Friday, March 30, 2012

Healthcare Oral Arguments at SCOTUS

In case you've been living in a cave (without your smartphone) for the past week, the Supreme Court heard oral arguments on four issues regarding the Affordable Care Act (ACA) or "Obamacare" or "that new health care law." Transcripts and audio of the arguments are available on the Supreme Court's website and make for interesting reading/listening:
  • Does the Anti Injunction Act bar review of the individual mandate? Transcript | Audio
  • Is the individual mandate Constitutional (primarily commerce clause and tax powers, sprinkle in some necessary and proper clause)? Transcript | Audio
  • If the mandate is unconstitutional, should the whole law fall (aka the severability issue)? Transcript | Audio
  • Medicaid expansion issue (proper spending or improper coercion) Transcript | Audio
Just in case my readers needed something to do for about 7-8 hours this weekend! You're welcome!

McDonald's Made Me a Prostitute - COTW #85

From flippin' burgers to turnin' tricks, a former McDonald's employee is suing the burger chain for Negligent Retention and Supervision of Franchisees. She claims Ronald McDonald the franchise owner used "psychological and economic coercion" to force her into prostitution. She started dating the guy, got fired by another manager, and then worked in a legal brothel in Nevada.

All jokes aside, this is likely an extremely sad story - but how is McDonald's liable for this? Well, it doesn't seem like a strong argument, but here's the Complaint, including:

19. But for the lack of education exacerbated by McDonald's open hostility towards unions and workers rights, mostly minimum wage jobs and inferior health benefits, its failure to encourage women employees and women to purchase franchises . . . [Plaintiff] probably could have withstood the psychological and economic coercion [franchise owner] used against her to persuade her to engage in prostitution.
25. McDonald's does not insure employee policies are in place to protect against unscrupulous and criminal individuals like [franchise owner]. It has an active, notorious, and hostile campaign to keep unions out. It offers an inferior health care plan and no pension benefits. Most employees are paid minimum wages [and are] "at will," a legal concept left over from the nineteenth century when employees were described as "servants" in American law.
105. [B]ecause of its anti worker policies, McDonald's has little interest in overseeing the conduct of franchisees towards their employees and third parties . . . . McDonald's has not insured or taken any affirmative steps to insure that unscrupulous franchise owners . . . do not cause harm to individuals.
Ummm, yeeaaahhh... so, McDonald's pays low wages, hates unions, has an "inferior health care plan," and doesn't take affirmative steps to insure that its former employees don't run off with their boyfriends/McD's franchisees to become legal prostitutes in Nevada? I think this one is a tough sell.

HT: Jon Hyman via Twitter and Courthouse News Service for publishing the Complaint. Sidenote: Jon informed me that upon hearing of this case involving fast food, pimps and hookers, he "immediately thought of [me]" - although he assures me it was just because of COTW!

Wednesday, March 28, 2012

Third Circuit Weighs in on At Will Employment

In Edwards v. Geisinger Clinic, the Third Circuit analyzed a breach of contract claim. A physician claimed he had a contract for a definite term, and was therefore not an 'at will' employee. He relied on a four-year requirement for a certification, the lack of an at will disclaimer in his offer letter, restrictions on Geisinger's right to terminate him (ex. "my employment and/or contract cannot be terminated for[] [a]dvocating for medically necessary and appropriate health care"), and Geisinger's representation to immigration authorities that it committed to him for a definite term.

The Court wasn't buying it - for starters, he signed a practice agreement that expressly acknowledged that his employment was at will. Hardly groundbreaking precedent here, but the Court provided a helpful, concise summary of at will employment under Pennsylvania law:
Pennsylvania law presumes that employment is at-will. To overcome the presumption of employment at will, an employee "must show clear and precise evidence" that the parties intended to enter an employment contract for a definite term. In analyzing the parties' intent, we consider “the surrounding circumstances." An employee’s “subjective expectation of . . . guaranteed employment . . . based on employer practices or vague employer superlatives” does not demonstrate an employment contract for a definite term. Likewise, "comments which merely evince an employer’s hope that the employee will remain" are inadequate to prove a contract for a definite term.
(internal citations omitted). In short, Pennsylvania has a strong presumption of at will employment that is difficult to overcome.

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

$168 Million Workplace Bullying and Harassment Verdict

I've been meaning to get this on the blog for awhile. The L.A. Times reports, California physician assistant wins $168 million in harassment suit. In case you were wondering, that's $42.7 million for lost wages and mental anguish (I'm guessing heavy on the mental anguish) and $125 million in punitive damages.

There's little doubt that the final amount paid will be less than that. But still, what kind of conduct leads to such an enormous jury award?
There were at least 18 [complaints], she recalled, many having to do with the bullying surgeon who once stabbed her with a needle and broke the ribs of an anesthetized heart patient in a fit of rage. Another surgeon, she said, would greet her each morning with "I'm horny" and slap her bottom. Yet another called her "stupid chick" in the operating room and made disparaging remarks about her Armenian heritage, asking if she had joined Al Qaeda.
Sounds pretty rough... but $168 million rough? The number grabs headlines - I doubt we'll see any headlines about the final number though. It will either not be sensational enough for headlines, or subject to a confidentiality clause in a settlement.

Others blogged of this before me, including Stephanie Thomas and Chris McKinney.

Image: American Cash is in the public domain.

Tuesday, March 27, 2012

UPDATE: Orange Employees Strike Back

Remember last week's Case of the Week about the employees fired for wearing orange? I noted that their statements about wearing orange for happy hour ran counter to an NLRA argument that they were engaging in protected concerted activity; and maybe a lawyer could turn this non-case Case of the Week into a case.

Well, some of them contacted a lawyer... and not just any lawyer but Donna Ballman of Screw You Guys, I'm Going Home fame (and a contributor to last week's Saved by the Bell Employment Law Blog Carnival on Lawffice Space)! Now, ABCnews reports:
Ballman said some workers may have been wearing orange to mimic the uniform color often used by the Florida Department of Corrections. Those workers may have been protesting new work rules imposed by a new manager earlier this month. She said, for example, that they could not speak to coworkers over the walls of their cubicles, even to discuss work-related matters.
Now it's starting to sound like an NLRA claim! Will it be a case after all? Ballman notes that "If [the employer] won't discuss this, we are going to pursue our legal remedies."

PLRB Decisions Available Online

The Pennsylvania Labor Relations Board (PLRB) decides cases under the Pennsylvania Labor Relations Act (mostly limited to small businesses not covered by the NLRB) and the Public Employe (only one 'e' at the end... not sure why) Relations Act (PERA). Once upon a time, when you wanted to research PLRB decisions you would have to go to the library and look in these things called "books."

Fortunately, the great state of Pennsylvania has made PLRB Final Orders available online (here). There's a search box and everything! It looks like coverage goes back to 1999. They also have Forms, Proposed Orders, Fact-Finding Reports, and other publications. I have found this useful in researching PA labor issues and thought I'd pass it along. Enjoy!

Image: Pennsylvania Department of Labor and Industry logo used in commentary on PA DLI - NOT OFFICIAL USE.

Monday, March 26, 2012

Consensus Forming on Employers Requesting Facebook Passwords

As discussed in my last post, employers requesting Facebook passwords in job interviews has generated a lot of backlash. It's a hot topic amongst employment law bloggers, and I'm starting to see some trends:
  • Requesting passwords or logins is a bad idea because it is obnoxious and intrusive;
  • It might be illegal (Stored Communications Act, privacy, discovering information that could lead to discrimination claims);
  • It's not common practice; and
  • Employment law bloggers are awesome (who am I to argue?) and have been all over these issues since before it was trendy.
Don't take my word for it, read for yourselves. Here are just a few of the usual suspects weighing in:
Do you have an employment law blog with a different take? Drop a comment and let me know (feel free to include a link if it's on point).

Image: Facebook logo used in commentary on Facebook.

Employers Requesting Facebook Passwords - The Backlash

Last week, a widely circulated Associated Press article, Employers Ask Job Seekers for Facebook Passwords, generated a ton of controversy. The article includes stories of job interviewers requesting Facebook, and other social network, usernames and passwords - or, the slightly less intrusive practice of having the interviewee login during the interview (but not provide the password to the interviewer). Cue the outrage!

It turns out this employment screening technique is not very popular. There are proposed laws that would forbid employers from asking for job seekers' social media passwords, including one in Illinois.

Facebook issued Protecting Your Passwords and Privacy, decrying the "distressing reports" of the "alarming" practice of employers "seeking to gain inappropriate access to people’s Facebook profiles or private information." It is a violation of Facebook's policy to share or solicit passwords. Facebook also threatened legal action against apps that "abuse their privileges." And, Facebook reminds employers that they may discover information that could support discrimination claims.

And now, two Senators have called for a federal probe over employers asking for Facebook passwords. I haven't heard anybody calling for military action or the use of nuclear weapons . . . yet.

It's tough to gauge how widespread this practice is. If anybody has info on this, let me know. And, if you have any stories about interviewers requesting login info, or having you login during the interview, drop a comment!

Image: Facebook logo used in commentary on Facebook.

Thursday, March 22, 2012

Fired for Wearing Orange - COTW #84

I have an unusual Case of the Week this week. For starters, it's not even a case... yet. Yahoo! News has a bizarre report that Law firm fires 14 employees for wearing orange shirts:
[S]everal of the fired workers say they wore the matching colors so they would be identified as a group when heading out for a happy hour event after work. They say the executive who fired them initially accused them of wearing the matching color as a form of protest against management.
Something seems backwards here...

Let's step back and talk law. Yeah, yeah, yeah... generally, at will employees can be fired for any reason, or no reason at all - or even for wearing an orange shirt! But let's mention a little thing called the NLRA - which protects employees engaged in certain concerted activity such as protesting the terms and conditions of employment. Now back to the orange shirt story:
After the 14 employees were fired, an executive said anyone wearing orange for an "innocent reason" should speak up. At least one employee immediately denied any involvement or knowledge of a protest and explained the happy hour color coordination.
Yup, things still sound backwards. If the story is correct, the employer claims it fired the employees for some sort of protest, but the employees assure us they were doing no such thing. It's almost as though the employer is arguing it may have violated the NLRA, but the employees are saying that they were not engaging in protected activity at all.

At this rate, this Case of the Week will never be a case! I'd say both sides should get in touch with a lawyer... but the employer here is a law firm. Surely, something else is going on here. I find it hard to believe that the employees just showed up in orange one day to celebrate happy hour, and the employer thought, "oh my gosh, too many people are wearing orange today! We better fire them all!" Drop a comment if you have any more info.

HT: My mother via email (but no, I'm not blogging from her basement - sorry to bust the stereotype).

Miles on Disconnecting from Social Networks

Just confirmed: I will be appearing at the Harrisburg University Social Media Summit on May 23, 2012. Mark your calendars, and register now! Some of you will be surprised to hear that I will be on the Unplugged: Disconnecting from Social Networks at Home and Work panel.

A social media guy like me discussing the benefits of disconnecting? I actually spend a lot of time hitting the downside of social media on this blog, and certainly there is a case to be made that disconnecting is a good idea. To hear that case, come to the panel!

Some of the "social media evangelists" remind me of this great scene in the movie Summer School. The father of one of the jocks supports the summer school teacher under fire and says (paraphrasing): "He taught my son that there's more to life than just football!... I'm not sure I agree... but it's possible." There's more to life than just social media... you don't have to agree... but it's possible.

Follow @HUSocialSummit (organizer Steve Infanti) on Twitter.

Image: Harrisburg University logo used in commentary on upcoming event.

Wednesday, March 21, 2012

Saved by the Employment Law Blog Carnival

The Employment Law Blog Carnival is in town, and it's my turn to host. A well kept Lawffice Space secret (until now): For a brief period of time (which I'll call "high school to the present") I loved Saved by the Bell. What better way to honor this great show than to make this month's carnival the Saved by the Bell edition? In the words of Jessie Spano, "I'm so excited! I'm so excited!" (but I'm not hooked on caffeine pills - those are bad Jessie!).

Junior High

John Holmquist brings us Implicit bias? Iowa? on the Michigan Employment Law Connection. And, Randy Enochs delivers Wisconsin Law Allowing Compensatory and Punitive Damages Soon to be Repealed on the Wisconsin Employment and Labor Law blog. What do these Midwest legal issues have to do with Saved by the Bell? Easy. The junior high flashback episodes all take place at JFK junior high... in Indiana.

Bayside High School

Without explanation, Zack, Lisa, Screech, and Principal Belding all coincidentally leave Indiana, and end up at Bayside High... in California. Ari Rosenstein can tell them about California Employment Law: Ramifications of Class Action Lawsuits in 2012 on CPEhr's Small Biz HR Blog.

On HR Examiner, Heather Bussing addresses Hiring for Diversity. Of course, the Bell featured a diverse group: Slater is Latino, Lisa is African American, and if you remember the episode with "Running Zack," then you know that Zack Morris is part Native American!

On The ManpowerGroup Employment Blawg, Mark Toth gives us the Top 40 Engagement Ideas of All Time. Who doesn't love a good top 40? Like the American Top 40, hosted by Casey Kasem... one of the first guest stars to appear at Bayside (he hosted the dance contest with Screech and Lisa doing "the sprain").

Robin Shea offers us, Do you have a gender-based pay gap? If so, you'll have some explaining to do on Employment and Labor Insider. She offers some non-discriminatory explanations for the gender wage gap. No doubt, uber-feminist Jessie Spano would see things differently (after calling Slater a "Neanderthal" and/or a "sexist pig"... and then making up with him).

It's tough being unemployed. Remember when Kelly Kapowski couldn't afford a prom dress because her dad lost his job? It's not all bad news though - Zack made her their own picnic prom. And now, Bob Fitzpatrick tells us that D.C. and New Jersey prohibit discrimination against the unemployed on Fitzpatrick on Employment Law.

Eric Meyer's The Employer Handbook explains that Baseball has a new social media policy. And it may be unlawful. A baseball-Bell tie-in? No problem! Remember when Zack "converted to Judaism" for the day to miss school and attend a Dodgers game? No social media - but he was busted by traditional media when the television broadcast showed him catching a ball off of "Rabbi Strawberry's" bat!

On i-Sight Blog, Dawn Lomer reminds us that Appearance-Based Discrimination isn't Illegal. But, it's not very nice either. Remember when Wendy, an overweight classmate, purchased Zack at a date auction? Zack learned that judging people based on appearance or weight is wrong! Of course, he ended up marrying Tiffani-Amber Thiessen and we never saw Wendy again in the entire series, but I digress.

Summer at the Malibu Sands

Who doesn't love the summer episodes, when the gang got jobs at the Malibu Sands Beach Club (where Lisa's parents were members)? On the Ohio Employer's Law Blog, Jon Hyman reminds us that Despite What Some Think, Employers Do Not Set Out to Discriminate. An employer who seems like the enemy sometimes, but really has a heart of gold... if that's not Leon Carosi, I don't know what is!

Donna Ballman submitted, Are Federal Judges Hostile To Employment Plaintiffs? Report Says Yes from her blog, Screw You Guys, I'm Going Home. Don't be so hard on the judges Donna - as Zack Morris can tell you, it's a tough job. He found himself in quite a dilemma when he had to judge the Miss Liberty pageant on the Fourth of July!

The Bell is Forever

On Just Joan, Joan Ginsberg wrote The NLRB Facebook Cases – What Was Your Employment Lawyer Thinking? She explains that the NLRB social media cases are just new applications of the same old NLRA. Yes, the NLRA - much like Saved by the Bell - is timeless. So, whether your employees are engaging in protected activity on their smart phones, Zack Morris' brick phone, or Screech's futuristic robot, Kevin - respect their rights under the NLRA.

Thanks for indulging me in this nostalgic trip through employment law and Saved by the Bell!

Disclaimer: Inclusion in the carnival does not indicate endorsement of the linked material. If you submitted a link for the carnival, and do not see your entry here, that is likely my error. Please send me your submission again and (assuming it is employment-law-ish and appropriate) I will add it. Saved by the Bell title card is fair use in commentary on the show.

Tuesday, March 20, 2012

SCOTUS Holds States Immune from FMLA Self-Care Suits

The Supreme Court decided Coleman v. Md. Court of Appeals today. (Background | Opinion).

To make a long story short, per the syllabus, Justices Alito, Roberts, Kennedy, and Thomas "concluded that suits against States under the [FMLA] self-care provision are barred by sovereign immunity." But wait! That's only four Justices... how can that be? Yup, we have a 4-1-4 decision.

The "1" is Justice Scalia, who left little doubt where he stood:
I would limit Congress’s [14th Amendment] §5 power to the regulation of conduct that itself violates the Fourteenth Amendment. Failing to grant state employees leave for the purpose of self-care—or any other purpose, for that matter—does not come close.
I guess you could say Justice Scalia had some problems with the analysis employed by the other Justices:
The plurality’s opinion seems to me a faithful application of our "congruence and proportionality" jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the "congruence and proportionality" test make no sense. Which in turn is because that flabby test is "a standing invitation to judicial arbitrariness and policy-driven decisionmaking."
Tell us how you really feel! In any event, complicated analysis and a weird split... but a pretty simple outcome: state immunity for lawsuits arising out of the FMLA self-care provisions.

Monday, March 19, 2012

3d Circuit Weighs in on Recovering E-Discovery Costs

Last Friday, the Third Circuit released a definitive opinion regarding taxation of e-discovery costs against losing litigants. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 11-2316, 2012 WL 887593 (3d Cir. Mar. 16, 2012)(marked for publication in F.3d). Judge Vanaskie (who I'll note is pretty hip to technology issues) largely vacated an order awarding $360,000 in e-discovery costs to the defendant, slashing it by more than 90%.

The highlights from the opinion:
The District Court in this case concluded that more than $365,000 in charges imposed by the electronic discovery vendors, covering such activities as hard drive imaging, data processing, keyword searching, and file format conversion, are taxable . . . . In view of the significant role that electronic discovery plays in litigation today, involving the collection, processing, and production of huge volumes of data generated as a result of the information technology and communication revolutions, we believe it imperative to provide definitive guidance to the district courts in our Circuit on the question of the extent to which electronic discovery expenses are taxable . . . . We further conclude that only scanning and file format conversion can be considered to be "making copies," an activity that amounts to approximately $30,000 of the more than $365,000 in electronic discovery charges taxed in this case.
And the conclusion:
Neither the language of [28 U.S.C.] § 1920(4), nor its history, suggests that Congress intended to shift all the expenses of a particular form of discovery—production of ESI—to the losing party . . . . Although there may be strong policy reasons in general, or compelling equitable circumstances in a particular case, to award the full cost of electronic discovery to the prevailing party, the federal courts lack the authority to do so, either generally or in particular cases, under the cost statute. 
In sum, we conclude that of the numerous services the vendors performed, only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved "copying," and that the costs attributable to only those activities are recoverable under § 1920(4)'s allowance for the "costs of making copies of any materials."
And that settles that!

HT: The Legal Intelligencer - 3rd Circuit Slashes E-Discovery Costs to be Recovered.

UPDATE (3/19/2012): You can read the opinion here. Commenter Nicholas Wagoner dropped a link to his excellent blog, Circuit Splits, for his analysis of the circuit split on this issue: Recovering the Cost of E-Dscovery.

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

Sunday, March 18, 2012

Our Offices are Getting Smaller...

According to a study by Peter Miscovich, our office walls are closing in. From the LA Times:
In the 1970s, American corporations typically thought they needed 500 to 700 square feet per employee to build an effective office. Today's average is a little more than 200 square feet per person, and the space allocation could hit a mere 50 square feet by 2015.
Cubicles are also downsizing - from an average of 64 feet to 49 feet in recent years (my mathematical inclination tells me this is likely a cut from 8x8 to 7x7 - and they say lawyers can't do math!).

HT: I heard about the study via Quiet: The Power of Introverts in a World that Can't Stop Talking (which I previously blogged about here).

Friday, March 16, 2012

ADAAA Retroactivity... a Chance!? - COTW #83

Waaay back, at the dawn of time - I mean, the dawn of Lawffice Space - I wrote the very first post on Lawffice Space (not counting the disclaimer). That post was ADAAA 2008 Retroactivity? Not a Chance. It was a done deal. Case after case (after case) held that the ADAAA, and its expanded definition of "disability", did not apply retroactively.

I have never had any reason to question the conclusion of that post... until now. Wait a Second (a blog about the 2nd Circuit), reports 2d Circuit quietly applies Amended ADA retroactively. What!? The case is Hilton v. Wright.

The ADAAA took effect on January 1, 2009. Hilton is a prison inmate denial of treatment claim filed back in 2005. The Court held:
Until January 1, 2009, when amendments to 42 U.S.C § 12102 went into effect, see ADA Amendments Act of 2008, Pub. L. 110-325,§§ 4(a), 8, 122 Stat. 3555, (2008) . . . Hilton would not have been able to demonstrate that he was "disabled" within the meaning of the ADA . . . . [U]nder the old regime, Hilton could survive summary judgment on his ADA claim only if he could raise a genuine issue of material fact about whether [Defendants] regarded him personally as being substantially limited in a major life activity. [In this case, applying the ADAAA standard,] it is clear that he was only required to raise a genuine issue of material fact about whether [Defendants] regarded him as having a mental or physical impairment. Hilton was not required to present evidence of how or to what degree they believed the impairment affected him.
The Court provides absolutely no analysis of whether the ADAAA should be applied retroactively. But, they apply the new standard to an old claim. And, the opinion notes that "both parties" thought Hilton needed to establish that he was regarded as "being substantially limited in a major life activity" (the "old regime" standard).

I never thought I'd say this, but ADAAA retroactivity? Maybe there's a chance.

HT: Dan Schwartz for tweeting the Wait a Second entry.

Wednesday, March 14, 2012

HR Examiner's Top 25 Influencers

HR Examiner released its list of the Top 25 Online Influencers: The Pulse of HR 2012. The wise and knowledgeable folks at HR Examiner have produced an outstanding and fabulous list... in other words, they included me! In all seriousness, it's an honor to be on the list at #19 - which means I can only think of 18 ways they could possibly improve the list for next year ;-).

Image: HR Examiner Top 25 Logo used in commentary on same.

Tuesday, March 13, 2012

Lawyers Ruin Pinterest!

Well, that didn't take long. Just the other day, I was blogging about the Top 5 Signs that Lawyers Should Know About Pinterest. Apparently they know about it, and they've informed the WSJ law blog How to Use Pinterest Without Breaking the Law. Let me summarize:
Don't pin anything, unless it predates 1923 or it's a picture you took yourself . . . unless the picture features a celebrity with your product in which case you may need permission.
Have fun! OK, a little tongue in cheek - in all seriousness, many social networking sites raise intellectual property concerns. The WSJ piece offers some helpful insight. Employment law tie-in: Employers may wish to address these intellectual property concerns in their social media policies.

HT: Eric Meyer via Twitter.

Image: Pinterest logo used in commentary on Pinterest (that's fair use, right?).

Embarrassing Family Facebook Photos and Invasion of Privacy

OK, I don't usually write about Minnesota state court opinions on harassment restraining orders (HROs)... but this one is a Facebook case, and they're 1. interesting; and 2. fairly new, so we'll take judicial input where we can find it.

A guy in Minnesota petitioned the court for an HRO because his uncle "posted multiple photos of various family members on his Facebook page." The petitioner asked the uncle to remove the photos, or alter them to remove the petitioner. The uncle refused, but removed the "tags" identifying the petitioner.

The photos could still be viewed by anyone via "a simple name search." At some point, things got a little testy with the uncle posting, "a hostile tirade against Petitioner online, [and] posting childhood images of Petitioner accompanied by obscene language."

Under Minnesota law, the court addressed the HRO using a standard invasion of privacy analysis. In other words, this case may be persuasive under privacy laws (and common law torts) in other jurisdictions. And, employees generally have some, albeit limited, protection from invasion of privacy (and you thought there wasn't going to be any employment law tie-in!).

In any event, the Court held:
Comments that are mean and disrespectful, coupled with innocuous family photos, do not affect a person’s safety, security, or privacy—and certainly not substantially so.
Seems like a simple case. Of course, employers must be careful about using someone's name or likeness for financial gain without their permission (an invasion of privacy tort called "misappropriation of name or likeness), or presenting them in a false light. But innocuous photos and some harsh commentary? Probably not an invasion of privacy.

The opinion can be found here: Olson v. LaBrie, A11-558 (Minn. Ct. App. 2012). HT: Minnesota Employment Law Report.

Image: Official Facebook logo used in commentary on Facebook.

Monday, March 12, 2012

Ideal Character - 19th Century vs. 20th Century

This weekend, I started reading Susan Cain's new book, Quiet: The Power of Introverts in a World that Can't Stop Talking. It's getting rave reviews - even the woman at the cash register told me it was great (yes, I still go to an actual store and purchase actual hard copies of books sometimes). I'm only two chapters in, but wanted to share something particularly interesting from early in the book.

Cain discusses the research of Warren Susman:
Susman counted the words that appeared most frequently in the personality-driven advice manuals of the early twentieth century and compared them to the character guides of the 19th century.
Any guesses about what he found? Here are some of the common words from the nineteenth century:
  • Citizenship
  • Duty
  • Work
  • Golden Deeds
  • Honor
  • Reputation
  • Morals
  • Manners
  • Integrity
And now the early twentieth century:
  • Magnetic
  • Fascinating
  • Stunning
  • Attractive
  • Glowing
  • Dominant
  • Forceful
  • Energetic
Quiet, pp. 24-25. This strikes me as something of a downgrade. Although, if I had to guess what the results of the early twenty-first century would be, it would be something like:
  • Celebrity
  • Rapping
  • Sex Tape
  • Bling
  • Kardashian
Just kidding... maybe... a little.

The gist of the book seems to be that we have created an ideal involving outgoing personality traits. In the process, we have lost sight of the value of the quiet people who lock themselves in an office or lab and crank out creative, productive, and innovative solutions. It's an interesting premise, and thus far, an interesting book.

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.

Image: Amazon Associate link.

Friday, March 9, 2012

Paula Deen (insert cooking pun) Sexual Harassment Lawsuit - COTW #82

Mmm, do you smell that? Somethin' is cooking in Paula Deen's kitchen... and it's a sexual harassment lawsuit! With a sidedish of battery, and a heeping helping of emotional distress claims. Could somebody pass the Complaint?

In Jackson v. Paula Deen (complaint here), a former employee at one of Deen's restauarant's filed a lawsuit alleging all kinds of abusive conduct. The allegations include numerous corporate employees, Paula Deen's brother, and of course, Paula herself. I know, you're salivating over the Paula Deen allegations... well, dig in:
  • “[Plaintiff] replaced a General Manager that was allegedly sleeping with servers.” Paula Deen said, “if you think I have worked this hard to lose everything because of a piece of pussy, you better think again . . . . and now I am going to do something I have never done. I am going to put a woman in a man’s job.”
  • At a meeting Paula called out, and pointed at, only the female managers. When a man tried to defend Plaintiff, Paula told him to “shut up, I’m not talking to you about this. I pay you to handle that part of it.”
  • Plaintiff was in charge of food for Paula’s brother’s wedding. Paula said, “I want a true southern plantation-style wedding . . . . Well what I would really like is a bunch of little niggers to wear long-sleeve white shirts, black shorts and black bow ties, you know in the Shirley Temple days, they used to tap dance around . . . . Now that would be a true southern wedding, wouldn’t it?”
Paula can really dish it out (allegedly). Sounds like a recipe for a lawsuit! We're just at the pleading stage though, so these are only allegations. Maybe we should put this one back in the oven and set the timer for summary judgment to see what's really cookin'. Is this just a disgruntled employee stirring up trouble? Will justice be served? Will the wrongdoers (if any) get their just desserts?

OK, I'm done (well done?).

For more coverage (and puns!) see: Eric Meyer's The Employer Handbook: What's Cookin' in Celeb Chef Paula Deen's Kitchen? Discrimination?

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, March 6, 2012

Miles on Gender Stereotyping

Article II of my interview with Dawn Lomer is now on i-Sight Blog: Boys, Girls and Workplace Discrimination. It covers gender stereotyping and its implications for appearance-based discrimination. Enjoy! If you missed the first article, check it out too: Why Appearance-Based Discrimination Isn't Illegal.

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, March 4, 2012

Off-Duty Blogging Creates Employer Harassment Liability - COTW #81

Woah, a Sunday night Case of the Week? Freaky. To borrow the greatest simile ever: It's eerie and surreal, like when you’re on vacation in another city and Jeopardy comes on at 7:00 p.m. instead of 7:30. But I had out-of-town depos all day Friday, which means I had depo prep all day (and part of the night) on Thursday. So, on with the Sunday night Case of the Week!

In Espinoza v. County of Orange, a California court affirmed a judgment entered against an employer for disability harassment. The plaintiff's right hand had no fingers or thumb, but only two small stubs. Some of his charming co-workers created a blog with compassionate posts such as, "I will give anyone 100 bucks if you get a picture of the claw," and "Has anyone seen the one handed bandit's hand?"

Can the employer be held liable for the off-duty blog posts? The title of this post gives away the answer. There are two critical parts of the analysis. First, the conduct must bear some relation to the workplace. Here, the Court noted:
Employees accessed the blog on workplace computers as revealed by defendant’s own investigation. The postings referred both directly and indirectly to plaintiff, who was specifically named in at least some of them, and the postings discussed work-related issues . . . . Management sent two e-mails to employees directing they discontinue posting the improper comments on the blog. This suggests the administrators believed employees were posting.
I'll also note that the harassment continued offline and in the workplace, with co-workers mocking the plaintiff by hiding their hand in their pockets, and writing "claw" in various places.

Second critical issue: once an employer knows of harassment, it must make reasonable efforts to stop the harassment. On this issue, the Court noted:
The blog continued for eight weeks after defendant began investigating. And, although it did block the generic logins, defendant did not block access of those using personal passwords, which it had the ability to do. Further, despite several management personnel being told of potential violators it never interviewed anyone, including plaintiff and the individual defendants. And none of management’s request to cease conduct was directed toward the non-blogging harassment conduct. This is sufficient evidence to support a determination defendant failed to respond sufficiently.
And there you have it folks, an employer liability for the off-duty blogging of its employees.

A pair of wrap-up notes: 1. The Court analyzed the case under state law (California Fair Employment and Housing Act); and 2. Hat tip to Molly DiBianca: Employer is Liable for Off-Duty Harassment-by-Blog.

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, March 1, 2012

Miles on Appearance-Based Discrimination

Dawn Lomer of i-Sight Blog recently interviewed me for an article on appearance-based discrimination. The article is now online: Why Appearance Based Discrimination Isn't Illegal. If I could add my own subtitle, it would be, "...but you better be pretty darned careful." Enjoy! A little birdie told me the interview may spawn a second article relating to gender discrimination (based on our discussion, I suspect gender-seterotyping may come into play).

Image: i-Sight logo used in commentary on i-Sight.

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.