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Select Employment Law Issues
Charles H. Wilson
In-House CounselIn-House Counsel’’s liability s liability for evidence spoliationfor evidence spoliation
Understanding E-Discovery and Electronic Understanding E-Discovery and Electronic ProductionProduction
– Preservation of Electronically Stored Preservation of Electronically Stored Information (ESI)Information (ESI)• Litigation hold letter must be issued timely• Counsel must take affirmative steps to monitor Counsel must take affirmative steps to monitor
compliance. compliance.
– Consequences of Getting it WrongConsequences of Getting it Wrong• In-house counselIn-house counsel’’s failure to issue timely litigation s failure to issue timely litigation
hold letter justified sanctions.hold letter justified sanctions.• Sanctions imposed against in-house lawyer when Sanctions imposed against in-house lawyer when
lawyer failed to ensure all items related to issues lawyer failed to ensure all items related to issues in pre-suit letter were preserved.in pre-suit letter were preserved.
HYPOTHETICALHYPOTHETICALIt has been 11 months since you concluded your investigation It has been 11 months since you concluded your investigation into Jim Dollar, Big Cointo Jim Dollar, Big Co’’s CFO. You discovered that he was, in s CFO. You discovered that he was, in fact, stealing and was thereafter terminated. Another problem fact, stealing and was thereafter terminated. Another problem has recently arisen, however. Emily Emerson, Dollarhas recently arisen, however. Emily Emerson, Dollar’’s former s former assistant, has just filed a lawsuit alleging that she was assistant, has just filed a lawsuit alleging that she was retaliated against for retaliated against for ““blowing the whistleblowing the whistle”” on Jim. As you begin on Jim. As you begin gathering materials in anticipation of opposing counselgathering materials in anticipation of opposing counsel ’’s s discovery requests, you realize that a key email Emily relies on discovery requests, you realize that a key email Emily relies on to support her claim, has been erased from the intranet system to support her claim, has been erased from the intranet system by BigCoby BigCo’’s auto-delete program, which deletes emails stored s auto-delete program, which deletes emails stored on its computer system after 30 days. You were preoccupied on its computer system after 30 days. You were preoccupied with other duties and forgot to contact your IT folks to halt the with other duties and forgot to contact your IT folks to halt the email deletion protocol. You have not yet retained outside email deletion protocol. You have not yet retained outside counsel. counsel.
True or False:True or False:
Since you have not yet retained outside Since you have not yet retained outside counsel, and you honestly forgot to save counsel, and you honestly forgot to save the email, you are not liable for losing it. the email, you are not liable for losing it.
ANSWER ANSWER
Answer: FALSE! The same rules apply for Answer: FALSE! The same rules apply for in-house counsel and outside law firms. in-house counsel and outside law firms.
QuestionQuestion
So, you lost the email . . . WhatSo, you lost the email . . . What’’s the worse s the worse that could happen? that could happen?
E-Discovery PenaltiesE-Discovery Penalties
Potential ESI nightmaresPotential ESI nightmares
• Discovery sanctions Discovery sanctions • Spoliation chargesSpoliation charges• Obstruction charges (government investigations)Obstruction charges (government investigations)• Waste due to mishandled or botched document Waste due to mishandled or botched document
collections/reviewscollections/reviews
Courts Hold Counsel Courts Hold Counsel ResponsibleResponsible
Harkabi v. Sandisk Corp.Harkabi v. Sandisk Corp., 275 F.R.D. 414 (S.D. N.Y. Mar. 12, , 275 F.R.D. 414 (S.D. N.Y. Mar. 12, 2012) 2012)
Court awarded monetary sanction of $150,000 against the company, where the Court awarded monetary sanction of $150,000 against the company, where the companycompany’’s in-house attorney circulated four "Do-Not-Destroy" memoranda and s in-house attorney circulated four "Do-Not-Destroy" memoranda and instructed that plaintiffsinstructed that plaintiffs’’ laptops be preserved, but one year later approved the laptops be preserved, but one year later approved the reissuance of those laptops to other employees after imaging and preserving the data reissuance of those laptops to other employees after imaging and preserving the data from their hard drives, but nonetheless resulted in deletion and destruction of emails, from their hard drives, but nonetheless resulted in deletion and destruction of emails, calendar entries, and other data deemed relevant to the litigation.calendar entries, and other data deemed relevant to the litigation.
. .
Courts Hold Counsel Courts Hold Counsel ResponsibleResponsible
Swofford v. Eslinger, Swofford v. Eslinger, 671 F. Supp. 2d 1274 (M.D. Fla. 2009)671 F. Supp. 2d 1274 (M.D. Fla. 2009)Court held in-house attorney jointly and severally liable in his official capacity for Court held in-house attorney jointly and severally liable in his official capacity for
attorneysattorneys’’ fees and costs, when attorney only partially issued presuit fees and costs, when attorney only partially issued presuit preservation letters and failed to monitor compliance. preservation letters and failed to monitor compliance.
Flagg v. City of DetroitFlagg v. City of Detroit, 2011 U.S. Dist. Lexis 114772 (E.D. , 2011 U.S. Dist. Lexis 114772 (E.D. Mich. Oct. 5, 2011) Mich. Oct. 5, 2011)
Court ordered that the obligation for paying attorneysCourt ordered that the obligation for paying attorneys’’ fees and costs related to the fees and costs related to the preservation and destruction of documents should be borne equally by the preservation and destruction of documents should be borne equally by the defendant City and its former corporation counsel. defendant City and its former corporation counsel.
Same-Sex HarassmentSame-Sex Harassment
EEOC v. Boh Brothers ConstructionEEOC v. Boh Brothers Construction
Plaintiff, a male iron worker, was subjected to almost daily “teasing” by his supervisor consisting of:
•Several vulgar statements by supervisor including referring to plaintiff as a “pu__y princess”
•Dry-humping plaintiff
•Waving at plaintiff while using the bathroom (with man-hood exposed)
• Supervisor similarly teased other males iron workers
EEOC v. Boh Brothers ConstructionEEOC v. Boh Brothers Construction
Cause of teasing
Wet Ones
EEOC v. Boh Brothers ConstructionEEOC v. Boh Brothers Construction
Lacking from plaintiff’s case was evidence demonstrating:
•Harasser was homosexual or motivated by sexual desire;
•Harasser was motivated by general hostility towards a particular gender in the workplace; or
•Harasser treated men and women differently Three non-exclusive paths under Oncale v. Sundowner Offshore Servs., to prove “because of sex” element in same-sex harassment claim
EEOC v. Boh Brothers ConstructionEEOC v. Boh Brothers Construction
•Jury found harassment and awarded $451,000.00 in damages
•Fifth Circuit vacated verdict explaining there wasn’t sufficient evidence harassment was “because of sex”
•En Banc Fifth Circuit reversed and held gender-stereotyping was sufficient to support “because of sex” element
Same-Sex Harassment—Post Same-Sex Harassment—Post Boh Brothers Boh Brothers ConstructionConstruction
•After the Fifth Circuit decided EEOC v. Boh Brothers Construction, “Boys Will Be Boys” is no longer a sound defense against claims of same-sex harassment
•Sexual orientation harassment based on gender-stereotype theory may be actionable harassment “because of sex” under Title VII.
Accommodation and “Regarded As” Claims
Accommodation Claims
ADA requires employers to make reasonableaccommodations for employees withdisabilities only
• Employers must engage in interactiveprocess to determine appropriateaccommodation
• To be reasonable, accommodation must befeasible, effective and not impose anundue hardship
Inflexible Leave Policy
EEOC v. Insterstate Distributor Co. EEOC v. Insterstate Distributor Co.
(D. Co., Nov. 2012)(D. Co., Nov. 2012)
Leave policy that automatically terminated employees after 12 weeks and required return to work without restrictions.
$5M Settlement
Inflexible Leave Policy
EEOC v. Verizon Communications EEOC v. Verizon Communications
(Dist. Md. 2011)(Dist. Md. 2011)
“No fault” attendance policy imposing discipline for absences..
$20M Settlement
Additional Leave Must Be Limited
Employee must provide an expected duration of the impairment. “Without an expected duration of an impairment, an employer cannot determine whether an employee will be able to perform the essential functions of the job in the near future and therefore whether the leave request is a ‘reasonable’ accommodation.”
Murphy v. Samson Res. Co., 525 Fed. Appx. 703, 707 (10th Cir. 2013)
Regarded As Claims
An innocent comment can invoke the ADA
Deputy chief commented that the plaintiff “suffered from the same disease as [the chief’s] brother,” i.e., alcoholism. Applying the ADAAA, the court said, “The statute does not require that an individual seeking its protections show that the employer had a reasonable basis for perceiving him as suffering from a disability; it merely requires him to show that theemployer did so perceive him.” The fact that the plaintiff did not suffer or claim to suffer from the disability showed that the actions taken against him were “the result of biases associated with the disability rather than legitimate concerns.” I
Darcy v. City of New York, 2011 WL 841375 (E.D.N.Y. 2011)
Regarded As Claims
Plaintiff with monocular vision was regarded as disabled even without proof of any limitation on a major life activity. The court relied upon a supervisor’s comments that the company let him go because of fears that he would injure himself.
Gil v. Vortex, 697 F.Supp.2d 234 (D. Mass. 2010)
Regarded As Claims
An employer may not have to say anything.
Employee suffered from an ankle condition, which she alleged as a disability. She asserted a “regarded as” claim, alleging that she wore a plainly visible boot to aid her in standing and walking; that she notified her employer of the need for surgery; and that she notified her supervisor that she would be unable to work a full shift without extra breaks, because of her ankle condition. The court rejected the company’s motion to dismiss this claim: “Given the broad standards of the ADAAA and the factually-intensive nature of this inquiry, the Court finds that these allegations raise a plausible inference that Defendants regarded Plaintiff as disabled within the meaning of the Act.”
Fleck v. WILMAC Corp., 2011 WL 1899198 (E.D. Pa. 2011)
Social Media Issues
QuestionQuestionOne of your supervisors tells you that another employee posted certain offensive comments on Facebook last night. The employee referred to her supervisor as “a scumbag micro-manager” which then prompted other co-workers to join in a conversation about how the supervisor mistreats subordinates and refuses to give bonuses. Assuming the employee is otherwise an at-will employee, can you fire the employee who started the conversation because of the Facebook rant?
(a)Yes.
(b)No.
(c)It depends.
Meet the NLRBMeet the NLRB
October 2010 – October 2010 – Just Getting StartedJust Getting Started
Facts: A Teamsters member for a Connecticut ambulance service posted negative comments about her supervisor on her Facebook page. Other coworkers posted support for her comments, which led to more negative comments about the supervisor. The Teamsters member was fired.
Filing: The NLRB issued a Complaint alleging that the employee was terminated for making comments in violation of a policy prohibiting public statements which are derogatory against the employer.
This case settled in February 2011, but the door was opened....
The NLRB Speaks. . .The NLRB Speaks. . .Reports of the Acting General Counsel
Concerning Social Media Cases
STEP #1 – Were the postings “concerted” activity?
• “Concerted” When employee acts with or on the authority of other employees, and not solely by and on behalf of the employee himself or herself.
• “Concerted” When employee seeks to initiate or to induce or to prepare for group action.
. . .The NLRB Speaks. . .The NLRB Speaks
STEP #2 – If yes to #1, was the employee engaged in “protected” concerted activity?
Typically clear from the context of the statements, or the face of the statements, that they implicated working conditions.
STEP #3 – If yes to #1 and #2, did the employee lose the Act’s protection?
Typically applied to an employee who makes egregious, obscene or disparaging comments about the employer or products so that the statement is so disloyal, reckless, or maliciously untrue.
Can you sue employee?
Texas Anti-SLAPP Statute May Bar Suit Against Employee
Kinney v. BCG Attorney Search, Inc., 2013 WL 4516106 (Tex. App.—Austin 2013)
Questions?
