Hot Topic: Workplace Tebowing

[Tongue firmly planted in cheek folks. A little Monday lunchbreak fun. Happy Halloween!]

It started sometime last week. My phone has been ringing off the hook ever since. Anxious employers are desperate to find somebody... anybody... who can help them combat the latest employment law risk. Yup, you guessed it: Tebowing.

Questions abound:

What is Tebowing?

I think a quick visit to tebowing.com will clue you in. It means, "to get down on a knee and start praying, even if everyone else around you is doing something completely different."

Sounds religious… Can I ban Tebowing at work, or will that lead to religious discrimination claims?

If the employee is actually praying, then it should just be treated like workplace prayer. Tebowing, however, is done as an homage… or perhaps mockery… of Tim Tebow. Therefore, it is not religious activity and prohibiting it shouldn’t trigger any discrimination litigation risks - except, of course, if the employee has sincerely held religious beliefs about Tim Tebow. Unless you work at ESPN, this shouldn’t be an issue. If you do work at ESPN, you should probably make a good faith effort to engage the employee in the interactive process regarding possible accommodations.

Must I ban Tebowing at work?

For the sake of humanity, and all that is good in the world, YES! Looking for a legal justification? Meh, maybe claim it’s perceived as mocking prayer and Tebow’s Christianity and therefore you are banning Tebowing as part of your religious harassment policy. Yeah, that’s the ticket.

Can I include a ban on Tebowing in my social media policy?

Yes, but be careful! A blanket ban would likely be viewed as overly broad by the NLRB. A prudent employer would include a disclaimer stating that Tebowing is allowed when done as concerted activity in opposition to workplace conditions or labor negotiations.

Disclaimer: This should not be construed as legal advice. If you have Tebowing issues in your workplace, I urge you to contact an attorney. As Tebowing issues are often complex, you may wish to consult with an attorney who has experience with Tebowing issues.

Image: Underlying image comes from Tebow.com here.

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.

BREAKING: Wal-Mart Class Action is Back! - COTW #64

In case you've been living under a rock, there was this little case called Wal-Mart v. Dukes which would have been the largest employment law class action in history. Would have been... except the Supreme Court held that class certification was inappropriate.

The plaintiffs tried to bring a nationwide class action on behalf of about 1.5 million female Wal-Mart employees. Unfortunately, the class lacked the glue to tie their claims together.

Now, the plaintiffs are back! You can read a copy of their new Complaint here. This time around, they have narrowed their class to just female employees in Wal-Mart's California regions (estimated around 45,000 employees). We'll see how they make out this time around!

UPDATE: The Complaint describes two classes (current women employees and women employed since December 26, 1998), and claims each exceeds 45,000. So the lawsuit could be more than 90,000.

Note: Yeah, I'm jumping the gun a little on the Case of the Week - I just wanted to bring you this breaking story ASAP.

HT: Ross Runkel via Twitter.

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.

DLI Publishes Draft Act 102 Regulations

Pennsylvania has a law called "Act 102" or the "Prohibition of Excessive Overtime in Health Care Act." Per the Pennsylvania Department of Labor and Industry's (DLI's) Act 102 website: "Act 102 prohibits a health care facility from requiring employees to work more than agreed to, predetermined and regularly scheduled work shifts." There are exceptions for on-call time, "unforeseeable emergent circumstances," voluntary overtime, and completion of in-progress patient care.

Although the law has been in effect since July 1, 2009, employers have been stuck trying to fill in some of the legislative gaps without guidance. Now, help is here. DLI published a draft proposed rulemaking: Prohibition of Excessive Overtime in Health Care Act Regulations.

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.

Update: Same-Sex Partners Benefits Case Settles

You may recall a Case of the Week from back in May: Same Sex Partner Benefits and the Constitution. In short, two women filed suit against my hometown school district (State College Area School District) alleging unconstitutional sexual orientation discrimination. The school did not provide certain benefits to same-sex partners but did provide them to unmarried opposite-sex "domestic partners."

I previously blogged about a partial settlement in which the school district would provide health insurance benefits to same-sex couples and add sexual orientation and gender identity to its anti-discrimination policies. Now, news of a full settlement from StateCollege.com:

Board members voted 7-0 to approve a negotiated settlement payment of $42,500 -- for damages -- to employee Kerry Wiessmann and partner Beth G. Resko . . . . The vote also authorized a payment of $47,000 -- through the district's insurance carrier -- to Wiessmann and Resko's attorneys, including those with the American Civil Liberties Union.

The school district didn't put up much of a fight - but it didn't sound like they had much of a defense either.

Case closed... unless there are other same-sex couples who meet the school district's requirements for "domestic partners." Seems like they would have a pretty easy time getting a settlement deal.

HT: McQuaide Blasko legal secretary, Lori Haberstroh via email.

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.

Are Volunteers Employees?

Are volunteers "employees" for purposes of employment discrimination statutes? In the grand tradition of the law, the answer is: maybe... sometimes... depends on the jurisdiction. A recent case from the Sixth Circuit sheds some light on the issue.

In Bryson v. Middlefield Volunteer Fire Department, the Court analyzed the issue in the context of Title VII claims. The issue was actually whether the volunteers counted toward the 15 employees generally required for an employer to be covered by Title VII.'

This much is settled law under Supreme Court precedent:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Got all that? It provides some useful factors but certainly doesn't answer our main question. And good luck predicting an outcome when the factors cut both ways!

Some courts have held that the Supreme Court's use of "hired party" requires that individuals receive "substantial benefits" or "significant remuneration" for the work performed to be considered employees. The Sixth Circuit disagreed, holding that remuneration is a factor in determining whether a volunteer is an employee but not an independent hurdle.

Bottom line: Check case law in your jurisdiction, and even then you may just be left with a list of a bunch of factors and a shot in the dark. Perhaps the circuit split on this issue will convince the Supreme Court to take a look. We shall see...

HT: Ellen Dannin, LERA Labor and Employment Law News October 2011.

Image: Public domain, Volunteer Fire Department in Action, Terry, Montana by Arthur Rothstein (1939).

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.

What You're Searching For 10/24/2011

Wow, it has been over two years since I've run one of these. I examine analysis from Blogger showing me which search terms are driving traffic to Lawffice Space and then I try to provide what I think people using that search term are actually looking for. This is mostly unnecessary because I am confident that people are getting what they're searching for. But here are a few exceptions:

1. Circuit Court Map
I have no idea why so many people are directed here following a search for Circuit Court Map but here is the United States Courts' website with a Circuit Court Map. Here's another one on Wikipedia. And one more from the DOJ kids website (trust me, kids LOVE talking about the federal court structure in the United States!).

2. Has Starbucks had any EEOC Claims Against Them?
I'm guessing every corporation the size of Starbucks has had some EEOC charges filed against them. Starbucks had a pretty famous one earlier this year though: EEOC Files Suit Against Starbucks for Firing Dwarf Barista. It reportedly settled for $75,000 and some other requirements.

3. NLRB Social Media Memo
If you're searching for the actual memo, it's right here. If, on the other hand, you're searching for super-awesome analysis of the NLRB Social Media Memo - Check out my 4-part series here.

I hope you have found what you're searching for! I'll try to do this more than once every 2+ years in the future...

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.

Fired for Working Too Much - COTW #63

Sometimes employment laws lead to seemingly silly results - perhaps we can call them "unintended consequences" to borrow a term from economics (what can I say? The law and econ lessons from my days at George Mason have stuck with me). Need an example? A Target employee just filed a lawsuit alleging that he was fired for working on his breaks (read the Complaint here).

Why in the world would an employer fire an employee who works off the clock and provides some extra services during what is supposed o be his break time? It turns out that this kind of makes sense when you think about it from the employer's perspective.

As an employer, should you have policies that prohibit employee activity that can get you sued? It's probably a good idea. If someone violates that policy should you do something? Again, probably a good idea (doesn't necessarily have to be termination though). Under the FLSA, are non-exempt employees entitled to compensation for all time worked? Generally, yup. Logical conclusion? When employees work "off the clock," employers have to worry that they will incur liability down the line.

The irony here, is that Target got hit with an FLSA suit anyway. The employee claims he had to take 30-minute breaks each day. However, he was acting as shift manager and would get interrupted all the time (cashier needed help, security issues, etc.). So, why didn't he just punch in and go back on the clock? He claims the clocks were rigged to prohibit punching back in until the break was over.

Why would the employer do that? Probably to keep employees on exact schedules to make sure they work full-time but not overtime (another consequence of FLSA - employers bend over backwards to keep employees from going into overtime because the employer must pay them time and a half).

The employee claims he was not compensated for this off the clock time that he was required to work, and terminated for raising these issues with management. How could Target have avoided all of these problems? Probably pretty easily - just have salaried, exempt managers (which they did) but actually have one present to cover the now-plaintiff's interruptions.

HT: Gawker - Target Manager: I Was Fired for Working Off the Clock (fair warning - not exactly an objective look at the 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.

Lawffice Links 10/19/2011

Some links for your reading pleasure:

- The Supreme Court of Pennsylvania is now on Twitter!

- A cool new Adverse Impact Tool from Stephanie Thomas of Thomas Econometrics (instant statistical analysis of employment decisions).

- Robin Shea discusses strategy for when to file motions to dismiss (includes a response to my comment on her earlier analysis).

- Employee screws up? Throw an ice cream party! (and other HR tips in an interview with Dan Schneider).

- Gallup Poll: 86% of US workers are overweight or have at least one chronic health condition, causing an estimated 450 million missed workdays and costing $153 Billion.

- Eric Meyer on proposed legislation: FMLA for domestic violence victims.

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.

SCOTUS Grants Cert in Federal Jurisdiction Employment Law Case

Yesterday, the Supreme Court granted certiorari in Elgin v. Dep't of Treasury. The Petitioner's Brief describes the issue and the existing circuit court split:

Do federal district courts have jurisdiction over constitutional claims for equitable relief brought by federal employees, as the Third and D.C. Circuits have held, or does the Civil Service Reform Act impliedly preclude that jurisdiction, as the First, Second, and Tenth Circuits have held?

Basically, the plaintiffs were fired or resigned from their federal executive branch jobs because federal law prohibits executive branch employment for 18-26 year old men who fail to register for selective service. They claim this law is an unconstitutional Bill of Attainder and violates equal protection (sex-based discrimination). So, they filed a lawsuit in federal district court.

What's the problem? Well, the Civil Service Reform Act provides that some federal employees may challenge their terminations before the Merit Systems Protection Board. They can then appeal to the Federal Circuit. Which takes us back to the question presented above... can they file in district court or not?

In case you were wondering... no, this is not the kind of employment law case I was hoping for when I wrote my Supreme Court Employment Law Preview 2011-12.

See also: Ross Runkel, SCOTUS Grants Cert on Federal Employment Jurisdiction Issue.

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.

Potter County Added to Pennsylvania Courthouses Photo Album

I had a status conference at the Potter County Courthouse in Coudersport, Pennsylvania on Friday. Of course, I grabbed some photos and added them to the Pennsylvania Courthouses Photo Album! Potter County has a great courthouse in a scenic small town. It was faaaar away from my home base, but the 3-hour drive was filled with beautiful fall foliage the whole way so I can't complain. Here are a few shots:

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.

Update: Hajj Religious Accommodation Case Settles

A quick update on a previous Lawffice Space Case of the Week: 19 Days Off for Hajj as a Religious Accommodation. The case involved a math teacher who requested time off for an Islamic pilgrimage known as a "Hajj." The request was denied, forcing her to choose between her job and her religion... she chose the latter. The Justice Department filed suit and issued a press release on Thursday, announcing that a settlement had been reached:

Under the terms of the consent decree, Berkeley School District will pay $75,000 to Ms. Khan for lost back pay, compensatory damages and attorneys’ fees. Berkeley School District also is required to develop and distribute a religious accommodation policy consistent with Title VII’s requirement to reasonably accommodate the religious beliefs, practices and/or observances of all employees and prospective employees. In addition, Berkeley School District is required to provide mandatory training on religious accommodation to all board of education members, supervisors, managers, administrators and human resources officials who participate in decisions on religious accommodation requests made by its employees and prospective employees.

In case you were wondering, the DOJ (instead of the EEOC) handles employment discrimination claims for state and local government employees.

HT: Volokh Conspiracy: $75,000 Settlement for Muslim Teacher Denied 19 Days’ Unpaid Leave for Hajj (Pilgrimage to Mecca).

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.

Double Fisting and Crazy Bitch Bingo - COTW #62

Ah, double fisting and “Crazy Bitch Bingo”… just another Case of the Week here at Lawffice Space. Ashley Payne filed a lawsuit hoping to get her teaching job back (and maybe some monetary damages), claiming she lost her job over Facebook postings from her trip to Europe. The Atlanta Journal Constitution has the story, which heavily implies (but never comes right out and says) that Payne recently lost on summary judgment.

I know, I know… who cares about the procedural posture? Cut to the “good parts.” Payne claims she lost her teaching job when a “parent” complained to the school about some content on her Facebook wall. One picture showed the now-former teacher double fisting (I assume it’s the picture in the AJC article… but again, the AJC doesn’t come right out and say it). For the uninitiated, “double fisting” means holding drinks in each hand (it cuts down on trips to the bar and allows for faster consumption... or so I've heard).

She also posted that she was headed to a game of “Crazy Bitch Bingo.” I have no idea what that means, but it sounds awesome detrimental to our children. If you’re like me, you may be thinking, “they fired her for that!?” Annnd here comes the problem with her case… they did not fire her for that. They didn’t fire her at all; she resigned. Employee-side litigation 101 – If you plan on filing a lawsuit, DO NOT RESIGN!

Payne claims that she was essentially forced out by her supervisor suggesting that it was better if she just quit. There also appears to be some question about whether it was really a parent who sent the email. In the video below, Payne claims her privacy settings would have prevented such a disclosure. Her attorney claims she was denied due process.

Long story short: quitting makes it tough to sue your employer for firing you. In any event, sounds like she lost… for now. Her attorney filed an amended complaint on Monday.

Here's the video (if video is not displaying properly click here to view online):

Facebook Causes Barrow Teacher's Firing: MyFoxATLANTA.com

HT: ABA Journal - Judge Rules Against Teacher Who Says She Was Fired Over Facebook 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.

3d Circuit on Public Employee's 14th Amendment Privacy Rights

Yesterday, the Third Circuit weighed in on an employee's 14th Amendment right to privacy in Doe v. Luzerne County, 2011 WL 4823387 (3d Cir. Oct. 12, 2011)(Note: It will be published and precedential). The Court recognized that a public employee has a right to privacy that protects her from being videotaped during a decontamination shower and examination.

Jane Doe is a deputy sheriff in the Luzerne County Sheriff's Department. She and a colleague attempted to serve a warrant at a residence that was infested with fleas. The two were covered with fleas so they went to a hospital for a decontamination shower. And this is where things get weird (I find myself saying this a lot in employment law cases...).

A deputy chief was filming various parts of the decontamination shower process for "training purposes" (riiiight). Doe told him to stop and it seemed like he had. But then, while she was getting inspected post-shower and unbeknownst to her, the guy opened the door to the room and started filming Doe again! There's some question about how "exposed" she was... but she was at best covered in tissue paper.

The Court's analysis sheds some light on the privacy considerations and some additional facts:

The type of records at issue include photographs of Doe while she is partially dressed and an edited video of Doe that may include images of, among other things, Doe's exposed breasts and/or buttocks. The potential harm of nonconsensual disclosure is exacerbated by the existence of the Internet, where one can upload image and video files and irretrievably share them with the world in a matter of moments. Doe's alleged harm could be aggravated by the context of the disclosure, most notably the facts that the video of the events was shown to others within the workplace and that the alleged violations involved superior officers abusing their authority. The adequacy of safeguards to prevent unauthorized disclosure also favors Doe because there is evidence that Foy saved the Doe Files in a public computer folder, which Doe testified could have been viewed by anyone with access to the Luzerne County network.

The Court then reversed the trial court's decision to dismiss the employee's privacy claim.

Image: Third Circuit Seal used in commentary on Third Circuit. Not official use.

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.

Lawffice Links 10/11/11

Some links for your reading pleasure:

- Eric Meyer provides the Do's and D'ohs of ADA claims with legal analysis of Homer Simpson's obesity ploy.

- Jon Hyman notes that plenty of laws protect employee rights, so he presents an Employer Bill of Rights.

- Did you see Saturday Night Live this weekend? The SNL Weekend Update cracked jokes on, not one, but two Lawffice Space Cases of the Week (the EEOC obesity case, and the betting on who will get fired case)! You can watch the full episode of SNL here for a limited time (cases appear at 26:15 and 27:00).

- Lawffice Space got some love from the local paper, the Centre Daily Times: McQuaide Blasko Attorney Blog Honored.

- Expanding the audience - Lawffice Space content will now be syndicated on the Lexis Nexis Labor and Employment Law Community.

NLRB Social Media Memo Part IV - Overly Broad Policies

This post has been a long time coming... but at long last it's the final post in the four-part series on the NLRB's social media memo. This post will address the NLRB's position on (what it views as) overly broad social media policies.

Obviously, employers can't expressly ban social media speech protected by the NLRA. Example: "No communicating with co-workers to address the terms and conditions of your employment." That's a no-brainer - it violates the NLRA because it prohibits concerted activity. The NLRB memo seems more concerned with broad social media policies that can be interpreted to cover NLRA-protected social media conduct.

The NLRB provided a few cases. One case included three overly broad clauses to give you an illustration:

Rule 4 of the policy prohibited employees from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity.

Rule 5 prohibited any communication or post that constitutes embarrassment, harassment or defamation of the hospital or of any hospital employee, officer, board member, representative, or staff member.

Rule 6 contained a similar prohibition against statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff, or employees.

Well those all sound reasonable, what's the problem!? The NLRB reasoned that the employer didn't define "privacy or confidentiality" in Rule 4. And, the employer applied the rule to terminate an employee who had complained and asked for details regarding a co-worker's repeated absences disrupting work (aka the employer applied it to concerted activity addressing workplace conditions).

OK, but what about Rules 5 and 6? "These included broad terms that would commonly apply to protected criticism of the Employer’s labor policies or treatment of employees." So, according to the NLRB, they're overly broad too.

So, what's an employer to do? The employer could just get rid of the supposedly overly broad policies. But - and I hope I'm not shocking you here - there's plenty of embarrassing, harassing, defamatory, false, and reputation-damaging social media conduct that an employer can, should and, in the case of harassment, must prohibit. The lack of case law makes it tough to know for certain what employers can do, but one common approach is to include a disclaimer.

My Think Before You Click: Strategies for Managing Social Media in the Workplace co-author, Molly DiBianca, has a Sample Social Media Policy worth checking out. She includes the following disclaimer:

Nothing in this Policy is intended to or will be applied in a manner that limits employees’ rights to engage in protected concerted activity as prescribed by the National Labor Relations Act.

I think this will help save clauses that might otherwise be overly broad. But we're in new territory here, so I'll keep an eye out for new developments in the law and keep you posted.

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.

Betting on Who Will Get Fired Next - COTW #61

Some employers terminate their employees pretty often. Sometimes there are even rumors about who will get fired next. But you know what's probably not a good idea for employers? Holding a contest in which employees place $10 bets on who will get fired next! Bad idea, great Case of the Week!

In Shelsky v. QC Mart, the employee voluntarily quit and was trying to collect unemployment compensation benefits. The Admin Law Judge (ALJ) hearing the case, described the "contest," detailed in a memo to the employees:

NEW CONTEST – GUESS THE NEXT CASHIER WHO WILL BE FIRED!!! The game was listed as follows: “To win our game, write on a piece of paper the name of the next cashier you believe will be fired. Write their name (the person who will be fired), today’s date, today’s time, and your name. Seal it in an envelope and give it to the manager to put in my envelope. Here’s how the game will work. We are doubling our secret shopper efforts, and your store will be visited during the day AND at night several times a week. Secret shoppers will be looking for cashiers wearing a hat, talking on a cell phone, not wearing a QC Mart shirt, having someone hanging around/behind the counter, and/or no car personal car (sic) parked by the pumps after 7:00 pm, among other things. If the name in your envelope has the right answer, you will win $10.00 CASH. Only one winner per firing unless there are multiple right answers with the exact same name, date, and time. Once we fire the person, we will open all the envelopes, award the prize, and start the contest again. AND NO FAIR PICKING MIKE MILLER FROM ROCKINGHAM. HE WAS FIRED AT AROUND 11:30 AM TODAY FOR WEARING A HAD (sic) AND TALKING ON HIS CELL PHONE. GOOD LUCK!!!!!!!!!!

Ordinarily, you can't collect Unemployment Compensation when you quit - unless there's an intolerable work environment. The ALJ felt the employee was justified in quitting under the circumstances:

The administrative law judge finds the employer’s "contest" to be egregious and deplorable. The employer’s actions have clearly created a hostile work environment by suggesting its employees turn on each other for a minimal monetary prize. The claimant has established this was an intolerable and detrimental work environment.

And so the employee got her unemployment compensation.

You may have picked up on the "hostile work environment" language and thought, "Hey! I bet she has a great lawsuit!" Well, thing again. Hostile work environment claims are ordinarily premised on discrimination statutes and must target a protected class (like race, sex, religion, etc.). Not to mention that such claims must involve "severe or pervasive" conduct - I have doubts whether this would cut it. And, although the contest is in poor (Ok, REALLY poor) taste, it appears clearly intended to notify employees of specific (and reasonable) workplace rules, and the employer's efforts to enforce those rules. I think a lawsuit would be tough going....

HT: My McQuaide Blasko colleague, Jaime Bumbarger, who emailed me this story.

See also: Jon Hyman - Betting on a Lawsuit.

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.

This Just In: NLRB Posters Delayed Until Jan. 31, 2012

I just received an email from the NLRB including this press release. You may remember the new NLRB poster requirements (announced here, and posters available here)... well, I'll let the NLRB fill you in:

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

Kudos to Jon Hyman who appears to have broken this story on his blog before I even got the NLRB email. He thinks that just maybe the delay has something to do with outcry from business groups and a pending lawsuit to block the requirement (I think he may be on to something).

Image: NLRB logo used in discussion of NLRB issues, not official use.

Attorneys' Duties Regarding Employee Emails

According to new ABA opinion letters, and a new article from Corporate Counsel, attorneys in employment law owe a duty to warn employee-clients about email interception. In ABA Opinions Clarify Ethical Obligations in Email interception, Jeff Campolongo addresses this "trending" topic in "employment law circles and blogs." Hey! I run in employment law circles, have an employment law blog... and everyone knows I'm trendy! I better get on this topic.

The gist is this: employees often communicate with their attorneys via email, and sometimes they do this on work-time and/or using work email accounts, computers, smartphones, or other devices. One issue arises on the employer's side: If the employer's attorney acquires these emails, does he or she have a duty to notify the employee or the employee's counsel of the interception? This is addressed in ABA Formal Opinion 11-460, which concludes:

When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating.

Good news for employer-side attorneys! But, what about the employee's attorney? A separate opinion, ABA Formal Opinion 11-459 concludes:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

Fair warning for employee-side lawyers! Now, the question becomes: What should attorneys do about this? Well, in Mr. Campolongo's article he suggests including the following warning in client engagement letters:

Many employers monitor their employees' e-mails, internet usage, voicemails, and other electronic storage media. To preserve the attorney-client privilege and to avoid having any third parties gaining access to our confidential communications, please do not e-mail us from work and do not e-mail anyone else about your matter/dispute from work -- this includes logging into your private e-mail account from work, from a work laptop computer or from any company-owned equipment (e.g., Blackberry, PDA, cell phone, etc.). In addition, do not post anything related to your employment on the internet, such as postings on blogs, social networking sites, chat rooms, Facebook, or Twitter.

The ABA opinion doesn't specifically address social media, Twitter, Facebook, blogs, or other Internet postings... but I like Mr. Campolongo's aggressive, proactive stance on the issue!

Image: Public Domain Email Icon Crystal.

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.

Supreme Court Employment Law Preview 2011-12

Hey SCOTUS! Where's the employment law? The Supreme Court kicks off the fall season on Monday, and they're hearing an employment law case in their opening week. But, I'm still wondering where the "big" employment law cases are.

On Wednesday, the Supreme Court will hear oral arguments in Hosanna-Tabor Church v. EEOC (case links go to SCOTUSBlog which just underwent an awesome redesign). I previously covered this case as a Case of the Week. The question presented is:

Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

I find this case fascinating, but let's face it... there aren't that many employees with mixed secular/religious duties. So, the Court's decision will not have particularly broad applications.

Similarly, the Court will hear Coleman v. Maryland Court of Appeals, another case I already covered as a Case of the Week. In this one, the Court will examine "[w]hether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act (FMLA)." Another interesting issue... but really only applicable to state employees/ers.

And then there's Knox v. SEIU (and my brief preview). I'll spare you the gory details, here and give you SCOTUSBlog's "plain English" description of the issue: "Does the First Amendment give state employees the right to decline to pay union dues used for political advocacy by the union?" Another case with limited applicability.

And it actually gets worse from there... unless you're really excited about workers' compensation under the Continental Shelf Lands Act (no?). I guess Filarsky v. Delia was employment-law-ish enough to make Ross Runkel's Employment Law Memo. I'm sorry, but 'whether a private attorney retained to work with government employees can assert qualified immunity (even though the lawyer is not a government employee)' is just not cutting it for me. I mean, you may as well count Minneci v. Pollard ("Whether federal inmates may sue employees of a private prison company for violations of the Constitution.").

To spell out my main gripe: There are no cases addressing Title VII, ADA, ADEA, FMLA, or any of the other major employment law statutes, that your average employee/er will really care about. There are no cases of general applicability under the big areas of employment law. I find that a little disappointing. But, there's still hope that SCOTUS will grant cert. in some more exciting employment law cases soon. Oh, and then there's that little health care reform case you may have heard about...

Image: Work of Fed. Gov't; from Supreme Court website.

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.