Is Social Media the New Frontier for Class Notice in US Wage and Hour Litigation?

By Meghan Hill on Posted in Class Action, Wage and Hour

In what could be the beginning of a new era in employment collective and class actions, the Southern District of New York has approved the use of social media as a mechanism to notify potential class members in a wage and hour dispute Mark v. Gawker Media LLC, 2014 U.S. Dist. LEXIS 155424 (Nov. 3, 2014 S.D.N.Y.).  The named plaintiffs, two former unpaid interns for blogs run by Gawker, initially filed the class action suit in 2013.  Plaintiffs claim that Gawker violated the Fair Labor Standards Act and New York wage laws by misclassifying them as interns instead of employees, and that Gawker therefore impermissibly failed to pay them at least minimum wage.  Traditionally, class notification is a court‑approved notice sent via U.S. mail to potential class members.  Because the potential class members were unpaid interns, Gawker did not have complete contact information – traditionally names and mailing addresses – which necessitated an alternative class mechanism.

Now that the court has decided social media can be used, the parties are presenting plans regarding the extent of the tweets, posts and blogs.  Plaintiffs took the order and ran with it, proposing use of Twitter, LinkedIn, Reddit, Facebook, and Tumblr.  Not surprisingly, Gawker took particular issue with the plan’s potential to reach potential class members multiple times using different social media sites, and to encourage back‑and‑forth exchanges between potential class members and plaintiffs’ counsel.  Regarding Twitter, Gawker balked at the plaintiffs’ proposed use of multiple hashtags, and was especially concerned with “inflammatory” hashtags such as #fairpay and #livingwage.   Gawker also objected to plaintiffs’ counsel sending announcements with reminders to group members on LinkedIn, and it requested that the court deny any use of Tumblr or Reddit (“Plaintiff’s plan with respect to Reddit is calculated less to reach potential collective members than to connect this lawsuit with unrelated controversies and political causes.”).   Although Gawker did not object to creation of a Gawker Intern Lawsuit Facebook page, it objected to plaintiffs’ request to add prospective plaintiffs as “friends.”

The New York federal court has not yet issued a ruling on the boundaries plaintiffs must adhere to in using social media.  Nonetheless, the court has already made clear that social media is not off-limits in reaching potential class members, especially where employers do not have complete contact information.  This case illustrates the need for employers to retain adequate records of employees’ and interns’ traditional contact information.

The irritation game – does anyone else notice these things or is just you?

By David Whincup on Posted in Recruitment

Moving on swiftly from distressing things interviewers can do to job candidates https://www.employmentlawworldview.com/nine-rudest-things-that-interviewers-do-to-job-seekers-sort-of/ what about the reverse, those things candidates do which most alienate the prospective employer?

For the really committed recruiter, this process of irritation can begin well before you go to the trouble of actually meeting the candidate, on receipt of the CV.  Of course spelling and grammatical errors can make your teeth grate, but LinkedIn has now released a study of those words in a CV which, even spelt correctly, are most off-putting to would-be employers.

Top-four in descending order of acceptability are “driven”, “passionate”, “creative” and (worst of all, apparently) “motivated”.  The basic problem here appears to be that they are all either blindingly obvious or silly hyperbole and that their inclusion will therefore add a small but unmistakeably jarring note to the proceedings.

You can tell me on a CV or in an interview that you are “motivated”, but is that not really to be assumed from the fact of your applying for the job?  After all, the word means no more than that you have a reason for making the application.  This could still cover everything from your facing dismissal if you stay where you are, or your wanting more money, to the theoretical possibility (but negligible probability) of your actually being interested in this specific role in this specific company above all others.  “Driven” is just the same but adding a faintly unattractive whiff of desperation.  And am I going to believe that you are “creative” just because you say you are, especially given that you have not been able to think of a more original attribute to major on than anyone else?  Commentators on the survey suggest that the wise candidate will not just assert these things but provide concrete examples instead.

As for “passionate”, who using the word properly is actually passionate about a job?  My on-line thesaurus gives as alternatives for “passionate” a Fifty Shades-like choice between ardent, amorous, aroused, desirous, hot, lascivious, libidinous, lustful, steamy, stimulated and wanton.  If that is genuinely how you feel about the prospect of working for me, there has clearly been a dreadful misunderstanding somewhere.  If the candidate uses “passionate” about his job, what words does he have left to describe his feelings for friends, partners and family, health and happiness and other things that really matter?

These phrases may just be a function of a tough job market and the consequent temptation into a form of adjectival arms-race.  However, they are also an insight into your job candidate just like any other part of the CV or the interview.  This may or may not affect the candidate’s actual ability to do the job, but the LinkedIn survey suggests that, as with the recent interviewee at this firm who prefaced every answer with “If I am being honest …” (as opposed to what?), the involuntary grinding of teeth occasioned by such clichés is clearly reason enough to discount his candidature anyway.   This is not being petty or trivial.  It is a reasoned extrapolation from the applicant being irritating on paper to the probability of his being equally irksome in person.  It may well be that others wouldn’t notice, or would flinch inwardly but be carried along anyway, but that does not make written or oral tics of this sort something you have to live with.  Courage – you are not alone.

Single breast grope not sackable offence, says European court

By David Whincup on Posted in Harassment, Misconduct, Recent Cases

Right, that should be enough to scupper UKIP’s chances of bringing the UK out of Europe, so now onto the actual facts.

The German Labour Court in Erfurt last week ordered the reinstatement of a garage mechanic dismissed for fondling the cleaner’s breasts. Cut and dried dismissal material, one might think, especially accompanied by his immortally dismal explanation to her that “these look like fun“.

There was, however, some substantial mitigation – the employee had a blameless sixteen year record with the garage, apologised as soon as it became clear that his idea of fun was not shared by the cleaner, paid her a sum of money in compensation for her upset and promised never to do it again.

The Erfurt court took the view that while repeat offences should clearly lead to dismissal, “sexual harassment in the workplace must not lead to the immediate termination of the offender“. The employee should have received the German equivalent of a final written warning, said the court – in the particular circumstances of this case, dismissal for a one-off fondling was a step too far.

Of course, there is much unknown about this case which could lead to a decision that dismissal was not necessary – how unprompted was the apology, how much money was paid, on what terms it was solicited or accepted, the cleaner’s view on further steps, how vigorous and/or extended was the grope, etc. It must have been a fun afternoon in the Labour Court public gallery that day.

However, there is also little here which points to dismissal being so harsh as to be not possible – after all, this was an entirely deliberate sexual assault, not something alleged to be accidental or driven by illness or any genuine belief on the mechanic’s part that his attentions would be welcome. The idea that you can head off a dismissal for sexual harassment by a pre-emptive cash payment and a promise not to do it again is a very unappealing one.

The Daily Mail headline last week, “When it’s OK to grope at work”, is therefore misleading. This case does not legitimise groping the breasts of a colleague even once, even if you are prepared to pay something for the privilege and even if you do genuinely think that they look like fun. At best, this is a case on its own relatively unique facts. It will not form safe authority even in Germany, except perhaps for the proposition that an immediate and automatic termination without prior consideration of all the relevant facts may be open to challenge.

Moreover, it is very hard to see an English Employment Tribunal operating the “range of reasonable responses” test ever reaching the same conclusion. Even if it took the view that the mechanic was acting out of character as a one-off with no intent to cause distress and that he was genuinely mortified by his actions, it is still very likely that the employer’s right to dismiss would be upheld. I suppose you could envisage a case where the employer did not even pause to consider mitigation and so lost on those technical grounds, but not much more. And while there is no absolute rule that an employee’s misconduct will be a bar to his reinstatement being ordered, the likelihood of such an order in this situation seems less than negligible.

It’s Official: No Porn on the Clock for US Federal Employees

By Squire Patton Boggs on Posted in Agency Workers, Conduct, Legislation

We’ve all seen the seen warning labels on certain consumer products which cause us to shake our heads—“Do not iron clothes on body” and “Do not eat [Apple iPod shuffle.]”  Well come to find out, federal employees may require similar, seemingly unnecessary instruction—no pornography on government computers or electronic devices.  On February 11, 2015, a bill prohibiting this activity was introduced in the House.

The timing of this bill is certainly no coincidence—it coincides very clearly with a high-profile investigation into a federal employee who downloaded 7,000 files of pornography and admittedly watched between two and six hours of pornography every day at work.  This individual, whose salary is paid by our tax dollars, reportedly makes $120,000 a year.  And this individual has yet to be fired—the investigation is ongoing.  Sigh.

The congressman who introduced the measure made the following observation, which I think we can all agree with:  “It’s appalling that it requires an act of Congress to ensure that federal agencies block access to these sites.”

The takeaway, if it needs to be said—keep the “Fifty Shades of Grey”-themed videos out of the office.

When blackmail and threats over-ride an employee’s duty of loyalty in Europe

By Squire Patton Boggs on Posted in Misconduct, Recent Cases

Every now and again you read about a case which makes you wonder whether you have just been spending time with Alice in Wonderland. The European Court of Human Rights (ECHR) has recently delivered such an out-of-body experience relating to freedom of speech where an employee “bad mouthed” his employer in the national press.

Mr Rubins was a Professor of Medicine at Riga University in Latvia.  He got upset because his University decided to merge with another and the merger anticipated changes to his employment contract. Mr Rubins was not happy. So he sent a series of emails to the University top brass in which he:

  • criticised the “lack of democracy and accountability in the University’s leadership”;
  • complained about a lack of checks and balances in management decision-making;
  • alleged mismanagement of the University finances;
  • criticised the conduct of members of the University management; and
  • proposed his own remedial amendments to the University’s constitution.

Clearly he was not on a mission to make friends among the University’s senior management team. He then sent an email (strangely entitled “Settlement”) to the University Rector in which he proposed alternative methods to resolve his employment dispute, being essentially that things were done his way and no other.  He made his intentions very clear when he threatened that if the University did not agree to his demands, he would go right through the Latvian legal system with his case and at the same time to go public with his complaints. When his “settlement offer” was declined, Mr Rubin, clearly being a man of his word, went to the national press with his allegations.  Following an investigation which substantially dismissed his concerns, he was sacked for gross misconduct.

In common with that of many EU countries, Latvian law imposes a duty of loyalty on all employees. It also requires them to exercise “reserve and discretion” in relation to their employment.  So it will come as no surprise that the Latvian courts consistently concluded that Mr Rubins was lawfully dismissed for his conduct in making inappropriate and unreasonable demands and threatening the University in which ways which seemed to fall little short of blackmail.

Mr Rubins was undeterred.  Off he went to the ECHR on what must have seemed all round like a losing ticket.  However, to the surprise of all concerned, probably including Mr Rubins, the ECHR decided by a majority of 5 to 2 that his dismissal was an infringement of his “human right” of freedom of expression.

The ECHR concluded that even though the Latvian courts which had heard all the actual evidence had decided the reason for his dismissal was his inappropriate threats to his employer (which were contrary to his duty of loyalty etc.), the real reason was in fact his expression of his opinions about the University and, in particular, its management. The ECHR commented that freedom of speech was so fundamental to a democratic society that people had a right to “offend, shock or disturb” others.

Human rights law is all about proportionality and balancing the rights of the parties. But what about the rights of the University which, perhaps understandably, expected a modicum of restraint and loyalty from its employee – however angry he was about not getting his own way? In the UK, the courts are willing in some cases to draw a distinction between the fact of whistleblowing (expression of opinion) and the way the employee goes about it. So in Evans v Bolton School, the Court of Appeal held that a teacher was fairly dismissed, not for expressing his view that his employer’s computer system was wide open to hackers, but the way he went about demonstrating it – by personally hacking into the system. That seems to give a more measured balancing of respective rights than the purist approach now adopted by the ECHR.

The Court seems to have put some reliance on the fact that as the University was publically funded, the expression of opinion by Mr Rubins overrode his duty of loyalty because it was “in the public interest” to hear his views.  This seems, with respect, more than slightly tenuous.  There is nothing implicit in being a public sector employee that your personal grievances and grudges will be of any interest to the public, any more than that in the private sector they won’t.  The principle of freedom of speech should not be different depending on whether you work in the public or private sector.

Whatever we might think of the merits of this Decision, it says what it says.  Does it mean that employees in the UK and other EU jurisdictions can now say what they want to whom they want in furtherance of their own workplace agendas and yet be immune from action by their employers?  We think not – there is too much accrued jurisprudence across Europe to the effect that rights must be balanced (not least in the ECHR’s own rulings on the UK’s “crucifix cases”). These cases are always very fact-specific and this one seems to turn not on what Mr Rubins said, or even to whom, but on the factual finding that the University did not dismiss him for the reasons it had claimed.  If we draw a veil over the question of how the ECHR could second-guess both the evidence and the entire Latvian legal system in making that finding, however, the case then becomes a very ordinary whistle-blowing retaliation issue, and of little general application elsewhere.

War stories – “fog of memory” or grounds for dismissal?

By David Whincup on Posted in Misconduct

I have forgotten many things in my time – appointments, my wife’s birthday (just the once, that would be) and most of my O Level grades.  On the other hand, I am pretty sure that I have not forgotten being in a helicopter over Iraq when brought down by enemy fire.  Unless I had lived a life of more or less constant near-death experiences, I like to think that I would still have the intellectual reserves to distinguish between being shot down by a rocket-propelled grenade (no completely forgettable small-arms fire here, you understand) and, say, not being shot down at all.

And I say that as one who has actually been in a plane crash.  An imminently ex-friend once contrived to prang her borrowed light aircraft quite comprehensively with me in it without any assistance from people on the ground at all.  That was probably 20 years ago at least, but, well, I find that these things tend to stay with you, yes?

So what should employer NBC do with celebrated US journalist and news anchor Brian Williams after his repeated statements that he was in the downed aircraft when in fact he was not?  He claims that “the fog of memory over 12 years” plus repeated viewing of his own video of the crash site had led him to “make a mistake in recalling events“.

NBC has a choice, as has the employer of any public figure found out in a bad case of “mis-speaking”.  First, it could conclude that Mr Williams is really telling the truth about his inability after 12 years to distinguish between fact and a good story.  It might (though probably wouldn’t) wish to look again at his 2005 claim to have contracted dysentery when reporting the aftermath of Hurricane Katrina in New Orleans.  Alternatively, it could conclude on the facts that the line between a genuine error of recollection and flat-out lying for effect is simply too thin to be credible.  It might then be tempted to reach the obvious conclusion as to what either of these outcomes does to that most essential attribute of a journalist and news anchor, his authority and integrity.  To say that he has taken a lot of flak is no exaggeration (except by Mr Williams, obviously).  Latest news from BBC Online is that he has been suspended without pay for 6 months by NBC, though quite how this addresses the basic credibility problem is unclear.

If the circumstances were replicated in the UK, would they justify Mr Williams’ dismissal?  In my view, clearly yes.  There is a point where the explanation of “the fog of memory” is so insulting to the viewer that it would surely be less damaging to him and his employer for him just to admit to making it up to emphasise a point or sway opinion.  Clearly that sits more comfortably in professions other than high-end journalism, but as the US Daily Beast reported on the matter, seemingly without irony, “the standards of veracity and accuracy demanded of a network news anchorman are much higher than those expected of a politician“.  Here is an illuminating corroboration  https://www.employmentlawworldview.com/running-for-office-would-you-hire-this-man/.

Retaining the trust and respect of the public may be optional, relatively speaking, for politicians.  However, in a role where your employee’s whole function depends on his doing so, it should be a deal-breaker.  The test of relevance of the employee’s conduct to the employment is clearly satisfied, not least because all these statements were made in Mr Williams’ capacity as NBC lead.  Even if he could get it off the ground at all, therefore, I cannot see any Employment Tribunal in the UK giving a claim by a hypothetical Mr Williams any real air-time, enormous fun though his cross-examination would unquestionably be.

Congress Gears Up Against NLRB’s Pro-Labor Agenda

By Squire Patton Boggs on Posted in NLRB

Although early in its first session, the new Republican-controlled Congress is living up to the expectation that it will force numerous showdowns between the legislative and executive branches of our federal government.  Included in the many items upon which the new Congress and President Obama will likely disagree are certain National Labor Relations Board (“NLRB”) rules.

Union Elections:

Congress’s first obvious showing that it is willing to challenge NLRB rulings occurred on February 9, 2015 when Republican House and Senate leaders exercised a rarely‑used mechanism—the Congressional Review Act—to introduce a measure to overturn a recent NLRB rule.  The NLRB rule, set to take effect in April, will shorten the time period between a union’s request for representation and the actual union election.  The new rule would allow this downtime period to be as few as 11 days—the previous rule required a 25-day waiting period, and the average amount of time from the filing of a petition to the union election is 38 days. 

Congressional Republicans argue that this shortened waiting period allows for “ambush elections,” which would be fundamentally unfair to both business and workers. The NLRB Chairman, on the other hand, has stated that, “both businesses and workers deserve a process that is effective, fair, and free of unnecessary delays, which is exactly what this rule strives to accomplish.”  Should both chambers approve the resolution to overturn the NLRB rule, it will go before President Obama.  If President Obama vetoes the measure, it can be overridden by a two-thirds vote in the House and Senate.

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That Delaware choice of law provision might not save your non-compete, at least when California is involved

By Kristine Woliver on Posted in Competition, Contracts, Employment Contracts, Restrictive Covenants

Last week, the Delaware Chancery Court in Ascension Insurance Holdings, LLC v. Underwood refused to grant injunctive relief to a Delaware company seeking to enforce a non-compete agreement against a California resident.  In that case, Mr. Underwood, a California resident, participated in a sale of business assets and their associated goodwill to the Delaware company.  As part of this transaction, Mr. Underwood signed an asset purchase agreement and an employment agreement.  Both agreements contained restrictive covenants preventing Mr. Underwood from competing with the Delaware company for a period of time after the sale closed and after his employment with the company ended.  Although the Delaware company did business exclusively in California, the agreements each contained a “choice of law” provision requiring that any provisions at issue under the agreement be interpreted and governed by Delaware law.

Mr. Underwood allegedly breached the non-competition covenant and the Delaware company sued to enforce it.  Delaware law generally allows parties to freely choose what law will apply to an agreement.  Moreover, Delaware law also will enforce reasonable non-competition agreements.  As for California, although its Business & Professions Code prohibits non-competition arrangements, there is a carve-out for circumstances involving the sale of business assets and goodwill.  Based on this, it seems that the non-competition agreement here should have been enforced, either under Delaware law, as the parties agreed, or even under California law, if the court determined it should instead apply.    However, the Delaware court declined to enforce the covenant against Mr. Underwood in Ascension.  Why?

In addition to the purchase agreement and employment agreement, about six months after the deal closed, the parties entered into a supplemental transaction, and Mr. Underwood signed another – his third – noncompete agreement.  It was this third non-compete the Delaware company was attempting to enforce in Ascension.  And although the first two non-competes fit nicely into California’s carve out for sale of business assets and goodwill, the third non-compete did not.  Specifically, this second deal, even though it was contemplated at the time the original deal was structured, did not involve Mr. Underwood’s sale of any assets or goodwill (he had sold all of his interests in the first round of the deal).  Because this third non-compete was not negotiated contemporaneously with an asset or goodwill purchase, the Delaware court concluded that the California carve-out could not save it.  The Court’s ruling is particularly interesting given the Third Circuit’s decision in 2011 to enforce a non-compete under a Delaware choice of law provision even though the home-state’s policy in that case (which was Louisiana), like California’s, disfavored non-competes.

The take-away here is that although a Delaware choice of law provision can be appropriate in corporate transactions (and other contexts), it is not an ironclad solution to non-compete challenges.   Ascension shows that Delaware courts might not be willing to overlook the fundamental policy of another state even when parties agree to have Delaware law govern.  Thus, when including a non-compete covenant in any transaction, the parties must carefully consider choice of law issues, keeping in mind that policies and statutes vary greatly between states.

EEOC Charge Filing in 2014: Number of Charges Down, Retaliation Claims Up

By Daniel Pasternak on Posted in Age Discrimination, Disability Discrimination, Discrimination, Harassment, Litigation, Race discrimination, Religious Discrimination, Retaliation, Sex Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) has released its annual statistical report  detailing charge filing activity in 2014.  The EEOC, the federal administrative agency which investigates and prosecutes claims of employment discrimination, harassment, and retaliation under a number of employment and civil rights statutes, reported 88,778 charges filed in 2014, down from 93,727 charges filed in 2013.  This reduction in the number of charges filed is generally attributed to better economic conditions and lower unemployment than in the recessionary period between 2008 and 2012, when nearly 100,000 charges were filed each year.

Some interesting additional information can be gleaned from the data released by the EEOC.  Of the nearly 89,000 charges filed in 2014, nearly 60 percent alleged race and/or sex discrimination under Title VII of the Civil Rights Act of 1964, almost a quarter alleged age discrimination under the Age Discrimination in Employment Act, and close to 30 percent alleged a violation of the Americans with Disabilities Act.  (Because charges often include allegations of discrimination or harassment on more than one basis, these percentages add up to more than 100%.)  Also, nearly 38,000 of charges filed – 42.8 percent of all charges – included an allegation of retaliation, continuing a trend that started in 2007, prior to which retaliation claims were included in less than 30 percent of all charges.  Texas, Florida, and California saw the greatest number of charges filed –  these three states collectively accounted for one quarter of all charges filed in 2014.

The EEOC’s report also discloses that in 2014, the agency filed 167 lawsuits against employers.  Although more than 2013, when it filed only 148 lawsuits, 2014 once again saw significantly less litigation activity from the EEOC than in the years prior to 2012 (between 2000 and 2011, the EEOC consistently filed 300 or more lawsuits, with a peak of 421 lawsuits filed in 2004).  The vast majority of these cases were resolved, with the EEOC claiming monetary recoveries totaling $22.5 million.

President Obama Pushes Increased Funding and High Hopes for the DOL, EEOC, and NLRB in the FY 2016 Proposed Budget

By Kristine Woliver on Posted in General

On February 2, 2015, President Obama released his proposal for the FY 2016 budget.  In it he requests across the board funding increases for the Department of Labor (10.9% increase from FY 2015), the Equal Employment Opportunity Commission (2.3% increase from FY 2015), and the National Labor Relations Board (1.4% increase from FY 2015).

Considering the disparity between the increase sought for the DOL compared to other agencies, the DOL budget will likely be low-hanging fruit in the Republican-controlled Congress as members begin participating in the budget planning process.  For a preview of coming attractions, consider former House Majority Whip Peter Roskam’s likening of the President’s proposed budget to the Seattle Seahawks’ unfathomable second-and-goal pass call in the final minute of last Sunday’s Super Bowl.

President Obama emphasized budgetary goals of improving governmental agency efficiency and middle class opportunities.  And if any agencies could benefit from increased efficiency, the EEOC and NLRB are certainly among them.  By the end of FY 2014, the EEOC faced a backlog of 73,134 private sector discrimination charges.  The proposed budget [pdf] projects that the EEOC will receive more charges in both FY 2015 and 2016 than it did in FY 2014, but that the EEOC will operate at a resolution surplus with increased funding.  The proposal estimates that the backlog will decrease to 68,734 charges by the end of FY 2016, and claims that the EEOC will improve efficiency with the $8.6 million boost by consolidating data resources, promoting knowledge sharing, and fostering communication to avoid duplicative efforts.

The NLRB faced different issues of inefficiency in 2014, having to deal with unwinding all of the decisions invalidated by the Supreme Court’s decision in Noel Canning (see our blog post here).  So what would the NLRB do with the additional $3.8 million?  The NLRB projects its financial obligations will increase for administrative law judge hearings by $1 million in 2015 and for field investigations by $4 million in 2016.  The NLRB also anticipates a slight but steady influx of unfair labor practice cases and representation cases in the coming years.

Budget developments are hardly scintillating, but they are nonetheless important, as they provide an indication of the resources those agencies with workplace oversight responsibility will have at their disposal in the coming fiscal year.

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