In PhoneDog LLC v. Kravitz, the employee created a Twitter account to provide reviews of cellular phones as part of his job with PhoneDog, a provider of mobile device news and reviews.  The Twitter account was called “@phonedog_noah” (all Twitter account names begin with the @ symbol).  The Defendant amassed 17,000 Twitter followers at this account.  When he left PhoneDog, he simply changed the user name of the account to @noahkravitz and kept using it, broadcasting new content to the 17,000 people who had begun following him while he worked at PhoneDog.  This content was not related to PhoneDog and did not link back to its site.  In fact, PhoneDog alleged he was using the Twitter account to disparage it.  PhoneDog sued him for misappropriation of trade secrets related to the Twitter account, as well as interfering with its business relationships with its Twitter followers.  PhoneDog claims its Twitter followers can be valued at $2.50 per month per follower and that as a result of Kravitz taking the Twitter feed, followers no longer clicked on links to its site, which caused its advertising revenue to decrease.  This case is ongoing, and the court declined to dismiss the action, meaning that if PhoneDog can prove its claims, and its damages, it may be able to recover against Kravitz for his use of the Twitter account after his departure from PhoneDog.

The PhoneDog case illustrates the need for clear corporate social media policies.  If your company has a Twitter account that one employee maintains, your policies should account for what will happen to that account should the employee leave.  Clearly stated policies which account for the possibility of account turnover if needed will help protect the social media assets your company has developed.

Lacking control of the House of Representatives, a legislative response to AT & T Mobility by the Obama administration has been impractical. Enter stage left, however, the Obama National Labor Relations Board (“NLRB”).  Just seven months after the Supreme Court’s AT & T Mobility decision, in January 2012, the Board found in D.R. Horton and Michael Cuda, that requiring employees to waive their right to bring employment-related claims on a class basis as a condition of employment violates the National Labor Relations Act (“NLRA”) – the federal law that it enforces and that protects “concerted” activity by employees.  The bottom line – employers who require employees to waive their rights to bring class actions as a condition of employment may be violating federal law.

The Board’s decision in D.R. Horton is now on appeal and whether or not it will survive judicial scrutiny remains to be seen.  On May 1, 2012, however, the General Counsel of the NLRB decided to raise the ante even further.  In a case involving 24-Hour Fitness, the national fitness club chain, the NLRB General Counsel decided to issue a complaint alleging that 24-Hour Fitness had violated the NLRA simply by asking employees to arbitrate employment disputes on an individualized basis – even when they were allowed to say no.  Though this latest case is just in its infancy, it does signal an aggressive anti-arbitration stance by the Obama Administration.  Employers considering arbitration programs should keep this in mind.

The Federal Arbitration Act encourages and enforces private agreements to arbitrate.  The National Labor Relations Act protects employees’ engaging in “concerted” activity.  Two federal laws of equal force are being interpreted in a manner that seems to be at loggerheads – and probably will remain so absent legislative or judicial intervention.

Trial and class action lawyers representing employees view arbitration as a mortal threat to their livelihoods.  Business sees arbitration as a means to avoid ruinous litigation expenses and manage risk in its favor.  What to do in the meantime?  Employers that had hoped that the AT & T Mobility decision might prove an instant panacea for what ails them may have to wait a little longer while the smoke clears in the ongoing battle between various interest groups over arbitration.

With regard to the EEOC’s best practices for creating a criminal records screening policy, the EEOC says that employers must identify the essential functions of a job, as well as the “actual circumstances under which the jobs are performed.” Employers should then determine which specific criminal offenses may demonstrate unfitness for performing the job and determine how long such an offense should disqualify an individual for the particular job. Additionally, the EEOC recommends employers document the justification for any criminal records screening policy or procedure and advises employers to provide training to their managers and other hiring personnel. Finally, the EEOC recommends any information regarding an individual’s criminal record be maintained in a confidential manner.

With respect to the job-relatedness aspect of a criminal record screening process, the EEOC’s guidance identifies two situations in which an employer’s screening process or policy will satisfy the “business necessity” defense. First, an employer may establish the business necessity of such a policy by “validating” the criminal background screen for the position at issue using one of the approaches set forth in the Uniform Guidelines on Employee Selection Procedures.  Alternatively, the employer may use a “targeted” screening process that takes into consideration three factors: (1) the nature and gravity of the offense; (2) the amount of time that has passed since the offense and/or completion of the individual’s sentence; and (3) the nature of the job held or applied for. In describing how these three factors should be used, the EEOC advises employers to make an individualized assessment and evaluate the following specific factors before disqualifying an individual from employment:

• The facts or circumstances surrounding the offense or criminal conduct
• The number of offenses for which the individual was convicted
• The individual’s age at the time of conviction or release
• Evidence that the individual has performed the same type of work post-conviction without problems
• The length and consistency of the individual’s employment history before the offense
• Rehabilitation efforts, such as education or training
• Employment or character references
• Whether the individual is bonded under a federal, state, or local bonding program

According to the EEOC, if the employer decides to disqualify an individual from employment based on past criminal conduct, the employer should inform the individual of the reason for the employer’s decision, provide an opportunity for the individual to explain why he or she should not be disqualified based on the past criminal conduct, and consider whether the employer’s individualized assessment suggests that disqualification is not warranted. However, the guidance indicates that an employer may make its employment decision without information regarding the above factors if the employer requests such information from the applicant or employee and the individual fails to provide the information.

Notably, the EEOC’s guidance and its related publications remind employers that, although arrest or conviction record discrimination is not prohibited under Title VII, the EEOC continues to take the position that criminal record screening may disproportionately affect individuals of certain races or national origins. Thus, according to the EEOC, an employer can be liable for race or national origin discrimination under a “disparate impact” theory unless it demonstrates the job-relatedness of its criminal record screening process. Therefore, it is now more important than ever that employers review their background screening process to ensure that any criminal records screening is job-related, as the EEOC will likely be looking very hard at this issue, and courts may follow along.

The following allegations were made: The complainant, named Macy, was an employee of the ATF. Macy spoke to her director about an open position. At this time, Macy was presenting as a male. The director told Macy she would get the position provided her background check was clear. However, days after disclosing that she was transitioning from male to female and that she would have a new name and gender, she was informed that, due to budgetary constraints, the position was no longer available. In actuality, the position had been given to another person. Macy filed an administrative complaint claiming transgender discrimination.

Macy’s claim eventually reached the EEOC. The issue was whether federal law — specifically Title VII — prohibits discrimination against transgender individuals. Many federal courts, as the EEOC recognized, had held that Title VII did not protect employees from discrimination based upon their status as transgender individuals. Rather, those courts generally required plaintiffs to show that they were discriminated against for failing to conform to gender stereotypes — for example, a woman being passed over for promotion for failing to act in a sufficiently “feminine” manner.

The EEOC rejected this distinction. It concluded a transgender person could prevail by showing that the employer discriminated against him or her for failing to conform to gender stereotypes. However, unlike many courts that have considered the issue, the EEOC concluded that a person also may prevail simply by showing that he or she was discriminated against based upon his or her status as a transgender individual. Both forms of discrimination fall within the definition of discrimination based on sex.

How should employers react to this decision? While courts are not required to follow the EEOC’s decision, it may signal an increasing acceptance of transgender discrimination claims. Furthermore, many states and municipalities already prohibit discrimination against transgender individuals. Therefore, the prudent approach is for employers to ensure that their policies prohibit discrimination against transgender individuals (as many employers already have) and train their employees accordingly.

The employer argued that the case could be thrown out before trial because the employee did not have a “serious health condition” entitling her to leave protected by the FMLA. The federal court denied the motion.

The court observed that the employee had to show first that she was entitled to FMLA benefits because she had a “serious health condition involving continuing treatment by a health care provider.” The employee produced evidence that on Friday, July 9, 2010, she did not report to work because of alleged pain and frequent urination; on Saturday, July 10, 2010, she began to have difficulty urinating and could not urinate at all by the evening. On Sunday, July 11, 2012, she went to a hospital emergency room (ER), where a doctor attributed her urinary retention issue more to herpes than to the bladder issue, installed a catheter in her, prescribed medications, and instructed her to take off from work on Monday, July 12, 2010. The employee was absent from work for these reasons on Monday, July 12, 2010, and returned to work July 13, 2010.

The employer argued she did not have a “serious health condition” because she was not incapacitated for more than three days. It disputed whether she was incapacitated on the two days before she went to the ER because of urinary retention. The employer also contended that the employee’s bladder issue caused her urination issues Friday and Saturday and that herpes caused her inability to urinate Sunday and her Monday absence. Therefore, the employer maintained, the condition that caused the employee’s absence from work — herpes — did not incapacitate her for the three-day period.
 
The court acknowledged that each of the medical conditions affecting the employee alone may not have incapacitated her for three or more consecutive days, as required by the FMLA implementing regulations. The court relied on other court decisions finding that medical conditions affecting an employee should be considered together when determining if the employee is experiencing a “serious health condition.” Other courts have noted that the focus should be on the cumulative, adverse effects of the related medical conditions afflicting the employee at the time she seeks leave from work.

An employer should not presume that any absence from work of less than three consecutive days for a health-related reason is not FMLA-protected, and it should carefully scrutinize circumstances pertaining to an employee’s absence from work for health-related reasons before disciplining or discharging the employee. If an employee is absent from work even for three days or less because the employee is concurrently afflicted by multiple health conditions, the employer should assess whether the conditions are “temporally linked” and affect “the same organ system,” such that these in combination are indicative of a “serious health condition.” FMLA leave should be granted to an affected employee if the employee made a timely FMLA request and if adequate certification of the need for FMLA leave has been obtained from a health care provider or if the employer has actual or constructive knowledge of the employee’s need for FMLA leave.

Employment litigation can be expensive and time-consuming, especially due to the increased importance of and focus on ediscovery (the grab-bag of legal and logistical issues associated with the management, identification, preservation, collection, search, review, and production of electronically stored information). Below are five quick tips for efficiently and effectively handling ediscovery in employment cases:

• Have a System in Place to Determine When You Need to Keep Documents Safe. A company has a general duty to preserve information, including electronically stored information like email, related to reasonably anticipated litigation. There can be serious legal consequences for failing to locate and preserve litigation-related information, and this legal duty can be triggered before a lawsuit actually is filed. You should have a legal review process in place to route information to the right people to make a judgment call as to whether you have a duty to preserve, so that you can then meet that obligation by keeping certain documents safe.
• Understand the Scope of Electronic Information Before Litigation Hits. Electronic information is much more than email. Employment cases typically involve the production of different types of data from complex databases, including timekeeping systems, payroll systems, and data in shared or cloud storage. Put in some effort on the front end (before litigation hits) to prepare a data roadmap so that you can understand what data you have and where your data is located.
• Have a Document-Retention Policy. If followed in good faith, document-retention policies outlining how you manage, store, and get rid of your data can give you special protections under the law when you have deleted data in the past that is relevant to current litigation. You should have a document-retention policy in place, and should make sure you follow the policy.
• Do Not Let Lawyers Unnecessarily Lead You Into to Spending a Fortune. Some attorneys will try to use ediscovery as a weapon, and will try to cram burdensome discovery requests on your company as a litigation tactic. Lawyers also may not realize or appreciate how difficult it can be to respond to overbroad discovery requests, which often stems from not understanding technology. There are burdensomeness boundaries in discovery, and you should check with an ediscovery professional to ensure that your money is being well spent.
• Consider Technology to Assist in Document Review. Technologically assisted review (done correctly and in the correct situation) can enable you to defensibly review millions of documents at a much lower cost than utilizing eyes-on review. While it is not appropriate in every case, this review technology is similar to your email spam filter (which does a good job of automatically picking out “spam” emails and leaving out the rest). You can essentially use the same technology to train a system to pick out the relevant documents in litigation.

At this point, things got complicated, and the employee and company have different versions of what happened. For instance, it is not clear whether she might have been able to do some work from home during the pregnancy. It is clear that after the doctor’s visit, the employee briefly went into her office to inform her staff about the situation. While there, she saw an invoice indicating the company had sought legal advice regarding her situation. She assumed she had been fired, but she also applied for FMLA. Because the employee had approximately four months left in the pregnancy, it did not appear she would be able to return to work once FMLA was exhausted. The employee argued she had access to other types of leave and that it was possible she would return to work before using all of it. Her claim is that she was terminated because of the pregnancy. In any event, during the first month of FMLA, the company hired an acting human resources director, and the employee was ultimately terminated.

In theory, while pregnancy has some special protections, such as FMLA, companies are supposed to be able to treat pregnant employees in the same manner as other employees with similar limitations. For instance, assuming FMLA or similar state protections do not apply, a company can terminate a pregnant employee for violations of its attendance policy, even if those absences are due to the pregnancy. The reality, however, can pose difficult decisions, particularly because it is often hard for fact-finders to separate the attendance violations from the pregnancy. Similarly, because FMLA does protect pregnancy-related absences, it can make it more difficult to explain why a pregnant employee is not meeting performance expectations even when the protected absences are not considered. In short, while pregnancy does not provide a “get out of jail” card that excuses poor performance, companies should be extremely cautious with discipline or termination situations that involve pregnant employees. Companies also should consider whether or not they should have separate pregnancy leave policies, apart from other types of leave.

The court also questioned the DOL’s requirement (and rationale behind the requirement) that employers must only log work-related injuries. The DOL’s rationale for the regulation is so that the DOL can see which occupations are more hazardous than others and then target its enforcement efforts at the most hazardous occupations. However, as the court pointed out, only a log of all injuries — and not just those deemed work-related by employers — would provide a sound statistical basis for understanding which occupations are more hazardous than others. A log of all injuries also would remove the potentially high costs to employers to determine whether an injury is work-related. The court suggested that the DOL reconsider its work-related requirement for logging injuries.

Until the DOL reexamines its injury log requirement, employers remain in the unenviable position of making judgment calls on whether injuries to employees are work-related and must be logged.

On April 9, 2012, in response to protests from organizations ranging from Facebook itself to the ACLU, Maryland became the first state to prohibit an employer from asking applicants and employees for their passwords to access their social media sites. The Act also prohibits discipline for refusing to provide the passwords. Legislators in Washington, New Jersey, and California also have introduced similar bills. At the federal level, two congressmen have proposed legislation and Senators Chuck Schumer (D-N.Y.) and Richard Blumenthal (D-Conn.) have asked the EEOC and U.S. Department of Justice to address this issue.

Employers — both those who believe they can learn valuable, unvarnished information about applicants through social media and those who review such sites to protect trade secrets or prevent sexual harassment — are set to clash with the government and its efforts to protect privacy. As social media has become a dominant method of communication, particularly for younger applicants and employees, expect this area to be a battleground for these competing interests.

Maryland has spoken, but other states have no blanket ban that precludes the review of social media sites in selecting employees. However, in addition to applying this screening tool in a consistent, non-discriminatory fashion and obtaining permission from applicants and employees before accessing the social media sites, prudent employers constantly must keep apprised of legislative and regulatory changes in different jurisdictions that restrain or ban the practice.

 The Court further clarified that if the employee voluntarily chooses to continue to work during his or her break, “the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it ‘knew or reasonably should have known that the worker was working through the authorized meal period.’” However, if an employer encourages the employee to do work during the meal break or otherwise effectively precludes the employee from taking a 30-minute meal break, the employer may then be liable for failing to provide required breaks. For additional information, Foley Partner John Douglas authored an article that appeared in Employment Law360 on November 14, 2011 titled, “On the Brink of Deciding Brinker.”