Suits In The WorkPlace

Old, Bold, Pilots, Part II

     Following up on a previous post about the mandatory retirement age for commercial and corporate pilots, a federal court ruled that there is no triable issue of age discrimination when a company forces its pilots to retire at age 60.  EEOC v. Exxon Mobil Corp., No. 3:06-cv-1732 (N.D. Texas April 28, 2008) 

     The employer, Exxon, maintains a fleet of private aircraft, including nine sophisticated jets to transfer its employees and corporate guests worldwide.  At the time the case was filed, Exxon's internal policy barred pilots from flying its aircraft after age 60, and it forced pilots to retire when they reached that age.  The policy mirrored the FAA's age-60 rule, which grounds commercial pilots of passenger aircraft at the same age (Exxon has amended its policy to mirror the recent statutory mandated retirement age of 65.)

     The EEOC sued to invalidate this policy on behalf of six pilots who were forced to retire at age 60.  Exxon asserted a bona fide occupational qualification ("BFOQ") defense, based on its claim that the age limit was reasonably necessary to the essence of its business. 

     Exxon's reliance on the FAA rule to support its policy is justified where the rationale asserted by the FAA for grounding pilots at that age is readily applicable to the world of corporate jet flying.  The EEOC attempted to argue that the duties of commercial pilots and corporate pilots were so different that age could not be a BFOQ for the Exxon group. 

     Notwithstanding the fact that flying a corporate jet is frequently even more demanding than flying a larger and more stable passenger airliner, the EEOC tried to argue a distinction based on the differences between the airplanes.  The Commission pointed out the differences in the lavatories on the airplanes, the type of coffee provided on board and the towels used on the plane.  Why on earth the Commission would think that would be convincing evidence in an age discrimination case about flying a jet is beyond me; I suspect what it really did was point out the weakness of their arguments in the areas where it mattered.

     The court would have none of it, noting that there was no material difference, at least for purposes of this inquiry, between the planes used by Exxon and the planes used by commercial airlines.

    The result of this is not surprising; but this is one of the few areas where age may be a BFOQ.  We're going to see more of these kinds of age-related claims as our older workforce begins to push the edge of the envelope in areas like flying, vehicle operation, and the like. 

An Armed Workforce Is a Polite Workforce?

    Starting at the beginning of July, managers and employees in Florida will have even less reason to hang around out in the parking lot after shift change.  Florida residents, who typically have to worry about heat during the summer months, will now have to worry about people packing heat, at least in their workplace parking areas. 

     A Florida law that takes effect on July 1 will require most Florida public and private employers to allow employees and customers to bring lawfully possessed guns onto the employer's property.  The only caveat is that your assault rifle has to be locked inside or locked to your pick-up truck of choice in the parking lot.  Even better, employers may not ask their employees (or their customers) whether they are keeping guns in their cars, search the cars for a gun, take action against an employee based on statements from coworkers about the possession of a gun in the parking lot, or take action against anyone who whips out their Beretta, as long as the gun is never exhibited on company property for any reason other than lawful self-defense.

     The new law does not apply to school property, correctional institutions, nuclear power plants, airports or defense contractor facilities, oil refineries, or other places where possession of a gun is prohibited under federal law or federal government contract. 

     I suspect the folks at Disney World, Sea World, and the Universal theme parks around Orlando are perhaps a tad nervous about this legislation.  A similar law was enjoined in Oklahoma recently on the grounds that OSHA preempted it.  Stay tuned. 

More Racial Harassment Guidance

    Following up on the slave driver entry below, a case from Pennsylvania, and affirmed by the Third Circuit, provides another example of the limitations on racial harassment or discrimination claims.  In Harris v. Cobra Construction, the court was confronted with a situation that, on its face, appeared to be a likely one for trial instead of disposal by summary judgment.  The owner of a company waved a sawed-off shotgun at two of his black employees, and then pointed it at a union business agent, telling him to get off his jobsite.  The owner then turned to the two plaintiffs and asked, "What are you two black *******s looking at?  Now, get back to work."

     Both the district court and the court of appeals found that the claim could not go forward because there was no evidence that the owner's behavior, including his reference to race, was directed towards the two by-standing employees as a result of racial animosity or with the intention to discriminate against them as a result of their race.  They were not singled out or threatened based on their race, but instead, on their status as witnesses to an argument between the owner and the business agent.  The fact that the owner identified their race in the course of threatening them, without more, did not convert the threat from one of anger to one of racial discrimination.

     The court noted that the case might have been different if the owner had made his racial remarks in the context of discussing the plaintiff's work performance or while hiring, firing, demoting or promoting employees.  Instead, under the circumstances, the remark was, at worst, a stray remark in the workplace that could not support a claim of employment discrimination, or a claim of hostile environment. 

     You have to wonder how much further down the path the employer would have had to have gone in order to get a different ruling.  What if he had pointed a shotgun directly at the two and referred to them using a racial slur, rather than just identifying them as "black"?  In any event, the case again notes that the bar for these kinds of complaints can be higher than people might think initially.

Black Sabbath

    A recent case (EEOC v. Texas Hydraulics Inc., No. 06-cv-161 (E.D. Tenn. April 14, 2008)) out of Tennessee federal court should raise some warning flags for employers dealing with religious accommodation issues.  The case contains some troubling language about burdens of proof under Title VII, in the context of an employee who not only refused to work on a Sabbath, but who also claimed that his religious beliefs precluded him from getting anybody else to work in his stead. 

      The employee/plaintiff worked for the employer for some ten years without significant issues.  His religious beliefs prevented him from working from sundown on Friday to sundown on Saturday.  The company was able to accommodate this belief for the most part, although it shifted the employee from one department to another on one occasion so that he would be able to avoid Saturday work.  However, economic circumstances ultimately required the employee to work on a Saturday, and the trouble began in earnest.

     The key issue here revolves around an employer's duty under Title VII when confronted with a conflict between the employee's religious beliefs and the employer's work requirements.  Specifically, the employer has a burden of showing that it cannot reasonably accommodate an employee without an undue hardship.  The requirement has two elements--what actions the employer took to accommodate the employee's religious beliefs; and whether these proposed accommodations would constitute an undue hardship to the employer.  This case hinged on the first element and the court wrote ominously that "both the reasonableness of an offered accommodation, and the amount of effort that an employer put into determining" whether such an accommodation was possible are factors to be considered. 

     In this case, the employer tried to get the employee to find a replacement.  The court ruled that this was not an attempt at reasonable accommodation because the employee had already indicated that it would be a violation of his religious beliefs for him to make someone else work in his stead on the Sabbath.  The employer also proposed trying to be lenient with the plaintiff's accumulation of absences in the hope/expectation that Saturday work would eventually fade away.  The court rejected this out of hand as a reasonable accommodation, commenting that a "wait-and-see posture is no accommodation at all." 

     The point for practitioners to note is that an employer must deal with the requirement that it offer or at least contemplate accommodations that will pass initial muster as reasonable, before it can get to the undue hardship part of the analysis.  In this case the court said that the employer could have compiled a list of employees qualified to substitute for the plaintiff and asked them if they would be willing to switch shifts or substitute.  The employer could also have posted a notice asking if any employee would be willing to substitute for the plaintiff.  Either one of these things would have constituted a reasonable attempt at accommodation, and would have allowed the employer to get to the much easier part of the analysis regarding undue hardship.  For example, had the employer asked qualified employees if they were willing to switch with plaintiff for his shift and none accepted, then the employer could have readily argued that forcing someone to work in plaintiff's place would have been an undue hardship.  This argument would almost certainly have been sustained by the court.

     Instead, the court found that the employer did not make a good faith effort (or reasonable effort) to accommodate its employee, as required by Title VII.  As a result, this case is headed to trial.  The lesson here:  when someone requests such an accommodation for religious beliefs, do not sit back and propose half-hearted or unworkable solutions.  The employer has an affirmative duty to try to solve the problem with the employee before claiming the solution is simply too difficult.  A failure to do so initially effectively denies the employer a defense down the road.

Overseas Whistleblowing?

    A recent case out of the Southern District of New York has serious implications for multi-national corporations with U.S. subsidiaries or anyone with employees working overseas.  In O’Mahony v. Accenture, No. 07-7906 (S.D.N.Y., Feb. 5, 2008), the plaintiff was a partner at Accenture, LLP, a U.S. subsidiary of Accenture Ltd., a Bermuda-based company.  O’Mahony was an Irish national working in the United States.  Accenture moved her to France in 1992.  Foreign employees in France are required to contribute to French social security and O’Mahony told her supervisors that Accenture needed to make those contributions.  At some point, senior Accenture management, located in New York, told her that the U.S. tax partner for the company decided not to make the social security contributions and would effectuate the plan by concealing the length of O’Mahony's assignment in France.  When O’Mahony objected to what she perceived to be tax fraud, an Accenture senior manager, also located in New York, supposedly decided to reduce her level of responsibility, along with her compensation. 

     O’Mahony filed a complaint under the Sarbanes-Oxley Act, claiming that Accenture retaliated against her because of her objections to the tax fraud scheme. 

     Now it gets interesting.  The Department of Labor initially dismissed O’Mahony's complaint on the grounds that each of the elements of her complaint occurred in France and that the DOL lacked jurisdiction over the claim because the whistleblowing provisions of Sarbanes-Oxley do not apply extraterritorially.  The DOL administrative law judge upheld the dismissal on appeal and O’Mahony filed a petition for review with the DOL Administrative Review Board. 

     Probably figuring that the ARB wasn't going to upset the DOL apple cart by reversing its own administrative law judge, O’Mahony pulled the case out of DOL's administrative process and put it into federal court.  This was an option because the ARB couldn't make the six-month deadline for processing claims under the Act.

     Surprisingly, the federal court reversed the DOL dismissal, finding that although the statute does not apply to elements occurring overseas, in this case the alleged adverse decisions were all made in the United States.  In other words, the actual work site or nationality of the employee doesn't matter; it's where the decisions to engage in fraud/Sarbanes-Oxley violations occur that drives the jurisdiction issue.

     This decision could have some real fall-out for multi-national corporations, especially those with operating headquarters in the United States.  There are plenty of places in the world (just about all of the former Soviet Union, for example) where companies must operate in ways that are not exactly compliant with every single local and national ordinance.  An expatriate employee who raises this non-compliance can establish a Sarbanes-Oxley claim simply by alleging that he suffered an adverse employment action resulting from a decision made in the United States.  In other words, moving these kinds of issues up the food chain to higher headquarters, when those higher headquarters are located in the U.S., might not be the best plan of attack for dealing with a complaint that might trigger Sarbanes-Oxley liability. 

Raising the Roofies – Harassment Investigation 201

A former female attorney at a prominent Boston law firm has filed harassment charges, alleging that she was drugged at a holiday party by another employee.  According to a Boston Globe story last week, the former associate filed a claim with the Massachusetts Commission Against Discrimination, alleging that the firm failed to adequately investigate her charges.  The suit offers an important lesson in the need for both communication and follow up during – and after – a harassment investigation.

The facts, as alleged in the complaint, are that the female associate became dizzy at a holiday party and later went to the hospital, where traces of an anti-seizure medicine were found in her blood.  She reported the incident to another female lawyer, who confided that a year earlier she too had been drugged, and also raped, by a firm employee. 

The victim took all this information to HR, who – not surprisingly – conducted a prompt investigation, but could not determine whether she had been given the drug by another employee, or by someone else.  The firm nevertheless provided personal safety training for its employees, but did not specifically issue a warning about the incidents themselves.

So far, so good, right?  Reasonable steps in response to a difficult situation.  It is not uncommon for a harassment investigation to produce inconclusive results, despite an employer’s best efforts.  Sometimes you interview every possible witness, look at all the documents, but still just can't determine what happened or who's telling the truth.  When that happens, you conduct policy reminders, relevant training (like here) or take other proactives steps that are reasonable.

However, your obligation does not always end there.  And here’s where the complaint, if true, raises a few red flags for me.  A few weeks after the drugging incident, at a dinner with firm employees, the complaining employee said she overheard a male employee brag about how he likes to use roofies (date rape drug, for those who thought the title related to either candy or building materials) on women and then have sex with them.  (Side note of no legal consequence:  I’m not quite sure how this topic came up during dinner, nor am I clear on why the guy, who apparently fancied himself quite the ladies’ man, tried to impress his dinner companions with confessions of a desperate felon.  Boy, dating sure has changed since I was single . . . ).

Nevertheless, the complaining employee then took this new information to HR, who once again said they would investigate.  According to the complaint, however, after several weeks, HR still had not talked with the male employee who supposedly made the comments.  I call that "Problem Number 1."

Following closely on its heels is Problem Number 2:  the employee stated she was uncomfortable working around the guy (I wonder why), but was told that if so, then she could move to another floor.  No mention of a suggestion that he be relocated.  Several weeks later, she was told that he was no longer with the firm, but by then she claims to have felt so uncomfortable that she had to leave the firm.

I don’t know whether these allegations are true or not.  Regardless, I question whether the whole matter (or at least the litigation) could have been avoided with better follow through and better communication.  First, when your investigation is inconclusive, and relates to a possible felony like rape, and you get new information about the potential culprit, you follow up on that information as fast as you possibly can.  Whether the firm did so here is unclear, but if they did, it doesn’t sound like they communicated a sense of urgency to the alleged victim.  For whatever reason, she concluded that they had failed to talk to the guy for several weeks even after she reported his not-apprpriate-for-dessert roofie confessions.

Second, you never transfer the complaining party in a harassment situation unless they request it.  I rarely (if ever) say never, but in most cases it is a risk to transfer the victim, because, like here, the transfer may look, or be perceived as, retaliatory – even if it wasn’t meant to be so.

My employment lawyer Tarot cards suggest that this litigation might have been avoidable.  Note that this person did not file the charge immediately after she was drugged, or after the other female said she had been drugged and raped, or even after the firm's initial investigation produced no conclusive results.  The charge came only after she provided the firm with additional information, after several weeks passed with what looked like no action by the employer, and after she was told she could move if she had a problem with Mr. Roofie.  Then she finally left and filed a charge.  Hard to tell exactly how this one will play out.  Whether or not the allegations are accurate, however, sometimes dropping everything else on your plate to follow up on an important lead in an investigation can make the difference between whether you get sued, or whether you keep a potentially good employee.  Think about it.

Slave Driver Image Apparently Not Hostile Enough

     So that makes what happened at the Mobile Infirmary even more bizarre.  There, a clinical pharmacy team leader had a screensaver on her computer bearing the permanent caption "Slave Driver" in flaming letters and depicting an illustration of the team leader standing threateningly over three black males in varying positions of supplication/distress.  The team leader, who was Asian, apparently received the screensaver as a prank from one of her African-American interns some time earlier.

     Not surprisingly, when a black clinical pharmacist started working in the area, she was offended by the image and complained.  Nothing was done about the image, however, until the supervisor received a new laptop computer, about four months later.

     Soon after the black pharmacist complained about the image, she began to receive work criticism that escalated into disciplinary action and a memo that was placed into her file characterizing her as "young, arrogant, inability to handle criticisms, and believes that she has a tremendous amount of experiences even though this is not the case."  I guess "uppity" couldn't make it past the spell checker.

    Ultimately, the employee was terminated in a downsizing.  She sued for race discrimination based on her termination.  Incredibly, she failed to plead a claim of hostile work environment, either in her EEOC charge or the lawsuit.

     The court spent some time discussing this lapse, finding the failure to raise the issue in the charge and the lawsuit to be fatal.  But the court also noted that the pharmacist could not even make a prima facie case of hostile work environment because the only thing that she claimed was hostile was the screensaver.  Commenting that the image was "utterly inappropriate," the court noted that mere exposure to that image, without more, could not satisfy the requirement that the infirmary's conduct be sufficiently severe or pervasive to alter the conditions of employment.

     In other words, without additional evidence of racially motivated hostile conduct, the single PhotoShopped screensaver of an Asian supervisor beating black employees (to which the plaintiff would have been exposed almost daily), was not enough.

     I think this is a correct decision, because there was no other indication that the work environment was altered by racial epithets or conduct.  I do not recommend that supervisors run out and start pushing the edge of the envelope by placing similar images on their computers, however.  I wouldn't count on a plaintiff's lawyer missing that obvious a claim more than once.  Odom v. Mobile Infirmary, No. 06-0511-WS (S.D. Ala. Mar. 17 2008).

Workers' Compensation Absence Does Not Equal FMLA Protection

     A recent case out of the 7th Circuit clarifies the confusing interplay between workers' compensation leave and leave covered by the FMLA. 

     The employee in this case suffered the all-too-common back injury and was out of work from January 19, 2004, through August, when he was released to return to work.  The company's absenteeism policy tracked the minimum amount of leave required under the FMLA.  Specifically, the employee was allowed 480 hours of time away under the company's handbook.  The company was careful to note in its handbook that FMLA time runs concurrent with any short-term disability or workers' compensation covered absences.  The company automatically terminated anyone who was unable to work for a total of more than 12 weeks, regardless of the reason for the absence. 

     Important safety tip here -- such a policy may run afoul of the Americans with Disabilities Act, unless the company is conducting a case-by-case review of the employee's status and job requirements at the 12-week point. 

     The company scrupulously followed the FMLA notice requirements when the employee went out as a result of the injury, telling the employee how much FMLA leave he had left and that the leave would run concurrently with worker's compensation and short-term disability.  In this case, the employee had already used more than half of his 480 hours, and the company terminated him at the end of his FMLA entitlement due to excessive absenteeism. 

     The employee sued for exercising his workers' compensation rights, wrongfully requiring him to utilize FMLA leave, rather than temporary total disability time, and terminating him after he attempted to return to work with restrictions in a light-duty position. 

     Both the district court and the court of appeals rejected all of the employee's claims.  The court of appeals first noted that the plaintiff could not establish that the employers' reason for terminating him -- excessive absenteeism -- was a pretext for covering up improper motivation.  The court held that an employer may fire an employee for excessive absenteeism even if the absenteeism is caused by a compensable injury under the workers' compensation system.  The court also noted that the employer had every right, under the law, to place plaintiff on FMLA leave even if the employee did not want to use his FMLA entitlement.  The court noted that the employer in this case had provided the employee with appropriate notice of his FMLA status and the fact that it intended to run FMLA leave concurrently with either workers' compensation or some other type of paid leave of absence.

     This is a reasonably clear-cut win for a company that shows the benefits of complying with the FMLA notice requirements for concurrent running of leave of absence and FMLA time off.  Under these circumstances, the employer is covered and can actually run a manageable workers' compensation and FMLA leave of absence policy.

There Are Limits, Even in Sexual Harassment Cases

    Among the many problems that arise in sexual harassment cases are attacks on witness credibility as a result of the subject matter.  Specifically, it's not uncommon to see embarrassing questions at deposition or in court about people's sexual histories, their sexual partners (in particular, their coworkers), their own viewing of pornography, participation in off-color activities, etc.  These inquires, usually directed at the coworkers, but occasionally at the plaintiff, are arguably "relevant" in order to show that a person was not offended by some crude sexual come on or picture, or that they willingly participated in the conduct they are now claiming was problematic, or  to support the hostile work environment claim.  Obviously, eliciting this information in a public forum can be a powerful deterrent to proceeding further with the litigation, or an incentive to quickly settle the case. 

     But there are limits, and a recent Ohio state court opinion demonstrates this pretty clearly.

     Three female employees sued their car dealership employer for sexual harassment, along with civil assault and battery, retaliation and intentional infliction of emotional distress, among other things.  They alleged the usual litany of boorish and inappropriate behavior -- see my previously posted comments on the totally unoriginal conduct of sexual harassment defendants.  At trial, the defense sought to introduce evidence about one woman’s piercings and sexual promiscuity, ask about the voluntary presence in a strip club of another female plaintiff, and question the third about a videotape she made depicting her engaging in sex acts with her husband. 

     Although objected to initially, the attorneys for the women did not object at trial to questions about piercings, tattoos and sexual promiscuity.  Specifically, the defense called one plaintiff's mother who testified about her daughter's piercings and tattoos and gave an opinion about her promiscuity--some parents have far too much knowledge about their adult kids’ activities.  The dating history of the other two plaintiffs was also reviewed without objection.  The failure to object not only means the evidence comes in, but that it can't be made the subject of an appeal.  But I cannot understand how this testimony could even have passed a smell test for relevance given the facts of the case. 

      The plaintiff's lawyer apparently found her voice when one of the women was asked about whether she had ever visited a strip club. The trial court also allowed this question to go forward (the plaintiff had, in fact, visited a club).  The appellate court upheld the trial court's ruling on the grounds that the woman in question claimed as part of her hostile work allegation that strippers entered the workplace during working hours and created an "uncomfortable atmosphere."  The court allowed the question, holding that the woman's having been in a strip club on her own time and with people of her own choosing undermined her statement that she would feel uncomfortable at work in the presence of strippers.  So the company’s defense was not that strippers weren’t there, but that the victim couldn’t be offended because she’d seen exotic dancers (to use the Duke lacrosse case vernacular) before.  Yikes.

     It apparently never occurred to either of the courts that conduct welcome in an off-duty, non-work setting among the presence of family or friends might be grossly inappropriate and uncomfortable when observed in the workplace.  I think this is an astounding evidentiary slip that created all kinds of fair trial issues for this particular plaintiff.

     The appellate court finally woke up, however, in reviewing the sex tape issue.  One of the women had been filmed by her husband, without her knowledge, in their bedroom together.  Incredibly, the trial court allowed the questioning of the female witness concerning this episode, apparently on the theory that the fact that the plaintiff made a sexually-oriented tape with her husband somehow proved that she would not be offended at the sight of pornography in the workplace.  This ruling allowed the defense to inform the jury during opening statements that the plaintiff starred in a “pornographic film.”

     Using logic that would have applied equally to the stripper situation had it been thinking clearly, the appellate court noted that the defense's argument on the videotape "would allow a complete stranger to pursue sexual behavior at work that a female worker would accept from her husband or boyfriend."  The appellate court reversed the trial court's finding and ruled that the videotape had no relevance to any issue in dispute.  The court remanded the case for retrial.

     The case is Conti, et al. v. Spitzer Auto World Amherst, Inc., 2008 Ohio - 1320; No. 07 CA 009121 (Ohio App. 9th Dist. March 24, 2008).

USERRA conundrums

A new USERRA case gives a useful review of the limits of claims against employers when veterans return from military service.

In Woodard v. New York Health and Hospital Corp., No.1:04cv05297 (E.D.N.Y., March 17, 2008), the employee worked in a management position overseeing surveys of healthcare centers to evaluate their accreditation and regulatory practices. She also served in the Army Reserve as a major, taking three weeks of military leave when she was hired in 1995, and completing her annual Reserve requirements thereafter.

Woodard took an extended military leave from October 2001 until March 29, 2004. On her return, she was not returned to her former job (which was still vacant) but instead assigned to a quality assurance area that was understaffed. Nevertheless she retained her management title and the same salary grade.

Woodard sued claiming that she was discriminated against because her pay increase was reduced following an evaluation in 2001 and because her new position upon return in 2004 did not involve managerial duties, but instead required a number of   “secretarial” functions.

Initially the court ruled that Woodard made a prima facie case of USERRA discrimination because her pay raise, which was only half of what it should have been, occurred in close proximity to her return from military leave and because her supervisor referred to her military leave of absence in a memo justifying the reduced pay raise.

Important safety tip here: in memos, employee evaluations, emails, or polite conversation, do not refer to protected factors in the same sentence as adverse employment actions.

But the court then noted that merely making a prima facie case, and perhaps even showing pretext, is not enough if you don’t have damages. In this case, the employer retroactively credited Woodard with a pay increase equivalent to what she would have received if she had been working full time, without the leaves of absence. This effectively mooted her USERRA discrimination claim.

Woodard’s re‑employment claim is subject to a somewhat more confusing analysis. In fact, you might be able to make a case that the court got this one wrong. It is undisputed that Woodard was not put back in her old job, but was moved laterally to an understaffed position that had slightly different duties, although she retained her title and salary. The employer justified not putting her back in the same position by noting that the company was operating on a very tight budget that precluded new hiring and employees were being moved around throughout the hospital to ensure critical positions were filled. Other employees were assigned to perform the essential elements of Woodard’s old job, which the court said essentially caused “her old job to disappear”.

Given that the requirements for the job were still there, I’m pretty sure that an employer does not get the flexibility under USERRA to simply shift somebody out of their old job and into a new one because it was able to manage staffing the old position with the remaining employees. The language of the statute is clear—it requires a return to work in the position the employee would have had if she had not left. The court’s opinion is not clear on how the employer demonstrated that it could not have reassigned the duties of the new position to remaining employees when Woodard returned and simply put Woodard back into her old job. I think this may be an issue revisited on appeal because it seems inconsistent with the plain language of the statute.

In other words, you don’t get to reassign an employee simply because other people have proved capable of doing her job while she’s gone. If the obligations to perform those tasks remain, and the company has not reorganized that position out of existence, I think a good case could be made that the requirement to put the employee back in that position remains and the employer’s obligation is to shuffle staffing to make up for any other shortfalls rather than having the burden fall on the returning service member.

The EEOC and “No Re‑employment” Clauses

On April 3, at an ABA Labor and Employment Law Section meeting in California, an EEOC attorney stated that the Commission will oppose so-called “no rehire” or “re‑application” clauses in settlement agreements, or any other type of employment agreements. A no rehire clause is typically used to preclude an employee, who has left the company and filed an EEOC charge or a lawsuit, from setting up a retaliation claim by re-applying for work at the same company. As the EEOC surely knows, a former employee applying under these circumstances confronts the employer with a choice: either rehire the employee (who was frequently a problem employee in the first place) or deny the application and set‑up an endless loop of retaliation claims when the employee files a charge saying that the reason she wasn’t hired is because of the previous protected conduct of filing a charge of discrimination.

This is the kind of shortsighted viewpoint that makes the EEOC actually work against its statutory role as a conciliator. In fact, the Commission’s opposition to these clauses reduces the likelihood of settlement or conciliation.  Without a “no rehire” provision, an employer really can’t rid itself of claims from the aggrieved employee. It’s not uncommon to see ex-employees try to get a job with a former employer (in a career and location where they feel comfortable, know the job, and may know the personnel) after filing an EEO charge.   

The fact that the employee is willing to return to the workforce notwithstanding her earlier claim that it was a hostile environment, managed by racists, sexists, or discriminates against the elderly, casts more than a little doubt on the veracity of the original charge, but the Commission seems to ignore this.

The speaker at the ABA conference stated that the reason the Commission opposes these clauses is that frequently the employee does not realize how broad in scope the no rehire clause actually is. In other words, the Commission wants to save the employee from her own bad judgment. Saving people from themselves has never been a particularly successful philosophy for a government program and it doesn’t work well here either. Employers should know that if they are involved with the Commission, a no rehire clause may be a showstopper as far as settling the charge or case is concerned.

Litigation Hold Means "Hold"

A recent federal decision in Georgia penalizes a company for failing to execute on a litigation hold put in place by the company's general counsel.

Connor v. Sun Trust Bank, No. 1:07-cv-0650 (N.D. Ga., Mar. 5, 2008) is a wrongful termination case alleging a violation of the Family and Medical Leave Act. Connor was notified that she would be terminated approximately one month after coming back from maternity leave at the beginning of January, 2007. Her supervisor, who made the termination decision, sent an email to senior managers of Connor's group on February 12, 2007, explaining the reason for the termination.

Eleven days later, the bank received a letter from Connor's attorney cautioning it to preserve any documents relating to Connor's firing. The next day, the bank's general counsel instructed several employees, including the supervisor and the human resources director, to preserve all relevant documents in their possession or control, including their emails. The bank's email system automatically deletes email after thirty days, and back-up tapes are overwritten after ten days; employees must archive emails to save them past these dates.

The February 12 email was not produced in discovery and the plaintiff got a copy of it through some other means (presumably from some sympathetic coworker). Notwithstanding the standard "no harm, no foul" rule in discovery, the court determined that spoliation of evidence had occurred given that the supervisor was told to retain any email and failed to do so. The court found that the bank had acted in bad faith by failing to produce the missing email, but limited the sanction to an instruction to the jury about the appropriate inference to draw from the absence of evidence.

What this means in plain English is that the jury would be instructed that the destruction of the February 12 email indicated that the bank or the supervisor wanted to hide the document because it contained incriminating evidence. The lesson here is fairly straightforward. A litigation hold means “hold”, and the bank's counsel should have taken steps to ensure that the instructions were followed by these key bank managers. In addition, the bank should have had a policy indicating that emails relating to terminations should be printed out and forwarded to human resources for inclusion in the personnel file. This routine step would have prevented this spoliation charge.

Employees and Computer Fraud

I have written before about employees going ballistic on their bosses' computer systems and the risks employers face in these situations. A recent case out of a federal court in Illinois (Wong & Assoc. v. Nichols, No. 07C6277, Jan. 16, 2008) discusses the application of a federal legal remedy, the Computer Fraud and Abuse Act, or CFAA, that can be applied in both a criminal (read that as U.S. Attorney, federal judge, federal prison type of situation) and a civil one, where you merely get sued for money damages. However, the statute has some fairly specific requirements that have to be shown before bringing down the wrath of the federal government on one of your employees for misconduct.

In this case, the employer brought a CFAA action against a former employee who walked out with confidential company information that he had taken off the company's computer system. That's all he did -- copied information down and left. He didn't try to hide his theft by wiping his hard drive, stealing a computer system, or any other nefarious act.

In tossing out the CFAA cause of action, the court noted that the statute requires both that there be "damage" to the computer system (defined as impairment to the integrity or availability of data, a program, a system or information) and "loss" (defined as any reasonable costs to the victim incurred in responding to an offense, or suffered as a result of the interruption of service). The court said that simply taking the data, without damaging the computer system and causing lost revenue as a result, was not a violation of the CFAA and dimissed the case.

Faking It

    The Wall Street Journal recently discussed a psychological test designed to spot personal injury plaintiffs who are faking their conditions.  The test, known as the Fake Bad Scale (as opposed to a similar test for negligence, known as the "My Bad" Scale), is a variation of the well-known Minnesota Multiphasic Personality Inventory ("MMPI"), and, in fact, has been endorsed by and made a part of the MMPI regimen.  The test focuses on claimants who state that they have injuries, or are experiencing pain, with no or little discernible physical cause.

     Use of the test is apparently widespread -- one study found that it has been administered by 75% of neuropsychologists.  Coincidentally, these are often the people who appear as expert witnesses at trial for or against plaintiffs in assessing psychological impact of personal injuries.  The 43 true/false questions are integrated into the MMPI and then scored to see if there is an indication that the person is a malingerer. 

     The scoring differential between people who are known to be malingering, people who had been instructed to try to fake malingering, and the truly injured is fairly significant, at least according to the reported research.  People with a score above 20 on the 43-question scale are tending toward fakery.  For purposes of marking people as possible malingerers, the test administrators use a cut off of more than 23 points.

     Of course, the test is under attack by the personal injury plaintiffs' bar, as well as some psychologists.  At least one court has tossed the test results out as evidence, although the court's analysis seems suspect.  Specifically, the court looked at individual questions rather than the total question package, finding that a test that gives points for malingering when a plaintiff gives honest answers to questions based on actual injuries, was improper.

     Other researchers state that the test gives too many false positives, claiming that it was unlikely that so many patients could have fooled doctors into diagnosing them incorrectly.

     As somebody who has both used and challenged psychiatric/psychological testimony in court, I don't find it difficult at all to believe that large numbers of patients could fool mental health physicians or social workers.  The field is rife with inconsistent application of standards, overly subjective analyses, and incomplete investigations of patients' complaints.

      There's an interesting discussion of the issue, replete with comments from professionals, here, under the March 12 entry.             

     For a culture that embraces psychological analyses of all types, the idea that there would be substantial push-back to a test that might cut down on false claims is surprising.  But the pushback is also consistent with our natural inclination in this culture to refuse to confront unpleasant truths.

Listening Post