Pennsylvania Law on Ownership of LinkedIn Accounts - COTW #136

The latest Case of the Week is the resolution of a case I've covered previously. The case is Eagle v. Morgan (memorandum with findings of fact and conclusions of law here) from the Eastern District of Pennsylvania federal court, applying Pennsylvania state law.

You can read the Court's decision for a full rundown of the facts. The short version: The employee opened a LinkedIn account following the employer's guidelines, using the employer's email account, on the employer's computer, on the employer's time, and the employer had her password. She was terminated, and the employer took control of the account. She lost control of the account for a few months and the employer changed the profile by changing some of the fields to reflect information for the former-employee's replacement. However, the account was technically still under the former-employee's name, had all of the LinkedIn "Connections" of hers, and a search on her name would direct users to her old account.

So, she filed a lawsuit essentially over ownership of the LinkedIn account. Technically, she won. She established that the employer:

• Violated  42 Pa.C.S. § 8316 - Unauthorized Use of Name
• Committed the tort of Invasion of Privacy by Misappropriation of Identity
• Committed the tort of Misappropriation of Publicity

However, she lost on the tort of conversion because the LinkedIn account is not a "tangible chattel" but an "intangible right to access a specific page on a computer" (accordingly, it's not clear if anybody really "owns" a LinkedIn account). The Court also noted that Plaintiff would have established liability for tortious interference with contract . . . if she had sufficiently proven actual damages.

Which brings us to Plaintiff's ultimate downfall. She offered testimony that she had contracts with her LinkedIn connections and argued that the Court should calculate damages as the average dollar amount of contracts per LinkedIn connection, prorated for the months in which she lost control of the account. She failed to really tie lost contracts to the LinkedIn account though. The Court recognized that she established wrongdoing on the part of the employer, but she failed to "establish[] with some reasonable certainty the damages she sustained from that wrongdoing." So, she won $0.

I should note that Plaintiff was pro se (representing herself). I'm actually impressed that she was able to establish liability for "ownership" of her LinkedIn account, especially given the lack of precedent. No doubt future litigants will bring expert witnesses and find a way to more definitively establish damages.

My view on takeaways for employers? When employees leave - let them take their individual social media accounts with them. Note that we are not talking about an organization's social media accounts (like a company profile on LinkedIn, employer's Facebook page, or Twitter account in the name of the employer). I think those should stay with the employer. But there will probably be some gray areas in between.

For more coverage, check out Sara Hutchins Jodka's Employer Law Report.

Lawffice Links (plus bonus prediction!) - DOMA and Prop 8

The same-sex marriage cases at the Supreme Court have garnered tons of media coverage. The public is so interested in these cases that #SCOTUS was even a trending topic on Twitter! Let's not get too carried away though . . . "CatsAreSluts" was an even more popular trending topic on Twitter on Tuesday. Nevertheless, I baked some fresh Lawffice Links to catch up on the latest:

• Court to Tackle California's Ban on Same Sex Marriage: In Plain English - SCOTUSblog provides a nice summary of the Prop 8 case.
• Prop 8 Supreme Court oral arguments: Transcript | Audio
• DOMA as a States' Rights Problem: In Plain English - SCOTUSblog tackles the DOMA case.
• DOMA Supreme Court oral arguments: Transcript | Audio
• Scalia Furious he has to Hear About Gay Couples All Week - This is from The Borowitz Report . . . it is *satire* - like The Onion - it is not real. I can't even begin to tell you how many people on Twitter apparently thought this was a real story (some of them even petitioned to have Justice Scalia recuse himself from the case based on this!).

My predictions? I'm going to go with (what I think are) the prevailing predictions amongst court-watchers:

Prop 8 - Majority decision holding the Petitioners lacked standing, resulting in the 9th Circuit District Court (?) opinion striking down Prop 8 being the final word (no nationwide SCOTUS precedent on a right to same-sex marriage).

DOMA - Fractured opinion striking down DOMA with the four-Justice liberal bloc holding that it violates a right to same-sex marriage and Justice Kennedy (who I predict will pick up a buddy or two)  holding that it violates federalism principles (there will probably also be some votes for SCOTUS lacking the authority to hear the case because Obama wouldn't defend it - even though he enforces it. A group of GOP representatives did defend it, but it's questionable whether that's good enough because they're not a real party in the case).

The end result being that there is still no Supreme Court precedent on a right to same-sex marriage . . . but Prop 8 and DOMA both get struck down.

Mandatory Employee Medical Exams

Inside Counsel reports that CVS plans to penalize employees who refuse to undergo medical exams. Is this legal? Probably. Although it certainly raises some privacy concerns, and there are definitely some legal landmines in the arena. Thompson Reuters addresses some of those legal concerns here.

One of the cases mentioned in both articles is Seff v. Broward County, Fla., from the 11th Circuit. The County offered a group health care plan, and participating employees were eligible for a wellness program. The wellness program screened for certain diseases and provided co-pay waivers and disease management coaching for employees with certain illnesses. Employees who participated in the health care plan but did not participate in the wellness program were charged an additional $20.

An employee filed a lawsuit claiming that the plan violated the ADA's prohibition on mandatory medical examinations and disability-related inquiries. However, the ADA has a safe harbor provision that states:

[T]he ADA "shall not be construed" as prohibiting a covered entity "from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law." 42 U.S.C. § 12201(c)(2).

The employer won on summary judgment, affirmed by the 11th Circuit, holding "the ADA’s safe harbor provision for insurance plans exempted the employee wellness program from any potentially relevant ADA prohibitions."

Fired for What!? - Dongle-Gate, Girls Scout Cookies, and Sexual Orientation or Domestic Abuse

I don't want to go overboard on the Fired for What's, but there are just so many interesting stories out there:

• Dongle-Gate: A woman at a tech conference tweets a picture of the guys behind her to complain about them making "big dongle" jokes. Next thing you know, one of the guys is fired, the woman's employer is facing denial of service attacks, and then the woman gets fired. "Boy that escalated quickly, I mean that really got out of hand fast." For legal analysis of a potential retaliation claim, check out Eric Meyer's blog (with a quick comment from me, explaining that I think it's a weak claim).
• Fired for selling Girl Scout cookies: I clicked the link expecting to be outraged - but it turns out the employee was selling cookies at the campus convenience store where she worked. I'm not that outraged. Still, she had worked there for almost 30 years, so maybe a simple "stop it" would have sufficed (I'm really becoming soft).
• Fired for being gay . . . or being a domestic abuse victim: Huh? A juvenile corrections officer claims he was fired for being gay. The sheriff responded by denying the allegations . . . and claiming that he was actually fired "because he had called police about more than one domestic dispute. The same could have happened to a woman who reported abuse by a man" (quoting the article, not the sheriff). Ummm, I'd probably sit down and try to come up with a slightly better excuse than that. The story has a somewhat happy ending - he got his job back and the county instituted an anti-discrimination policy.

Good News/Bad News for Wrongful Termination - COTW #135

Another day, another court decision striking down an employee's attempt to bring a "wrongful termination" claim. The Pennsylvania Superior Court case is Mikhail v. Penn. Org. for Women in Early Recovery, 2013 WL 696548 (slated for publication in A.3d). However, this case included some good news for the tort of wrongful termination.

The employee was a licensed professional counselor (LPC) who was fired for refusing to include a female registered sex offender in group therapy with women who had been abused in the past. To bring a wrongful termination claim, an employee must tie their termination to "a clear mandate of public policy." As the Pennsylvania Superior Court explained:

In sum, an employer

(1) cannot require an employee to commit a crime,

(2) cannot prevent an employee from complying with a statutorily imposed duty, and

(3) cannot discharge an employee when [specifically] prohibited from doing so by statute.

(quoting past precedent). The employee argued that her termination violated public policy as set forth in the ethical guidelines for LPCs (adopted as administrative guidelines in the "Pa. Code").

First, the bad news for wrongful termination claims. The Court held that none of the rules expressly prohibited placing sex offenders in therapy sessions with victims of sexual abuse. And, the Court's not going to allow a cause of action where a judgment call could arguably find a violation of the rule (for example, the rules require an LCP to select compatible group members "to the extent possible" - that's just not clear enough to create a cause of action here).

But, there was also some good news for wrongful termination claims. First, the Court refused to require a tie-in between the public policy and the employer-employee relationship:

Narrowing the wrongful discharge cause of action to encompass only those public policies that relate to the employer-employee relationship is unwarranted by precedent; would eviscerate public policy exceptions previously validated by this Court; and would thwart the purpose of the exception to the general at-will employment rule: the protection of clearly-established Pennsylvania public policy.

And, the Court also recognized the possibility that the administrative rules governing certain professions could represent clear mandates of public policy for establishing a wrongful termination claim. On the latter point, I should note that the Court did not expressly make a determination - but the fact that they didn't outright reject the admin. code as a basis for a wrongful termination says something. There was also a dissenting opinion.

However, at the end of the day . . . the wrongful termination claim still lost. The Superior Court affirmed the trial court's dismissal of the plaintiff's complaint.

Lawffice Links - March Madness!

March Madness is here! Today is the day - unless you count the play-in games, and let's be honest . . . nobody counts the play-in games. I baked some fresh Lawffice Links for the occassion:

• NCAA Bracket - It's not March Madness without the bracket.
• NCAA Women's Bracket - I'm still upset that Penn State is a 3-seed (and Tennessee is a 2 - they were ranked behind Penn State, and lost in their conference semis to a team Penn State already beat . . . so Tennessee jumps PSU for a 2-seed!? Gimme a break). But, I'll watch anyway.
• The fun police are here: Wasting Time at Work: Do You Try to Stop the Madness or Just Go With It? - Practical and legal discussion at HR Hero.
• Office Pools in Connecticut: Jump In? Maybe. (But Don’t Cause a Splash) - Dan Schwartz offers some thoughts on the subject (focused on CT, but good general info).
• Covington v. International Ass'n of Approved Basketball Officials - If case law is more your style - this new 3rd Circuit opinion revives an employment discrimination claim brought by a female basketball referee.

Let the madness begin!

Fired for What!? - Shark Attack, Racy Photos, and Bonus Buzzfeed

Welcome to another installment of Fired for What!?

• First up, a man terminated for saving children from a shark attack with his bare hands. That sounds like a good thing, right? Apparently not if you're vacationing on the beach while on sick leave. This is kind of a tricky issue though . . . because he was on sick leave for the express purpose of relaxing to alleviate stress. That sounds pretty consistent with a beach vacation to me, but I'm not the guy's boss.
• Second, is a Houston police Sergeant who was demoted for posting "racy photographs" online. She put some modelling shots on the Internet and the powers that be demoted her. There's a video of some discussion on the issue at the link (fast forward to about 2:25).
• Finally a bonus link to Buzzfeed's 24 People Daring Their Bosses to Fire Them (possibly NSFW - some profanity).

SCOTUS Grants Cert. in Constitutional Age Discrimination Case

This morning, the Supreme Court agreed to hear Madigan v. Levin (SCOTUSBlog entry here). Per the Petition for Certiorari, the question presented is:

[Whether] state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

In other words, can a state or local employee skip all of that EEOC stuff (required by the ADEA) and just go straight to court with his or her age discrimination claim (under the Constitution)?

The Constitution includes the Equal Protection clause, which (via § 1983) could allow an employee to go straight to court with a discrimination claim against a state actor. However, Congress has set forth a thorough framework to resolve age discrimination claims under the ADEA. That framework includes administrative requirements, like filing an EEOC charge. The employer argues that the ADEA displaces the constitutional claim.

There's a circuit split on the issue (and "muddled" case law in my home 3rd Circuit - see p. 11 of Petition), so hopefully the Court will resolve the issue. There's also a side issue about whether the defendant in this case has qualified immunity.

Blanca, The Emotional Support Guinea Pig - COTW #134

Tyler Durden had his penguin, Joe Schmo had his llama, and now, Kendra Velzen has her guinea pig. Kendra is a student at Grand Valley State University who suffers from chronic depression. She sued GVSU last year because it would not allow her to keep Blanca, her "emotional support animal," in the dorms and take her to common areas.

Now, the Huffington Post reports that the parties settled the lawsuit for $40,000. Most of the coverage paints this as a victory for the student. $40,000 in a housing discrimination suit is hardly a homerun - maybe more like a base on balls. But it highlights a growing area in disability accommodation cases - the "emotional support animal."

I confess, I'm just going off of a hunch here - I just feel like I'm hearing more about this issue lately. Anybody out there have any numbers? Drop a comment. I usually hear about these stories in the student housing context, but I'm sure it's coming to workplace litigation if its not here already. Certainly we see service animal ADA workplace litigation. Are emotional support animals really any different?

DOL Releases Updated FMLA Advisor

There has been a flurry of activity on the FMLA front lately. For a great rundown of all of the latest changes, check out Robin Shea's rockin' FMLA party: WOO-HOO! New FMLA Regs Take Effect Today (3/6/2013). Here's All You Need.

I was going to bring a box of my finest white zinfandel to the party - but at the last minute I decided to go with the DOL's updated FMLA Advisor. From an email release announcing the update:

The U.S. Department of Labor recently released an updated version of its Family and Medical Leave Act (FMLA) Advisor. The FMLA Advisor has been updated to reflect the expansions of FMLA protections that became effective on March 8, 2013. The Family and Medical Leave Act was amended to provide families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members and allow more military families to take leave for activities that arise when a service member is deployed. The expansions also address the application of the FMLA to airline personnel and flight crews.

Enjoy!

HT: Janine Gismondi, McQuaide Blasko, via email.

Image: DOL Logo used in commentary on DOL. Not official use.

NLRB to Seek SCOTUS Review of Noel Canning

Remember that time the DC Circuit held that President Obama's NLRB recess appointments were unconstitutional? Well, rather than seek en banc review (a review of the 3-judge panel decision by the entire DC Circuit), the NLRB has announced it will take its case straight to the Supreme Court. Some of you may recall that time the Supreme Court held that the NLRB didn't exist (specifically, at least three members good, two members bad).

The Supreme Court declines to hear the vast majority of cases for which it receives petitions. I have a feeling they're going to take this one though. As I blogged previously, it's kind of a big deal. For a really dumbed down overview of the arguments, read another of my previous posts on this case.

This case is not only about the NLRB. It could define the scope of the executive branch's recess appointment power, and the balance of power with the Senate. I can't wait!

NLRB logo used in commentary on NLRB. Not official use.

A New Employment Law Cause of Action? - COTW #133

The Case of the Week comes to us from Virginia. I don't usually cover out-of-state law, but this case essentially recognizes a new theory of liability (at least I've never heard of it before) that allows employees to sue individuals, instead of their LLC-employer, for wrongful termination.

The case is VanBuren v. Grubb, 733 S.E.2d 919 (Va. 2012). The employee was a nurse at an orthopedic center (an LLC) that was owned by a surgeon. The surgeon allegedly made unwelcome sexual advances, including hugging, kissing, and rubbing. The nurse rejected these advances and the surgeon terminated her.

Sounds like your average sexual harassment claim, right? That's where this takes a weird turn - she files suit based in part on wrongful termination in violation of public policy. Here, the policy was state law forbidding adultery and lewd and lascivious conduct. The Court agrees that her claim constitutes an exception to the employment at will doctrine and she can bring a wrongful termination claim.

But wait . . . there's more! The Court holds that the individual surgeon can be held personally liable!

The purpose of the wrongful discharge tort—namely, the deterrence of discharge in violation of public policy—is best served if individual employees in a position of power are held personally liable for their tortious conduct. Employer-only liability would be insufficient to deter wrongful discharges, as this case clearly demonstrates.

So much for that LLC! If you're not familiar with LLCs, let's just say the "LL" stands for "limited liability" - apparently not-so-limited in Virginia.

HT: My McQuaide Blasko colleague Janine Gismondi who called my attention to an article in the March 2013 LJN Employment Law Strategist on this case (subscription req'd).

New Census Data on Commuters

Yesterday, the U.S. Census Bureau issued a press release, Megacommuters: 600,000 in U.S. Travel 90 Minutes and 50 Miles to Work, and 10.8 Million Travel an Hour Each Way, Census Bureau Reports:

About 8.1 percent of U.S. workers have commutes of 60 minutes or longer, 4.3 percent work from home, and nearly 600,000 full-time workers had "megacommutes" of at least 90 minutes and 50 miles. The average one-way daily commute for workers across the country is 25.5 minutes, and one in four commuters leave their county to work.

Even when I lived in the DC area and commuted on the beltway every day, I still didn't hit an hour each way. That's pretty long. The Census Bureau also gave us this cool infographic:

Click here for larger view. My commute is about 10 minutes each way (one of the perks of living in a smaller town).

Saving Lives? We Have a Policy Against That

This story is sweeping through the mainstream media - a nurse at a California senior living facility called 911 when a resident was having trouble breathing. Per the 911 call (LA Times coverage here):

A fire dispatcher unsuccessfully pleaded with a nurse to start CPR on an elderly woman who was barely breathing. "It's a human being," Bakersfield fire dispatcher Tracey Halvorson said. "Is there anybody that's willing to help this lady and not let her die?" The woman paused. "Um, not at this time."

It's hard to believe, isn't it? The nurse indicated in the course of the call that it was against the facility's staff policy to perform CPR and save the woman's life.

Seriously? I can't track down the actual policy, but saw a report online that reported the policy was actually ambiguous - paraphrasing from memory, something like: "In case of emergency call 911 and wait for help." It didn't seem to preclude helping someone who was dying.

We can only guess at this time why the nurse was so hesitant to help. Perhaps she was concerned about liability? Or her job? In any event, employers who are likely to face such situations (like senior facilities) may wish to make their employees aware of "good Samaritan" laws (50 State Survey here). These laws generally shield people who in good faith attempt to render assistance.

You wouldn't think it's necessary to include a workplace policy that "it's okay to save someone's life when the 911 operator tells you that person is dying and needs you to perform CPR" . . . but maybe it is.

New 3d Cir. Precedential Discrimination Opinion - COTW #132

The Third Circuit recently unleashed a monster 38-page precedential discrimination opinion in Burton v. Teleflex, Inc. It would be tough to breakdown all of the issues in a quick blog post, but I did want to point out the Court's analysis of the resignation vs. termination determination.

The evidence seems pretty clear to me . . . the employee had an exchange with her supervisor in which she repeatedly asked him if he wanted her to resign (according to testimony from both parties). He said he did not, but the employee then walked away and the supervisor understood her disengagement from the conversation to be a resignation (while admitting that the employee never expressly stated that she resigned). Right after the conversation, the employee told two co-workers that she had resigned, and the co-workers told the supervisor. The employee then missed the next two days of work and then left for a previously scheduled one-week vacation. When she got back from vacation she received a letter accepting her resignation, which she did not contest.

Pretty obvious what happened here, right? The employee resigned! The district court granted summary judgment for the employer on her discrimination claims. Not so fast though! The Third Circuit finds a "genuine dispute of material fact" (i.e. a summary judgment killer) based on the evidence that:

• The employee denies that she ever told anyone she was resigning;
• There was no resignation letter;
• The supervisor admits that the employee never expressly told him that she was resigning (and there was no evidence that she ever told anyone above her in the chain of command that she was resigning);
• Nobody from the employer ever confirmed with the employee that she had resigned; and
• The employee's husband testified that she never mentioned resigning or getting fired after the conversation with her supervisor, and even did some work after that.

There were a few other facts sprinkled in the opinion as well. Frankly, if I'm on a jury here, I still think she resigned. But that's not the role of the trial court. The trial court does not resolve disputes of fact, so the Third Circuit reverses and the employee's claim lives to fight another day.

There are several other issues in the opinion, and I recommend reading the whole thing if you're in the Third Circuit (including Pennsylvania).