Wednesday, October 31, 2012

Circuit Split: Attorney's Fees Adjusted for Settlement Offers?

Many employment law statutes allow successful plaintiffs to recover attorney's fees. The amount is set by the court. What happens when a party rejects a settlement offer, and is ultimately successful but not as successful as the prior settlement offer? Can the court take that into consideration? Jeffrey Campololongo picked up on a circuit split on this issue, and wrote about it in Circuit Split on Considering Prior Settlement Offers in Attorney Fees in The Legal Intelligencer (sub. req'd).

The Third Circuit held in Lohman v. Duryea Borough, 574 F.3d 163 (3d Cir. 2009) that the Court could consider prior settlement offers:
Lohman rejected a settlement offer of $75,000.00, an offer more than six times the amount awarded by the jury. Lohman offers no explanation as to why his rejection of this amount is not probative of the amount he sought in damages. Nor does he offer a reason as to why a comparison between the rejected $75,000.00 offer and the ultimate $12,205.00 jury award would not be an indication of his success in the litigation as a whole.
The Court reduced the attorney's fees from the requested amount of $112,883 to a mere $30,000 in fees. Even the lodestar amount was $62,986. In other words, the Court cut the fees . . . by a lot . . . based in part on the prior settlement offer.

Earlier this month, the First Circuit held the other way in Diaz v. Jiten Hotel Mgmt., No. 11-2400 (1st Cir. Oct. 12, 2012). The party rejected a $75,000 settlement offer and proceeded to trial . . . where she won $7,650 in compensatory damages. The trial court determined that the fees should be further adjusted downward.
The [trial] court pointed out that if Diaz had accepted Jiten's $75,000 settlement offer, she would have received more personally and her attorney would have only received about $25,000, and that it created a dangerous incentive to take low value claims to trial instead of settling.
But the First Circuit disagreed, "we conclude the district court's fee reduction improperly focused on Diaz's rejection of the settlement offer." The Court remanded with the instruction to follow the 12 Hensley factors, a reference to Hensley v. Eckerhart, 461 U.S. 424 (1983):
The twelve factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
I don't see prior settlements in there (arguably "results obtained"). So, there appears to be a circuit split. Will SCOTUS take up the case? We shall see . . . .

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

Tuesday, October 30, 2012

Lawffice Links - Hurricane Sandy and Employer Disaster Preparedness

I know, I know - it's a little late now. But, the hurricane led to a lot of great employment law posts about weather emergencies and disaster preparedness. So, if you got caught off-guard this time around, here are some tips for being ready next time:
I hope everyone is safe and sound. And seriously, now is the time to prepare for the next big emergency.

Friday, October 26, 2012

Butt Slapping . . . Not Harassment? - COTW #115

This Case of the Week comes to us from Virginia: Williams v. Ocean Beach Club, LLC, 2:11CV639, 2012 WL 4461289 (E.D. Va. Sept. 25, 2012). The plaintiff claimed she was terminated in retaliation for complaining about her supervisor . . . smacking her butt? Yes, smacking her butt.

Now, in order to succeed on a retaliation claim the conduct the employee complained of must be unlawful or the employee must have reasonably believed it was unlawful. Here, the employee argued that the reported butt-slapping was sexual harassment. Surprisingly, the Court disagreed:
On August 28, 2007, while in the office of Gold Key, Williams' supervisor, Robert Griffin, slapped her on the buttocks, apparently in celebration of her closing a particularly difficult sale. Williams had never had any previous difficulties with Griffin. She testified that Griffin had never spoken to her or touched her inappropriately before, nor had she ever witnessed Griffin behaving inappropriately towards others. She also stated that she did not believe the slap was sexual in nature, nor did she believe Griffin was trying to physically harm her. Nonetheless, Williams stated in a note to Gold Key managers that she was offended and embarrassed by the slap, which she also claimed left a “hand print” . . . . The single incident underlying Williams' internal complaint is not so severe or pervasive as to constructively alter the conditions of her employment or create an abusive environment . . . . Because no reasonable juror could conclude the isolated incident Williams complained of was sexual harassment prohibited by Title VII, her internal complaint was not protected activity and she cannot establish the first element of a prima facie case of retaliation.
Case dismissed! I guess a little butt-slapping is okay, or at least lawful, under certain circumstances. If you find this result unbelievable, I should note that the Court also ruled that the claim would have been dismissed for an alternate reason: the evidence established that the employee was terminated for repeated unexcused absences.

Now, raise your hand if you immediately thought of this episode from Friends.

HT: Lexology - One Free Slap on the Buttocks? via Eric Meyer on Twitter.

Thursday, October 25, 2012

Lawffice Links - Who Owns LinkedIn Accounts?

What happens when an employee uses a LinkedIn account for professional and personal use, shares the password with a co-worker, and then leaves the company? If you guessed "a lawsuit over ownership of the LinkedIn account" then you are correct! The Court ultimately allowed the ex-employee's state misappropriation claims to move forward, while axing her federal statutory claims for failure to prove damages.

I baked some fresh Lawffice Links with more details:
Bottom line: Employers should expressly lay out these issues in writing upon creation of the account. If employees don't want their LinkedIn accounts taken - don't share the password.

Wednesday, October 24, 2012

Employment Law in the Presidential Debates . . . Sort Of

Well, the good news is that the topic of employment law came up in the presidential debates. Unfortunately, I can not say it was a particularly enlightening conversation. During the second debate (transcript here), President Obama brought up Ledbetter:
[T]he first bill I signed was something called the Lilly Ledbetter bill. And it was named after this amazing woman who had been doing the same job as a man for years, found out that she was getting paid less, and the Supreme Court said that she couldn't bring suit because she should have found out about it earlier, when she had no way of finding out about it. So we fixed that.
Ummm, actually that's not even close to an accurate description of the Supreme Court's ruling (opinion here). Somewhere, Justice Alito (who wrote the opinion) is shaking his head and mouthing "not true." Had Ms. Ledbetter filed her lawsuit upon discovery of her employer's discrimination, she could have argued that her suit was timely under something called "the discovery rule." However, as the Supreme Court noted:
We have previously declined to address whether Title VII suits are amenable to a discovery rule. Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.
In fact, Ms. Ledbetter initiated her claim (by submitting a questionnaire to the EEOC) in 1998. According to her deposition testimony, she knew she was making less than her peers in 1992 and even knew the extent of the disparity as early as 1994 or 1995.

So, surely Governor Romney eloquently explained President Obama's misstatement of the case and detailed his own position on the Lilly Ledbetter Fair Pay Act, right? Yeah, actually he dropped his now (in?)famous comment about "binders full of women" and made some vague argument about:
adapting to a — a flexible work schedule that gives women the opportunities that — that they would otherwise not be able to — to afford.
It was not clear how these flexible schedules would be implemented. I can't say I was particularly impressed by either candidate's response. I guess I'll call it a draw.

Image: White House seal - Not official use.

Tuesday, October 23, 2012

Employee Voting Leave Laws

Election season is in full swing! Employers and employees alike are wondering whether there are any laws requiring leave for employees to go vote. Well, the answer is . . . wait for it . . . it depends (spoiler alert: this is the answer to every legal question). Here, it depends primarily on what state you're in.

Great news though! I stayed up all night, working tirelessly to compile a list of the voting leave laws in all 50 states. And, by that I mean I copied and pasted this link to Fisher & Phillips' Voting Leave Law 50-State Survey. Enjoy!

Image: White House seal - Not official use.

Thursday, October 18, 2012

Does CBA Arbitration Clause Preclude Statutory Discrimination Lawsuit? - COTW #114

The Case of the Week comes to us from the Eastern District of Pennsylvania: Harrell v. Kellogg Co., 2012 WL 3962674 (Sept. 11, 2012). The plaintiff filed racial discrimination, retaliation, and hostile work environment claims against his employer under 42 U.S.C. s1981. The employer filed a motion to dismiss, arguing that a mandatory arbitration provision in the collective bargaining agreement (CBA) divested the Court of jurisdiction.

The CBA contained a generic arbitration provision, mandating that all grievances were subject to arbitration. In turn, grievances were defined as "disputes or disagreements concerning the interpretation and application of the provisions of this Agreement." Working our way down, the CBA's provisions included a broad nondiscrimination provision. So, the employer argued that the CBA mandated arbitration of grievances; grievances cover disputes over provisions; and the provisions included nondiscrimination - therefore the employee had waived his right to bring suit in federal court.

The Court does an amazing job of explaining this issue, and detailing the relevant precedent. I highly recommend reading the whole opinion, but cutting to the chase, the Court held:
[A] prerequisite to enforcing arbitration of federal statutory claims is that the waiver in the CBA "must be clear and unmistakable" . . . . [the leading cases] lead to the clear conclusion that a CBA with a general arbitration provision and a nondiscrimination provision that does not expressly mention the federal antidiscrimination statute under which the employee seeks redress, does not contain an explicit waiver to the employee's right to litigate his/her statutory claims in a judicial forum.
As the Court noted, the nondiscrimination provision in the CBA at issued did not explicitly reference s1981, the statute under which the employee filed suit. Therefore, the CBA did not clearly and unmistakably waive the plaintiff's right to bring his statutory discrimination claims in federal court. Accordingly, the Court denied the employer's motion to dismiss.

Fired for WHAT!? - Jailbait and Creepshots

If the title didn't give it away . . . Warning: creepy icky subject matter ahead. We'll file this one under, "when anonymous online personas go public." The Star-Telegram has the story about an Arlington resident fired after outing as Reddit troll. This sounds a little worse than your average Internet trolling though:
Last Friday, the married, 49-year-old computer programmer from Arlington was publicly outed as the moderator of two controversial online forums, Jailbait and Creepshots, that allegedly shared photos of scantily clad, underage girls, some said to have been taken from Facebook pages without permission.
His employer did not approve and fired him. The guy used the screenname violentacrez - and believe it or not, it actually gets worse (or about the same . . . but broader in scope?):
Violentacrez, pronounced, "violent acres," posted "an unending fountain of racism, porn, gore, misogyny [and] incest" on the sprawling community site Reddit . . . . In addition, he created or moderated pages called Chokeabitch, Rapebait, Jewmerica and one that used a racial slur in reference to underage black girls.
Good luck with that next job interview.

Interviewer: So, why did you leave your last job?
Guy: Apparently, my employer had a problem with my Chokeabitch and Jewmerica web communities . . . .
Interviewer: We'll be in touch . . . .

HT: Eric Meyer via Twitter.

Monday, October 15, 2012

My SCOTUS Preview on The Proactive Employer

Last week, I had the privilege of appearing on The Proactive Employer with Stephanie Thomas. We discussed the employment law cases coming up in the 2012-2013 Supreme Court term. I included my predictions for how the Supreme Court will rule . . . guaranteed to be almost as accurate as a chimpanzee picking stocks with a dartboard. We also took a few minutes at the end to touch on some "hot topics" (specifically, EEOC and NLRB issues). You can listen here:

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If the embedded player does not appear in your browser/email then click here to listen.

Friday, October 12, 2012

Forge Documents? Case Dismissed! - COTW #113

The latest Case of the Week is Amfosakyi v. Frito Lay from my home-circuit, the Third Circuit. The plaintiff claimed he was terminated based on his race and national origin. The employer claimed he was terminated for leaving work for 4 hours and lying about it.

Here's where it gets a little weird. The employee asserted that he left work for a medical emergency relating to his depressed son. He also claimed that he had previously notified the employer of his son's special needs via a written letter dated April 30, 2009 addressed to HR Rep Danielle Fritts. He even provided a copy of the letter in discovery.

There's just one problem . . . on April 30, 2009, Danielle's last name was Shultz - she later married and took the last name Fritts. D'oh! Computer forensics confirmed what was obvious given the last name gaffe: the document was created well after April 30, 2009. In fact, the file was created and written on August 1, 2010, after he had commenced his Title VII claim.

The District Court granted the employer's motion for summary judgment. But, the Court also granted the employer's motion for sanctions and dismissed the case on that basis (even though the issue was effectively moot because summary judgment was granted). On appeal, the Third Circuit affirmed both decisions. As to the sanction of dismissal for forging the document, the Court specifically noted: "[t]he District Court also, in the alternative, properly granted Frito Lay’s motion for the sanction of dismissal."

What was this guy thinking? "SMH" (shaking my head), as the kids say. Easy takeaway: don't forge documents. For future reference, the Third Circuit employs a six-factor test for determining whether dismissal is an appropriate sanction:
(1) the extent of the party’s personal responsibility;
(2) the prejudice to the adversary caused by the conduct at issue;
(3) a history of dilatoriness;
(4) whether the conduct of the party was willful or in bad faith;
(5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and
(6) the meritoriousness of the claim or defense.

Wednesday, October 10, 2012

FMLA Back Pay Includes Overtime

In Pagan-Colon v. Walgreens of San Patricio, 2012 WL 3793126, the First Circuit held as a matter of first impression that an award of back pay under the FMLA includes overtime. A jury entered judgment in favor of the plaintiff on his FMLA retaliation claim. On appeal the First Circuit held:
Although we have not previously addressed the issue, we see no reason why overtime pay should not be included in an award of backpay under the FMLA. The FMLA provides that an employee may recover “any wages, salary, employment benefits, or other compensation denied or lost ... by reason of the violation.” 29 U.S.C. § 2617(a)(1)(A)(i)(I). Overtime certainly falls into the category of “other compensation.”
The overtime was calculated based on the plaintiff's year-to-date average of 6.5 hours of overtime per week.

HT: My colleague and author of Defense of Medicine, Jon Stepanian, via email.

Tuesday, October 9, 2012

2012 Supreme Court Employment Law Preview on The Proactive Employer

Straight from the shameless self-promotion department: I will appear on The Proactive Employer podcast this Thursday, October 11, 2012 at 3:00 PM (EST). You can read a preview of the episode here: Supervisor Harassment, Affirmative Action, FLSA, and ERISA. We're going to sneak another "hot topic" in as well (perhaps agency action such as NLRB and EEOC initiatives). You can also read my previous blog entry on the subject: 2012 SCOTUS Employment Law Preview.

Friday, October 5, 2012

Is ALL CAPS a Threat? - COTW #112

Turf war! Salespeople are often assigned a specific region or territory that is "theirs." They own it. When another salesperson encroaches, tempers flare. That's the setup for the latest Case of the Week

The case is Aversa v. UCBR, and it's a Pennsylvania Commonwealth Court case reviewing the decision of the Unemployment Compensation Board of Review (UCBR). The UC claimant was a salesman who lost part of his region to a co-worker. The Claimant emailed the co-worker a spreadsheet with sales figures from the region, and the body of the email read:
Hey Jim, you set me up pretty good ... I WON'T FORGET IT.
Ohhhh, not just "I won't forget it" - but, "I WON"T FORGET IT" all caps style! The employer terminated the employee for making a "threat."

The UCBR sided with the employer, holding that the claimant was ineligible for UC because he was terminated for willful misconduct (i.e. threatening a co-worker). The employer fired the Claimant under a policy that prohibited "actions intended to threaten or intimidate fellow employees" (that's the Court's language, not clear if that's the exact language of the policy). So, what do you think about the email Lawffice Space readers? Threat or no threat?

The Court sided with the Claimant. The Court held that there was no threat of actual consequences, just an admonition that the Claimant would not forget what the co-worker had done. The all caps added emphasis, "but it did not transform a four-word declarative sentence into a threat of violence." The Court also provided some interesting analysis specific to emails. For example, "[a] message transmitted through cyberspace does not contain the same force or immediacy of an in-person exchange; it is absent of voice or hand gesture." And, "[n]otably, the type size used in the e-mail is much smaller than the type size used in this opinion."

So, when assessing workplace threats via email for UC purposes: (1) email is not as threatening as in-person confrontation; (2) font size matters (really?); and ALL CAPS may add some emphasis, but is not in itself threatening.

Thursday, October 4, 2012

No, Seriously - EEOC Targeting Pregnancy Discrimination

Last month, the EEOC released a draft strategic plan highlighting some "emerging issues," including:
Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.
That should have been a sign that the EEOC was setting its sights on pregnancy discrimination.

If you had any doubts, cast them aside. The Huffington Post reports on four new EEOC lawsuits involving pregnancy discrimination, all filed within the last week, in Pregnancy Discrimination In The Workplace Target Of New EEOC Crackdown. There was also a fifth case but it settled.

So, what are these cases?
  1. One employee was fired from her security officer job while she was pregnant. The employer told her they would bring her back if any positions opened up - they never called, but hired male employees instead.
  2. Pursuant to a policy in its employee handbook, a wing joint allegedly laid off eight female employees for getting pregnant (pro tip: don't include mandatory discrimination in your handbooks).
  3. A seafood restaurant laid off two pregnant waitresses allegedly because "their pregnancies caused them to be a liability to the company."
  4. Finally, the EEOC filed suit against a juvenile detention center that allegedly maintains a policy that "require[s] employees to immediately notify the company once the employee learns she is pregnant, and requires her to produce a certification from her doctor that she is capable of continuing to work."
I want to emphasize that these are just the EEOC's allegations, and the employers have not yet been afforded due process - but that's not really the point. The point is that the EEOC is clearly making an effort to target pregnancy discrimination.

Still not convinced? How about this tweet from Chai Feldblum, who is actually a commissioner on the EEOC:

Now may be a good time for employers to crack open those employee handbooks to make sure their pregnancy policies are in order.

One final note, it's not just the EEOC that's hitting this issue - pending legislation would require employers to reasonably accommodate pregnancy. I blogged about the House bill back in May - Eric Meyer notes recent efforts in the Senate.

Image: EEOC logo used in commentary on EEOC. Not official use.

Tuesday, October 2, 2012

NLRB Issues Facebook Decision and Order

The NLRB issued its first decision involving a termination for a Facebook posting on September 28, but only made it public yesterday. You can read the decision and order here (.pdf). The NLRB was also kind enough to provide a summary of the case on its website here.

In the shortest, and oversimplified-est (that's a word, right?), terms possible:
  • Car salesman making fun of a sales event with his co-workers because the food was so crappy it could impact their sales and commissions (i.e. terms and conditions of employment) . . . protected concerted activity.
  • Car salesman alone making fun of some idiot who drove a Land Rover into a pond because it's funny when people drive cars into ponds . . . not protected activity. Employer cleared to terminate.
  • "Courtesy" rule that prohibits "disrespectful" conduct and "language which injures the image or reputation of the Dealership" . . . unlawful as overly broad.
Any questions? I have been tracking this case for over a year - see here. It was also featured in one of the NLRB's Social Media memos (here).This decision affirms a prior ruling from an administrative law judge.

Monday, October 1, 2012

2012 SCOTUS Employment Law Preview!

It's here! The new SCOTUS season kicks off today! Let's see what kind of employment law goodies the Court has in store for us (in order of my personal preference):

Supervisor Liability
In Vance v. Ball State University, the Supreme Court will determine who counts as a supervisor in harassment cases. Question presented:
Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

FLSA "Pick Off" Case
Straight from my home circuit (that's the Third Circuit), the Supreme Court will address whether a defendant may "pick off" the sole plaintiff in a potential FLSA collective action, effectively killing the case. Question presented:
Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff ’s claims.
You can read my analysis of the Third Circuit opinion here, and the grant of cert. here, and SCOTUSblog's coverage here. I love it when the Supremes agree to hear an old Case of the Week!

Another one from the Third Circuit, the Supreme Court will delve into the dry dry world of ERISA statutory interpretation in U.S. Airways, Inc. v. McCutchen. Question presented:
Whether the Third Circuit correctly held—in conflict with the Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits—that ERISA Section 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.
Read my previous coverage here, or SCOTUSblog's coverage here.

There are a few more cases that have some employment law-ish overtones, or focus on narrow issues. For example, Comcast v. Behrend (SCOTUSblog) will address the evidentiary burden for class certification at a district court (not an employment law class action in this case, but could still have some ramifications). The Court will address a jurisdictional issue for mixed cases (disputed termination and unlawful discrimination) involving federal employees in Kloeckner v. Solis (SCOTUSblog). Finally, the Court will analyze the use of race in university undergraduate admissions in Fisher v. University of Texas at Austin (SCOTUSblog) (not technically employment law, but you never know how issues involving race discrimination and the Equal Protection Clause may creep into subsequent employment law analysis).

I'll be on the lookout for more employment law cases as the Supreme Court grants petitions for certiorari. Also, note that the Supreme Court will now be issuing opinions and orders at 9:30 instead of 10:00.