility for homeless people. Some friends chimed in, but none of them were co-workers. In fact, none of the Employee’s Facebook friends were co-workers. The advice memorandum states:
The Charging Party did not discuss her Facebook posts with any of her fellow employees, and none of her coworkers responded to the posts. Moreover, the Charging Party was not seeking to induce or prepare for group action, and her activity was not an outgrowth of the employees’ collective concerns. In fact, her Facebook posts did not even mention any terms or conditions of employment.
Seems like a no-brainer: no concerted activity. The Employee was terminated following a complaint from a former client who was friends with the Employee on Facebook. The employer had problems with the Employee disclosing potentially confidential client information, using clients’ illnesses for personal amusement, and Facebooking when she should have been working.

JT’s Porch Saloon & Eatery

In another case, JT’s Porch Saloon and Eatery (.pdf), the Employee engaged in a Facebook conversation with his step-sister which led to his termination. He complained that he hadn’t received a raise in five years and he had to help waitresses serve food but did not share in their tips. Sounds like it was related to terms and conditions of employment… so far, so good! But wait… uh oh… he also called the customers “rednecks” and “hoped they choked on glass as they drove home drunk.” That’s not gonna help.

Ultimately, the issue once again came down to whether the employee had engaged in concerted activity. The advice memorandum states:
[H]e did not discuss his Facebook posting with any of his fellow employees either before or after he wrote it, and none of his coworkers responded to the posting . . . . There also was no effort to take the bartenders’ complaints about these matters to management. In this instance, the Charging Party was merely responding to a question from his step-sister about how his evening at work went.
Sounds a lot like the first one. No concerted activity.

Wal-Mart

Finally, in Wal-Mart (.pdf), a customer service employee got a stern warning after some colorful Facebook gripes. Specifically, he proclaimed “Wuck Falmart,” called an Assistant Manager a “super mega puta,” complained that it was “retarded” the way he was chewed out for things that weren’t his fault, and said he’s talking to the Store Manager “cuz” if this “shit . . . don’t change walmart can kiss my royal white ass.” He really has a way with words. Some co-workers chimed in with “bahahaha,” “like,” and asking what gets him so wound up.

Despite the juvenile tone, this one’s got some potential! The posts are about work and co-workers actually responded! Alas, it still failed though. The advice memorandum described it as merely an “individual gripe” that didn’t “initiate or induce coworkers to engage in group action.” But what about the responses from co-workers?
[N]one of the coworkers’ Facebook responses indicate that they otherwise interpreted the Charging Party’s postings. Employee 1 merely indicated that he found Charging Party’s first Facebook posting humorous, while Employee 2 asked why the Charging Party was so “wound up.” Another coworker’s “hang in there”-type comment suggests that she only viewed his postings to be a plea for emotional support.
No concerted activity.

For more coverage on these cases, see Seth Borden’s Labor Relations Today: NLRB Division of Advice Provides Additional Guidance on Social Media Issues.

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, July 27, 2011

Noncompete Defamation Leads to Six-Figure Verdict

Today's post is a cautionary tale for employers. If you're going to enforce a noncompete... you'd better make sure the employee in question actually signed a noncompete. A $123,000 jury verdict from Pennsylvania drives the point home. Kitchen v. McGrath Technical Staffing, Inc., Case No. 09-06-01259 (Phila. Cty. March 2, 2011).

In that case, an employer terminated one of its employees, who then started working for a competitor. The employee/plaintiff alleged that his ex-employer began sending him, and his new employer, harassing letters claiming that the employee was bound by a noncompete. The president and HR director even signed an affidavit attesting to the fact that the employee signed a noncompete. The new employer then terminated the employee.

Well, there's just one problem... the employee never signed the noncompete. He testified that he was presented with one but refused to sign it. At trial, the HR director admitted that he never signed it but claimed that at the time they thought he had. That was enough for the jury to award the plaintiff six figures.

Sidenote: The plaintiff's claims were defined as Defamation, Interference with Contractual Relations, and Invasion of Privacy.

Source: Pennsylvania Jury Verdict Review & Analysis, Vol. 26, No. 6 (May 2011).

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, July 26, 2011

Too Small to Sue

If you Google Too Big to Sue, you will get a bunch of stories about Wal-Mart v. Dukes (or maybe Google is just tailoring the search results to the employment law nerd in me, you'll have to try it and let me know). Of course, that's not even close to reality. You can still sue Wal-Mart. You can still sue Wal-Mart for employment discrimination. You can even sue Wal-Mart for employment discrimination as part of a class action - you just need glue.

But, in employment law there are many statutes under which employers can be too small to sue. Many of the statutes only apply to employers with a certain number of employees. A quick rundown of some of the important ones:
  • Title VII (Sex, Race, Religion, Color, National Origin) - 15 or more employees
  • ADEA (Age) - 20 or more employees
  • ADA (Disability) - 15 or more employees
  • GINA (Genetic Information) - 15 or more employees
  • FMLA (Family & Medical Leave Act) - 50 or more employees
Of course, nothing is that simple in the world of employment law. The calculations themselves can become difficult. For example, the Department of Labor website provides the following with regard to FMLA coverage:
Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.
And then there are the alternate routes to the same destination. For example, a Pennsylvania employer with 10 employees is not covered by Title VII... but is still prohibited from discriminating on the basis of race by the Pennsylvania Human Relations Act (generally covering employers with four or more employees). Other states have a wrongful termination (aka public policy exception to at-will employment) tort that allows employees to sue their employers for certain types of discrimination regardless of size.

The bottom line is that many employment law statutes carve out exceptions for employers that are "too small to sue." But, the calculation may be harder than you think.

Friday, July 22, 2011

HR and Social Media - The Book is Here!

Back in April, I announced that I was contributing a chapter to a new book, HR and Social Media: Practical and Legal Guidance. Ladies and gentlemen... it's here. The newly titled Think Before You Click: Strategies for Managing Social Media in the Workplace (available here), is now available for electronic purchase from Thompson publishing. The book was authored by attorneys who both practice in employment law and heavily utilize social media. I think it will be a great resource for HR, business professionals and attorneys looking for analysis regarding the intersection of law, social media, and the workplace.

Humongous "thank you" to Jon Hyman, who organized and led the team, authored content, and edited the book. You can read his announcement and additional details here.

Claustrophobia + Cubicle = ADA Settlement = COTW #50

Claustrophobia: abnormal dread of being in closed or narrow spaces.

Cubicle: a small partitioned space; especially: one with a desk used for work in a business office.

What happens when an employee with claustrophobia works in a cubicle? Well, in the latest Case of the Week, it results in an Americans with Disabilities Act (ADA) lawsuit. The Las Vegas Review Journal has the scoop on a $150,000 settlement arising from this combination of claustrophobia and cubicle.

The story discusses the impact of the ADAAA in cases such as this. The basic point being that anxiety attacks were previously viewed as temporary and therefore difficult to establish as disabilities. Under the new amendments of the ADAAA it is much easier.

The employee in this case was transferred to a position that required her to work in a cubicle which brought on severe anxiety. Per the article, "two doctors backed up her claim of debilitating claustrophobia" but the employer didn't do anything about it. The employee transferred to another position but was still in a confined space. She was eventually terminated, with management claiming she was unable to do her job.

Just another reminder for employers to make those good faith efforts and engage in the interactive process and all that other ADA-ish good stuff.

HT: Stephanie Thomas (@ProactiveStats) - Cubicle Walls Closing in on ADA Violation; and +Laura Woods who posted the story on Google+.

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, July 20, 2011

Sexual Orientation Nondiscrimination Stalling at State and Local Level

Business Insurance magazine recently published an article, Most Anti-Bias Efforts Stall with Changes at State Level. Twenty-one states plus DC prohibit sexual orientation employment discrimination, but protection at the federal level is just about nonexistent (some vague/minimal protection through the Constitution).

In addition to state protections, some local municipalities also have sexual orientation nondiscrimination ordinances. This creates a disparity in protected classes from location to location. I provided some of my thoughts on the subject and was quoted in the article:
Philip K. Miles III, an associate with McQuaide Blasko in State College, Pa., said, "I think there's some argument to be made in having uniformity of the laws," without employers having to worry "about what is OK in one city and not another."
It's tough for employers to keep up when you have to know the different protected classes on a state-by-state and even town-by-town basis.

Pennsylvania Unemployment Compensation Reform: Shared-Work Program

Pennsylvania recently passed significant Unemployment Compensation reform. Here's a copy of the new law, highlighting changes. I have already done posts on:
Today, I want to highlight one more piece of the new unemployment benefits framework: the shared-work program.

While there are some technicalities, here's the gist of it. Let's say you're an employer and you have a work unit, perhaps a specific shift or a department, with too many employees and too little work. You're considering terminating someone who will then be without a job and collecting unemployment benefits. Now, employers have another option: the shared-work program.

Employers will take the affected unit and reduce all of the employees' hours across the board (by, let's say 20%). This way, the employer will save the money that they would have saved by terminating employees. The employees whose hours are reduced are given unemployment compensation benefits calculated based on the time they are "unemployed" (in our example, 20%). So, they don't feel the full pinch of having their hours reduced.

Nobody wants to let good employees go, and the employees don't want to be terminated. This is a nice compromise that allows everyone in the work unit to stay employed and share the available work.

Image: Photograph of the Centre County CareerLink where Unemployment Compensation Referee hearings are held (and a lot of resources for employers and employees dealing with unemployment).

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, July 19, 2011

Bill Clinton and the "Extreme and Outrageous" IIED Hurdle

Generally, employees can't bring lawsuits on the theory that their boss is a jerk. When people who have been mistreated find out there's a tort called "Intentional Infliction of Emotional Distress" (IIED), however, they often think they have a pretty good claim. After all, their boss did something intentionally... that inflicted... emotional distress. But there's one giant hurdle that can't be discerned just by looking at the name of the tort: The offending conduct must be "extreme and outrageous."

Doesn't sound so bad. After all, isn't intentionally inflicting emotional distress on someone always outrageous? Well, the law may use these words to mean something a little different from its common usage. Perhaps a better description would be REALLY extreme and outrageous (yes, obnoxiously bolded, capped, underlined, and italicized).

Dan Schwartz (CTEmploymentLawBlog) has a story of a workplace IIED claim that failed because it wasn't extreme and outrageous enough: Looking at Employee and Going “Bang Bang” Is Not “Extreme and Outrageous” Conduct. If you're looking for an egregious, and easy to remember, example of just how high a hurdle this is, then here's a great case for you (Warning: adult content to follow).

In the famous case of Paula Jones and Bill Clinton, Ms. Jones alleged:
Plaintiff states that she sat down at the end of the sofa nearest the door, but that the Governor approached the sofa where she had taken a seat and, as he sat down, "lowered his trousers and underwear, exposed his penis (which was erect) and told [her] to 'kiss it.' " She states that she was "horrified" by this and that she "jumped up from the couch" and told the Governor that she had to go, saying something to the effect that she had to get back to the registration desk. Plaintiff states that the Governor, "while fondling his penis," said, "Well, I don't want to make you do anything you don't want to do," and then pulled up his pants and said, "If you get in trouble for leaving work, have Dave call me immediately and I'll take care of it." She states that as she left the room (the door of which was not locked), the Governor "detained" her momentarily, "looked sternly" at her, and said, "You are smart. Let's keep this between ourselves."
Do you see where this is going? The Court held that her claims "fall far short of the rigorous standards for establishing a claim of outrage."

A word of caution: with a vague standard like "extreme and outrageous" results may vary. And definitely do not try this at home (or the workplace). But the fact that one court felt such conduct fell "far short" is an indication of just how difficult it is to establish an IIED claim.

Citation: Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998) appeal dismissed and remanded, 138 F.3d 758 (8th Cir. 1998).

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, July 15, 2011

Noncompete Doesn't Prevent Ex-Employee from Working for Competitor - COTW #49

Many jurisdictions disfavor noncompetes, including my home state of Pennsylvania. In fact they're strictly construed against the employer under Pennsylvania law. This Case of the Week shows that there are circumstances in which a noncompete won't even restrict an employee from going to work for a competitor of the employer with whom she entered in to the agreement.

The employee was working for Colorcon, and her new employer is Sensient. If you didn't know (and believe me, I didn't know before this lawsuit) they compete in the food and pharmaceutical colorant industry. But, the employee signed a noncompete when she started.

Colorcon terminated her in July and they entered into a severance agreement. The severance agreement gave her money and some benefits in exchange for waiving all claims and... you guessed it, reaffirmance of her noncompete. So, she did receive consideration.

So what's the problem then? First, the employee was working in the food colorant group with the old employer; and she's working with the pharmaceutical colorant group with the new employer. Despite, significant overlap between the two fields, the Court found that the employee was not breaching the noncompete which prohibited working in the same "technical area" (remember that bit about construing agreements against the employer?).

Anything else? Yeah, the employee was terminated. Contrary to popular belief this is not determinative but enforcing restrictive covenants against fired employees is certainly disfavored (in Pennsylvania). There were some other negatives too: she would likely be terminated by the new employer and have trouble finding a new position, she would be foreclosed from many of the jobs for which she is qualified, and it would jeopardize her payment of bills and other debts (student loans).

Further proof that enforcing noncompetes and restrictive covenants in Pennsylvania is tough work!

Citation: Colorcon, Inc. v. Lewis, CIV.A. 11-1700, 2011 WL 2149741 (E.D. Pa. May 31, 2011).

HT: The Legal Intelligencer: Court Won't Enforce Restrictive Covenant Despite Work in Same Industry (subscription required).

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, July 12, 2011

SCOTUS Employment Law Year in Review 2011

I was going to mime the Supreme Court’s biggest employment law cases on YouTube in response to Eric Meyer’s Haiku… but I ran out of face paint. Here’s the best SCOTUS had to offer in employment law in the past year:

Class Actions
Wal-Mart v. Dukes – The biggest emplaw case of the year - literally, with a potential 1.5 million member class, and in terms of media coverage. The Court held that a nationwide class seeking certification to bring discrimination claims needed some "glue” to bind their claims into a class. The Court was unanimous in reversing the Ninth Circuit, but split 5-4 on the commonality analysis. Lawffice Space had this case covered within about 30 minutes of the opinion's release.

AT&T v. Concepcion – While not strictly an employment law case, the Court suggested that employment contract arbitration clauses which prohibit classwide arbitration are enforceable and trump state laws.

Public Employee Petition Clause
Borough of Duryea v. Guarnieri - The Court held that public employee First Amendment Petition Clause claims should be treated like free speech claims, requiring that the petition address a matter of public concern and not merely a private employee grievance.

Retaliation
Kasten v. St. Gobain - The Court held that the FLSA's antiretaliation provision protects oral as well as written complaints. Although the Court didn't specifically address internal vs. external complaints, I think the opinion points toward protection for both internal and external complaints. Federal courts in Pennsylvania protect internal complaints.

Thompson v. North American Stainless - The Supreme Court held that third party retaliation exists. Specifically, an employee could bring a Title VII retaliation claim where her employee allegedly terminated her fiance in retaliation for her own discrimination complaint. It's nice to know third party retaliation exists, but determining when can be a little tricky. I hit the media with this one, with quotes in LawyersUSA and an appearance on The Proactive Employer podcast.

Cat's Paw
Staub v. Proctor Hospital - The Court recognized that employer's can be liable under the "cat's paw" theory where: "a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action." It was a USERRA case but should apply elsewhere (specifically Title VII). I detailed some of the finer points of the decision here.

Informational Privacy
NASA v. Nelson - The Court once again punted on a high profile privacy case, holding that the government's interests as an employer in knowing about employees' drug, treatment, and counseling histories outweighed any "informational privacy" right that might maybe sorta exist.

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, July 11, 2011

Google+: Shiny and New... but the Same

Another social network hit the scene last week: Google+. So what? New social media tools pop up all over the web all the time, so why is this one any different? Well, for starters, it's from Google. You may have heard of 'em... ya know, the #1 website in the world, the top blogging platform (Blogger, which is itself the #5 site in the world), and one of the top webmail services (Gmail). For that reason alone, it will make a splash. But what do employers need to know?

Dan Schwartz seems to think: not much... yet. I tend to agree with him, there's nothing specific to Google+ that calls out for attention. But, it is important to understand social media generally - that doesn't mean hopping on every single network and revolutionizing your HR practices every time there's a new site. Ultimately, there are two key aspects of social media and social networking tools that employers should understand: 1. they facilitate connections to other people (friends, audiences, people with shared interests, etc.); and 2. they facilitate self-publication and sharing of information.

This opens up a host of important issues... enough to write a book (insert shameless self-promotion of upcoming book, HR and Social Media: Practical and Legal Guidance, featuring a chapter by yours truly). Despite some cool  tools, Google+ is just more of the same... connecting with people and sharing content. Nothing that requires specific attention, yet. There's no reason to think Google+ posts will be any more or less discoverable than Facebook posts. The next Anthony Weiner incident could easily happen on Google+... in fact, the new video "Hangouts" feature is just screaming for a Weiner-esque... errr "hangout." But employers should already have policies in place that address these already-existing social media issues. So, aside from staying hip and knowing the "big players," Google+ hasn't shown anything that warrants specific attention yet.

Note: Yes, I'm on Google+: http://profiles.google.com/miles.phil. Also, the co-authors of HR and Social Media: Practical and Legal Guidance (including me) are appearing on an upcoming installment of The Proactive Employer podcast to discuss Social Media and HR (what else?).

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, July 8, 2011

AT&T v. Concepcion as Employment Law - COTW #48

OK, if you read the headline and you're familiar with AT&T v. Concepcion (opinion here), you're probably wondering: Why is a consumer contracts case from April the Case of the Week? Good question, two answers. First, it has important employment law implications; and second, I'm planning a Supreme Court employment law year in review and didn't have anything on this important case yet (and no, my review won't be in Haiku, Eric Meyer).

Concepcion arose from cellular telephone contracts that included arbitration clauses requiring arbitration of all disputes... but did not permit classwide arbitration. And there's the rub. Under California law (called the Discovery Bank rule), class waivers in consumer agreements were unconscionable in certain circumstances and therefore unenforceable. This rule conflicts with the Federal Arbitration Act, and as we see in Concepcion, it also conflicts with the Supreme Court's current love affair with arbitration generally.

There are times when arbitration agreements are unenforceable, including upon "such grounds as exist at law or in equity for the revocation of any contract." 9 U. S. C. §2. But here, the Supreme Court held that conditioning the enforceability of arbitration agreements on the availability of classwide arbitration procedures was not one of those times. Per Justice Scalia, writing for the five-Justice majority: "Arbitration is a matter of contract, and the FAA requires courts to honor parties’ expectations." And, the Discover Bank rule "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in the FAA. Therefore the state rule was preempted.

How does this tie-in to employment law? Well, replace cell phone contracts with employment contracts. Would the analysis be different? It's tough to say for certain, but I suspect employers will view this as a green light (or at least a flashing yellow) to tie employees in to arbitration agreements with class waivers. And it gives them a solid argument for enforcing those agreements.

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, July 7, 2011

Retaliation Timing - How Soon is too Soon?

I had an interesting little Twitter conversation the other day (with @JonHyman and @KenBrennan) about when courts will infer that unlawful retaliation occurred simply based on the timing. Jon had a blog entry, Time after time, time alone is not enough to prove retaliation, about a case in which an Ohio appellate court held that the "temporal proximity" of one year between the protected activity and the adverse employment action was insufficient. In response, Ken asked:

@PhilipMiles @jonhyman One year is a long time. What about just a few hours? How soon is soon enough to permit the inference of retaliation?less than a minute ago via Twitter for iPhone Favorite Retweet Reply
I don't believe there is a bright-line rule. I would certainly think a few hours would present a serious problem for the employer. Courts are rightfully hesitant to state an exact time. Let's say they make it one week. If an employer waits eight days, can't the employee come back and say "ah-ha! They waited until the first possible day under the law to retaliate... isn't that indicative of their intent!?" And then you can imagine this game playing out for one more day and then one more.

Here in the Third Circuit, including Pennsylvania, we do have some time frame with which to work. But, it's kept a little gray. As recognized by the Middle District of Pennsylvania earlier this year, a plaintiff can establish a causal connection by proving:
[A]n usually suggestive temporal proximity between the protected activity and the allegedly retaliatory action . . . . The Third Circuit has held that two days between a protected activity and an adverse action is "unusually suggestive" of retaliatory motive, but that three months is not. See Krouse v. Am. Sterlizer Co., 126 F.3d 494, 503 (3d Cir.1997); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir.2007).
Lease v. Fishel, 1:07-CV-0003, 2011 WL 381656 (M.D. Pa. Jan. 28, 2011). It's not hard science, but it does provide some guidance.

Note: I used Twitter Blackbird Pie to embed the tweet. I'd be interested to hear your feedback. I like that it's interactive (you can click Reply, Retweet, the usernames and it behaves as though you were in Twitter). It looks a little rough to me though (particularly the white boxes).

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, July 6, 2011

UPDATE: Same Sex Partner Benefits Partial Settlement

Things move pretty fast around here... you may remember back in May, a Case of the Week in which same-sex domestic partners sued the State College, PA school district because of alleged discrimination. Specifically, the school had a policy which provided benefits for spouses of employees, and domestic partners of employees who provided certain documentation (joint credit accounts, joint home ownership, mutually beneficial wills, etc.). But the policy expressly excluded domestic partners who were the same gender.

The school district initially said the policy was part of a collective bargaining agreement and that they would consider a change if it was brought to the bargaining table. Now, not even two months after the Complaint was filed, the Centre Daily Times reports a partial settlement:
The ACLU of Pennsylvania announced that a vote by the State College Area School Board to extend health insurance benefits to same-sex partners of its employees will partially settle a discrimination lawsuit brought against the school district by the ACLU . . . . [T]he district also will add "sexual orientation" and "gender identity" to anti-discrimination policies.
This doesn't completely resolve the conflict, however, as the parties are still negotiating outstanding damages claims.

Because the policy expressly discriminated against same sex couples, I think it would have been a tough case for the school district to litigate. Looks like we'll never know. The ACLU was involved here, so I wonder if they have similar cases against other school districts. Drop a comment if you know of any. Thanks!

Image: That's a picture of a State College sunset as viewed from Mount Nittany. It's symbolic of the sun setting on this lawsuit (or just the closest thing to a good picture of downtown State College that I could find on my phone's photos...).

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, July 4, 2011

July 4, 1826: Famous Last Words

On July 4 of each year, we celebrate our independence. Of course, the Declaration of Independence is dated July 4, 1776 (although, contrary to popular belief, that's not the date it was actually signed). But July 4 also marks another important anniversary pertaining to our founding fathers and the birth of this nation. On July 4, 1826, Thomas Jefferson and John Adams both passed away.

Their last words are particularly interesting. Before Jefferson died, he awoke and asked, "This is the Fourth?" It was actually only the third at the time, but he did make it to the fourth - fifty years to the day from the date of the Declaration of Independence (some accounts claim he spoke after this, though it's not clear what was said).

Later that day, John Adams lay dying at the age of 92 when he spoke his final words, "Thomas Jefferson still survives." Despite some bitter feuding in their political careers, the two had become penpals by the end of their lives. They appeared to recognize, to some extent, their places in history. Adams, however, was obviously unaware that he was the last to go... just hours after Thomas Jefferson... on July 4, 1826.

For previous Independence Day fun on Lawffice Space, see America's First Employment Law, and my Philadelphia photo album (including pics of Independence Hall).

Images: Public domain from federal government, showing John Adams and Thomas Jefferson, the second and third presidents of the United States.

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, July 1, 2011

SCOTUS, FMLA and State Immunity - COTW #47

The Eleventh Amendment of the U.S. Constitution prohibits federal lawsuits against unconsenting states (or their governmental units) unless Congress has abrogated the immunity. So, what happens when an employee works for a state... let's say the Maryland Court of Appeals... and he gets fired, allegedly for taking FMLA leave? That's the setup for this Case of the Week.

The case is Coleman v. Maryland Court of Appeals (4th Cir. opinion), and as I blogged on Monday, the Supreme Court just granted certiorari to hear it next term. So, is the state court immune from suit or not? Let's start with the test for determining whether Congress abrogated the state's immunity:
  1. "Congress must unequivocally declare its intent" to abrogate the immunity; and
  2. Congress must be acting pursuant to a valid (Constitutional) exercise of its power.
How does that work here in FMLA-world? Well, one valid exercise of Congress's power is its Fourteenth Amendment power to enforce the Equal Protection Clause. In 2003, the Supreme Court held that Congress did abrogate state sovereign immunity with regard to the FMLA's family-care provisions (providing leave to care for a family member with a serious health condition). Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003). Great news for the Maryland Court employee, right?

Not so fast. The 2003 decision was based in part on the fact that the FMLA is "narrowly targeted at the faultline between work and family—precisely where sex-based overgeneralization has been and remains strongest." In other words, the FMLA family-care provisions battle discrimination, consistent with the 14th Amendment. The Maryland Court employee, however, took leave to care for himself. Thus, the sex-based discrimination regarding family responsibilities is not really at play. The 4th Circuit agreed with four other Circuit Courts and held that Congress did not validly abrogate state sovereign immunity with regard to the self-care provisions of the FMLA.  The Maryland Court employee was therefore barred from bringing his FMLA claim against his employer.

Now, the Supreme Court will take a look at the case and answer (per the Petition to the Court): "Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act."

One supercool aspect of this case is that the Counsel of Record for the employee is Penn State - Dickinson School of Law Prof. Michael Foreman, right down the street from me here in State College, PA. Even supercooler is that law students here are working on the case as part of Penn State Law’s Civil Rights Appellate Clinic. Read more at the Daily Collegian: Law Students Prepare for Supreme Court Case.

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.