Thursday, December 29, 2011

2011 Employment Law Case of the Year

I suspect the clear favorite in the race for employment law Case of the Year is Walmart v. Dukes. It was a big win for employers, received tons of media hype, and affected a 7-figure class of employees. It's not my Case of the Year though. Why? The truth is that most employers aren't terribly concerned with nationwide class actions, brought by millions of employees, based on decisions by thousands of supervisors. 

A far more common scenario involves an employee who engages in protected activity such as raising a discrimination claim. This year the Supreme Court recognized that the employee who engaged in the protected activity is not the only one who receives protection. That's huge! The case is Thompson v. North American Stainless, and its the Lawffice Space employment law Case of the Year.

The setup was simple: a woman filed a sex discrimination charge, and the employer allegedly retaliated by firing her fiance (who was also a co-worker). The unanimous Court (minus Kagan, J. who did not participate) gave us two important holdings. First, firing the fiance is unlawful retaliation. Second, the fiance can bring his own claim for retaliation.

One exciting aspect of this case for lawyers is that it generated more questions than answers (see my post on ELinfonet: Supreme Court Holds that 3rd Party Retaliation Exists . . . but When?). We know that firing the fiance is bad . . . but what about firing the girlfriend? Disciplining the wife? Suspending the fiance without pay for 3 months? Courts will be defining the contours of the relationships protected from retaliation for years.

What do you think? Did I nail it? Do you have a better case? Drop a comment, or hit me on twitter @PhilipMiles or @LawfficeSpace.


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, December 28, 2011

Top 5 Employment Law "Cases of the Week" for 2011

As my loyal readers know, I offer up a "Case of the Week" every Friday. This countdown lists the top 5 Cases of the Week (or is it Case of the Weeks?) for 2011 based on hits as tracked by Google Blogger. Drumroll please . . .

5. Physician's Assistants Entitled to Overtime - COTW #23 from 1/14/2011 - FLSA exemptions and employee classification are tough issues for employers. It's no surprise that many a stuck employer-Googler found his or her way to this entry.

4. Res Judicata No Bar to Events Postdating Initial Complaint - COTW #55 from 8/26/2011 - I gotta be honest . . . nothing screams "BORING" quite like a res judicata-slash-timing of filing a complaint issue. Yet, somehow this case made the list - probably because it provides a bright line rule in a fairly common situation.

3. Employee Wins FMLA "Key Employee" Exemption Case on Summary Judgment - COTW #44 from 6/10/2011 - So far, I'm surprised by how many technical legal issues made the top 5. But, FMLA issues are tricky, and a shortage of cases applying the "key employee" exemption make this COTW a welcome resource.

2. "Wet T-Shirt Wednesday" Lawsuit - COTW #53 from 8/12/2011 - No tricky legal issues here - employee dress codes should not recommend that women wear wet t-shirts on Wednesdays. And, if you think that's bad, click the link to find out what they were supposed to wear (or not wear) on Thursdays!

And now, the Case of the Week . . . of the year . . . for 2011 . . . iiiissss . . .

1. Double Fisting and Crazy Bitch Bingo - COTW #62 from 10/14/2011 - Now this is what COTW is all about! The case involved Facebook, boozin' it up with a drink in each hand, and something called "crazy bitch bingo" (I still don't know what that is, but I'm hoping a reader can enlighten me). How could it not lock down the top spot for 2011!?

Tune in to Lawffice Space every Friday in 2012 for more great Case of the Week action!

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, December 27, 2011

Top Lawffice Space Entries of 2011 and All-Time

Welcome to the Lawffice Space 2011 year-end blowout! Today's entry is a countdown of the Top 10 entries of 2011 and the Top 5 entries of all-time. A few ground rules: No Case of the Week's (they have their own countdown later in the week); only predominantly original entries (no posts that are primarily external links, like Lawffice Links, publication announcements, etc.); and "Top" is defined by hits according to Google Blogger. And now, drum roll please . . .

10. E-Discovery - Litigation Hold Rule on the Way? from 2/3/2011

9. Must Pennsylvania Employers Pay Unused Vacation at Termination? from 8/4/2011

8. 2 GINA Employee Handbook Action Items from 1/18/2011

7. Brett Favre and Text Message Sexual Harassment from 1/3/2011

6. Hot Topic: Workplace Tebowing from 10/31/2011

5. NLRB's New Posting Requirement (which keeps getting delayed) from 8/25/2011

4. NLRB Social Media Memo Part I - NLRA-Protected Acts from 8/22/2011

3. Charts of EEOC Charges 1997-2010 from 1/11/2011

2. Pennsylvania Unemployment Compensation Reform: New Job Search Requirements from 6/19/2011

1. Pennsylvania Unemployment Compensation Reform: Severance Pay from 6/23/2011

So, Pennsylvania Unemployment Compensation Reform locked down the top 2 slots, beating out EEOC stats and a pair of NLRB issues. Most of those reforms take place at the start of 2012 FYI. And now, the top entries ever . . .

5. Distraction Theory - ADA Association Provision from 10/25/2010

4. Pennsylvania Unemployment Compensation Reform: New Job Search Requirements from 6/19/2011

3. Pennsylvania Unemployment Compensation Reform: Severance Pay from 6/23/2011

2. Failing Out of Law School from 6/20/2009

1. Email Harassment - Jesse James Edition from 4/12/2010

Tune in every day this week for more 2011 round-up action and a peek at 2012!

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, December 23, 2011

NLRB Postpones Poster Requirement Again

Remember the NLRB poster requirement that was to take effect November 14, 2011? But it got postponed until January 31, 2012? You'll never guess what happened! Yup, postponed again. Earlier today, the NLRB pushed the implementation date back to April 30, 2012... for now. See the NLRB press release here.

Image: NLRB logo used in commentary on NLRB - Not official use.

Holiday Apparel and Religious Discrimination - COTW #72

I have a special holiday throwback Case of the Week for you: Kreilkamp v. Roundy's, Inc., 428 F. Supp. 2d 903 (W.D. Wisc. 2006). You know the holiday swag you often see retail workers wearing around this time of year? When stores force their employees to wear reindeer antlers, Santa pins, or sleigh bells, do they face religious discrimination liability?

Maybe. But, the employee claiming discrimination must: 1. hold a conflicting sincerely held religious belief; and 2. notify the employer. In Kreilkamp, the grocery store employer made its employees wear necklaces featuring Santa Claus, an angel, a snowman, or a gingerbread man. The plaintiff got the gingerbread man.

The plaintiff initially said he wouldn't wear it because he doesn't wear jewelry. He later changed his rationale by telling his employer that one of his birth parents was part Jewish. Plaintiff submitted the following statement:
I Thought about my next move, I Looked at Mark Elliot That my birth father was Jewish and I was Jewish. They Looked at me and was Told Not To use my faith to Keep from wearing The Christmas neckles.
The Court found that the "next move" comment strongly suggested that his expressed religious concerns were not legitimate. The Court also noted that the employee's statements about his part-Jewish parent failed to notify the employer that the employee himself held a conflicting religious belief.

Bottom line: Summary judgment for the employer.

Merry Christmas! I will return next week with a year-end blowout, featuring: Top entries of 2011, predictions for 2012, and the Case of the Year for 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, December 22, 2011

Lawffice Links 12/22/2011

Still need last-minute Christmas gifts? How about some fresh Lawffice Links for your loved ones' reading pleasure:

- Mark your calendars for January 6, 2012 at 2:00 PM EST! I will be appearing on a very special, LIVE, call-in, 100th episode of The Proactive Employer along side veteran employment law bloggers, Jon Hyman and Dan Schwartz.

- Ross Runkel explains the NLRB's adoption of new election rules...

- ...and the Chamber of Commerce responds to the NLRB with a lawsuit (Complaint here).

- Alleged sexting leads to a sexual harassment claim against NBA player Monta Ellis and the Golden State Warriors.

- Nothing spreads Christmas cheer quite like sexually harassing Santa Claus (flashback to a 2007 blog entry from Dan Schwartz).

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, December 21, 2011

Facebook Discovery Odds Dropping in Pennsylvania

Just last month, I was blogging about Pennsylvania blazing the Facebook discovery trail in cases like Largent v. Reed. Getting a personal injury plaintiff's social media accounts and passwords seemed like almost a sure thing. Pennsylvania's still blazing the trail, but suddenly the tide has turned!

Last week, I blogged about a judge in Franklin County denying a social media discovery motion in Arcq v. Fields. And, I just learned of another Pennsylvania case in which the judge denied a motion to compel the plaintiff to hand over Facebook and MySpace passwords.



Think Before You Click:
Strategies for Managing
Social Media in the Workplace
  In Kalinowski v. Kirschenheiter and National Indemn. Co. (Luzerne Cty.), the defendant argued that he saw pictures and posts on the publicly accessible portions of the plaintiff's social media accounts that warranted further discovery. The posts showed the supposedly injured plaintiff lounging on a bar stool in a pimp outfit, advertised a lingerie party at a bar the plaintiff owned, and promoted a going away party for him that promised to be "a night he WON'T REMEMBER!!"

The plaintiff argued that the pimp picture was pre-injury and the content cited by the defendant served no purpose other than to embarrass the plaintiff. The plaintiff also emphasized that none of the content directly impeached any of his testimony.

The judge denied the motion to compel production of the plaintiff's Facebook and MySpace passwords. But, the order also directs the plaintiff not to delete any of the present content. So, the door remains open to future social media discovery.

HT: Dan Cummins of TortTalk who provided me with the motion, brief in opposition, and order. He has more on this case: Judge Van Jura of Luzerne County Bucks the Trend on Facebook Discovery in a Facts-Specific Case.

See also: The Legal Intelligencer has a nice article on Pennsylvania social media discovery: Plaintiffs Score a Pair of Wins in Social Media Decisions.

Shameless Plug: For more on social media issues, check out the book I co-authored: Think Before You Click: Strategies for Managing Social Media in the Workplace.

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, December 20, 2011

Fired for Giving James Franco a 'D'?

Did you know James Franco, award-winning actor from 127 Hours, got a 'D' in acting class? Actually, it was a class about directing actors... but let's not take away from the irony. You may be wondering how I am going to tie this in to employment law. Turns out, it's not a hard transition at all - the professor who gave Franco that grade just filed a lawsuit in a New York state court.

(I just had a flash back to my teachers always saying: "I don't give grades, you earn them"... but I digress)

A copy of the complaint is here, courtesy of TMZ. Obviously, the media is going crazy over the James Franco part, but the case is based on racial discrimination and harassment, and retaliation. The professor claims he had an inferior office (described as a supply closet), he was paid less, and he was denied reappointment (ordinarily a "mere formality") because of his race.

I actually found the Franco discussion a bit odd. The complaint discusses a conflict of interest with Franco hiring another professor, and mentions that Franco missed 12 of 14 classes (thus earning his D - although, it makes you wonder what it takes to get an F!). It's not clear to me how this supports the discrimination claim. If he was actually let go because he gave Franco a D, then that sounds like a non-discriminatory reason, doesn't it?

We'll have to wait and see how it plays out. Here is a YouTube clip of Franco discussing his D (email subscribers can 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.

Thursday, December 15, 2011

Social Media Discovery Request DENIED - COTW #71

Just last month, the Franklin County Court of Common Pleas here in Pennsylvania ordered a party to hand its Facebook password over to opposing counsel. Exactly one month later, on December 7, the same court issued another opinion on a motion to compel social networking information as part of discovery. But this time, the Court denied the motion.

The new case is Arcq v. Fields (HT: Volokh). So, what was different this time around? In the Court's own words:
We find that there lies one glaring, distinguishing factor that prevents us from [granting the motion]: Defendant's request is not the result of viewing the public portion of Plaintiff's profile.
The Court noted that requesting party seemed uncertain of whether the plaintiff even had the MySpace, Facebook, LinkedIn, and Twitter accounts he was requesting. The bottom line:
While it is not an absolute necessity that a plaintiff have a public profile before a defendant can be given access to the private portion, it is necessary that the defendant have some good faith belief that the private profile may contain information. Here, Defendant had no reason to believe so, therefore the Motion to Compel will be denied.
I think this case reminds us that social media discovery is ultimately just normal discovery, and the same principles apply. How the courts will apply those principles to social media moving forward remains to be seen.

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.

EEOC on High School Diplomas and the ADA

It's hard to think of a more accepted job requirement than a high school diploma. How in the world can requiring employees to have high school diplomas violate the ADA? Believe it or not, the EEOC has found a way.

In a recent informal discussion letter (here), the EEOC notes a potential ADA problem with requiring high school diplomas. The letter specifically addresses the difficulties some individuals with learning disabilities have with obtaining diplomas. Here is the analysis:
Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).
Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.
Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant. However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.
It's worth noting that this is not an official opinion letter. Just another thing for employers to think about though...

HT: Randy Enochs on Avvo.

Image: Public domain work of federal government. Logo used in discussion of EEOC. 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.

Wednesday, December 14, 2011

Lawffice Links 12/14/2011

Some fresh Lawffice Links for your reading pleasure:

- Lawffice Space appears in the latest Employment Law Blog Carnival hosted by CPEhr's Small Biz HR Blog.

- Mashable has Everything You Need to Know about the New Twitter (aka #NewNewTwitter aka Twitter 4.0) - I have it on iPhone and Chrome, and while I don't find it earth-shattering, it is a cool little upgrade.

- WSJ covers Tweeting Without Fear - How Three Companies Have Built Their Twitter Strategy.

- That huge NLRB-Boeing case goes out with a whimper.

- FoxNews covers the Federal Courtroom Camera Pilot Project.
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, December 11, 2011

Jack and Tweets - A Bad Workplace Combination

Just when you think Anthony Weiner has the award for Stupidest Tweets of 2011 all locked up (reminder here), three hill staffers make a solid last-minute entry. NW Daily Marker has the now-infamous tweets that cost three of Washington Congressman Rick Larsen's D.C. staffers their jobs.

Sadly, the three have all deleted their Twitter accounts. Fortunately (for us), the Internet never forgets. The highlights come from "TheRocketship1":
  • My coworker just took a shot of Jack crouching behind my desk. We have unabashedly given up on just about all things work related. #D2R
  • Dear taxpayers - I hope you don't mind that I'm watching YouTube clips of Nirvana at my government job. Thanks, you're the best.
  • I really like DC, but I could have used another day away. The silver lining is that I don't have to see my idiot boss. #smallvictory
"Jack" is presumably Daniels, and "#D2R" appears to be their hashtag for "December to Remember." Something tells me they will remember this December! 

Additional tweets called the Congressman a "pu$$y" and a "selfish asshole," described destroying a work blackberry, and confessed "I'm pretty sure I couldn't pass a field sobriety test right now." I think common sense dictates that you don't tweet about drinking on the job, calling your boss names, slacking off, and wasting taxpayer dollars.

This story provides yet another reason that employers may want to consider implementing a social media policy and strategy. Lastly, a shameless plug for a book I co-authored, which includes a chapter on drafting social media policies and even includes a sample policy: Think Before You Click: Strategies for Managing Social Media in the Workplace.

Image: Public domain photo of Congressman Rick Larsen (work of federal government).

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, December 8, 2011

Transsexual Employee Protected by Constitution (and Title VII by Implication?) - COTW #70

In Glenn v. Brumby, the Eleventh Circuit analyzed whether the Equal Protection Clause of the Fourteenth Amendment of the Constitution prohibits public employer discrimination against transsexuals. But, it's also a big case for private employers.

The facts are pretty straightforward, which allows the Court to focus almost entirely on the transsexual discrimination issue:

[Defendant] testified at his deposition that he fired [Plaintiff] because he considered it "inappropriate" for her to appear at work dressed as a woman and that he found it "unsettling" and "unnatural" that [Plaintiff] would appear wearing women’s clothing. [Defendant] testified that his decision to dismiss [Plaintiff] was based on his perception of [Plaintiff] as "a man dressed as a woman and made up as a woman," and [Defendant] admitted that his decision to fire [Plaintiff] was based on "the sheer fact of the transition."
Are you there God? It's me Phil. Please send me a plaintiff terminated by a defendant who is this discriminatory and honest.

The Court did not address this as class-based discrimination against transsexuals though. Instead, the Court analyzed the equal protection claim as a gender-stereotyping, sex-based discrimination claim. Why does that matter? Two important reasons:
  1. Sex- and gender- based discrimination receive a heightened standard of review, "intermediate scrutiny" (I'm not aware of case law on this point, but I'm guessing transsexual-based discrimination would warrant only rational basis review); and

  2. If discrimination against transsexuals is sex-based discrimination... and Title VII prohibits sex-based discrimination by private employers... the unavoidable conclusion is that Title VII prohibits discrimination against transsexuals by private employers too.
The Court concluded that "a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity."

The idea that discrimination against transsexuals is actually sex-based discrimination is hardly new. The Court provides a plethora of case law supporting the point. Although this was a public employer case under the Constitution, private employers should recognize the implications.

HT: Russ 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.

Wednesday, December 7, 2011

Lawffice Links 12/7/2011

Come and get 'em! Some Lawffice Links for your reading pleasure:

- 9 to 5 Mac unearthed Apple's social media policy. Check out commentary on the policy and NLRB-implications from Jon Hyman (here) and Dan Schwartz (here).

- Eric Meyer offers his take on my most recent Case of the Week entry, involving pornographic emails and discrimination claims.

- From netWORKed, A New Twist on Business Security - Banning Social Media Can Increase Security Breaches?

- Wall Street Journal addresses legal cover for employees' Facebook rants.

- George Mason (my law school alma mater) provides cuddly puppies for stressed out students during finals!

Sidenote: I made Lawffice Space <- w i d e r -> this week. That means bigger pictures and better readability. If you experience any display problems, please let me know.

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, December 5, 2011

Electronic Documents and Redaction - A Cautionary Tale

Electronic documents are great! You can ship 'em around the world in seconds, collaborate over networks, and editing is a breeze. But there's also a downside. With electronic documents, what you see is not always what you get . . . they're more than meets the eye . . . they're all that and then some . . . and probably more corny slogans.

What am I talking about? Hidden information. Electronic documents often contain information that is not visible to the average reader . . . but it's there. One example is metadata, or data about the document that is stored in the electronic file. For another example, see this story about the revealing opinion in Samsung v. Apple:
In her 65-page ruling denying Apple's request for a preliminary injunction against Samsung, [the judge] attempted to redact nearly two dozen sentences or short fragments. But because of a formatting characteristic in the prior electronic version, the redacted material can be viewed by copying text from the PDF and pasting it into another document.
Even judicial opinions aren't safe! This judicial opinion is just the latest reminder to scrub thoroughly before unleashing a digital document to the world.

HT: Euguene Volokh and his Conspiracy.

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.

PBA Addresses Attorney Use of Cloud Computing

The Pennsylvania Bar Association (PBA) Committee on Legal Ethics and Professional Responsibility issued a formal opinion (2011-200), Ethical Obligations for Attorneys Using Cloud Computing/Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property. That's quite a title! The central question of the opinion is: May an attorney ethically store confidential client material in “the cloud”?

What is "the cloud"? The cloud provides software and services over the Internet, with shared resources residing on host computers (aka, not your computer). The cloud includes webmail products like gmail, and online office and document tools like Microsoft Office 365 or Dropbox. This raises some concerns, mainly about storing confidential information on someone else's servers.

Cutting straight to the punchline, the PBA committee concluded:
Yes. An attorney may ethically allow client confidential material to be stored in “the cloud” provided the attorney takes reasonable care to assure that (1) all such materials remain confidential, and (2) reasonable safeguards are employed to ensure that the data is protected from breaches, data loss and other risks.
It's not just about confidentiality though. For example, "Competency extends beyond protecting client information and confidentiality; it also includes a lawyer's ability to reliably access and provide information relevant to a client's case when needed." The opinion also discusses Pennsylvania's data breach notification law.

The opinion also includes almost three pages of what the standard of reasonable care for cloud computing "may include." Noncommittal, but I'll take it for now.

Image: Photograph taken by Philip Miles.

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, December 2, 2011

Ranking Workplace Porn Emails - COTW #69

In Hodczak v. Latrobe Specialty Steel Company, the Third Circuit analyzed an age discrimination claim brought by employees who were fired for exchanging "sexually explicit" emails at work. Third Circuit, discrimination, and porn? You know that's gonna be a Case of the Week! The employees claimed they were terminated while younger employees, who also had some workplace porn, were not terminated.

One interesting aspect of the case is that it sheds light on how the employer differentiated the levels of workplace porn activity. For example:
In deciding the appropriate level of discipline for each employee, LSS considered the nature and volume of the emails exchanged, whether they were sent to individuals inside or outside the company, and whether they were sent to customers or vendors.
Sounds reasonable. One sidenote, the employer looked at the "nature" of the emails. I always thought cases like this should include the content in question... not because I want dirty pictures (I'm guessing there are better places to find porn on the Internet than Westlaw), but so that we can get a feel for exactly what these guys were sharing. But I digress...

The Court also did some ranking of the emails. As part of a discrimination claim, it helps to show that "similarly situated" individuals were treated differently. The Court found:
[T]he persons identified by Appellants are not similarly situated. Carl Dorsch is not similarly situated to Appellants because, although he accessed pornographic websites on his work computer, he was a non-supervisory employee and he did not send the content to anyone else. Likewise, Robert Smith is not similarly situated to Appellants because there is no evidence that Smith actually sent sexually explicit emails . . . . Conrad is not similarly situated to Appellants because he sent only one email and did so from his personal computer. In contrast, Appellants exchanged sexually explicit emails on nearly a daily basis.
Good to know. I think we have some solid takeaways regarding dirty emails in the workplace here:
  • It's worse when supervisors do it;
  • Using workplace computers is worse than using personal computers;
  • Sharing is worse than viewing;
  • More is worse than less;
  • The "nature" of the emails matters; and
  • Sharing externally (especially with customers and vendors) may be worse than sharing internally (That 's the employers view, but I'm not sure I agree... internally could have a greater chance of spawning sexual harassment claims).
HT: Molly DiBianca - Employees Fired for Pornographic Emails Lose Age Discrimination 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.

Thursday, December 1, 2011

2011 ABA Blawg 100 is Out!

Once again, the ABA Journal has created a list of the Top 100 Blawgs (Law + Blog). You can now view the whole 2011 list here (including the authors' twitter handles). Once again, the list has failed to recognize the genius of Lawffice Space, but it's an honor just to be nominated (OK, I don't really know if I was even nominated).

The list includes nine employment law blogs:

Ohio Employer's Law Blog - One of my favorites, I never miss a post. Jon Hyman is also the mastermind behind the book to which I contributed, Think Before You Click: Strategies for Managing Social Media in the Workplace.

FMLA Insights - A complex area of the law that needs a devoted blogger. Jeff Nowak is that blogger.

The Employer Handbook - Eric Meyer is the new kid on the block. Coincidentally, that's also his favorite band. Maybe not. He does include music in most of his posts though, and that's pretty awesome.

Delaware Employment Law Blog - Great social media-related content. Also, they cover 3rd Circuit cases, which I appreciate because Pennsylvania is in the 3rd Circuit.

Work Matters - If your list of top employment law blogs doesn't include Mike Maslanka, you're doing it wrong. The zen master.

Connecticut Employment Law Blog - Dan Schwartz completely redesigned his site this year... and I completely ripped off his inclusion of post previews under the banner (imitation is the sincerest form of flattery?).

Screw You Guys, I'm Going Home - By Donna Ballman. Yes Virginia, there are employee-side blogs. Sometimes the title says it all.

Employment and Labor Insider - Robin Shea's enthusiasm for employment law leaps right off her tweets and blog entries and smacks you in the face (that's supposed to be a compliment).

Arizoneout - I'll be honest, I've never heard of this one. An entire blog devoted to "Legal Marijuana in the Arizona Workplace?" Really? I'll admit, I'm intrigued.

Congrats to all the winners. Also, a shout-out to That's What She Said for getting a nod in the "for fun" category (they value cases based on episodes of The Office - funny and employment law-ish).

You can view my past commentary on the 2010 and 2009 winners. Keep an eye out for Lawffice Space in next year's list!

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.

NLRB's Big Day - Boeing and Election Rules

Two controversial NLRB issues seemed to resolve themselves within about an hour yesterday.

First, Republican member Brian Hayes showed up for yesterday's election rules vote. This is important because the Board can't function without him as there would only be two remaining members (remember New Process Steel v. NLRB?). The NLRB voted 2-1 along party lines to move forward with proposed election rules (derisively called the "ambush election" rule by critics). You can read more about the meeting here (video coming soon), and the resolution is available here.

Second big NLRB news of the day is that the Boeing and its Machinists' Union have reportedly settled. You can read about the NLRB complaint against Boeing here.

Image: NLRB logo used in commentary on NLRB. 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.