The Aftermath of a Supreme Court Decision: Another MDV

Cases that make it to the Supreme Court are important for the precedent they set and for most of us that's what we got in last January's decision in Crawford v. Metropolitan Government of Nashville. In fact, I said at the time, "certainly not the hardest case for the Supreme Court to decide, nor was the decision unexpected."  Supreme Court Unaminous in Retaliation Case.

But there are also parties to Supreme Court cases that have a much more personal interest. When the Supreme Court reversed the 6th Circuit's decision affirmation of summary judgment against Vicky Crawford's retaliation claim, she no doubt was looking forward to her day in court.

She got it last week and today, the jury made it two January's in a row that were good for Crawford.  Federal jury awards former Tenn. schools employee $1.5M for wrongful termination.

The Tennessean had some more information last Friday as the case was sent to the jury. Former Nashville worker's termination lawsuit go suit to jury.  Crawford claimed that she was terminated for participating in a sexual harassment investigation, the employer said she was "once a good employee but her job performance had been slipping for some time and she was fired for poor performance."

The investigation was of the Employee Relations Director and according to court documents, Crawford after being assured that nothing would happen to her, told investigators the Director "would ask to see her breasts, grab his crotch saying, "You know what's up," and on one occasion pulled her head to his crotch."

One item reported in the earlier story is the sort of thing that you know can be problematic for an employer. The same HR office who assured Crawford of no retaliation. on the same day that she turned in her report on the investigation (finding there were no witnesses to the alleged harasser's behavior), also sent a letter to the company's internal audit department informing them of problems in the payroll department run by Crawford.

However, the employer had some powerful arguments as well. It was two months later that Crawford was put on administrative leave and she was not terminated until after an outside audit found serious problems, including 25 uncashed checks lying around her department.

And that's just what is available from the necessarily brief and abbreviated newspaper reports. If anyone needs a New Year's reminder that when a case goes to a jury anything can happen, consider it sent.

And, of course, Ms. Crawford whose termination was way back in 2003, may find that there is a difference between a verdict and a judgment, and of course there is always the possibility that the case is headed back on appeal.

That Bum Facebook Friend of Yours? Could Cost You a Loan ...

At least that's the headline, Creditworthy? Lenders delve into your social networks. The actual story is more about the possibility than the actuality of it happening. However, knowing that there is a business devoted to perusing social media to prepare "social graphs of your likes, dislikes, strengths and weaknesses" does give one pause.

Rapleaf's web site, the company discussed in the article, emphasizes that it is a marketing company, which is what the article really says about it, notwithstanding the headline.

And of course before an employer could utilize a "social graph of your likes, dislikes, strengths and weaknesses," at least if prepared by a third party, they would do well to check on the requirements of the Fair Credit Reporting Act.

In particular they need to remember that using a consumer report for any employment decision must be preceded by obtaining permission in a very specific way and then following up with very specific notice procedures.

And that a "social graph" seems pretty likely to fit within the definition of a a consumer report which is defined as:

any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purpose authorized under section 604 [§ 1681b].

Becker Nomination Back in Senate's Hands

As had been widely reported would happen, the President has re-nominated Craig Becker to be a member of the National Labor Relations Board. Presidential Nominations Sent to the Senate | The White House In light of Tuesday's election results it will be interesting to see what happens.

Although getting a controversial nominee through Congress is not easy, and Becker is clearly controversial, it still remains easier than passing legislation such as EFCA or health care. I would not be surprised to see the White House looking harder at ways to accomplish their goals that do not require Congressional action, such as regulations and executive orders. Although they have to get their nominees confirmed for regulations to occur, it may well be they begin using some of their political capital on the confirmation process rather than new legislation.

Hat tip to Jeff Hirsch at Workplace Prof Blog who somehow managed to take time away from the other UT's athletic turmoil to keep us informed of this development, Becker Renominated. (and he hat tipped Justin Keith).

As Professor Hirsch correctly points out: "Let the fun begin ... again.

It's Not Only the Formula to Coke ...

For years any speech I have heard on trade secrets inevitably talks about the formula for coke. For those wanting to show a little variety, try Thomas English Muffins. According to a lawsuit that has been filed in district court in Pennsylvania, Chris Botticella is one of the fewer than 10 people in the world "with full knowledge of how to produce them." He does know the recipe, but not clear that is such an exclusive club. The artful wording that I quoted makes me think that number could be a little larger. You can see a copy of the complaint here. Bimbo Bakeries Trade Secret Complaint and TRO Request.

When Botticella was just retiring it was one thing, but when it was learned he was going to Bimbo's competitor, Hostess, that's when the complaint was filed.

Besides perhaps helping change the example used in CLE speeches, it might also be a very good case to test the contours of the inevitable disclosure doctrine. That doctrine has not fared well in all courts. I don't know what Pennsylvania or 3rd Circuit law is on that particular issue, but my guess is -- quite favorable.

Hat tip to the folks at Employment Law 360,  English Muffin Maker Slaps VP With Trade Secrets Suit ($).

It Is New Jersey, But Business to Business Sex Harassment?

Although my NJ friends who do the same thing I do have been claiming for some time that the Garden State has surpassed California as the most employer hostile environment, I was still surprised to see this headline, Business-to-Business Sex Harassment? N.J. Court Says It's Real.

Actually, as is often true behind surprising cases, there was a healthy dose of creative lawyering. When the owner of J.T.'s Tire Service, Eileen Totorello felt she was losing a $29,000 a month account because she would not have a sexual relationship with the customer's manager, her lawyer, Elizabeth Zuckerman, brought a quid pro quo, sexual harassment suit under the section of the NJ Law Against Discrimination which makes it illegal to "refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person" on the basis of gender or other LAD-protected categories.

After the trial court dismissed the claim, J.T. Tires appealed. Among the defendant's arguments to the three judge panel was that female business owners did not need protection against sexual harassment, and that such a claim was viable only under the employment provision of the LAD, not the section prohibiting gender discrimination in business transactions.

Not so, according to Judge Susan Reisner, one of the two women on the three judge panel. The decision can be found here.

Not surprisingly, the defendant is considering an appeal. While I don't know much about the NJ Supreme Court, what little I do know, does not make me think it is highly likely that it will turn out differently.

Less Than 15 Employees? There's Always Immigration Discrimination

Hat tip to Professor Rick Bales at Workplace Prof Blog for picking up the DOJ's announcement of a new video for employers about their responsibilities and the rights of employees under the anti-discrimination provision of the Immigration and Nationality Act, DOJ Releases Video About Immigration-Related Workplace Discrimination.

As you can see, rather than being enforced by the EEOC or a state agency, it is enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices of the Department of Justice. From the FAQ Page for OSC, here's what the Act prohibits, which also includes national origin discrimination for employers not covered by Title VII and retaliation against those who participate in the OSC process:

*Citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with four or more employees, subject to certain exceptions. Employers may not treat individuals differently because they are, or are not, U.S. citizens or work authorized individuals. U. S. citizens, recent permanent residents, temporary residents, asylees, and refugees are protected from citizenship status discrimination. Exceptions: permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. Citizenship status discrimination which is otherwise required to comply with law, regulation, executive order, or government contract is permissible by law.

* National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding "foreign." U.S. citizens and all work authorized individuals are protected from national origin discrimination. The Equal Employment Opportunity Commission has national origin jurisdiction over employers with 15 or more employees.

* Unfair documentary practices related to verifying the employment eligibility of employees. Employers may not, on the basis of citizenship status or national origin, request more or different documents than are required to verify employment eligibility and identity reject reasonably genuine-looking documents or specify certain documents over others. U.S. citizens and all work authorized immigrants are protected from document abuse.

* Retaliation. Individuals who file charges with OSC, who cooperate with an OSC investigation, who contest action that may constitute unfair documentary practices or discrimination based upon citizenship status or national origin, or who otherwise assert their rights under the INA's anti-discrimination provision are protected from retaliation.

My recollection is that the OSC has been around since the mid-1980's without a lot of impact, but when immigration heats up again as it inevitability will, it's good to be aware of its existence.

Particularly for those small employers who don't normally have to worry about discrimination.

A Workplace Spin on the Leno - Conan O'Brien Imbroglio

One day it's Indian treaties, the next it's late night television, but it seems as if there is a workplace angle to just about anything these days. For example,  the differences between various generational strata of today's workforce has received a fair amount of attention in the last couple of years.

Actually, I have not paid a lot of attention to the articles and speeches on the topic, but Chris Penttila, who has the semi-eponymous blog, the Workplace Diva, has a post that puts at least one aspect of that divide in concrete terms, Thoughts on the Conan O'Brien Debacle.

Read the post (and check out Chris's blog), but here's a short hand summary. Members of Generation X are waiting, not all that patiently for the Baby Boomers to retire and get out of the way so that they can move up to the bigger jobs. And they see Leno (Baby Boomer) shoving O'Brien (an aging Gen X'er) back down, and they don't like it.

Of course, it's not like O'Brien is making it easy. I am sitting in the airport and just saw a re-run of his latest comment - that if NBC wants to make sure he is not seen on TV for three years, they should just leave him on NBC.

If in fact there's something to what Chris says, and I must admit it does have a ring of truth, it no doubt will manifest itself in ways that will end up on employment lawyers' desks all across the country, where unfortunately it won't be all that funny.

Employment Law Comes From Many Places

One of the more unusual sources for an employment law case has to be the Fort Laramie Treaty of  April 29, 1868 which requires the U.S. Government to reimburse Sioux tribe members who are injured by "bad men among the whites, or among other people subject to the authority of the United States." See the report on the settlement of such a case from the Native American Times, $650,000 settlement in lawsuit based on 1868 treaty.

The facts that led to the settlement involved Lavetta Elk a member of the Oglala Sioux tribe who was sexually assaulted by a military recruiter when he was driving her to a military induction center.  The actual story is a little more involved and is set out in considerable more detail in the opinion in Lavetta Elk v. United States, No. 05-186L (U.S. Ct. of Federal Claims 4/28/09) [pdf] .

The decision was appealed, but last week's settlement moots the appeal. It marks the first time that emotional stress had been awarded under the Treaty.

The opening quotation in the opinion is from Chief Swift Bear, Council with the Brule Sioux at Fort Laramie, who the day before the treaty was signed said:

“The best thing a man can do is when he makes a promise to stick to it.”

Not bad advice for employers to remember on a daily basis.

Board Member Becker? 2nd Time Around

According to the New York Times, President Obama is going to renominate a number of individuals that the Senate returned to the White House at the end of the first session of this Congress. Included in that group is Craig Becker to the NLRB. President Is Said to Decide to Renominate Six Choices.

Hat tip to a tweet from Ross Runkel, who nailed it, when he said at a minimum this means a delay in getting a full Board.

One the "can 2 members act" question, the Court has set that case for oral argument on March 23rd. Supreme Court to Hear Oral Arguments in New Process Steel on March 23.

Even if the Board gets the go ahead from the Supreme Court, that does not mean that the Board will really be able to function in any but a very limited way. Although for employers who are not looking forward to some of the rulings likely to come from an Obama Board it may be a good thing in the short term, in the long run, it seems to me that the way the Board has become just another vehicle for partisan fighting (and this goes back long enough to catch administrations and Congresses of all political persuasions) is not a good thing. There should be a better way.

Closing a Business in the Granite State? New State WARN Act

Hopefully this decade will be more about expansions than closings. But it is always important to remember that if you are forced to close a plant, it's important to make sure that in addition to the federal WARN Act you have complied with any state requirements. As of today, New Hampshire joins a number of other states that have their own. Big NH Businesses Now Must Warn Before Closing.

The reason according to State Labor Commissioner George Copadis, "There's no teeth to the federal WARN Act." Gives you a hint of the direction the statute takes.