The Florida Bar Continuing Legal Education Committee and the Labor and Employment Law Section
Advanced Labor Topics 2015
COURSE CLASSIFICATION: ADVANCED LEVEL
May 29 - 30, 2015 Live Presentation: Ritz Carlton Sarasota 1111 Ritz-Calton Drive • Sarasota, FL 34236
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1. What is CLER? CLER, or Continuing Legal Education Requirement, was adopted by the Supreme Court of Florida in 1988 and requires all members of The Florida Bar to continue their legal education.
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3. Where may I find information on CLER? Rule 6-10 of the Rules Regulating The Florida Bar sets out the requirement. All the rules may be found at www.floridabar.org to Rules Updates to Rules Regulating The Florida Bar.
4. Who administers the CLER program? Day-to-day administration is the responsibility of the Legal Specialization and Education Department of The Florida Bar. The program is directly supervised by the Board of Legal Specialization and Education (BLSE) and all policy decisions must ultimately be approved by the Board of Governors.
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17. If I accumulate more than 30 hours, may I use the excess for my next reporting cycle? Excess hours may not be carried forward. The standing policies of the BLSE, as approved by the Supreme Court of Florida specifically state in 6.03(b): ... CLER credit may not be counted for more than one reporting period and may not be carried forward to subsequent reporting periods.
18. Will out-of-state CLE hours count toward CLER? Courses approved by other state bars are generally acceptable for use toward satisfying CLER.
19. If I have questions, whom do I call? You may call the Legal Specialization and Education Department of The Florida Bar at 850/561- 5842.
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PREFACE
The course materials in this booklet were prepared for use by the registrants attending our Continuing Legal Education course during the lectures and later in their offices.
The Florida Bar is indebted to the members of the Steering Committee, the lecturers and authors for their donations of time and talent, but does not have an official view of their work products.
CLER CREDIT (Maximum 10.0 hours)
General ...... 10.0 hours Ethics ...... 1.5 hours
CERTIFICATION CREDIT (Maximum 10.0 hours)
Labor & Employment Law ...... 10.0 hours
Seminar credit may be applied to satisfy both CLER and Board Certification requirements in the amounts specified above, not to exceed the maximum credit. Refer to Chapter 6, Rules Regulating The Florida Bar, see the CLE link at www.floridabar.org for more information about the CLER and Certification Requirements.
Prior to your CLER reporting date (located on the mailing label of your Florida Bar News) you will be sent a Reporting Affidavit (must be returned by your CLER reporting date) or a Notice of Compliance which confirms your completion of the requirement according to Bar records (does not need to be returned). You are encouraged to maintain records of your CLE hours.
CLE CREDIT IS NOT AWARDED FOR THE PURCHASE OF THE COURSE BOOK ONLY.
CLE COMMITTEE MISSION STATEMENT
The mission of the Continuing Legal Education Committee is to assist the members of The Florida Bar in their continuing legal education and to facilitate the production and delivery of quality CLE programs and publications for the benefit of Bar members in coordination with the Sections, Committees and Staff of The Florida Bar and others who participate in the CLE process.
COURSE CLASSIFICATION
The Steering Committee for this course has determined its content to be ADVANCED.
i
LABOR AND EMPLOYMENT LAW SECTION
Shane T. Muñoz, Tampa — Chair Hon. Frank E. Brown, Tallahassee — Chair-elect Zascha Blanco Abbott, Miami — Legal Education Director
FACULTY & STEERING COMMITTEE
Hon. Stephanie Ray, Tallahassee – Program Co-Chair James R. Craig, Tampa – Program Co-Chair
Ryan D. Barack, Clearwater Luis A. “Tony” Cabassa, Tampa Hon. Alan O. Forst, West Palm Beach Joel Wm. Friedman, New Orleans, LA Richard Griffin, Jr. Gregory A. Hearing, Tampa Marlene Quintana, Miami Robert G. Riegel, Jr., Jacksonville Hon. Mary S. Scriven, Tampa
CLE COMMITTEE
Michael S. Bloom, Hollywood — Chair Terry L. Hill — Director, Programs Division
For a complete list of Member Services visit our web site at www.floridabar.org.
ii
LECTURE PROGRAM
Friday, May 29, 2015 12:00 noon – 12:25 p.m. Late Registration
12:25 p.m. – 12:30 p.m. Welcome and Introductory Remarks Hon. Stephanie W. Ray, Florida First District Court of Appeal, Tallahassee – Program Co-Chair James M. Craig, Board Certified in Labor & Employment Law, Constangy, Brooks, Smith & Prophete, LLP, Tampa – Program Co-Chair
12:30 p.m. – 1:45 p.m. NLRB: Significant Developments and Focus Areas Richard F. Griffin, Jr., General Counsel, National Labor Relations Board
1:45 p.m. – 2:55 p.m. Hot Topics in the Areas of Discrimination, Harassment & Retaliation Ryan D. Barack, Board Certified in Labor & Employment Law, Kwall Showers Barack & Chilson, P.A., Clearwater Robert G. Riegel, Jr., Board Certified in Labor & Employment Law, Buchanan Ingersoll & Rooney PC, Jacksonville
2:55 p.m. – 3:15 p.m. Break
3:15 p.m. – 4:30 p.m. Recent Litigation Trends Under the FLSA Marlene Quintana, Board Certified in Labor & Employment Law GrayRobinson, Miami Luis A. “Tony” Cabassa, Board Certified in Labor & Employment Law, Wenzel Fenton Cabassa, P.A., Tampa
5:00 p.m. – 6:00 p.m. Labor and Employment Law Section Executive Council Meeting (all invited)
6:00 p.m. – 6:30 p.m. Reception (included in Registration Fee)
6:30 p.m. – 8:30 p.m. Dinner (included in Registration Fee)
iii
Saturday, May 30, 2015 8:25 a.m. – 8:30 a.m. Welcome and Introductory Remarks Hon. Stephanie W. Ray, Florida First District Court of Appeal, Tallahassee – Program Co-Chair James M. Craig, Board Certified in Labor & Employment Law, Constangy, Brooks, Smith & Prophete, LLP, Tampa – Program Co-Chair
8:30 a.m. – 9:45 a.m. Expectations from the Bench on Ethical and Professional Practice Hon. Mary S. Scriven, United States District Court, Middle District of Florida, Tampa Hon. Alan O. Forst, Florida Fourth District Court of Appeal, West Palm Beach
9:45 a.m. – 10:00 a.m. Break
10:00 a.m. – 11:15 a.m. U.S. Supreme Court and Eleventh Circuit Labor and Employment Law Review Joel Wm. Friedman, Jack M. Gordon Professor of Procedural Law & Jurisdiction, Tulane University Law School, New Orleans, LA
11:15 a.m. – 12:30 p.m. Social Media in the Workplace Gregory A. Hearing, Board Certified In Labor and Employment Law, Civil Trial and Education Law, Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa
iv
TABLE OF CONTENTS
NLRB: SIGNIFICANT DEVELOPMENTS AND FOCUS AREAS Richard F. Griffin, Jr., General Counsel, National Labor Relations Board No Materials
HOT TOPICS IN THE AREAS OF DISCRIMINATION, HARASSMENT & RETALIATION Ryan D. Barack, Board Certified in Labor & Employment Law, Kwall Showers Barack & Chilson, P.A., Clearwater Robert G. Riegel, Jr., Board Certified in Labor & Employment Law, Buchanan Ingersoll & Rooney PC, Jacksonville
I. Plaintiff-Friendly Cases ...... 2.1 II. Management-Friendly Cases ...... 2.5 III. Is the Eleventh Circuit Becoming More Plaintiff-Friendly? – PowerPoint Presentation ...... 2.13
RECENT LITIGATION TRENDS UNDER THE FLSA Marlene Quintana, Board Certified in Labor & Employment Law GrayRobinson, Miami Luis A. “Tony” Cabassa, Board Certified in Labor & Employment Law, Wenzel Fenton Cabassa, P.A., Tampa
I. Update on President Obama’s Proposed FLSA Revisions to White Collar Exemption Requirements ...... 3.1 II. Defending and Managing the Latest Federal and State Claims Involving Misclassification of Workers and Improper Labeling of Exempt and Non-Exempt Employees ...... 3.5 III. The Surge in Litigation and Settlements Involving Unpaid Time for Pre/Post Shift Activities ...... 3.9 IV. Developments in Private Class Action Certification, Obtaining Decertification, and Hybrid Claims ...... 3.14 V. PowerPoint Presentation ...... 3.25 VI. Recent Litigation Trends under the FLSA ...... 3.26
EXPECTATIONS FROM THE BENCH ON ETHICAL AND PROFESSIONAL PRACTICE Hon. Mary S. Scriven, United States District Court, Middle District of Florida, Tampa Hon. Alan O. Forst, Florida Fourth District Court of Appeal, West Palm Beach No Materials
v
U.S. SUPREME COURT AND ELEVENTH CIRCUIT LABOR AND EMPLOYMENT LAW REVIEW Joel Wm. Friedman, Jack M. Gordon Professor of Procedural Law & Jurisdiction, Tulane University Law School, New Orleans, LA
I. Title VII ...... 5.1 II. Pending Case Before the U.S. Supreme Court ...... 5.13
SOCIAL MEDIA IN THE WORKPLACE Gregory A. Hearing, Board Certified In Labor and Employment Law, Civil Trial and Education Law, Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa
I. Social Media and the National Labor Relations Act ...... 6.1 II. Social Media and Florida’s Public Employees Relations Act ...... 6.8 III. Social Media in Workplace Investigations ...... 6.10 IV. Social Media and Harassment/Retaliation/Discrimination ...... 6.13 V. Public Employees’ Privacy Rights in Social Media ...... 6.15 VI. Other Employee Social Media Protections ...... 6.25 VII. Discovery and Social Media ...... 6.27 VIII. Social Media Use During Ongoing Litigation ...... 6.34 IX. Ethical Considerations Regarding Social Media ...... 6.36 X. Conclusion ...... 6.39 XI. Social Media in the Workplace – PowerPoint Presentation ...... 6.41
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AUTHORS/LECTURERS
RYAN BARACK is a Board Certified in Labor and Employment Lawyer who represents employees, both individually and in class actions. Ryan has served as the chair of the Labor and Employment Law Certification Committee and the Federal Court Practice Committee of The Florida Bar He is a frequent author and speaker on labor and employment law issues. In addition, he is often quoted by the media on employment law issues. Ryan attended law school at the Marshall-Wythe School of Law at College of William and Mary, where he was a member of the William and Mary Law Review. Ryan attended law school as a Graduate Research Fellow, meaning he was one of thirteen students selected for a three-year merit based tuition waiver and research fellowship. As part of this fellowship, Ryan provided research assistance to Professor Rodney Smolla, including researching and drafting updates for Smolla, Federal Civil Rights and Smolla and Nimmer on Freedom of Speech. Ryan received his undergraduate education at Vanderbilt University where he had majors in political science and secondary education. Ryan is admitted to The Florida Bar, the Bar of the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, United States District Courts for the Northern, Middle and Southern Districts of Florida and the Courts of the Commonwealth of Pennsylvania, where his status is active but residing out of state. He is happily married to Lynda Barack, who is a Magistrate Judge for the Sixth Judicial Circuit, and they have two sons.
LUIS A. “TONY” CABASSA is Board Certified by The Florida Bar as an expert in labor and employment law. He was admitted to the Florida Bar in 1995 after graduating with honors from the Florida State University College of Law. Mr. Cabassa graduated from Cornell University with a degree in Industrial Labor Relations in 1992. Since 1997, Mr. Cabassa has limited his legal practice to matters arising out of the employment relationship. During this time, he has represented employers and employees in all stages of litigation in federal and state courts throughout Florida. Mr. Cabassa has published a number of professional articles and routinely lectures on employment law topics. Mr. Cabassa served on the Board Certification Committee for the Labor and Employment Law Section of The Florida Bar and served as Chairperson for the Employment Law Committee for the TIPS Section of the American Bar Association. Mr. Cabassa is a co-founder of the Tampa Bay Hispanic Bar Association and served as the organization's first president. He was appointed by the Florida Supreme Court to serve on a local committee charged with investigating allegations related to the unauthorized practice of law. Mr. Cabassa served as president of the Board of Directors of Bay Area Legal Services and has previously served on the Board of Directors for the Warrick Dunn Foundation, the America Prepaid Legal Institute and the Puerto Rican Bar Association of Florida. He has served as a member of the Board of Governors for the Florida Bar Young Lawyers Division, a member of the Federal Practice Committee of The Florida Bar, and Chairperson for the Labor and Employment Section of the Hillsborough County Bar Association. Mr. Cabassa has received an AV rating from Martindale-Hubbell, has been selected as a “Florida Super Lawyer” in employment law, and selected as a member of the “Legal Elite in Employment Law” by Florida Trend magazine. Mr. Cabassa is a Fellow of the American Bar Foundation. Membership in The Fellows is limited to one-third of one percent of all lawyers in America, with members being nominated by Fellows in their jurisdiction and elected by the Board of the American Bar Foundation. He is a founding partner of Wenzel Fenton Cabassa, P.A.
JIM CRAIG has practiced management-side labor and employment law for more than 29 years and has extensive experience in advising public sector and private employer clients in all aspects and stages of the employment relationship. Mr. Craig graduated with an A.B. in political science, cum laude, from Duke University, and obtained his law degree from the University of Florida vii
College of Law. Mr. Craig has authored numerous articles and frequently speaks to bar, community and civic organizations on labor and employment law topics. He is a past vice-chair and chair of The Florida Bar Federal Court Practice Committee, The Florida Bar Labor and Employment Law Certification Committee, and The Florida Bar Labor and Employment Law Section. He is a member of the Hillsborough County Bar Association (Labor and Employment Law Section), the Temple Terrace Bar Association, and the Thirteenth Judicial Circuit Pro Bono Committee. Mr. Craig is a Master, Ferguson White Inn of Court, and is AV-rated by Martindale- Hubbell. He has been named one of the “Best Lawyers in America” in employment law – litigation, and labor law -- management (2011 - present); one of the “Legal Elite” by Florida Trend magazine; and a “Florida Super Lawyer” (2006 - present). Mr. Craig is a partner at Constangy, Brooks, Smith & Prophete, LLP.
HON. ALAN O. FORST was appointed to the Fourth District Court of Appeal in 2013. Prior to this appointment, Judge Forst served as Chairman of the Florida Reemployment Assistance Appeals Commission/Unemployment Appeals Commission commencing in July 2001. Prior to the 2001 appointment, Judge Forst was an associate and partner at the firm Crary Buchanan. Earlier in his career, Judge Forst spent over two decades in Washington, D.C. A graduate of the Georgetown University School of Foreign Service and the Columbus School of Law of the Catholic University of America, Judge Forst served under Presidents Reagan, Bush, and Clinton in front office positions at the Departments of Justice and Labor (special assistant to the Administrators of OFCCP and the Wage and Hour Division), as counsel to the Vice Chair/Member of the Merit Systems Protection Board, and as special assistant/counsel to Chairman Clarence Thomas at the Equal Employment Opportunity Commission. Judge Forst was President of the Martin County Bar Association in 2007-08 and Chair of The Florida Bar’s Labor and Employment Law Section in 2008-09.
JOEL FRIEDMAN, a 37-year Tulane Law School faculty member, has expertise in employment discrimination law, labor law, civil procedure and mediation. He is the author of The Law of Employment Discrimination: Cases & Materials, 9th edition (Foundation Press 2013); Cases and Materials on Civil Procedure, 4th ed. (Thomson/West 2013), with Michael Collins; and Employment Discrimination: Examples & Explanations (Aspen Publishers 2010). He is also editor of Employment Discrimination Stories (Foundation Press 2006). His biography of the late federal Judge John Minor Wisdom, Champion of Civil Rights, was published by LSU Press in 2009. Professor Friedman has published law review articles on employment discrimination law and labor law and has served as a consultant to the Louisiana legislature on equal employment opportunity, child abuse and gender-neutral insurance rating. He currently directs the Tulane Law School’s summer Institute of Chinese Law and Business Transactions and is working to create joint degree programs with several Chinese law schools.
RICHARD F. GRIFFIN, JR. was sworn in as General Counsel of the National Labor Relations Board on November 4, 2013, for a four-year term. Prior to becoming General Counsel, Mr. Griffin served as a board member from January 9, 2012, through August 2, 2013. Mr. Griffin previously served as general counsel for International Union of Operating Engineers (IUOE) and also served on the board of directors for the AFL-CIO Lawyers Coordinating Committee. Since 1983, he has held a number of leadership positions with IUOE from assistant house counsel to associate general counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund. From 1981 to 1983, he served as a counsel to NLRB board members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.
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GREGORY A. HEARING is the Managing Partner with the management labor and employment law firm of Thompson, Sizemore, Gonzalez & Hearing, P.A. He has practiced management labor and employment law for his entire career. He is a Phi Beta Kappa graduate of the University of the South where he graduated magna cum laude in 1986 and currently serves on its Board of Trustees. He received his law degree from the Florida State University College of Law cum laude in 1989, where he served on the Florida State University Law Review. He is a member of the American Bar Association, The Florida Bar, and the Hillsborough County Bar Association. He chaired the Hillsborough County Bar Association Labor and Employment Law Section in 1997-1998, and chaired The Florida Bar Practice Management and Development Section in 1998-2000. He has served on the Executive Council of the Labor and Employment Law Section of The Florida Bar since 2001 culminating as its Chair in 2011-2012. He has been Board Certified in Labor and Employment Law by The Florida Bar since the inception of board certification for labor and employment law by The Florida Bar and has previously served as Chair of the Committee for Board Certification in labor and employment law for The Florida Bar. He also has been Board Certified in Civil Trial by The Florida Bar since 2007. He became Board Certified in Education Law by The Florida Bar in 2012. He has achieved an “AV” rating in the Martindale-Hubbell legal directory, has been recognized as one of Florida’s “Legal Elite” by Florida Trend magazine and is listed in the publication The Best Lawyers in America. He is admitted to practice before the U.S. District Courts for the Northern, Middle and Southern Districts of Florida, the U.S. Court of Appeals for the Eleventh Circuit and U.S. Supreme Court. He was inducted as a Fellow in the College of Labor and Employment Lawyers in 2012 and was appointed by the Florida Supreme Court to a five year term as a Member of the Florida Board of Bar Examiners in November 2012. He is a frequent lecturer and has authored many papers on labor and employment related topics.
MARLENE QUINTANA, a shareholder with GrayRobinson, represents private and public sector employers in both labor and employment law matters. She has litigated and advised clients in federal civil rights issues and other federal and state employment matters such as the Family and Medical Leave Act, the Fair Labor Standards Act and federal and state whistleblower statutes. Ms. Quintana also has experience defending clients in federal and state court cases arising under the First and Fourteenth amendments and 42 U.S.C. Section 1983. She has represented employers in matters before the National Labor Relations Board, the Public Employment Relations Commission, the Equal Employment Opportunity Commission (and related state and local agencies) and the Division of Administrative Hearings. In addition, her lobbying experience includes providing government relations counseling to a diverse group of clients that includes nonprofit advocacy organizations and national corporations. Ms. Quintana has mediated hundreds of federal and state court cases and is a certified civil circuit mediator and certified in the U.S. District Courts for the Southern and Middle Districts of Florida. She is former chair of the Judicial Nominating Commission for the 11th Judicial Circuit, and board member and gala chair of Miami Bridge Youth and Family Services.
JUDGE STEPHANIE RAY has served as a judge on the First District Court of Appeal since her appointment in June 2011 by Governor Rick Scott. Prior to joining the court, Judge Ray was Chair of the State of Florida Public Employees Relations Commission, a quasi-judicial body which adjudicates public sector labor and employment cases and conducts elections for public sector employees. Her professional experience also includes previously serving as Associate Dean of Administration and Assistant Dean of Academic Affairs at Florida State University College of Law and as an associate attorney at the Tallahassee law firm of Ausley & McMullen. Among her many professional offices, she is a Master Judicial Member and Past President of the William H. Stafford American Inn of Court and a Master Judicial Member of the First District ix
Appellate American Inn of Court. She is an active member of The Florida Bar Appellate Rules Committee, the Executive Council for The Florida Bar Labor & Employment Law Section, and the Florida District Court of Appeal Appellate Judges Education Committee. Judge Ray enjoys volunteering in her community and church, and is a proud alumnus of Leadership Florida. She is an honors graduate of Vanderbilt University and the Florida State University College of Law, where she was an editor on the Law Review.
ROBERT G. RIEGEL, JR. is a Board Certified Labor and Employment Lawyer who brings more than 30 years of experience representing management clients in the full range of employment law, focusing on litigation matters. He also advises and provides preventative counseling to clients on a wide range of issues affecting the employment relationship, including EEO issues, wage and hour issues, employee handbooks, employee benefits, personnel policies, reductions in force, affirmative action obligations and strategies for employee discipline and termination. Bob has successfully litigated employment discrimination, retaliation, and sex and racial harassment cases, Fair Labor Standards Act actions, and breach of contract claims. Bob also handles litigation and counseling matters involving unions (including NLRA litigation and arbitrations), Family and Medical Leave Act, sexual and other forms of harassment, Fair Labor Standards Act compliance, Americans with Disabilities Act, and restrictive covenants (such as non-compete provisions). Bob is AV® peer review rated by Martindale-Hubbell and he is listed in Best Lawyers, Florida Legal Elite and Super Lawyers.
HON. MARY STENSON SCRIVEN was appointed to serve as a United States District Judge for the Middle District of Florida in 2008 after serving as a magistrate judge for over ten years. Prior to her judicial career, Judge Scriven was a shareholder with the law firm of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., where she practiced for ten years in the Corporate Litigation and Trade Regulation Department. From December 1996 through December 1997, Judge Scriven served as an Associate Professor of Law at Stetson University College of Law, teaching Commercial Law, Remedies, Legal Malpractice, Banking Law and Contracts. She frequently lectures in trial advocacy and pretrial procedure courses. She is a former faculty member with NITA and has also served as a guest faculty member in the Masters Program for Trial Advocacy, Nottingham Law Institute, Nottingham, England. Judge Scriven is an honors graduate of Duke University and the Florida State University College of Law, and in 2006, she received an honorary Doctor of Laws degree from Stetson University College of Law.
x NLRB: SIGNIFICANT DEVELOPMENTS AND FOCUS AREAS
No Materials
By
Richard F. Griffin, Jr., General Counsel, National Labor Relations Board
HOT TOPICS IN THE AREAS OF DISCRIMINATION, HARASSMENT & RETALIATION
By
Ryan D. Barack, Clearwater Robert G. Riegel, Jr., Jacksonville
IS THE ELEVENTH CIRCUIT BECOMING MORE PLAINTIFF FRIENDLY? Ryan D. Barack & Robert G. Riegel, Jr.1
Plaintiff-Friendly Cases
Beyond McDonnell-Douglas
• Smith v. Lockheed Martin, 644 F.3d 1321 (11th Cir. 2011).
o Tjoflat, Carnes, and Reavley*
o Facts: Anthony Mitten, a white male, worked at Lockheed Martin as an assistant manager. He received a “racially insensitive joke email” and forwarded it to his supervisor. When HR learned of this, Mitten and four other white Lockheed employees were fired for distributing the email in violation of Lockheed’s zero- tolerance policy. However, two black employees who had forwarded racist emails targeting whites had only received suspensions.
o Claims: Race Discrimination
o Result: The District Court had concluded that Mitten could not establish a prima facie case under the McDonnell-Douglas framework because he could not identify proper comparators (the black employees identified were not supervisors). The Eleventh Circuit held that this was not a complete barrier as Mitten could point to circumstantial evidence of discrimination. The Court held that the McDonnell-Douglas standard is not the only way to survive summary judgment, that a “convincing mosaic of circumstantial evidence” is enough to survive summary judgment, and while the existence of a comparator is one method of proof, a comparator is never an absolute requirement.
• Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249 (11th Cir. 2012).
o Carnes, Pryor, and Ripple*
o Facts: Stacey Williams began working for Gate Gourmet early when she was early on in a pregnancy. Her job required her to transport food and drinks from the airport to airplanes. When she was five months pregnant and having some difficulty performing her job, she informed her union steward that she was expecting and of her difficulties. The union steward relayed the information to Williams’ supervisors. When approached by her supervisor, Williams stated that she could perform her job. Williams was told to get a doctor’s note regarding any limitations and that since there was no light duty, if she could not perform her job, she would need to turn in her badge and be rehired after her pregnancy.
1 The speakers thank Richard E. Johnson, Tallahassee, FL, for providing materials from which this paper and presentation were prepared.
2.1 Williams’ doctor provided a note with some restrictions. Management informed her they could not accommodate those restrictions. Williams wanted to keep performing her job regardless of the doctor’s note. Instead, Williams was told she was fired. After filing her EEOC charge, Gate Gourmet offered Williams a light duty position but it was conditioned on the withdrawal of the EEOC charge.
o Claims: Pregnancy Discrimination; Race Discrimination; Retaliation
o Result: Summary judgment had been granted due to a lack of either direct evidence or a comparator. Following Smith v. Lockheed Martin, the Eleventh Circuit reversed stating that the lack of a comparator does not necessarily doom the case and that Williams may use “non-comparison circumstantial evidence to raise a reasonable inference of intentional discrimination” to create a triable issue without relying on the McDonnell-Douglas analysis. The Court returns to the basic principle that there can be no summary judgment where there is a disputed issue of material fact.
o The Court continues this trend by subsequently upholding jury verdicts in the pregnancy discrimination cases Holland v. Gee, 677 F. 3d 1047 (11th Cir 2012) and Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316 (11th Cir. 2012).
Hostile Work Environment
• Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012).
o Carnes, Pryor, and Ripple*
o Facts: Reginald Jones, an African American, was a driver for UPS. Jones repeatedly found banana peels and remnants of bananas left in his truck. After the third incident, Jones complained about the issue and told the terminal manager that there seemed to be a lot of racism in the workplace and that a lot of the white men wore confederate apparel. A week later, two white employees approached Jones and asked why he told the manager about the confederate apparel and the bananas. Jones found bananas in his truck one more time and resigned.
o Claims: Hostile Work Environment; Race Discrimination
o Result: The District Court granted summary judgment on the basis that the bananas, the confederate flag apparel, and the incident with the two employees were not sufficiently severe and pervasive to change the terms and conditions of his employment when viewed objectively. The Eleventh Circuit reversed on the basis that there were issues of fact as to whether a hostile work environment existed and that the evidence of the bananas left on his truck “would allow a rational trier of fact to conclude that someone was placing the bananas on Mr. Jones's truck to send a message of racial intolerance.”
2.2
o Similarly, one can look to Ash v. Tyson Foods, Inc., 664 F.3d 883 (11th Cir. 2011) (“Ash V”), vacating, Ash v. Tyson Foods, Inc., 392 Fed. Appx. 817 (11th Cir. 2010) (“Ash IV”) to see how the he Court shifted its thinking between its first decision in 2002 and this one in 2011 (after feeling the pressure from the Supreme Court and the press) regarding the use of language that could be perceived as racist.
Summary Judgment
• Kragor v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304 (11th Cir. 2012).
o Tjoflat, Carnes, and Jordan
o Facts: Barbara Kragor, 49, worked for Takeda Pharmaceuticals and was terminated for allegedly providing a doctor with improper gifts and benefits. She was replaced by a younger employee. Kragor offered, as evidence, the affidavit of the doctor in question which stated that she had done nothing wrong and that the decision-maker had later confirmed this and told him Kragor was an exceptional employee and should not have been fired.
o Claims: Age Discrimination
o Result: The Court held that the fact that the decision-maker who terminated Kragor for misconduct later testified that she was an excellent employer and should not have been fired combined with an (undisputed) prima facie case, rendered summary judgment in appropriate.
• Strickland v. Norfolk Southern Ry. Co., 692 F.3d 1151 (11th Cir. 2012).
o Jordan, Fay, and Edenfield*
o Facts: Connie Strickland, a railroad worker, suffered a workplace due to a faulty handbrake. This injury ultimately required surgery. He could not identify which rail car had caused his injury.
o Claims: Federal Employers Liability Act; Federal Safety Appliance Act
o Result: The Eleventh Circuit held that the plaintiff’s uncorroborated testimony gets him past summary judgment and that whether differences between his deposition and affidavit testimony rendered his testimony incredible was an issue for the jury. “Where a fact-finder is required to weigh a deponent's credibility, summary judgment is simply improper.”
2.3 • Barthelus v. G4S Government Solutions, 752 F.3d 1309 (11th Cir. 2014).
o Tjoflat, Wilson, and Anderson
o Facts: Cegeste Barthelus was hired as a Senior Network Administrator in the IT Department in 1997. Barthelus was denied a promotion, a pay increase, extra days off, leave, an office, and other things that white, non-Haitian employees allegedly received. Barthelus was terminated in 2011.
o Claims: Age, Race, National Origin Discrimination
o Result: Summary judgment was reversed because there were material issues of fact present regarding pretext. The Court cautioned the District Court on remand by reminding it of the Supreme Court’s opinion in Nassar, which noted that in “status-based” discrimination, an employee does not need to establish a but-for causation between the injury and the wrong. An employee only needs to show that discrimination was one of the employer’s motives, even if the employer had other motives. The Court noted that the District Court omitted evidence from consideration and did not consider two of Barthelus’ three claims.
• Evans v. Books-A-Million, 762 F.3d 1288 (11th Cir. 2014).
o Jordan, Ryskamp*, and Berman*
o Facts: Tondalaya Evans was employed by Books-A-Million as a payroll and insurance manager. Evans’ maternity leave coincided with the launch of a new payroll system so everyone agreed that Evans would work from home rather than go on FMLA leave. Evans did inform her supervisor that she did not intend to work the week after the birth of her child but ultimately felt pressure from her supervisor so she worked from home immediately after returning from the hospital. For two months, Evans was required to work nearly full time from home. When she returned to work in the office, she was reassigned to a new role and Evans old duties were transferred to a newly created position. When Evans refused the new role, she as terminated.
o Claims: FMLA interference, Equal Pay Act, Discrimination, COBRA
o Result: The District Court had granted summary judgment on the FMLA interference claim because Evans had received her full salary while working from home so she suffered not damages. The Eleventh Circuit reversed finding that the trial court had failed to consider the availability of other forms of equitable relief. Additionally, there were unresolved issues of material fact preventing summary judgment.
2.4 • Hubbard v. Clayton County School District, 756 F.3d 1264 (11th Cir. 2014).
o Facts: Richard Hubbard was an assistant principal at an elementary school. He was also the president of the Georgia Association of Educators. GAE agreed to reimburse the school district for Hubbard’s salary so he could work full time for GAE for a year “on loan.” While acting as GAE president, he made remarks about the Clayton County Board of Education, stating that certain members should step down. The Board then voted to discontinue employee “on loan” agreements and Hubbard was asked to return to his school. Hubbard resigned instead. Hubbard was not allowed to return to the School District when his term as GAE president was over.
o Claims: First Amendment
o Result: The District Court found that Hubbard’s speech was not protected under Garcetti v. Ceballos, 547 U.S. 410 (2006). The Eleventh Circuit reversed, holding that because Hubbard made his remarks as GAE president and not as an employee of the School District, Garcetti didn’t apply and his speech was protected by the First Amendment.
Management-Friendly Cases
Promotion and Sex Discrimination
• Kidd v. Mando American Corporation, 731 F.3d 1196 (11th Cir. 2013).
o E. Carnes, Wilson, and Huck*
o Facts: Leanne Kidd, a white female, worked as an accountant at a Korean male dominated auto-parts manufacturer, Mando American Corporation (“Mando”). When Mando terminated its assistant accounting manager, Kidd took on most of that higher position’s responsibilities and she presumed she would get promoted to the position. Instead, Mando interviewed and hired a Korean male for the assistant accounting manger position, without identifying Kidd as a potential candidate or informing her that a search was being conducted. When Kidd complained to the HR manager about the failure to promote her, the HR manager responded that Mando “refused to look at [the qualified American candidates] for the position.” Kidd then lost the increased responsibilities she had gained while performing the duties of the assistant accounting manager. Significantly, in the 450 person company, Mando lacked a single female manager.
o Claims: Sex and National Origin Discrimination, Constructive Discharge, and Retaliation
o Result: The Court asserted that it does not favor demotion claims based on loss of supervisory responsibility because work assignments constitute the core of an
2.5 employer’s business judgment. Mando argued that it hired the male Korean candidate because he was more qualified. The Court explained that circuit precedent “prohibits [it] from deciding whom as between two candidates an employer should have hired.” While the Court affirmed the District Court’s summary judgment in favor of Mando on Kidd’s retaliation claim, the Court remanded the employment discrimination claim to determine whether the HR Manager’s remarks were admissible.
o Note: The District Court granted summary judgment in favor of Mando regardless of whether the statements were admissible due to the strength of the evidence of Mando’s articulated reason for hiring the male employee.
• Clark v. South Broward Hospital District, 2015 U.S. App. LEXIS 5130 (11th Cir. 2015).
o J. Carnes, Hull, and Rothstein*
o Facts: Cheryl Clark, a female doctor employed in the Critical Care Department of a hospital, became the Department Vice-Chief, a role which carried with it additional responsibilities, including scheduling, as well as an additional $20,000 pay annually. On at least two occasions, when the male Department Chief could not attend a meeting, he asked another male doctor to attend the meeting instead of Clark. When the Chief announced his retirement, he told the Vice-Chief she should not apply for the position because she was “too direct” and “too confrontational.” The hospital selected a male from another department to serve as interim-Chief while it worked to select a permanent replacement. Clark complained to HR that she was not selected for the role because of her sex. HR investigated the claim, which investigation actually revealed complaints by co- worker’s about Clark and no evidence of sex discrimination. Co-workers complained about Clark’s scheduling and, while she was on a personal leave of absence, Clark’s scheduling duties were assigned to someone else and her additional pay was taken away. These duties and compensation were not reinstated when she returned from the leave. Ultimately, the hospital selected a male as the new Department Chief, who complained to HR that Clark was bullying and physically threatening him. After an investigation into his complaints, the hospital terminated Clark’s employment.
o Claims: Sex Discrimination, Retaliation, and Hostile Work Environment
o Result: The Court emphasized that the removal of Clark’s additional scheduling duties was due to her own actions (taking leaves of absence). Specifically, the Court stated, “[w]hatever adversity she suffered, it was Plaintiff who brought it on herself by deciding to take a leave of absence.” Additionally, there was ample evidence that Clark was extremely confrontational which supported her lack of a promotion. Finally, Clark failed to prove the “but-for causation required to establish a prima facie case” of hostile work environment. Clark’s difficulties with co-workers were due to her ongoing interpersonal conflicts with her co-
2.6 workers. After oral argument, the Court affirmed the District Court’s grant of summary judgment in favor of the hospital and noted that it does not protect “personal animosity” or allow a “personal feud” to get Title VII protection.
Hostile Work Environment
• Adams v. Austal, USA, LLC, 754 F.3d 1240 (11th Cir. 2014)
o W. Pryor, Cox, and Rosenthal*
o Facts: Numerous current and former African American employees (both men and women) who worked for an Australian commercial ship building company, Austal, at its Mobile, Alabama shipyard filed complaints of race discrimination based on hostile work environment harassment. Specifically, it was alleged among other things that African American employees were called “boy,” “monkey,” and “Jeffrey”; multiple nooses were seen and found at the work site; vulgar, racial graffiti was written on the walls of the men’s restrooms; and white employees wore Confederate flag clothing and gear. The District Court granted Austal’s motion for summary judgment as to 13 plaintiffs and upheld jury verdicts against two other plaintiffs, concluding that the plaintiffs failed to present sufficient evidence that a reasonable person would find the racial harassment sufficiently severe or pervasive. Specifically, the District Court explained that not all the employees worked in the same departments, at the same time, or for the same supervisor and, as a result, looked at the evidence presented by each plaintiff individually.
o Issue: Whether an employee may rely on evidence of harassment of which he/she was not personally aware to prove that his/her work environment was objectively hostile.
o Result: No. The Court held that an employee may not rely on “me too” evidence of which the employee was unaware at the time to prove that a work environment was objectively hostile. “The totality of a plaintiff’s workplace circumstances does not include other employees’ experiences of which the plaintiff is unaware.” However, the Court noted that such “me too” evidence of which the plaintiff is unaware is still admissible to rebut the effectiveness of an anti-harassment policy. Regarding the “reasonable person standard” the Court emphasized that “[a] reasonable person in the plaintiff’s position is not one who knows what the plaintiff learned only after her employment ended or what discovery later revealed.” The Court looked at the reasonable person standard in each of the individual’s alleged circumstances and affirmed summary judgments in favor of Austal as to six plaintiffs. The Court, however, went on to vacate summary judgments in favor of Austal as to seven plaintiffs (finding that there was sufficient evidence regarding each individual plaintiff’s circumstances but also allowing the District Court to consider Austal’s vicarious liability arguments). Lastly, the Court affirmed the jury verdicts in favor of Austal as to the final two
2.7 plaintiffs (rejecting the plaintiffs’ argument that the court had erroneously instructed the jury as to hostile work environment liability).
Protected Activity
• Brush v. Sears Holdings Corp., 466 Fed. App’x 781 (11th Cir. 2012).
o Dubina, Fay, Kleinfeld*
o Facts: Janet Brush, a Loss Prevention District Coach with Sears, oversaw approximately 20 stores in her district to work to minimize various risks to the company. Brush received a complaint of sexual harassment from a female employee (Mrs. Doe) in her district and Sears directed her and a male employee to conduct an investigation into the complaint. During the investigation, Brush and the male investigator didn’t believe Mrs. Doe was being entirely forthright and thought it best for Brush to speak with Mrs. Doe alone. During that conversation, Mrs. Doe reported that her male manager raped her on multiple occasions, but insisted that the rapes not be reported to the police or her husband. Brush encouraged Sears to report the alleged rapes to the police but it did not do so, citing the investigation’s incomplete status and Mrs. Doe’s desire not to report to the police. Mrs. continued to urge the company to report the alleged rapes to the police. Sears terminated Brush’s employment for violating its sexual harassment investigation policy.
o Claim: Title VII Retaliation
o Result: The Court applied the “manager rule” and held that Brush’s opposition to the way Sears conducted its investigation is not protected activity under Title VII. Brush’s claims did not relate to Mrs. Doe’s allegations but rather to the company’s internal investigation procedures. Under the “manager rule,” a management employee does not engage in protected activity if she, “in the course of her normal job performance, disagrees or opposes the actions of an employer.” Instead, the employee must report a personal complaint outside of his/her job duties for the complaint to constitute protected activity. Thus, the Court affirmed the District Court’s grant of summary judgment in favor of Sears.
National Origin
• Fong v. School Board of Palm Beach County, 590 Fed. App’x 930 (11th Cir. 2014).
o Tjoflat, J. Carnes, DuBose*
o Facts: Fong was a teacher of Chinese decent who spoke English with an accent. In her first meeting with the new School Principal in September 2008, the Principal told Fong, “You have a very strong accent. Your students don’t understand you. I don’t even understand you. You should record your speech and
2.8 listen to it.” That school year, the administration expressed concern regarding Fong’s style of teaching and eventually informed her that her contract would not be renewed. When Fong asked why her contract was not being renewed, the Principal simply stated that Fong was “not a fit” for the School.
o Claim: National Origin Discrimination
o Result: Although discrimination based on an employee’s accent can constitute national origin discrimination, the Court ruled that the Principal’s remarks about Fong’s accent did not constitute “blatant remarks whose intent could mean nothing other than” to discriminate on the basis of national origin. The Court held that the School’s articulated reasons for Fong’s termination, specifically that “her work performance was not what was needed” and her “style of teaching was not the best,” were legitimate and non-discriminatory. The Court cited Rojas v. Florida, 285 F.3d 1339 (11th Cir. 2002), regarding the School’s decision, stating, “[w]e are not interested in whether the conclusion is a correct one, but whether it is an honest one.” It affirmed summary judgment in favor of the School.
FMLA and ADA
• McCarroll v. Somerby of Mobile, LLC, 595 Fed. App’x 897 (11th Cir. 2014).
o Jordan, Rosenbaum, J. Pryor
o Facts: McCarroll was a part-time bus driver for Somerby of Mobile, a senior living community. According to Somerby’s attendance policy, employees are required to give at least four hours’ notice of any absence and directly notify their supervisor about the absence. On November 29, McCarroll called out 20 minutes before the beginning of his shift, stating that he was “too sore to work.” On December 10, McCarroll attempted to inform his supervisor three hours before his shift that he would not be able to work; however, he could not reach his supervisor. Instead, McCarroll left a message with the concierge on duty about his absence. On December 12, 2011, Somerby terminated McCarroll’s employment for violating its attendance policy. During his termination meeting, McCarroll produced a doctor’s note recommending that he take a two-week leave of absence to allow his treatment plan to become effective. The doctor’s note did not change Somerby’s decision and it moved forward with terminating McCarroll’s employment.
o Claims: FMLA Interference and Retaliation and ADA Discrimination
o Result: The Court affirmed the District Court’s grant of summary judgment in favor of Somerby because McCarroll failed to present any evidence that he requested an accommodation or leave before Somerby made the decision to terminate his employment. McCarroll’s comment that he was “too sore to work” was not specific enough to trigger a duty to accommodate. The Court emphasized
2.9 that McCarroll also failed to demonstrate how his disability prevented him from calling out pursuant to Somerby’s policy. Additionally, McCarroll’s termination was unrelated to any request for leave under the FMLA.
Preemption
• Wiersum v. U.S. Bank, N.A., 2015 U.S. App. LEXIS 7436 (11th Cir. 2015).
o Martin, Fay, and Goldberg*
o Facts: US Bank hired Mark Wiersum as a Vice President and Wealth Management consultant for its Naples office. Wiersum alleged that he witnessed U.S. Bank violate 12 U.S.C. § 1972 (which prohibits certain “tying arrangements”) and objected to certain activities he believed were unlawful. After two and one half months on the job, U.S. Bank terminated Wiersum’s employment.
o Claim and Issue: Wiersum filed a complaint alleging whistleblower retaliation under Florida’s Private Sector Whistleblower Act (“FWA”) in the Southern District based on diversity jurisdiction. U.S. Bank moved to dismiss the complaint based on federal preemption under the National Bank Act (“NBA”). The NBA states “a national banking association … shall have the power … to … dismiss [directors and officers] at pleasure, and appoint others to fill their places,” to provide banks with control over their officers without regulatory interference. The Southern District held that the NBA preempted the FWA because the two acts are in direct conflict and, therefore, the federal law controls.
o Result: The Court, citing cases from the Fourth, Sixth, and Ninth Circuits, held that the NBA preempts a state law claim for wrongful termination and affirmed the District Court’s ruling. The Court emphasized the “at pleasure” language of the NBA in holding that it preempts the FWA.
Subpoena Power
• EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757 (11th Cir. 2014).
o E. Carnes, Restani*, Merryday*
o Facts: Jose Morabito, an Argentine assistant waiter for Royal Caribbean, filed a charge of discrimination with the EEOC alleging disability discrimination when Royal Caribbean failed to renew his contract after it learned of his HIV and Kaposi Sarcoma diagnoses. In its position statement, Royal Caribbean argued that the ADA did not apply because Morabito was an Argentinian citizen and the cruise ships are registered in the Bahamas and are required to follow Bahamian maritime law, which allegedly disqualified Morabito from duty at sea. In response, the EEOC requested a list of all employees terminated by the cruise line
2.10 since 2010. Royal Caribbean objected and the EEOC issued an administrative subpoena requesting a significant amount of information regarding other employees. Royal Caribbean complied as to the American citizens. The EEOC sought to compel production of the remaining information but the magistrate judge denied the EEOC’s petition, stating that the records sought were irrelevant to the charge of discrimination filed by Morabito. The EEOC filed objections and the District Court affirmed the magistrate judge’s report and recommendation denying the petition. o Issue: Whether the documents the EEOC sought were relevant to its administrative proceeding. o Result: The Court affirmed the District Court’s decision because the documents sought by the EEOC were “aimed at discovering members of a potential class of employees or applicants who suffered from a pattern or practice of discrimination, rather than fleshing out Mr. Morabito’s charge.” While comparative data can be relevant, Royal Caribbean admitted that it terminated Morabito’s employment because of his medical condition pursuant to Bahamian law. Therefore, the Court held that the EEOC did not need statistical data to determine whether Royal Caribbean’s reason for termination constituted pretext. The Court emphasized that “relevance” cannot be construed too broadly. Specifically, while the EEOC seeks information “relevant to the charge under investigation,” in order to support the subpoena, the Court stated that the EEOC must prove the information is “relevant to the contested issues that must be decided to resolve that charge,” not the “issues that may be contested when and if future charges are brought by others.” The information sought by the EEOC’s subpoena did not meet this standard of relevance. The Court also noted that Royal Caribbean’s compliance with the subpoena would be unduly burdensome.
2.11 2.12 6/3/2015
Is the Eleventh Circuit Becoming More Plaintiff-Friendly?
Ryan D. Barack & Robert G. Riegel, Jr.
Current Composition of the Court
Fig. 1. Current Composition of the Court. “Current Composition of the Court.” Wikipedia. Wikimedia Foundation, Inc., May 28, 2015. http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Eleventh_Circuit
Convincing Super Personnel Mosaic Department
. In the past 6 months, . In the past 6 months, this phrase is cited in this phrase is cited in 26 district court and 28 district court and appellate court appellate court decisions in the decisions in the Eleventh Circuit. Eleventh Circuit.
2.13 1 6/3/2015
Race of the Judge & Race of the Plaintiff
African American Judges White Judges
Pl’s Af. As. Af. As. Hisp. White Hisp. White Race Am. Am. Am. Am.
Win 43.8% 50% -- 60% 18.7% 41.2% 0% 32.3%
Loss 56.3% 50% -- 40% 81.3% 58.8% 100% 67.7%
Fig 3. Plaintiff’s Success by Judges’ Race and Plaintiffs’ Race “Plaintiff’s Success by Judges’ Race and Plaintiffs’ Race,” Chew, Pat K., Kelley, Robert E., Myth of the Color-Blind Judge: An Empirical Analysis of Racial harassment Cases, 86 Wash. U. L. Rev., 1117 (2009)
The Effect of Female Judges
Fig 4. Probability of a Pro-Plaintiff Decision by Judge’s Gender, “Probability of a Pro-Plaintiff Decision by Judge’s Gender” and Fig. 5. Marginal Impact of the Presence of a Female Judge on male Judges’ Decisions. “Marginal Impact of the Presence of a Female Judge on male Judges’ Decisions,” Peresie, Jennifer L. 114 Yale L.J. 1759 (2005)
Are Judges Political?
. The political party of the appointing . When panels consist entirely of president affects outcomes in judges appointed by presidents of discrimination cases. one political party, the effect is . “Republican appointees have been even more extreme. found, over a lengthy recent . “For example, Republican period, to cast liberal votes about appointees side with plaintiffs 40 percent of the time, whereas complaining of disability Democratic appointees do so discrimination about 29 percent of about 52 percent of the time.” the time -- but that number drops to 17 percent when they are sitting with two fellow Republican appointees.”
Sunstein, Cass R., If Judges Aren’t Political, What Are They?, Bloomberg Business, Jan 7, 2013. http://www.bloomberg.com/news/articles/2013-01-08/if-judges-aren-t- politicians-what-are-they-
2.14 2 6/3/2015
The Well-Fed Judge
A 2011 Israeli study showed that judges were more likely to grant parole after returning from food breaks.
Fig 6. How Food Breaks Effect Judicial Rulings “Proportion of rulings in favor of the prisoners by ordinal position” Danziger, Shei; Levav, Jonathan, and Avnaim-Pesso, Liora, Extraneous Factors in Judicial Decisions, PNAS, April 26, 2011, vol. 108 no. 17
2.15 3 RECENT LITIGATION TRENDS UNDER THE FLSA
By
Marlene Quintana, Miami Luis A. “Tony” Cabassa, Tampa
ADVANCED LABOR TOPICS 2015: RECENT LITIGATION TRENDS UNDER THE FLSA
Florida Bar, Labor and Employment Law Section Florida Bar, Continuing Legal Education Committee Ritz-Carlton Sarasota Sarasota, Florida May 29 & 30, 2015
Luis A. “Tony” Cabassa Wenzel Fenton Cabassa P.A. 1110 N. Tampa Avenue, Suite 300 Tampa, Florida 33602 813.379.2565 813.229.8712 (fax) www.wenzelfenton.com [email protected]
I. Update on President Obama’s Proposed FLSA Revisions to White Collar Exemption Requirements.
On March 13, 2014, President Obama issued a one-page memorandum, directing the Secretary of the U.S. Department of Labor (DOL) to update regulations pertaining to overtime protection for workers under the Fair Labor Standards Act (FLSA).1 When these regulations were last updated in 2004, the entire process took close to two years. So far, we have been waiting for fourteen months. On May 5, 2015, Secretary Tom Perez announced that the DOL’s proposed revisions to Section 13(a)(1) of the FLSA2 had been forwarded to the Federal Office of Management and Budget for approval. This marks a turning point in our wait, since the next stage of the administrative rulemaking process is the release of these proposed changes for public comment. This release is now scheduled for June 18.3 Until that date, we will not know exactly how the DOL has responded to President Obama’s directive. Notwithstanding, it is not too early to make a few predictions.
A. Changing the requirements for “exempt” employees.
Under the current regulations, employees must meet two criteria to qualify for the “White Collar” FLSA exemptions:
• They must be paid at least $455 per week on a salary basis;4 and • Their job duties must identify them as executive, administrative, or learned professionals within the meaning of the FLSA.5
3.1
1. Job duties.
Job titles play little to no part in this analysis.6 Instead, employers who want to ensure that employees fall within the exemption must grant them certain privileges, such as managing part of a business, supervising other employees and simultaneously having the authority to hire or fire these employees, exercising independent judgment and discretion on matters that are significant to the employer, or utilizing advanced knowledge for the employer’s benefit.
The job duties prong of the test is unlikely to change, though its requirements may be tightened. For example, an employee who otherwise qualifies as an executive professional under the FLSA may on occasion have to work alongside the employees whom she supervises, doing exactly the same type of work. During that time, she is no longer working as a supervisor, though she may still be directing her crew. Under the new rules, she may very well be covered by the FLSA during this period.
While such a change has the potential to create a great deal of confusion, President Obama also directed the Secretary of Labor to “simplify” the FLSA’s overtime rules, so that they will be easier to understand and apply for employees and employers alike.7 Thus, the new regulations are likely to put employers on notice that if they choose to create a workplace in which White Collar employees who would otherwise be “exempt” are occasionally expected to work in capacities that would qualify them as “non-exempt,” these employees might temporarily lose their “exempt” status under the FLSA. The new analysis will likely be quantitative, rather than qualitative.
Under the current regulations, the test is qualitative: Courts look to an employee’s “primary duties,”8 rather than to the amount of time that was devoted to these primary duties in comparison to other duties. Under the new regulations, courts will probably conduct a quantitative analysis instead, determining how much time, on average, was spent on each task. And the proposed revisions may even implement a bifurcated scheme, under which White Collar employees will be FLSA-exempt during all of the periods in which they are primarily engaged in “White Collar” job duties, and non-exempt under the FLSA during all the work periods that remain.
To be workable, such a scheme would also have to include a minimum time or percentage threshold. For example, if an office manager who qualified for the “administrative” FLSA exemption had to work as a data entry clerk on an emergency basis for twenty minutes, she would maintain her FLSA-exempt status throughout. But if she had to work purely as a data entry clerk for longer than one hour, she would be entitled to the protections of the FLSA, but only during the time that she was solely acting and working as a data clerk for her employer. The new revisions could incorporate a percentage test instead, predicating exempt status on whether the White Collar employee is engaged in executive, administrative, or learned professional duties during more than 50% of his or her time at work.9
Thus, any regulation that tightens the job duties prong of the FLSA White Collar exemption test will expand FLSA coverage, while simultaneously imposing a new burden on both employers and employees. White Collar employees will have to diligently record their
3.2 hours, at least for all of those periods during which they qualify for FLSA coverage. For their part, employers will have to define job duties with more particularity, to avoid any overlap between “White Collar” and non-“White Collar” duties. They will also have to find ways to minimize their exposure to intermittent FLSA White Collar employee coverage, by ensuring that these employees will not be compelled to take up non-exempt job duties too often or too long during the course of their employment.
2. Minimum salary requirement.
By contrast, any change affecting the minimum salary requirement prong of the test will be relatively straightforward. A simple calculation is enough to reveal the gap that separates the current minimum salary from the economic reality of “White Collar work:” A weekly salary of $455 translates into an annual salary of $23,660. Even when inflation is properly taken into account,10 the equivalent annual salary is still only $29,172, far below the national trends in average compensation for occupations held by those holding advanced degrees or qualifications, exercising considerable discretion and independent judgment on the employer’s behalf, or having the authority to hire and fire other employees. The only executive, administrative, or professional employees who have not seen a substantial increase in compensation since 2004 have been supervisors who are working in the retail or service industries.11
In his memorandum, President Obama acknowledged this discrepancy, and reminded the DOL that at least a few States have already taken the lead in rectifying it.12 For example, California’s minimum salary requirement is equivalent to an hourly rate equal to double the State minimum wage.13 In turn, that minimum wage is scheduled to increase in regular increments, reaching $10.00 per hour by 2016. Thus, a salaried employee in California will have to earn an equivalent hourly rate of at least $20 per hour in 2016, if he or she is to meet the minimum salary requirement prong of California’s own labor code. For a standard workweek of forty hours, this corresponds to a weekly salary of at least $800, which almost doubles the current federal weekly minimum salary of $455. DOL insiders have indicated that the revised minimum is predicated upon an annual salary of at least $40,000, which approximates California’s projected 2016 minimum annual salary figure of $41,600 very closely.
A few learned professions, such as the practice of law or medicine, will probably continue to escape the minimum weekly salary prong of the “White Collar” exemption test altogether. But for all other employees who presumptively qualify as salaried executives, administrators, or learned professionals under the FLSA, the effect of an upward revision of the minimum weekly salary requirement will be two-fold: It will extend FLSA coverage to employees who hold “White Collar” jobs but are underpaid, and it will also compel employers to raise “White Collar” employee salaries at least enough to meet the new threshold and benefit from the FLSA exemption.
B. Timeline.
Since these new regulations are subject to the notice-and-comment rulemaking provisions of the Administrative Procedures Act14 (“APA”), we should not expect them to be implemented until this fall or winter, at the very earliest.
3.3 1. Current status of the regulations. At this stage, the new regulations are “Proposed Rules.” They have been drafted, but are not scheduled to be released for public comment until June 18, 2015, at the earliest. Once they are approved and released, the DOL will publish a Notice of Proposed Rulemaking, along with the full text of the proposed rules, in the Federal Register. After this, the DOL will accept comments from the public. The notice-and-comment period usually ranges from 60 to 90 days, though it can be as long as 180 days if the proposed rules are particularly complex.15
2. Implementation process.
Depending on the quantity and quality of the public comments that the DOL receives, the agency has the option of extending or re-opening the notice-and-comment period to further address pertinent issues raised by the comments. Once the notice-and-comment period is officially closed, the DOL may make changes to the proposed rules. If these changes are significant, the agency may publish supplemental proposed rules, and these will trigger the start of another notice-and-comment period if the changes could not have been reasonably contemplated by the public during the first notice-and-comment period. If the changes are minor, the DOL will simply publish the final regulations in the Federal Register.
The new regulations will not become effective until at least 30 days after their publication in the Federal Register. The DOL will include a preamble, as well as any studies or other evidence on which it relied in crafting the regulations. The new regulations must also be reviewed by Congress and the Government Accountability Office before they take effect.
C. Conclusion: Steps that counsel for employees and employers should take once the text of the proposed rules is released.
Plaintiffs’ lawyers should study the text of the new regulations carefully throughout the implementation process, to ensure that they are thoroughly familiar with the changes and are able to immediately recognize those clients whose FLSA rights might be affected.
Defense lawyers should advise their clients about the impact of the new regulations, paying special attention to employee classifications. Counsel should also remember that while employers bear the entire burden of proving an employee’s exempt status under the FLSA, the Act imposes no duty on employers to automatically classify their employees as FLSA-exempt, even when these employees do meet the White Collar exemption test. Thus, employers may decide to raise the salaries of certain employees in order to effectively trigger the exemption. But they may also choose to classify other “White Collar” employees as non-exempt, if this makes more business sense.
3.4 II. Defending and Managing the Latest Federal and State Claims Involving Misclassification of Workers and Improper Labeling of Exempt and Non-Exempt Employees.
While the U.S. Department of Labor may have turned to the State of California to glean good ideas in crafting revisions to the “White Collar” exemptions detailed in Section 13 of the Fair Labor Standards Act, we note that California’s experience with claims involving misclassification of workers or improper labeling of employees has been at the core of FLSA litigation in that State.16
Managing these claims is an arduous task for the judiciary, regardless of whether a quantitative or qualitative approach to the job duties test is employed. In States that have simply adopted the current qualitative FLSA standard, courts attempt to identify an employee’s “primary duties” to determine whether he or she has been properly classified or labeled under the Act. While this test is relatively easy to apply, even the Secretary of the DOL has recognized it as a “loophole,” since it allows many employers to treat workers who spend the vast majority of their time on non-executive tasks as exempt.17 By contrast, other States, including California, employ a quantitative job duties test that involves determining whether at least 50% of the employee’s time was spent on “non-executive tasks.”18 But while this test has extended FLSA protection to a greater pool of workers, it has also proved extremely difficult to administer in practice. This was one of the main reasons behind the push to revise Section 13 in 2004.
When Section 13 improper labeling claims are styled as collective actions in federal court or class actions in state court, the burden of defending them is softened. By invoking commonality, Plaintiffs’ attorneys are opening the door to a variety of evidentiary challenges that could not otherwise be made. If employers can show that individual circumstances trump common factual or legal issues, employees may have to bear the burden of prosecuting individual suits once decertification is official. On the other hand, the stakes are much higher for employers who fail to defeat certification. At each stage of the process, strategy and innovation are crucial for both sides.
By contrast, misclassification claims that hinge on the distinction between independent contractors and dependent employees demand a straightforward approach. Their defense begins with crafting policies that highlight the status of independent contractors at every turn.
A. Independent Contractor Misclassification
Few workers escape from the FLSA’s broad definition of “employee” unless they explicitly fall outside of its scope.19 Under the Act, employees are all of those workers whom the employer “permits or suffers to work.”20 By contrast, independent contractors are supposed to be in business for themselves.21 They are not looking for permission or sufferance. Instead, they are seeking to enter into a contract. They associate with the employer not merely to ensure their own economic subsistence, but to enhance it, by turning a profit. Thus, courts have always looked to the economic realities22 that underlie the relationship between an employer and any worker who has been classified as an “independent contractor.” By invoking that term, an employer is excluding a worker or a whole class of workers from the FLSA’s definition of “employee,” and by extension, automatically denying them the wage and hour protections of the Act. For that
3.5 reason, courts conduct a detailed analysis, probing each economic aspect of the relationship between the employer and the alleged independent contractor.
At the outset of this endeavor, the following six factors receive particular attention:23 (1) the extent to which the services performed by the alleged independent contractor are an integral part of the employer's business; (2) the amount of the alleged independent contractor’s investment in facilities and equipment; (3) the nature and degree of control retained or exercised by the employer; (4) the alleged independent contractor’s opportunities for profit or loss; (5) the amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise; and (6) the permanency and duration of the relationship between the employer and the alleged independent contractor.
Although the degree of control exercised by the employer over the conditions of the alleged independent contractor’s work was sufficient to determine employee status at common law, it may not be enough under the FLSA. Each analysis is factually driven, as the following cases in our own Circuit illustrate:
• Mitchell v. John R. Crowley & Bro., Inc., 292 F.2d 105 (5th Cir. 1961): A worker, Allen, contracted with Crowley to provide night watchman services to two adjacent junkyards in Mobile, Alabama. Crowley claimed that Allen was an independent contractor who was given considerable discretion in exercising his tasks. The Fifth Circuit pointed out that due to the nature of his work, Allen would naturally have to exercise more or less vigilance and independent judgment as prevailing conditions at both junkyards changed. Thus, Crowley could not justify classifying Allen as an independent contractor solely because it exercised no control over Allen’s actual working conditions at the junkyards. Moreover, Allen was never given a copy of the contract that he signed, and since he had no opportunity to either reap a profit from his watchman “contract” or accept any night watchman duties anywhere else, he could never really engage in business for himself. Instead, he depended exclusively on Crowley for his economic subsistence. This made him an employee within the meaning of the FLSA.
• Harrell v. Diamond A Entertainment, Inc., 992 F. Supp. 1343 (M.D. Fla. 1997): An exotic dancer, Harrell, sued her employer for failure to pay minimum wage under the FLSA. Noting that “exotically structured working arrangements . . . are a common feature in the adult entertainment industry,” the Harrell Court explained why exotic dancers should invariably be classified as employees, rather than independent contractors. Without exotic dancers, adult entertainment clubs such as Diamond A would attract no customers whatsoever, and would soon close their doors. Thus, Harrell’s work was an integral part of Diamond A’s business, and labeling her an independent contractor on the “contract” that she signed did nothing to change this economic reality. Just as Diamond A depended on Harrell to sign up for dance shifts at its clubs, so did Harrell depend on Diamond A to ensure her basic economic subsistence. This made her an employee within the meaning of the FLSA.
• Murray v. Playmaker Services, LLC, 512 F. Supp. 2d 1273 (S.D. Fla. 2007): Murray was a nurse by training and vocation, but she also worked as a sales representative for Playmaker on her own time. She based her sales schedule on her customers’ availability, created brochures, and exercised considerable control over the way in which she would conduct her
3.6 sales for Playmaker. Moreover, Murray was also employed as a per diem nurse. Thus, in her capacity with Playmaker she was indeed an independent contractor, and could not invoke the FLSA’s overtime and minimum wage protections.
In spite of all of these factual variations, a few constants stand out. First, employers who merely list a worker as an independent contractor on a written document will not automatically exclude that worker from the scope of the FLSA’s protections.24 Second, the degree of economic interdependence between the parties, as well as the extent to which a worker may engage in profitable activities other than those already owed under the alleged contract, are crucial factors in the independent contractor analysis.
Workers should familiarize themselves with the consequences of accepting independent contractor status, not only under the FLSA but also under the U.S. Tax Code. Because the legal ramifications of independent contractor status are often complex, many workers may not even be aware of them. There is little doubt that employers are more attuned to the realities and consequences of independent contractor status than workers, and thus have more opportunity to set the terms and conditions of any agreement that purports to bind an independent contractor.
On the other hand, utilizing independent contractor language in these agreements will not shield an employer from liability for either misclassification of employees under the FLSA or the filing of inaccurate tax returns resulting from any such misclassification. Rather than enter into independent contractor agreements lightly, employers should conduct a preliminary analysis that mirrors the inquiry conducted by the judiciary in the context of FLSA misclassification suits:
• What degree of control does the employer have over the independent contractor’s work? Frequent supervision and oversight of the worker, control over the manner and means by which the work is performed, and whether the worker is free to leave the premises of the employer at will or provide services to other entities will all be determinative factors in deciding whether the worker should be classified as an employee or an independent contractor.25
• To what degree will the worker be expected to invest in the enterprise? If the worker’s investment in the business is minimal in comparison to the employer’s corresponding investment, a strong argument can be made for employee status.26
• Does the worker have the opportunity to turn a profit? This correlates directly with the previous question. The issue hinges on whether the worker is engaging in business for herself by associating with the employer, or instead is just contributing to the employer’s business in exchange for basic economic subsistence.27
• Does the worker possess specialized skills as well as the ability to exercise business initiative in identifying and accepting opportunities for work? The worker must be free to pick and choose different opportunities for work. Possessing specialized skills, on its own, is not enough.28
3.7 • Degree to which the employer’s business and the alleged independent contractor’s work are intertwined. If the worker’s function and job duties are integral to the employer’s business operations, a strong case can be made for employee status.29
Beyond examining these factors, employers should conduct internal audits to determine which of their departments tend to utilize independent contractors on a regular basis. If the need for independent contractors is justified for those particular departments, the employer should take steps to ensure that all workers classified as independent contractors pass the five-part test described above, are made aware of their status as independent contractors at regular intervals, and demonstrate their agreement to being classified as independent contractors by signing a release on an annual basis.
B. Improper Labeling: Exempt v. Non-Exempt.
We have already examined the White Collar exemptions that appear under Section 13 of the FLSA. While the job duties test continues to create confusion and controversies, the second prong of the analysis is straightforward: To be labeled as exempt under the FLSA, employees who otherwise meet the job duties test must also be paid on a salary or fee basis. The FLSA contemplates two exceptions to this rule: doctors and lawyers.30 These are the two types of White Collar employees who qualify as learned professionals, but are not subject to the FLSA’s salary or fee basis requirement.
A salary is a set amount of compensation that does not fluctuate on the basis of the number of hours that an employee works.31 A fee is a set amount through which an employer compensates an employee for a definite task.32 For example, a per diem nurse may be paid a certain amount for each visit that she makes to a patient’s home. Because a registered nurse presumptively qualifies as a learned professional under Section 13,33 she will meet the exemption test if she is paid on a fee per visit or a salary basis, and in any case receives at least $455 per week.
On the other hand, any employee who performs manual labor and is not an independent contractor is automatically protected under the FLSA, regardless of the level of compensation that he or she commands.34 Thus, cable installers who are paid on a piece rate basis must still be paid at least the statutory minimum wage and an overtime premium under the FLSA. Architects, on the other hand, will usually meet the job duties test on account of the level of education that their profession requires, and thus may fall within one of the classes of employees who are exempt under Section 13 as long as they are paid on a salary or fee basis.
Employers run into danger when they employ workers who meet the job duties test of Section 13, and simultaneously choose to compensate these workers at a high rate and on an hourly basis. Regardless of the exorbitance of the corresponding hourly rate, such highly qualified employees are not being paid on a salary or fee basis. As a result, unless they are doctors or lawyers, these employees cannot properly be labeled as exempt. Thus, a nurse anesthetist35 who is compensated at an hourly rate of $100 will still benefit from
3.8 the FLSA’s protections. If he works any overtime hours under the special rule for healthcare facilities,36 he will be entitled to an overtime premium for all of those hours. And his overtime rate of pay will be one and one-half times his regular hourly rate, or $150. Given these drastic economic consequences, employers would be well advised to reconsider any policy under which presumptive “White Collar” employees are paid a high rate, but on an hourly basis.
For their part, employees should be diligent in examining exactly how an employer is allocating their compensation. First, employees who are paid on a salary basis and meet the weekly $455 minimum are not automatically exempt. They must also meet the “White Collar” job duties test, and they will not do so unless they exercise some measure of discretion, independent judgment, and skill acquired through formal education while they are working, regardless of their jobs titles. On the Plaintiffs’ side, it is not unusual to meet highly paid non-exempt employees who failed to review their paystubs for years, only to realize that they might actually have viable unpaid overtime claims against their employers under the FLSA.
III. The Surge in Litigation and Settlements Involving Unpaid Time for Pre/Post Shift Activities.
While the term “employ”37 enjoys a broad definition under the FLSA, the term “work” is nowhere defined within the Act. How do employers determine when their duty to compensate begins and ends under the FLSA? Which employee activities constitute compensable “work”? The surge in litigation involving unpaid time for pre and post-shift activities highlights the ongoing confusion that surrounds defining the workday.38
A. Background
Under the FLSA, employers must pay employees for “all hours worked.” In 1944, in Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123,39 the U.S. Supreme Court first attempted to define “work” for the purposes of the FLSA. There, the issue was whether miners were entitled to compensation under the FLSA during all of the time that they travelled from the entrance of their mines to the active coal faces below, from which they would extract deposits during the course of their shifts.
Following the rationale that the FLSA had been enacted to eradicate all labor conditions that were “detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers,”40 the Supreme Court ruled that the traditional industry custom of only paying miners for time spent at the face of the mines was irrelevant.41 After all, from the moment that these miners began their descent, they would be in danger: “The exacting and dangerous conditions in the mine shafts stand as mute, unanswerable proof that the journey from and to the portal involves continuous physical and mental exertion as well as hazards to life and limb.”42 Thus, in the absence of Congressional direction, “work” and “employment” should be interpreted, the Court reasoned, “as those words are commonly used — as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.”43
3.9 Two years later, in Anderson v. Mt. Clemens Pottery Co.,44 the Court expanded this definition, holding that an employee’s travel time between the station where he clocked in and his workstation on the other side of a long building was compensable time under the FLSA. This decision precipitated a wave of plaintiffs’ lawsuits, prompting Congress to pass the Portal-to- Portal Act in 1947 (“PTPA”).45 The PTPA expressly excluded two types of employee activities from the scope of compensable work under the FLSA: 1) Time spent “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform,” and 2) “activities which are preliminary or postliminary to said principal activity or activities.”46
Under the PTPA, then, preliminary activities — those activities that the employee engages in before the principal activities of the job begin — are not compensable, unless they are directly related to the principal activities of the job. This analysis also applies to postliminary activities, which occur after the principal activities of the work day have stopped. At first glance, all activities that are not related to the primary job activities of the employee are non- compensable under the PTPA.
In interpreting the PTPA, courts have constructed “principal activities” liberally, as the following examples show:
• Metzler v. IBP, Inc., 127 F.3d 959 (10th Cir. 1997): A chemical plant worker who was required to wear protective clothing to do his job was entitled to be compensated under the FLSA for the time that he spent in changing his clothes before his shift began. But if the employee had simply changed clothes on his own initiative, to protect his own clothing, his preliminary activity would not be compensable under the FLSA, because he would not have been acting for his employer’s benefit.47
• Karr v. City of Beaumont, Tx., 950 F. Supp. 1317 (E.D. Tex. 1997): Canine police officers’ care of assigned dogs at their own homes was compensable under the FLSA, because taking care of these dogs was directly related to their principal job activity, operating a canine unit. But bringing a briefcase containing work-related documents home at the end of the workday did not turn the commute into compensable time under the FLSA, even if the employee’s goal was to work at home, because the employee was not commuting for the benefit of the employer.48
• Ballaris v. Wacker Siltronic Corp., 370 F.3d 901 (9th Cir. 2004): Workers were required to wear uniforms to prevent contamination, and could only change in and out of these uniforms on the company’s premises. Time spent changing in and out of these uniforms was compensable under the FLSA, as long as the time itself was not of too short a duration. But if this time was too short, i.e., “de minimis” (usually, less than ten minutes in duration), then the fact that these preliminary or postliminary activities were directly related to the employees’ principal job activities would not matter. For public policy reasons, the “de minimis” activities would not be compensable under the FLSA.49
3.10 Despite their relative consistency, these examples only begin to scratch the surface of compensable time jurisprudence. In this arena, confusion is the rule, and the Circuits often disagree on the outcomes. This confusion has turned compensability of pre and post-shift activities into a hotbed of litigation.
B. Section 203(o) of the FLSA, the Court’s interpretations of the PTPA, and the Role of the U.S. Department of Labor in shaping Compensable Work Doctrine.
1. Section 203(o).
By amending the FLSA to include Section 203(o) in 1949, Congress sought to give employers some ability to negotiate around the provisions of the PTPA. Specifically, Congress targeted “changing clothes” and “washing at the beginning or end of each workday” as two activities that could be excluded from compensable time by employers either through the express provisions of a collective bargaining agreement (“CBA”), or through the customs and practices that had arisen between the two parties under a pre-existing CBA.50 Employers whose employees are not unionized are precluded from invoking Section 203(o), since it presumes the existence of a CBA.
The passage of Section 203(o) was hardly surprising. After all, Congress had already acted to protect employers by enacting the PTPA. In its findings, it had recognized the role of bargaining as a balancing force that could be trusted to restore some order in the workplace after the disruption occasioned by the U.S. Supreme Court in Anderson: “[T]he Fair Labor Standards Act . . . has been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation . . .”51
Thus, Section 203(o) was Congress’s reaction against the Supreme Court’s stance in Anderson. Through it, Congress gave employers some control over certain pre-shift or post-shift activities that might have otherwise qualified as compensable time under the FLSA: Changing clothes (“donning and doffing”) and washing up. That washing up either before or after a work shift is non-compensable time under the FLSA has not prompted much controversy. On the other hand, the changing clothes provision of Section 203(o) continues to engender disputes.
To benefit from the exception created under Section 203(o), employers have to demonstrate that:
• The items worn by their employees for work are “clothes;” • There is a CBA between the employer and its employees, and this CBA explicitly or implicitly excludes “changing clothes” from compensation.
Under Section 203(o), employers whose employees are unionized can seemingly bypass the principal activity test, and at least one Circuit has recognized this.52 Other Circuits are divided on whether Section 203(o) just creates a narrow exemption for employers, or excludes certain activities from an employee’s compensable hours altogether whenever there is a CBA in place.53
3.11
In Salazar v. Butterball, LLC,54the Tenth Circuit ruled that the time spent by meatpacking plant employees in donning and doffing required safety equipment was not compensable time under the FLSA, because it was excluded by Section 203(o). In 1944, in Tennessee Coal, miners who travelled to the coal face through dangerous subterranean tunnels received compensation under the FLSA for their travel time. But in 2011, in Salazar, poorly compensated meatpacking employees, many of whom were immigrants, received no compensation under the FLSA for the time that they spent in taking the many required safety precautions that their own dangerous jobs demanded, because the Tenth Circuit upheld the employer’s reliance on Section 203(o).
In Sandifer v. U.S. Steel Corp,55 however, the Supreme Court unanimously ruled that as long as the majority of the items that employees donned and doffed were “clothes,” the time spent in donning and doffing would be excluded as compensable time under the FLSA. The CBA at issue in Sandifer expressly provided that this donning and doffing time was non-compensable. The Court, refusing to draw any distinction between most of the protective gear and “clothes,” pointed out that since nine of the twelve items that Sandifer and other similarly situated employees had to “wear” could qualify as clothing, Section 203(o) operated to bar their FLSA claims. Thus, the controversy surrounding Section 203(o) has essentially been resolved in favor of employers.
2. PTPA Jurisprudence
In Steiner v. Mitchell,56 more than fifty years before Sandifer, the Supreme Court had extended the scope of the “principal activities” of a job, by ruling that all pre or post-shift activities that are “an integral and indispensable part” of those employment activities also qualified as principal activities.57 In IBP, Inc. v. Alvarez,58 the Court ruled that performance of integral and indispensable activities may trigger the inclusion of subsequent activities in the workday, regardless of whether these subsequent activities are integral and indispensable to the employee’s principal job activities. As long as these subsequent activities fall within the continuous workday, they give rise to compensable time. For example, walking to work stations after donning protective gear was covered as compensable time under the FLSA, as was a waiting period to doff the gear at the end of the workday.59
Notwithstanding, the Court provided no guidance to employees or employers seeking to identify exactly which activities qualify as “integral” or “indispensable.” To date, only the Ninth Circuit has articulated a test in response to Alvarez, stating that an activity is only integral and indispensable when it is “necessary to the principal work performed and done for the benefit of the employer.”60 In turn, this test must be applied within the framework of the continuous workday rule, created by the Supreme Court and developed by the U.S. Department of Labor (DOL).
3. DOL’s Continuous Workday Rule.
The DOL originally defined the workday as “roughly . . . the period ‘from whistle to whistle.’”61 Today, we no longer hear the whistle, signaling the beginning or the end of the factory workday. Many of the factories have disappeared, and those that remain tend to forego the use of a whistle for fear of public nuisance lawsuits. Moreover, the workplace itself is
3.12 changing. In the meatpacking plants, some conditions are still reminiscent of those described by Sinclair Lewis.62 In the world of office work, however, many workers’ schedules are not longer solely dictated by the clock. But for those whose principal job activities still fall within well- defined shifts, the continuous workday rule may trigger a bit more compensable time under the FLSA.
First, it is important to understand that all activities occurring within the well-defined workday are already compensable under the FLSA. For example, a miner who returns to the surface of the earth during his shift to retrieve needed equipment will need to be compensated for his travel time under the Act. Lunch hour determinations are beyond the scope of these materials. Instead, we are primarily concerned with those activities taking place either before or after the principal job activities in which the workers were hired to engage.
A few trends emerge:
• Preliminary, pre-shift activities are usually non-compensable under the PTPA, unless they involve tasks that are integral and indispensable to the principal job duties of an employee. For example, meat cutters who had to sharpen their knives as part of their pre-shift activities garnered compensable time during that preliminary period;63 but packing plant employees who simply had to don protective gear before starting work did not, because the court held that the PTPA effectively excluded this period as compensable time.64 Then again, other courts have held that this is indeed compensable time, since it is a necessary condition of engaging in principal job activities and is also a requirement imposed by the employer. There is still a Circuit split on this issue, though it has been resolved in favor of employers when Section 203(o) comes into play. • The activity for which compensation under the FLSA is sought cannot be de minimis, regardless of whether it is integral or indispensable to the principal activities of the job. In practice, this means that tasks that take less than ten minutes to perform are usually non- compensable under the FLSA.65 • Since there is currently no bright line outside of the Section 203(o) context, the compensability of pre and post-shift work has been increasingly litigated in Federal court. Attorneys on both sides must carefully assess their own Circuit’s jurisprudence to gauge outcomes. • Remember that employers and employees can clarify these provisions within the context of their own business relationships through contracts. While employees are precluded from contractually waiving their rights under the FLSA, they can reach agreement about compensable time for pre and post-shift activities with a prospective employer ahead of time. • Employees who are unionized should be made aware of the exclusion created by Section 203(o). • Recent cases: Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014): The time spent by hourly workers waiting to undergo and undergoing security checks for roughly twenty-five minutes each day at the end of their shifts was not compensable under the FLSA. The screenings were not principal activities for these employees, nor were the screenings integral and indispensable to the employees’ principal activities. Under the PTPA, time
3.13 spent waiting to be screened at the end of the work day was postliminary, non- compensable time.
Griffin v. S&B Engineers & Constructors, Ltd., 507 Fed. Appx. 377 (5th Cir.), cert. denied, 134 S. Ct. 111 (2013): Time spent by employees on buses to and from worksite, where employer made bus travel mandatory, was non-compensable under the FLSA as amended by the PTPA.
IV. Developments in Private Class Action Certification, Obtaining Decertification, and Hybrid Claims.
The FLSA expressly provides for the recovery of attorneys’ fees in successful collective actions to recover unpaid back wages.66 Unlike Rule 23 class action plaintiffs, who will automatically be included in any settlement on behalf of the putative class unless they affirmatively “opt out,” potential FLSA collective action plaintiffs must “opt in” to be included in any recovery.67
A. Hybrid Claims
While the plain language of Section 216(b) bars any Rule 23 class actions in federal court to enforce the provisions of the FLSA on the basis that the Act already defines an exclusive remedy, such actions are commonly brought in state court under state wage and hour laws. The FLSA explicitly permits States to enact such laws, as long as their provisions are at least as stringent as those of the Act.68 Nothing precludes plaintiffs from pursuing a wage and hour class action under state law, as well as a collective action in federal court under Section 216(b). When the two actions are conducted simultaneously, they are referred to as hybrid claims.
Most hybrid claims are brought in federal court, with supplemental jurisdiction being exercised over the Plaintiffs’ State law claims in accordance with 28 U.S.C. Section 1367 (a).69 While the exercise of supplemental jurisdiction is entirely discretionary, federal courts in the Second, Seventh, Ninth, and D.C. Circuits have routinely found it appropriate, regardless of the distinction between the FLSA’s opt-in procedure and Rule 23’s opt-out procedure. Regardless of the number or the identity of the Rule 23 plaintiffs, the claims still concern the defendant’s pay practices and the facts surrounding these practices, so that the exercise of supplemental jurisdiction is warranted.70
On the other hand, in De Asencio v. Tyson Foods, Inc., the Third Circuit declined to exercise supplemental jurisdiction over plaintiffs’ State law claims, on the ground that they involved two novel questions of state law that should really have been left to the Pennsylvania state courts.71 But in Knepper v. Rite Aid Corp., the plaintiffs’ State law misclassification claims did not predominate, and the Third District allowed them to proceed under Rule 23 alongside their FLSA collective action.72
Plaintiffs have also asserted claims under other federal laws in conjunction with their FLSA collective action. For example, in De Leon-Granados v. Eller and Sons Trees, Inc.,73 the
3.14 Eleventh Circuit certified Plaintiffs’ collective FLSA action as well as their Rule 23 Class under the Migrant and Seasonal Agricultural Workers Protection Act (“AWPA”).
While the Circuits tend to agree that claims brought under the FLSA and Rule 23 are not inherently incompatible, they have vehemently disagreed on whether the more stringent Rule 23 class certification standard should be applied to FLSA collectives in the context of hybrid claims:
• In Epenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th Cir. 2013), Judge Posner applied the stringent Wal-Mart Stores v. Dukes74 standard to decertify an action containing hybrid claims under Rule 23 and Section 216(b) of the FLSA. In doing so, he refused to recognize any difference: “[T]here isn’t a good reason to have different standards for the certification of two different types of action, and the case law has largely merged the standards, though with some terminological differences.” By rejecting “trial by formula,” the Seventh Circuit was following the Supreme Court’s lead in Dukes by holding that the Rules Enabling Act does not permit extrapolation of back wages to an entire class. Instead, evidentiary hearings on damages would be required for each of the 2,341 putative class members. This led to decertification of the entire class.
• In Indergrit v. Rite Aid Corp., 2014 WL 2741314 (S.D.N.Y. Jun. 17, 2014), the district Court rejected the Epenscheid approach, on the ground that “[it] rests upon the premise that Rule 23’s certification requirements apply in FLSA collective actions . . . That principle has not been adopted in this [the Second] Circuit.”
• But in Johnson v. Wave Comm GR LLC, 4 F. Supp. 3d 453 (N.D.N.Y. 2014), a district court in the same Circuit disagreed, quoting Epenscheid: “Although claims brought under the FLSA are brought as a collective action, and claims brought under the NYLL constitute a class action, the certification standard for the different types of actions is largely the same . . . Accordingly, when considering a motion for decertification . . . a court may treat the set of suits as if it were a single class action.” Applying this standard, the Johnson Court still certified the class.75 The case has since settled.
B. Private Class Action Certification.
1. Certification standard
Federal Rule of Civil Procedure 23(a) sets out the four factors that are needed for class certification to proceed:
• The class is so numerous that joinder of all members is impracticable; In practice, courts have found that numerosity is satisfied if the potential class members number at least 40.76
3.15
• There are questions of law or fact common to the class; While claims need not be identical, they should at least involve the same pay policies and practices.77
• The claims or defenses of the representative parties are typical of the claims or defenses of the class; At this stage, the inquiry involves determining whether the claims of the putative class members arise from a common nucleus of fact and law.78
• The representative parties will fairly and adequately protect the interests of the class. The named plaintiffs must be able to fully prosecute the action, and must not have any conflicts with any other class member.
Finally, under Rule 23(b)(3), class issues must predominate over individual issues. In the context of wage and hour suits, common questions must predominate over individualized damages issues.79 Under Dukes, “[w]hat matters to class certification is not the raising of common questions — even in droves — but, rather the capacity of a classwide proceeding to 80 generate common answers apt to drive the resolution of the litigation.”
A. Effect of Dukes commonality standard.
In practice, Dukes has led to fewer class certifications of wage and hour actions:
• In Rea v. Michaels Stores, Inc., 2014 WL 1921754 (C.D. Cal. May 8, 2014), the district court refused to certify a class of store managers on the ground that “[a] uniform, consistent performance practice for store managers simply does not exist . . . any class proceeding . . . would almost necessarily devolve into individual mini-trials regarding whether each particular class member actually met the requirements for exempt status.”
• In Pedroza v. PetSmart, Inc., 2013 WL 1490667 (C.D. Cal. Jan. 28, 2013), the district court refused to certify a class of store managers, because determining whether each manager had devoted over 50% of his or her time at work to non- exempt tasks necessitated an individual inquiry, Uniform scheduling system, staffing reports, and other business records did not provide sufficient information about how much time managers spent on non-exempt tasks.
This case also illustrates another difficulty inherent in California’s quantitative approach to the job duties test for this Section 13 FLSA exemption: It tends to defeat class certification, because the percentage of time spent by each manager on non-exempt tasks is almost always going to trigger an individualized inquiry.
3.16 • But in Taylor v. Autozone, Inc., 2014 WL 5843522 (D. Ariz. Nov. 12, 2014), a district court in the same Circuit held that the employer’s own position standards rendered certification less difficult: “A Store Manager’s employment experience is . . . substantially similar regardless of geographic location . . . Autozone’s nationwide stores are operated in a highly standardized manner . . . [The company’s] documents treat the Store Manager position, company-wide, as a singular job category with consistent essential features.” ‘
C. Obtaining Decertification
The issue of individualized damages is often enough to defeat certification after Dukes and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In Comcast, the Supreme Court made clear that if the issue of damages was to be certified on a class wide basis, then the named plaintiffs would have to show that the damages model they proposed would correspond to the theory of liability on which they were proceeding. The Comcast plaintiffs had advanced a theory of damages that would only make sense if each of the four liability theories that they invoked could be supported. Since only one of these liability theories was supported, their model for damages was simply “not good enough” to support class certification.81
This stringent damages standard, combined with Dukes’ stringent commonality standard, has led some Circuits, namely the D.C. Circuit and Tenth Circuit, to deny certification or grant decertification when individualized damages arise.82 Other Circuits, namely the Ninth, Sixth, and Seventh Circuits, have refused to deny certification or grant decertification when individualized issues are few and practical solutions abound. For example, in Levya v. Medline Indus. Inc., 716 F.3d 510 (9th Cir. 2013), the district court held that certification was appropriate when the only individualized issue was the amount of pay owed, and damages could readily be determined from computerized payroll and timekeeping records.83 In Roach v. T.L. Cannon d/b/a Applebee’s,84 the Second Circuit recently ruled that Comcast does not mandate automatic denial of certification when damages are individualized.
In off the clock wage and hour claims, Dukes’ rejection of “trial by formula” has led to decertification victories for employers:
• Duran v. U.S. Bank National Assn., 59 Cal. 4th 1 (Cal. Sup. Ct. May 29, 2014): Attempts by class action plaintiffs to use statistical sampling and other procedural shortcuts to avoid individualized defense argument was rejected as inconsistent with due process and California law. • But in Jimenez v. Allstate, 765 F.3d 1161 (9th Cir. 2014), the Ninth Circuit held that “[s]tatistical sampling and representative testimony are acceptable ways to determine liability . . . So long as the plaintiffs were harmed by the same conduct, disparities in how or by how much they were harmed will not defeat class certification.” • In Mathis v. Darden Restaurants, Inc., 2014 U.S. Dist. LEXIS 124631 (S.D. Fla. Sept. 1, 2014), the plaintiffs were servers and bartenders who had alleged that they were required to work off the clock, and that their employer had paid them tip-
3.17 credit wages for non-tip tasks. But the differences in job titles, States of employment, locations of restaurants, managers meant that the plaintiffs were too dissimilar, which might subject the defendant to all or nothing liability in spite of all of the material differences and defenses that had been raised. The district court decertified the class. • In Shiferaw v. Sunrise Senior Living, No. 13-02171 (C.D. Cal. Jun. 11, 2014), the district court denied certification of meal and rest break, off the clock, and rounding claims on the ground that there were too many individualized issues concerning whether employees were actually working off the clock.
To obtain decertification, employers have a variety of strategies at their disposal:
• Call experts to analyze payroll and timekeeping data, and to conduct economic analysis in an effort to rebut the claimed case valuation advanced by plaintiffs; • Behavioral analysis is helpful in showing that employees are not similarly situated; • Offering judgment and settlement to pick off named plaintiffs; • Filing early motions for summary judgment that will force plaintiffs to assess damages early; • Engaging in early discovery; • Inducing plaintiffs to come forward with damages calculation methodology.
To prevent decertification, plaintiffs’ attorneys must prepare early:
• Obtain affidavits early on; • Identify potential class members or opt-in plaintiffs early; • Assess damages early; • Attempt to uncover any individualized issues that might defeat class certification; • Shift the burden of proving damages onto defendant, especially when the pay practices at issue are convoluted (for example, data from paystubs showing that employer purported to compensate employees for some of their overtime work, without revealing the methodology behind the computation).
3.18
1 Press Release, Office of the Press Secretary, The White House, Presidential Memorandum - Updating and Modernizing Overtime Regulations from President Barack Obama to Thomas Perez, Secretary of Labor (Mar. 13, 2014) (‘‘White House Memorandum’’), available at http://www.whitehouse.gov/the-press-office/2014/03/13/presidential-memorandumupdating- and-modernizing-overtime-regulations.
2 29 U.S.C. § 213(a)(1).
3 Speaking at the Washington, D.C. Labor & Employment Law Council meeting of the Associated General Contractors, U.S. Labor Solicitor M. Patricia Smith has said that the proposed regulations will be published no later than June 18, 2015.
4 29 C.F.R. § 541.600.
5 29 C.F.R. §§ 541.100, 541.200, 541.300.
6 29 C.F.R. § 541.2 (providing that: “Job titles alone are insufficient . . .”)
7 White House Memorandum, supra Note 1.
8 See 29 C.F.R. §§ 541.100, 541.200, 541.300 (establishing the primary duties test for each of the “White Collar” exemptions).
9 The State of California has already adopted this quantitative test. See Ramirez v. Yosemite Water Co., 20 Cal. 4th 785 (1999).
10 See Press Release, Office of the Press Secretary, The White House, Fact Sheet: Opportunity for All: Rewarding Hard Work by Strengthening Overtime Protections (Mar. 13, 2014), available at http://www.whitehouse.gov/the-pressoffice/2014/03/13/fact-sheet-opportunity-all-rewarding- hardwork-strengthening-overtime-pr. (Specifying that adjusted for inflation, the current $455 weekly threshold amount established in 2004 would increase to $561).
11 See Fact Sheet, supra note 10 (giving the example of a convenience store manager or fast food shift supervisor who may work 60 hours per week but effectively make less than the federal minimum wage of $7.25 per hour, and are not entitled to overtime.)
12 See White House Memorandum, supra note 1.
13 See, e.g., IWC Wage Order No. 4-2001 at §§ 1.(A)(1)(f), 1.(A)(2)(g), 1.(A)(3)(d).
14 5 U.S.C. § 101 et seq.
15 Office of the Federal Register, A Guide to the Rulemaking Process (Jan. 2011), available at http://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf.
3.19 16 See Part I.
17 See Secretary Tom Perez, Fixing Overtime Rules to Reward Hard Work, WORK IN PROGRESS, Official U.S. Labor Department Blog (March 13, 2014), available at: https://blog.dol.gov/2014/03/13/fixing-overtime-rules-to-reward-hard-work/. On March 17, 2014, speaking at an International Association of Fire Fighters legislative conference in Washington, Secretary Tom Perez described his agency’s current “primary duties” test as a loophole in wage-and-hour law that lets employers treat many workers as exempt managers.
18 See Ramirez v. Yosemite Water Co., 20 Cal. 4th 785 (1999).
19 See United States v. Rosenwasser, 323 U.S. 360, 363 n.3 (1945) (quoting Senator’s Black statement on the Senate Floor that the term “employee,” within the framework of the FLSA, had been given “the broadest definition that has ever been included in any one act.”)
20 29 U.S.C. § 203(e)(1).
21 See Dole v. Snell, 875 F.2d 802, 804 (10th Cir. 1989) (citing Bartels v. Birmingham, 332 U.S. 126 (1947)).
22 See Rutherford Food Corp. v. McComb, 331 U.S. 722, 727 (1947) (establishing the factors to be considered under the “economic reality” test).
23 See United States v. Silk, 331 U.S. 704 (1947). Since Silk was decided, the Circuits have expanded the original five-factor test. In the Eleventh Circuit, the six factors listed here have explicitly been adopted. See Perdomo v. Ask4Realty & Mgmt, Inc., 298 Fed. Appx. 820 (11th Cir. 2008); Freund v. Hi-Tech Satellite, Inc., 185 Fed. Appx. 782 (11th Cir. 2006).
24 See McComb, 331 U.S. 722 (1947).
25 See Freund v. Hi-Tech Satellite, Inc., 185 Fed. Appx. 782 (11th Cir. 2006); Brock v. Mr. W Fireworks, 814 F.2d 1042, 1047 (5th Cir.) (stating that it is not what workers could do that matters, but what they are actually doing within the economic reality of the workplace that is determinative), cert. denied 484 U.S. 924 (1987).
26 See Snell, 875 F.2d at 804 (finding that an employer-employee relationship existed in spite of the fact that a cake decorator had had to purchase $400 in equipment to start); Brock, 814 F.2d 1042 (finding that operator of a fireworks stand was an employee of the fireworks company, in spite of the fact that he had had to invest in hay, gravel, pallets, and portable toilets; these expenses were minimal in comparison to the employer’s business investment in the stand, license, land, electricity, insurance, and advertising that were needed.).
27 See Usery v. Pilgrim Equipment Co., 527 F.2d 1308 (5th Cir.) cert. denied, 429 U.S. 826 (1976).
3.20 28 See Brock v. Mr. W. Fireworks, 814 F.2d 1042 (5th Cir.) (stating that initiative, not efficiency, determines independence, and that even continuous customer rapport is not enough to establish independence), cert. denied 484 U.S. 924 (1987).
29 See Donovan v. DialAmerica Mktg., 757 F.2d 1376, 1385 (3d. Cir.), cert. denied, 474 U.S. 919 (1985).
30 29 C.F.R. §541.306(e).
31 See 29 C.F.R. §541.602(a) (Defining “salary basis”).
32 See 29 C.F.R. §541.605(a) (Defining “fee basis.”)
33 29 C.F.R. §541.301(e)(2).
34 29 C.F.R. §541.601(d).
35 See Opinion Letter, Wage and Hour Division, U.S. Dep’t of Labor, 1999 DOLWH LEXIS 127, at *4 (Dec. 29, 1999) (describing nurse anesthetists as falling within the learned professionals exemption if they perform the customary duties of their profession, since they hold the equivalent of at least a Master’s degree, must pass a professional licensing examination, and have to qualify as registered nurses first.)
36 29 U.S.C. § 207(j) (providing that overtime hours for employees of health care facilities and hospitals may be based on a standard fourteen-day, eighty hour workweek, rather than the customary seven-day, forty-hour workweek.)
37 See 29 U.S.C. § 203(e)(1) (defining “to employ” as “to permit or suffer to work”).
38 See Richard L. Alfred & Jessica M. Schauer, Continuous Confusion: Defining the Workday in the Modern Economy, 26 ABA J. LAB. & EMP. L. 363 (2011).
39 321 U.S. 590 (1944).
40 See Barrentine v. Arkansas-Best Freights Sys., Inc., 450 U.S. 728, 739 (1981). While the Court did not enunciate this rationale as early as Tennessee Coal, it was nonetheless following it. After the Great Depression, which marked the end of the Lochner Era, employee welfare factored heavily in the Court’s labor and employment decisions.
41 See Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. at 602 (1944).
42 Id. at 598.
43 Id.
44 328 U.S. 680 (1946).
3.21 45 29 U.S.C. §§ 251-62.
46 29 U.S.C. § 203(e)(1) (defining “to employ” as “to permit or suffer to work”).
47 See WH Opn Ltr WH-682 (Oct. 20, 1967).
48 See Singh v. City of New York, 524 F.3d 361 (2d Cir. 2008).
49 See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) (establishing the de minimis doctrine: “The workweek contemplated by the FLSA must be computed in light of the realities of the industrial world. When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.”).
50 29 U.S.C. § 203(o).
51 29 U.S.C. § 251(a).
52 See Franklin v. Kellogg Co., 619 F.3d 604, 619-20 (6th Cir. 2010).
53 See Amanda Walck, Comment, Taking it All Off: Salazar v. Butterball and the Battle over Fair Compensation Under the FLSA’s “Changing Clothes” Provision, 89 DENV. U. L. REV. 549, 559 (2012).
54 644 F.3d 1130 (10th Cir. 2011).
55 134 S. Ct. 870 (2014).
56 350 U.S. 247 (1956).
57 Id. at 256.
58 339 F.3d 894, 902-03 (9th Cir. 2003).
59 See id. at 902-03.
60 Id.
61 29 C.F.R. § 790.6(a).
62 See LEWIS SINCLAIR, THE JUNGLE (1906) (describing dreadful conditions in the meatpacking plants of Chicago, circa 1900).
63 See Mitchell v. King Packing Co., 350 U.S. 260 (1956).
3.22 64 See Anderson v. Pilgrim’s Pride, 147 F. Supp. 556, 563 (E.D. Tex. 2001), aff’d 44 Fed. Appx. 652 (5th Cir. 2002).
65 See Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984). Courts have followed Lindow’s three-prong test to determine whether time is de minimis, looking to: (a) “the practical administrative difficulty of recording the additional time;” (b) “the aggregate amount of compensable time;” (c) “the regularity of the additional work.”
66 29 U.S.C. § 216(b).
67 This “opt-in” provision was enacted in 1947, through the Portal-to-Portal Act (“PTPA”).
68 29 U.S.C. § 218(a).
69 Under 28 U.S.C. § 1367(a), claims form part of the same case or controversy if they derive from a common nucleus of operative fact.
70 See Ervin v. OS Restaurant Services, Inc., 632 F.3d 971, 981 (7th Cir. 2011) (quoting Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir. 2003): “Predomination under Section 1367 generally goes to the type of claim, not the number of parties involved.”). The Ervin Court concluded that “the disparity between the number of FLSA plaintiffs and the number of state-law plaintiffs is not enough to affect the supplemental jurisdiction analysis. In the majority of cases, it would undermine the efficiency rationale of supplemental jurisdiction if two separate forums were required to adjudicate precisely the same issues because there was a different number of plaintiffs participating in each claim.”
71 De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003) (declining the exercise of supplemental jurisdiction on the basis that: “Generally, a district court will find substantial predomination where a state claim constitutes the real body of a case, to which the federal claim is only an appendage — only where permitting litigation of all claims in the district court can accurately be described as allowing a federal tail to wag what is in substance a state dog.”).
72 675 F.3d 249 (3d Cir. 2012).
73 497 F.3d 1214 (11th Cir. 2007).
74 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (rejecting the extrapolation of back pay for a sample set of plaintiffs to the entire putative class).
75 4 F. Supp. 3d 453, 462 (N.D.N.Y. 2014) (Concluding that: “Defendants have not shown that common questions of law and fact no longer predominate over questions affecting individual class members such that decertification is warranted. Class members are similarly situated with regards to their factual and employment circumstances. They all worked in the same office, were compensated under the same payment plans, and allege that they were subjected to unified policies which violated the FLSA and NYLL. Defendants' ability to present available defenses will not be harmed by proceeding collectively. They retain the ability to challenge representative proof introduced by class members regarding defendants' violation of the FLSA and the extent of
3.23 damages. Concerns of fairness to individual plaintiffs and considerations of judicial efficiency also weigh in favor of collective adjudication. For these reasons, defendants' motion to decertify the action will be denied.”)
76 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
77 See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (holding that evidenced presented by members of the putative class was not sufficient to constitute significant proof that company had adopted a general policy of discrimination, as was required to satisfy the commonality prong of the certification test.).
78 See Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (explaining that the “typicality requirement is satisfied when each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability.”).
79 See Wang v. Chinese Daily News, Inc., 737 F.3d 538 (9th Cir. 2013) (holding that dissimilarities within the proposed class may defeat fair resolution of the class members’ claims.).
80 131 S. Ct. 2541 (2011).
81 In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244 (D.C. Cir. 2013) (describing the Supreme Court’s holding in Comcast, and enunciating a bright line rule: “No damages model, no predominance, no class certification.”).
82 Id.
83 See also Butler v. Sears Roebuck and Co., 727 F.3d 796 (7th Cir. 2013); In re Whirlpool Corp. Front Loading Washer Products Liability Litig., 722 F.3d 838 (6th Cir. 2013).
84 Case No. 13-3070-cv (2d Cir. 2015).
3.24 6/5/2015
3.25 1 Recent Litigation Trends Under the FLSA Marlene Quintna, Esquire GrayRobinson, P.A.
I. Update on Wage and Hour Arbitration: Arbitrating Wage & Hour Cases Given the Changing Legal Landscape and Guidance for Employers Considering Mandatory Arbitration Agreements with Class and Collective Action Waivers
A. Enforceability of Collective Action Waivers in the Eleventh Circuit
The FLSA permits a plaintiff to bring a collective action on behalf of similar situated persons who file written consent in the court where the action is brought. See 29 U.S.C. §216(b); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2011). Most circuit courts,1 including the Eleventh Circuit, have found that class/collective action waivers within mandatory arbitration agreements are enforceable under the FLSA when dealing with wage and hour claims. Courts have found that the FLSA does not provide employees with a substantive right to file a collective action. Instead, the right to file a collective action can be waived without violating the employee’s rights under the FLSA.
In Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326 (11th Cir. 2014), two workers brought a punitive collective action against Chipio Windshield Repair, Kingco Promotions, and Levaughn Hall (collectively “Chipio defendants”) for failure to pay the required minimum wage per hour or overtime wages and failure to adequately and accurately record records of their wages and hours. The workers had entered into an arbitration agreement with their employer covering all FLSA claims and waiving their right to bring a collective/class action. The Chipio defendants moved to compel arbitration and dismiss or, alternatively, to stay the proceedings during the pendency of arbitration. The Eleventh Circuit found that the arbitration provision must be enforced according to its terms unless overridden by a “contrary congressional command.” Pointing to the text, legislative history and purpose of the FLSA, along with Supreme Court precedent, the court found that there was no “contrary congressional command” precluding enforcement of the arbitration agreement. This is because enforcement of the collective action waiver in arbitration agreements under the FAA is not inconsistent with the FLSA. They also noted that §216(b) of FLSA does not create a “non-waivable substantive right to bring a collective action.” This is because a collective action is not essential to the “effective vindication” of FLSA rights. A waiver of the right to bring a class/collective action does not prohibit the employee from bringing an individual suit against their employer and recovering for lost wages.
In Curbelo v. Autonation Benefits Company, Inc., 2015 WL 667655 (S.D. Fla. 2015), Autonation had hired Curbelo in 2011 after he completed signing confidentiality, non-solicit, non-complete and arbitration agreements. Curbelo challenged the arbitration agreement arguing that it was both procedurally and substantively unconscionable. The court found that the agreement was not unconscionable. The court found that Florida law does not an agreement procedurally
1 See Raniere v. CitiGroup Inc., 533 Fed.Appx.11 (2d Cir. 2013); Muriithi v. Shuttle Express, Inc., 712 F.3d 173 (4th Cir. 2013); Owen v. Bristol Care, Inc., 703 F.3d 1050 (8th Cir. 2013) Carter v. Countrywide credit Indust., Inc., 362 F.3d 294 (5th Cir. 2004) 1
3.26 unconscionable because of the use of an electronic signature, and analyzed the agreement in light of the Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, 131 S.Ct 1740 (2013). Curbelo also challenged the collective action waiver as inconsistent with the FLSA. The court, leaning on the decision in Walthour, found that it was not for five reasons: (1) there was no contrary congressional command; (2) the right to a collective action in the FLSA does not override the FAA; (3) the FLSA’s legislative history fails to show that congress intended for the collective action provision to be essential to the effective vindication of FLSA rights; (4) enforcing collective action waivers is not inconsistent with the purpose of the FLSA; and (5) the circuit courts to address the issue have been consistent in finding “the FLSA does not provide a non-waivable, substantive right to bring a collective action.” See Walthour 745 F.3d at 1330-37.
B. Exception—NLRB
The NLRB has held that arbitration agreements that require employees waive their right to bring a class/collective action violate the National Labor Act (“NLRA”). D.R. Horton, Inc., 357 NLRB No. 184 (2012). In 2014, the NLRB, for a second time, invalidated a collective action waiver finding that D.R. Horton’s reasoning and result were correct in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).
The majority’s reasoning was based on three main points. First, mandatory arbitration agreements requiring class/collective action waivers abridge the employee’s substantive right to act for mutual aid and protection under §7 of the NLRA. Second, The NLRA has found that employer-imposed agreements restricting §7 rights of employees, for example, by requiring that they pursue claims against an employer individually have been found to be inconsistent with the NLRA. And third, finding these types of mandatory arbitration agreements unlawful under the NLRA does not conflict with the FAA.
The Fifth Circuit reversed the NLRB’s D.R. Horton decision in 2013. D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013). Using Supreme Court precedent, the Fifth Circuit stated that the FAA is equally as important as the NLRA and that the policies implemented by the NLRB cannot ignore other present congressional objectives—like those of the FAA. When such conflicts exist as the one here, between the NLRA and FAA, the court does not look to the NLRB for guidance. Moreover, the court found that the Supreme Court has made it clear that the right to file a class action is procedural and not substantive, therefore, the right given by the NLRA can be nothing but. Lastly, the court stated that the FAA required that all arbitration agreements be enforced by their terms. In addition there was no contrary congressional command in the FLSA and the saving clause of the FAA does not apply in this instance.
C. Who Decides Whether an Arbitration Agreement Allows for Class Action?
The Supreme Court has yet to decide whether availability of class action is a question of arbitrability. Questions of arbitrability are limited and include, for example, “whether parties are bound by a given arbitration clause” or “whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.” Opalinski v. Robert Half Int’l Inc., 761 F.3d 326 (3d Cir. 2014) (citing Howsam v. Dean Witter Reynolds, 537 U.S. 79, 123 S. Ct. 588, 154
2
3.27 L.Ed.2d 491(2002)). In Opalinski, the third circuit found that it was a question for the court whether an arbitration agreement precludes class wide arbitration. The court relied on the sixth circuit’s decision in Reed Elsevier, Inc. v. Crockett. 734 F.3d 594 (6th Cir. 2013). In Reed the court stated, “whether an arbitration agreement permits class wide arbitration is a gateway matter” and therefore it is presumptively “for judicial determination.” Id. at 599.
D. How Do You Add a Class Action waiver to an Older Arbitration Agreement?
“The FAA reflects the fundamental principle that arbitration is a matter of contract.” Rent-A- Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010). Therefore state law principles of contract play a critical rule in the creation and amending of arbitration agreements. For example, in Davis v. Nordstrom, Inc., the ninth circuit found that based on Nordstrom’s compliance with the basic requirements of California law they properly entered into a valid agreement, the new class action waiver, with their employees. 755 F.3d 1089 (9th Cir. 2014).
II. Recent Litigation Trends: Regular Rate of Pay, Bonuses, Commissions and Tipped Employees under FLSA
A. Tipped Employees
A tip is given to a person who provides services and is added to the cost of the service being provided. Generally as a reward for the service provided and as a supplement to the service provider. A tipped employee engages in an occupation in which he or she customarily and regularly receives more than $30 per month in tips. A tip belongs to the service provider (“employee”) and is not income belonging, for example, to a hotel or restaurant. An employer may only use an employee’s tips as a credit against their minimum wage. Only tips received by the employee may be used in determining whether the employee is a tipped employee and in applying tip credit.
In compliance with the Department of Labor, an employer is required to provide a tipped employee the following information before applying and using the tip credit: (1) the amount of cash wage the employer is paying a tipped employee, must be at least $2.13 per hour; (2) the additional amount claimed by the employer as a tip credit, cannot exceed $5.12 (the difference between the minimum required cash wage of $2.13 and the current minimum wage of $7.25); (3) the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee; (4) that all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and (5) the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions. Notice may be provided through either oral or written communication. If notice is not provided an employer may not use the tip credit provisions and therefore is required to pay their employee at least minimum wage and allow them to pay keep all their tips. In Florida an employer receive a tip credit of up to $3.02 an hour, meaning that an employee can receive as little as $5.03 an hour in 2015.
3
3.28 As previously stated, a tip is the sole property of the employee. Implementation of the tip credit does not change this dynamic. Therefore, the FLSA prohibits the creation of any sort of arrangement between an employer and tipped employee through which any portion of the tip received by the employee becomes property of the employer. Even when the employer pays the employee the required minimum wage they may not require that the employee transfer their tips.
As mentioned above, however, the requirement that an employee retain all tips does not preclude an employer from the use of valid tip pooling for employees who regularly receive tips. There is no FLSA imposed maximum contribution amount or percentage on valid mandatory tip pools. When using a valid tip pool an employer must notify their employee of the required tip pool contribution amount. Furthermore, the tip credit must only be based on the amount each tip pool employee ultimately receives, and the employer may not retain the employee’s tips for any other purpose. An employer should have a written policy on how the tips will be distributed. Employees who typically receive tips are the only employees eligible to participate in a tip pool. These types of workers include but are not limited to bell staff, waiters and servers, captains who serve customers, bussers, bartenders, barbacks who have contact with customers, and the Maitre d’ and host. On the other hand employees who cannot participate in a tip pool include but are not limited to dishwashers, chefs and cooks, housekeeping or maintenance, others who have no regular contact with customers, and supervisors and managers.
It is possible that an employee is employed be one employer in both a tipped and a non-tipped occupation. For example, when an employee is hired as both a maintenance person and a waiter, the employer may only use the tip credit system for the hours the employee is working in the tipped occupation. However, if an employee is participating in work related to the tipped occupation the employer is permitted to pay the employee for that time using the tip credit system. For example, when an employee waiter is setting the table or making coffee the employer is entitled to use a tip credit system although the duties themselves are not directed at receiving tips. If, however, a tipped employee spends a significant amount of time—more than twenty hours of their workweek—performing similar related duties, no tip credit maybe taken for the time spent performing the non-tipped duties.
In Schaefer v. Walker Bros. Enterprises, Inc., 2014 WL 7375565 (N.D. Ill. 2014), Schaefer, an employee of one of Walker Bros. Enterprises’ “Original Pancake House[s],” brought a class action claiming that the defendant (1) incorrectly used a tip credit to pay the plaintiffs a lower hourly rate less than minimum wage while requiring that they perform duties outside of their tipped occupation(s); and (2) that they failed to properly inform tipped employees of the application of a tip credit. Walker Bros. Enterprises moved for summary judgment claiming that both federal and state law allow them to pay tipped employees less than minimum wage because the side work duties were related to their tipped occupations. They also argued that they fully complied with federal and state law in informing employees that a tip credit would be applied. The district court found that the side work duties performed by the tipped employees were related to their tipped occupation in accordance with the interpretation found in the DOL handbook. The side work performed by the employees in that case was clearly incidental to the
4
3.29 tasks performed under their tipped occupations and primary duty of serving their customers.2 As for the issue of sufficient notice the court found that Walker Bros. properly complied with Illinois Law by simply posting the information within their establishments. Moreover, affidavits were presented stating Walker Bros. Enterprises not only posted the information but also included the information in their employee handbook, at training and orientation, and in paper work signed by the employee entitled “Server Uniform and Tip Agreement.” This was deemed enough to find that Walker Bros. Enterprises met the requirements of the federal law.
In May v. Steak and Shake Operations Inc., 2014 WL 7251637 (M.D. Fla. 2014), May was employed by Steak and Shake Operations, Inc. as an hourly employee entitled to minimum wage under the Florida Minimum Wage Act (“FMWA”). She claims that Steak and Shake operations failed to pay her the required minimum wage for the time she spent performing tasks not incidental or related to her tipped work. The issue in this case is whether the twenty percent tip rule should apply. In this case the court pointed to the fact that it is uncertain whether the Middle District would in fact apply the twenty percent rule— other district courts within the Eleventh Circuit had applied the twenty percent rule. As of 2014, the Eighth Circuit was the first and only circuit court to apply the twenty percent rule in their analysis. The court in this case never reached the issue of whether to apply the rule to May’s case3, remanding the issue back to the Seventh Judicial Circuit because the disagreement over the rule’s application was not on the face of the well-pleaded complaint and therefore there was no federal question.
A Service charge is not a tip and therefore cannot be counted as such. However, an employer may use a service charge to satisfy minimum wage and overtime obligations under the FLSA. A Service charge is not a tip because a service charge is added to a bill by the hotel or restaurant, therefore the money paid belongs to the hotel or restaurant. A service charge is also defined as income by the IRS and therefore must be include in gross revenues4, and should appear as a separate line item on an employee’s check. If an employee receives a tip in addition to the service charge, the tip may be used in determining the employee’s status as a tipped employee and in the application of the tip credit. It should be noted that auto-gratuity is considered a service charge and not a tip. Service charges for baggage are also not considered a tip. Although this type of service charge my affect tip credit and makes calculations of overtime very difficult.
If a tip is charged to a credit card and an employer is required to pay a percentage of the sale to the credit card company, the employer may deduct the percentage from the employee’s tip. It is important note that although the employer may deduct the percentage from the employee’s tip, the charge may not lower the employee’s wage below the required minimum wage. An employer
2 Cf Driver v. AppleIllinois, LLC, where plaintiffs were subject to extensive cleaning duties that were clearly not incidental to their tip occupation. 890 F.Supp.2d 1008 (N.D.Ill. 2012). 3 The issue in this case was whether remand to state court after defendant’s removal to the Middle District of Florida is proper. 4 The IRS defines a tip by (1) being a payment free from compulsion; (2) a customers unrestricted right to determine the amount (i.e. the restaurant cannot automatically calculate gratuity); (3) being free from negotiations or mandated by employer policy; and (4) the customer may, in general, dictate who receives the tip. If this criteria is not met the amount is considered a service charge and not a tip. 5
3.30 may not withhold the amount owed to the employee while waiting reimbursement from the credit card company. The amount due to the employee is due on their regular payday.
B. Commissions
A retail and service establishment is defined by the DOL as an establishment where seventy-five percent of their annual dollar volume of sales of goods and services (or of both) is not for resale and is recognized by a particular industry as a retail sales or services. If a retail or service employer chooses to use the §207(i) overtime exemption for their commissioned employees, there are three conditions that must be met: (1) that regular rate of pay of such employee is in excess of one and one half times the applicable hourly federal minimum wage; (2) that more than half of the compensation of the employee for a representative period of time (not less than a month but not greater than a year) represents commissions; and (3) that seventy-five percent of the retail service establishments’ annual dollar volume of sales is not for resale and is recognized as sales or services in a particular industry.
In order to meet the first condition, the employer must divide the total earnings belonging to the employee during the pay period by the total number of hours worked during that period. If the results are greater than time and one half of the minimum wage, the condition is not met. If an employee is paid entirely by commissions, draws and commissions, or if their commissions are always greater than their salary or hourly wage the second condition is met. If an employee is not paid in this manner the employer must separately total the employee’s commissions and other compensation during the pay period. If the total commission exceeds the other forms of payment then the commission has been met.
Employers are required to maintain accurate records of the hours an employee works each day and week along with the earnings and wages paid. Without these records, the employer will be unable to prove whether all the conditions were met to warrant the exemption under the FLSA. In addition, the employer must select the representative period discussed in condition two in order to test whether commission pays the employee. Employers should also have §207(i) notices reviewed and signed by the employees, show service charges on paychecks as commissions, and withhold taxes from these service charges.
State nuances are also an important aspect in making these determinations. Many states have their own requirements for commission payments and exemptions, resulting in state-by-state claims challenging exemption classifications and commission structures.
In Rodriguez v. Homes Heroes, LLC, 2015 WL 668009 (M.D. Fla. 2015), Rodriguez and opt-in plaintiff, Fredryk, claimed to work forty to sixty hours a week as non-exempt plumbing technicians for Home Heroes (d/b/a Plumbing Rescue) and were never paid overtime or minimum wage. The technicians were strictly paid based on commission and were guaranteed no hourly or weekly wage according to Plumbing Rescue. However, helpers and installers were hourly employees and were paid overtime. Technicians worked roughly six hours a day and travel time was compensated when travel was less than two hours. Although travel time was not documented on employee timesheets, training sessions at the shop were. Both plaintiffs
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3.31 contended that they were never compensated for attending mandatory training sessions three times per week.
The commission received by the technicians was based on the percentage of plumbing sales they completed— their commission ranging from 17 to 23 percent. The commission pay plan was explained to employees by one of the general or channel mangers who could answer any of their questions regarding this plan. Both plaintiffs worked for Plumbing Rescue for less than a year. However, Fredryk was demoted during his time period from technician to installer/ helper.
The issue was whether Plumbing Rescue is a plumbing contractor under 29 C.F.R. § 779.317, which lists plumbing contractors as an establishment lacking a retail concept. A court must consider the retail concept component before determining whether it can be recognized as retail in a specific industry. This determination is made on a case-by-case basis. Deference to the regulations promulgated by the DOL varies from court to court. Some courts recognize the more limited Skidmore deference while others look to the heightened deference of Chevron. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); Chevron U.S.A. Inc. v. National Res. Def. Council. Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d. 694 (1984). Chevron deference is controlling on the courts but does not apply when the regulation is arbitrary, capricious, or manifestly contrary to the statute. If the regulation does not pass Chevron muster then the more limited deference of persuasion from Skidmore applies to agency regulation.
After reviewing the applicable statutes and an opinion letter from the DOL, Opinion Letter FLSA2006-22, 2006 WL 2067713 (Dep’t of Labor Jun. 23 2006), the court found that Plumbing Rescue is more akin to a repair shop than a plumbing contractor. Therefore, it was entitled to the exemption in §207(i). The court granted summary judgment in favor of the defendant.
C. Bonuses
The regular rate of pay must include all payment for employment except eight specified types of bonuses. 29 C.F.R §§778.208; §207(e). These bonus types include but are not limited to gift bonuses, discretionary bonuses, benefit plan contributions, percentage of total earnings, and suggestion- system, referrals, or rewards.
In 2011 amendments were made to FLSA regulations. However, the DOL left the fluctuating workweek rule intact because it was their opinion that bonuses to salaried, non-exempt employees may invalidate the fluctuating workweek structure. In short, an employer risks losing the benefits of the FWW if it pays bonuses or other premium payments (i.e., shift differential, attendance bonus) to salaried, non-exempt employees who are paid based on this method of calculating overtime.
In 2014 an audit done by the DOL found that employers owed $4.5 million in back overtime wages to approximately 5,000 employees. In a press release, the DOL stated that in some cases employers failed to include employee production bonuses in the regular rate of pay, therefore, failing to properly determine the correct overtime amount owed. Under the FLSA, any payment
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3.32 made to the employee during the workweek must be included in calculating their overtime premium. Press Release, U.S. Dep’t of Labor (Dec. 9, 2014).
III. Mootness
The Circuits are split as to whether an FLSA claim is deemed moot after an employee does not accept the full offer.
In Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1524, 185 L. Ed. 2d 636 (2013), an employee filed collective action under the FLSA on behalf of herself and “other employees similarly situated.” After she ignored petitioners' offer of judgment under Federal Rule of Civil Procedure 68, the District Court, finding that no other individuals had joined her suit and that the Rule 68 offer fully satisfied her claim, concluded that respondent's suit was moot and dismissed it for lack of subject-matter jurisdiction. The Third Circuit reversed. It held that respondent's individual claim was moot but that her collective action was not, explaining that allowing defendants to “pick off” named plaintiffs before certification with calculated Rule 68 offers would frustrate the goals of collective actions. The case was remanded to the District Court to allow respondent to seek “conditional certification,” which, if successful, would relate back to the date of her complaint.
The Supreme Court held that because respondent had no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness, her suit was appropriately dismissed for lack of subject-matter jurisdiction.
(a) While the Courts of Appeals disagree whether an unaccepted Rule 68 offer that fully satisfies a plaintiff's individual claim is sufficient to render that claim moot, respondent conceded the issue below and did not properly raise it here. Thus, this Court assumes, without deciding, that petitioners' offer mooted her individual claim.
(b) Well-settled mootness principles control the outcome of this case. After respondent's individual claim became moot, the suit became moot because she had no personal interest in representing others in the action. To avoid that outcome, respondent relies on cases that arose in the context of Rule 23 class actions, but they are inapposite, both because Rule 23 actions are fundamentally different from FLSA collective actions and because the cases are inapplicable to the facts here.
Note that the Supreme Court did not decide on whether an unaccepted Rule 68 offer that fully satisfies a plaintiff's individual claim is sufficient to render that claim moot. It only ruled on the collective action aspect and dismissed case because the plaintiff could not represent others in the action.
Under Seventh Circuit case law, “an unaccepted settlement offer can render the plaintiff's case moot if it gives the plaintiff everything she requested.” Scott v. Westlake Servs. LLC, 740 F .3d 1124, 1126 (7th Cir. 2014). On the other hand, if the defendant offers to pay only what it thinks might be due, the offer does not render the plaintiff's case moot. Id.
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3.33 In Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 954-55 (9th Cir. 2013), the Court held that an unaccepted Rule 68 offer that would have fully satisfied a plaintiff's claim does not render that claim moot. This holding is consistent with the language, structure and purposes of Rule 68 and with fundamental principles governing mootness.
The Eleventh Circuit has ruled that non-acceptance does not deem the claim moot because dismissing a case based on an unaccepted offer is flatly inconsistent with Federal Rule of Civil procedure 68. In Stein v. Buccaneers Ltd. P’Ship, the court concluded an unaccepted rule 68 offer does not deem the claim moot and a proffer that moots an individual claimants claim does not moot a class action even after certification. 772 F.3d 698, 702 (11th Cir. 2014). When the deadline for accepting these offers passed, they are considered withdrawn and are not admissible. Fed. R. Civ. P. 68.
Still a subject of debate in the Eleventh Circuit is how the subject of mootness affects attorneys’ fees. In Dionne v. Floormasters Enterprise, Inc. (Dionne I), the Eleventh Circuit held that an employer, who denies liability for nonpayment for overtime work, need not pay attorney’s fees and costs pursuant to 29 USC §216(b) of the FLSA if the employer tenders the full amount of overtime pay claimed by an employee, and moves to dismiss on mootness grounds where the employee concedes that “the claim for overtime should be dismissed as moot.” 647 F.3d 1109 (11th Cir. 2011). Following the release of the opinion, the trend throughout the Eleventh Circuit was to expand the holding of Dionne I to include cases where the employee did not stipulate to the fact that there overtime claim should be dismissed as moot. In 2012, five months after Dionne I, the court reconsidered their opinion in Dionne v. Floormasters Enterprise, Inc., 667 F.3d 1199 (11th Cir. 2012), (Dionne II), affirming but also construing the issue narrowly holding that an employee is not entitled to attorney’s when they concede that the issue should be dismissed as moot and full payment has been tendered. However, the court did not answer the question of whether the plaintiff/employee would be entitled to attorney’s fees after full payment is entered but mootness is not conceded. Therefore, it seemed, at least in the Eleventh Circuit, that an employee may accept full payment from their employer before the question reaches the jury or the court enters judgment without losing their right to fees and costs under FLSA so long as they do not concede mootness.
In Zinni v. ER Solutions, Inc., 692 F.3d 1162, 1168 (11th Cir. 2012), decided after Dionne II, the defendants attempted to dismiss multiple cases as moot by offering the plaintiffs a dollar more than the maximum allowable award under the Fair Debt Collection Protection Act. Id. at 1163. The defendants also offered unspecified attorney's fees and costs, but did not offer to have judgment entered against them. Id. at 1164. Each plaintiff rejected the offer, but the defendants still moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3) and the district court granted the motions as to each plaintiff. Id. at 1163–64. The Eleventh Circuit reversed, holding that “[b]ecause the settlement offers were not for the full relief requested, a live controversy remained over the issue of a judgment and the cases were not moot.” Id. at 1167–68. The court specifically recognized that “[a] judgment is important to [the plaintiffs] because the district court can enforce it.” Id. at 1168. Thus, “[t]he district court erred
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3.34 in concluding [defendants'] offers of settlement were for full relief such that [plaintiffs'] cases were mooted.” Id.
In Manley v. RSC Corporation, 2014 WL 3747695 (M.D. Fla. 2014), the Court found that the facts of Dionne were highly distinguishable from the case at issue. Manley did not concede that her claim should be dismissed as moot, or even that the full amount of back pay owed to her was tendered. Moreover, Defendant did not address the effect that the Eleventh Circuit's opinion in Zinni has had on Dionne. Indeed, courts that may have once read Dionne as allowing defendants to pay full tender, and then avoid liability for attorneys' fees and costs by having the case dismissed for lack of subject-matter jurisdiction, have changed course in light of Zinni.
For example, in Fernandez v. Andy Iron Works, Inc., 2014 WL 3384701, (S.D. Fla. 2014), plaintiff did not concede that his overtime claim was moot and still wanted to pursue judgment on both of his claims and obtain attorney’s fees and costs. The court found that the Eleventh Circuit had made clear that when plaintiffs do not concede that their case is moot, or accept a settlement offer, courts cannot simply dismiss the case with prejudice. Dionne, 667 F.3d at 1206, n. 6; Zinni, 692 F.3d at 1164.
The granting of certiorari in Campbell-Ewald Company v. Gomez, 768 F.3d 871 (9th Cir. 2014) (cert. granted May 18, 2015), should give the courts more direction on this issue.
IV. Tips, Strategies, and Best Practices for Successful Early Mediation of a Wage & Hour Claim.
A. Determining if Your Case is Appropriate for Early Mediation.
When determining whether a case is appropriate for mediation you must understand plaintiff’s counsel. Should they or you settle early? How thoroughly have they investigated the claim? Find out if they normally try class cases. If they do, see how many they have tried. See if they have settled similar cases previously. Learn what resources they have at their disposal. Talk to prior defense counsel. Find out what other types of cases they are handling. Look at the docket for terms.
Consider the Judge’s track record. Have they presided over a prior wage and hour FLSA class/ collective action? Do they know and understand the established procedures for class certification and notice? Review their opinions regarding claims and defenses in this case and in any previous similar cases they may have been assigned.
B. FLSASchedulingOrders
The Middle District of Florida implemented FLSA Scheduling orders in response to the overwhelming wage and hour class/collective action claims filed. These orders include required interrogatories and a call for mandatory settlement discussions along with a mandatory mediation conference. The Southern District of Florida has repeatedly refused to unify its FLSA practices,
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3.35 but several judges require early mediation or settlement conferences with the assigned magistrate judge.
C. Participants in Mediation
Plaintiff(s) should choose mediation participants carefully. They need a leader who is not too extreme and can modify their position. It is also important that plaintiff(s) understands how many participants are too many. The defendant(s) will possibly need more than one cooperative representative. Meaning they may need someone who has authority but that person may not have factual knowledge of the incident therefore another cooperative representative may be necessary to fill in the factual gaps.
D. Mediator’s Role
The purpose of a mediator is to facilitate a settlement. Therefore, as a mediator you must be prepared, know the facts and arguments of the case, understand the applicable law, and be sure to understand each sides’ strengths and weaknesses. Be sure that you communicate with counsel before mediation to be sure that there are no misunderstandings. The mediator must be a realistic voice and be able to communicate what counsel will do, will not do, and cannot do. Lastly, it is important that the mediator is creative and think outside the box. What is it that the parties really need to resolve this? Are the gaps between your perceived “final” numbers able to be bridged? And most importantly, understand and relate to your audience. The same tactics and techniques do not work on every plaintiff or every defendant. Know how hard you can push before losing one room or the other. Work with the parties’ nuances and individualities.
E. Early Mediation
Remember that during early mediation, both sides are likely to still be stuck in their original positions and those positions are likely miles apart. For that reason, it is important that a mediator understand the motivation behind the reasoning of an early mediation. Although early mediation may seem difficult, a skilled mediator can use this as a forum to show each side the strength and weaknesses of their perspective arguments. It may also help for purposes of discovery. The motivation for early mediation may also lie in a party’s potential liability and cost of litigation.
F. Preparing For Mediation
Communication is key during mediation preparation. Research and consider the facts of other similar cases. Question whether certification will be granted. Consider the pros and cons of whether mediation should begin before or after formal discovery. It is also important to prepare the proper form of notice for plaintiffs and defendants. Be sure to know and understand the law as it relates to your strengths and weaknesses. Prepare an organized, detailed, and concise mediation summary for the mediator. Discuss the different terms and conditions that your side would like to see in the settlement. Talk to attorneys who have previously proposed settlements to the judge. Understand the judge’s likes and dislikes before the settlement approval hearing.
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3.36 Exchange information and be open when discussing the case with opposing counsel. Discuss mediations plans with your client and manage their expectations. Listen to the client’s wants and needs and explain to them the mediation process.
E. Value of the Case
Mediators will consider multiple factors throughout the mediation. They will look to both applicable state and federal law when working on the mediation agreement. They will analyze and discuss with both parties pertinent facts in light of law. They must assess the measure of damages, costs and fees under the law. They will do this in light of the jurisdiction that they are in. However, they will also consider the parties and their experiences in conjunction with the defendant’s ability to pay and size of the employer.
V. MISCELLANEOUS TIDBITS
A. “Intrinsic Element” of the Job
In Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court unanimously ruled that for a pre- shift or post-shift activity to be compensable under the FLSA, it must be an “intrinsic element” of the job, something that an “employee cannot dispense if he is to perform his principal activities.” Time passing through post-shift security screening does not meet this standard.
“We hold that an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities. Because the employees' time spent waiting to undergo and undergoing Integrity Staffing's security screenings does not meet these criteria, we reverse the judgment of the Court of Appeals.” Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 519 (2014).
B. Even Higher Heightened Pleading
Complaints that merely allege that plaintiffs worked more than 40 hours and were not paid overtime are likely to be dismissed in a growing number of federal circuits. The Ninth Circuit, most recently joined this trend by requiring “a plaintiff asserting a violation of the FLSA overtime provisions [to] allege that she worked more than forty hours in a given workweek without being compensated for the hours worked in excess of forty during that week.” Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 644-45 (9th Cir. 2014).
Requiring specific allegations makes it harder for plaintiffs’ counsel to use one-size-fits-all complaints and requires greater investigation before filing a complaint. It may also strengthen defendants’ ability to defeat or limit certification of class or collective actions by highlighting early in a case significant differences among plaintiffs and potential class members or opt-ins.
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3.37 “We agree with our sister circuits that in order to survive a motion to dismiss, a plaintiff asserting a claim to overtime payments must allege that she worked more than forty hours in a given workweek without being compensated for the overtime hours worked during that workweek.” Id. at 644-45.
Although plaintiffs in these types of cases cannot be expected to allege “with mathematical precision,” the amount of overtime compensation owed by the employer, they should be able to specify at least one workweek in which they worked in excess of forty hours and were not paid overtime wages. Id. at 646.
C. Settlement Approval
Settlement approval under the FLSA can be tedious and burdensome. FLSA settlements to class/collective actions are stamped with a judicial prohibition. Therefore, either the department of labor or the courts must supervise settlements. These settlement agreements are scrutinized on the basis of their fairness much like in Fed. R. Civ. P. 23(e). Certification of a settlement class and notice of settlement to opt-in punitive plaintiffs are unnecessary under §216(b).
Several lessons were learned as a result of Daniels v. Aeropostale West, Inc., No. C 12-05755 (N.D. Cal. May 29, 2014) and Stuyvenberg v. Bubba Gump Shrimp Co. Restaurants, Inc., No. 6:13-cv-1330 (M.D. Fla. June 6, 2014). However, Florida judges continue to scrutinize them more strictly than other courts in the country.
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3.38 EXPECTATIONS FROM THE BENCH ON ETHICAL AND PROFESSIONAL PRACTICE
No Materials
By
Hon. Mary S. Scriven, Tampa Hon. Alan O. Forst, West Palm Beach U.S. SUPREME COURT AND ELEVENTH CIRCUIT LABOR AND EMPLOYMENT LAW REVIEW
By
Joel Wm. Friedman New Orleans, LA
RECENT DEVELOPMENTS IN EMPLOYMENT DISCRIMINATION Law
Prof. Joel Wm. Friedman
Florida Bar Labor & Employment Section Advanced Labor Topics 2015 Sarasota, Florida May 9, 2015
I. Title VII
A. Pregnancy-Based Discrimination
Young v. United Parcel Service, 135 S.Ct. 1338 (2015) — this case poses a question of the scope of the Pregnancy Discrimination Amendment (PDA), which amended Title VII to provide that discrimination on the basis of “sex” included discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” The defendant required all drivers to manipulate packages weighing up to 70 pounds and to assist in moving packages weighing up to 150 pounds. Additionally, the governing collective bargaining agreement provided for temporary alternate work for workers who were unable to perform normal work assignments because of an on the job injury. So the company offered light duty work to employees injured on the job or who suffered from any permanent impairment cognizable under the Americans with Disabilities Act (ADA). But it did not extend this option for light duty work to any female worker whose limitation arose solely as a result of her pregnancy.
The plaintiff, an early morning “air driver”, was required to pick up packages that had arrived by air carrier the previous night, load them on her van, and deliver them. After she became pregnant, the plaintiff requested and received a leave of absence. But when she was ready to return to work, she gave her supervisor a note from her doctor that the plaintiff should not lift more than twenty pounds for the first twenty weeks of her pregnancy, and then not more than ten pounds thereafter. The company told her that it would not permit her to return to work with any such restriction, even though she told them that her job rarely required her to lift more than twenty pounds, that other employees agreed to help her, and that she was willing to shift to a job involving light work. The company also decided that she was not eligible for light duty assignment because her limitation was not the result of an on-the-job injury or a disability subject to the duty to accommodate under the ADA and that the light duty offer was not available to individuals whose limitation was caused by pregnancy. Accordingly, since the plaintiff was not prepared to return to work and be subject to the normal lifting requirement, she was not permitted to return. She filed suit alleging discrimination on the basis of sex, pregnancy, and disability.
The trial court granted summary judgment in favor of the defendant as to all of her claims. It dismissed the ADA claim on the ground that the plaintiff was not disabled within the meaning of the statute, including rejecting the plaintiff’s claim that she had been regarded as being disabled. The main issue in the case was whether the defendant’s light duty policy
5.1 limiting that option to injured and disabled workers, but not pregnant workers, violated the PDA. The trial court ruled that the fact that the light duty option was not extended to pregnant workers did not constitute discrimination on the basis of pregnancy. The Fourth Circuit agreed, holding that the restriction on the availability of the light duty option to injured and disabled workers was pregnancy-blind. It rejected the plaintiff’s argument that the PDA imposed on employers the obligation to accord pregnant workers “most favored nation” status vis-à-vis all other employees, i.e., a requirement that any benefit or accommodation made available to any group of workers also had to be provided to pregnant workers. The statutory requirement that pregnant workers be treated the same for all employment- related purposes as non-pregnant workers only meant, according to the Fourth Circuit, that pregnant workers must be treated the same as the entire universe of male and female nonpregnant workers. To do otherwise, the court explained, would provide pregnant workers with a right to accommodations not encompassed by the PDA. For example, accepting the plaintiff’s argument, the court reasoned, would require a pregnant worker to be offered light work that would not be offered to a nonpregnant worker whose limitation was caused by an off-the-job injury. Thus, it concluded, where an employer treats pregnant and nonpregnant workers alike, the employer has fulfilled its obligations under the PDA.
EEOC Guideline
In July, 2014, two weeks after the Supreme Court granted certiorari in Young v. United Parcel, the EEOC amended its Enforcement Guidance on the Pregnancy Discrimination Act. This new guideline provides, inter alia:
“a pregnant worker with a work restriction who challenges a denial of light duty should be able to establish a prima facie case of discrimination . . . by identifying any other employee who is similar in his or her ability or inability to work and who was treated more favorably, including employees injured on the job and/or covered by the ADA.”
Moreover, in this section of the Guidance, the EEOC specifically rejected the reasoning, which was central to the ruling of the Fourth Circuit, that “the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.”
By a vote of 5-1-3, the Supreme Court reversed the Fourth Circuit when it concluded that the plaintiff had established a genuine issue of fact with respect to the existence of the elements of the prima facie case. Accordingly, it remanded for further proceedings.
The fact that the employer’s accommodation policy did not expressly exclude pregnant workers or include all but pregnant workers only meant, for the majority, that the plaintiff could not establish a prima facie case by direct evidence. However, the majority insisted, the plaintiff could rely on the circumstantial evidence-based formula set forth in McDonnell Douglas and its progeny. And that framework, in a failure-to-accommodate-to-pregnancy context, meant that the plaintiff had to establish: (1) she was pregnant when;
5.2 (2) she sought accommodation; (3) she was not accommodated; and (4) the employer did accommodate others who were similar in their ability or inability to work.
This then required the Court to explain what a plaintiff had to show to prove that those who were accommodated were “similar in ability or inability to work” to pregnant workers. The majority rejected the plaintiff’s proposed interpretation -- that the PDA granted pregnant workers a “most-favored- nation” status, i.e., requiring that any accommodation made to any individual also had to be made available to all pregnant employees. It also declined to defer to the EEOC’s July, 2014 revised Guideline, noting that the guideline had been issued after certiorari had been granted in the instant case and that this Guideline took a position on an issue about which previously guidelines had been silent and did so without any explanation. At the same time, it also held that the plaintiff did not have to prove that the accommodated employees were identical in all respects to pregnant- employees (other than the fact of pregnancy). And while it did not precisely indicate what would ordinarily suffice to meet the similarity standard, the Court held that this plaintiff had offered evidence that established a genuine issue of fact as to whether the defendant had provided more favorable treatment to some employees whose situation “cannot reasonably be distinguished” from hers.
The Court also offered further insight into the application of the other components of the McDonnel Douglas standard to pregnancy-based failure to accommodate claims. Once a plaintiff has established a prima facie and the defendant has offered evidence of a nondiscriminatory explanation for its decision (and a claim that it is more expensive or less convenient to extend the accommodation to pregnant employees is not such a legitimate, nondiscriminatory reason), the plaintiff has to establish that this explanation is a pretext for pregnancy-based discrimination. And pretext, in this context, can be established by proving that the employer’s policies impose a significant burden on pregnant workers and that the defendant’s nondiscriminatory reasons are not sufficiently strong to justify that burden. Furthermore, the plaintiff can establish a genuine issue of fact (and thereby defeat a motion for judgment as a matter of law and get to the jury on this issue) on the existence of a “significant burden” by offering evidence that the employer accommodated a large percentage (but not all) of its nonpregnant workers while not accommodating a large percentage of pregnant workers. Applying this analysis to the instant case, the majority concluded that the fact that the defendant had three separate accommodation policies for three classes of non-pregnant employees created an issue of fact as to the existence of a significant burden on pregnant employees.
B. Judicial Review of EEOC Duty to Conciliate
Mach Mining, LLC v. E.E.O.C., 135 S.Ct. 1645 (2015) Although Title VII vested the EEOC with substantial discretion over how to fulfill this statutory obligation to conciliate, the Supreme Court has ruled that the courts have the power to review, to a limited degree, whether or not the Commission has complied with this duty. In Mach Mining, a unanimous Supreme Court ruled that the duty to conciliate includes, at a minimum, the obligation to (1) communicate the nature of the plaintiff's claim to the defendant; and (2) engage the employer in either written or oral
5.3 discussion in order to give the defendant an opportunity to remedy the allegedly discriminatory practice through voluntary compliance. But in reviewing whether or not the Commission has met that standard, courts are to impose a limited scope of review. The role of the courts is limited to verifying the Commission's claim that it actually tried to conciliate. To that end, a sworn affidavit from the agency stating that it performed these tasks will usually suffice. But if the employer provides credible evidence that the agency did not provide the requisite information about the charge or did not attempt to engage in a discussion about conciliating the claim, the court must conduct sufficient fact-finding to resolve that factual question. Beyond that, however, the choice of the methods by which it chooses to conciliate, or the extent of that effort, is left solely to the discretion of the agency.
C. Retaliation: Unavailability of Mixed Motive Analysis
University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) In a 5-4 decision, the Court ruled that §704(a) retaliation cases were not susceptible to mixed motive analysis. In other words, a Title VII plaintiff claiming retaliation under §704(a), unlike a Title VII plaintiff alleging a claim of status-based discrimination under §703(a), has to meet a “but-for” causation standard. In reaching this decision, the Court majority employed the same analysis it had relied on four years earlier in Gross in the ADEA context. Once again, the majority reasoned that since the plaintiff’s portion of mixed motive analysis originally enunciated by the Supreme Court in Price Waterhouse, had been codified in §703 (specifically, §703(m)), but not also in §704, by the 1991 Civil Rights Act, this reflected the legislature’s deliberate intention to limit the availability of the mixed motive causation standard to claims brought under §703. Moreover, the majority pointed to the fact that the text of mixed motive provision in §703(m) refers only to status-based unlawful employment practices and does not mention retaliation. Accordingly, the Court ruled that retaliation claims brought under §704(a) of Title VII, like claims of age discrimination filed under the ADEA, were subject only to a but-for causation standard.
This now leaves unanswered the question of whether mixed motive analysis remains available in ADA cases.
D. Retaliation: Third Party Retaliation Claims
Thompson v. North American Stainless, 562 U.S. ___, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011) -- is a third party afforded protection under the anti- retaliation provision of Title VII, § 704(a), based solely upon his association with an employee who has engaged in protected activity?
The plaintiff claimed he was fired because his fiancée filed an EEOC charge. From February 1997 through March 2003, Thompson, worked as a metallurgical engineer for North American Stainless, LP, the owner and operator of a stainless steel manufacturing facility in Carroll County, Kentucky. Thompson met Miriam Regalado, currently his wife, when she was hired by the employer in 2000, and the couple began dating shortly thereafter. At the time of Thompson’s termination, he and Regalado were engaged to be married, and their relationship was common knowledge at North American Stainless. According to the complaint, Regalado filed a
5.4 charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, North American Stainless terminated Thompson’s employment. Thompson alleged that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contended that performance-based reasons supported the plaintiff’s termination.
Thompson sued the employer for violation of Title VII alleging retaliatory discharge based on the protected activity of Thompson's fiancée, a co-worker. The trial court granted the employer's motion for summary judgment. The 6th Circuit affirmed. The court described the sole issue as whether section 704(a) of Title VII created a cause of action for third-party retaliation for persons who did not engage in protected activity. Because Thompson did not allege he himself engaged in any statutorily protected activity (i.e., did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation), the court found by the plain language of the statute that Thompson was not included in the class of persons for whom Congress created a retaliation cause of action. The 3rd, 5th, and 8th circuits agreed. The court distinguished the recent Supreme Court's decision in Crawford v. Metro Gov't of Nashville and Davidson County, Tenn., 129 S.Ct. 846 (2009), (which abrogated the 6th Circuit's view that the opposition clause required active, consistent behavior), by stating that Crawford involved involuntary testimony while Thompson did not engage in any protected activity. The three dissents by six judges argued that (1) Crawford, at a minimum, found the meaning of "oppose" ambiguous; (2) the primacy of statutory purpose and a broad approach should apply in interpreting statutes meant to protect employees against employer retaliation for protected activity; and (3) Thompson was a person claiming to be aggrieved (injured or wronged in his rights) under §706(b).
The Supreme Court reversed the en banc court. Applying the analysis it had set forth in Burlington, the Court examined whether the male employee’s discharge “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” And it concluded that a reasonable employee might be dissuaded from engaging in protected activity if she knew that her fiancée would be terminated. It rejected the defense claim that the likelihood that recognizing third party claims would create difficult line drawing issues was sufficient reason for erecting a blanket ban against such claims. But the Court also declined to identify a fixed class of relationships that would meet the Burlington standard. It did admit that firing a “close family member” would “almost always” meet that criterion and that inflicting a milder adverse action upon a “mere acquaintance” would “almost never do so”. But beyond that, the Court “refused to generalize” other than to say that the proper standard for judging chilling effect “must be objective” to avoid uncertainties and discrepancies.
Then, having concluded that a third party retaliation claim could be cognizable under Title VII, the Court examined whether the male plaintiff fit the “person claiming to be aggrieved” standing requirement of §706(f)(1). The Court construed this textual provision to require more than Article III standing in that it required a greater showing than that the plaintiff was
5.5 injured in any way by an act of the defendant. But it also said that the requirement was broader than the class of persons who engage in §704(a)- protected activity. Rather, the Court concluded, the “person aggrieved” standard covered anyone who fell within the “zone of interests” arguably protected by the statutory predicate of the substantive claim. Applying that standard to the instant case, the Court concluded that the male employee fell within the zone of interests protected by Title VII because he was an employee of the defendant and harming the plaintiff was the employer’s intended means of retaliating against the fiancée who had engaged in protected conduct. Thus, plaintiff was in the zone of interests sought to be protected by Title VII and thus was a “person aggrieved” with standing to sue under Title VII.
Underwood v. Dep’t of Financial Services State of Florida, 513 Fed. Appx. 637 (11th Cir. 2013)(unpublished), cert. denied, 134 S.Ct. 685 (12/2/2013) — the Eleventh Circuit upheld the trial court’s issuance of summary judgment in favor of the defendant. Rejecting the plaintiff’s contention that his claim fell squarely within the ruling by the Supreme Court in Thompson v. North American Stainless (2012) (recognizing “third party retaliation” claims, i.e., claims where the plaintiff victim of an adverse action was not the person who had engaged in the statutorily protect ted conduct), the Eleventh Circuit panel ruled that the plaintiff could not state a claim under §704(a) because the defendant employer did not retaliate against the person who had engaged in the statutorily protected conduct. After finding that the employer who had been the subject of the underlying charge was a separate employer from the defendant named in the plaintiff’s §704(a) charge (the two employers were separate agencies of the State of Florida), the court construed the Thompson Court’s as requiring a court to assess the impact of the retaliatory act on the person who filed the underlying charge. In the instant case, the court explained, the §704(a) plaintiff claimed that his employer had retaliated against him, and not against his wife (who had filed the underlying sex discrimination charge and who worked for a separate state agency). As far as the Eleventh Circuit was concerned, “the retaliatory action must be against an employee who engaged in protected conduct.” And since the defendant was not the employer of the person who had engaged in 704(a)-protected activity, the appellate panel concluded, this employer could not said to have retaliated against her. The fact that it retaliated against someone else, the court reasoned, did not meet the Burlington Northern standard. Having determined that the plaintiff’s claim did not fall within the scope of §704(a), the panel declared that it was unnecessary to consider the standing question of whether the plaintiff fell the zone of interests protected by Title VII.
E. Retaliation: Hostile Environmental Form of Claim
Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) – the 11th Circuit joined all other circuits in recognizing the existence of a §704(a) retaliation claim where the plaintiff alleges that the adverse action took the form of the creation of a hostile working environment. The two appellants were doctors employed by a Veterans Administration hospital and each alleged that she had been the victim of a series of retaliatory adverse actions, some of which were tangible employment practices, others of which created a hostile working environment. Their complaint asserted claims of both retaliation and hostile work environment, both of
5.6 which went to the jury. The jury found that these two plaintiffs (the other two plaintiffs did not participate in the appeal) experienced tangible acts of retaliation, but that the defendant would have taken the same action in the absence of the plaintiffs’ engaging in §704(a)-protected activity. The jury also found that these doctors experienced a retaliatory hostile work environment and awarded compensatory damages and back pay. The trial court vacated the award of lost wages on the ground that it was not recoverable on a hostile work environment claim since the jury found that the plaintiffs were neither terminated nor constructively discharged. The Eleventh Circuit upheld this ruling on the back pay award. The court also affirmed the trial court’s ruling recognizing a cause of action for retaliatory hostile environment. It agreed with all the other circuit courts that while §704 only prohibits acts of “discrimination” (as compared to the language in §703 prohibiting discrimination with respect to “terms and conditions of employment”), that term should be read consistently with its meaning in §703 and, therefore, included subjecting a person to a hostile work environment. Then, the court ruled that in determining whether the plaintiff had produced evidence that could lead a reasonable jury to conclude that the plaintiffs had been the victims of acts that were sufficiently severe or pervasive to create a hostile working environment, it could consider discrete adverse actions that constitute tangible employment actions (along with other actions) even if these discrete acts were not motivated solely by a retaliatory intent. The court reasoned that although the same decision defense eliminates “but for” causation with respect to a retaliation claim predicated solely on such discrete acts, a jury finding that discrete adverse actions would have been taken even in the absence of a retaliatory motive did not eliminate but-for causation (and therefore did not defeat liability) on a hostile environment claim predicated on those discrete and other non-discrete acts when considered in their entirety. Applying that standard, the appellate court concluded that there was sufficient evidence for the jury to have concluded that in response to the plaintiffs’ filing of EEO charges, the appellants’ supervisors created a workplace filled with intimidation and ridicule that was sufficiently severe and pervasive to create a hostile working environment for these plaintiffs and for a reasonable employee. The supervisors not only engaged in discrete acts producing tangible adverse results (including removing one plaintiff from her committee chair position, taking her off other committees, reprimanding her, suspending her and lowering her proficiency reports, reassigning the other plaintiff to a different ward and prohibiting her from conducting research), but also spread rumors about the plaintiffs that damaged their reputations, instructed other employees to encourage the plaintiffs to resign, and attempted to malign the plaintiffs in front of their peers and co-workers. Accordingly, it upheld the jury verdict.
F. Sexual Harassment Claims: Employer Liability: Who is a Supervisor?
Vance v. Ball State University, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013) — the standard for determining employer liability depends upon whether the alleged harasser was a “supervisor” or a “co-employee” since, it noted, where the harasser is only a co-employee, the employer will be liable only if the plaintiff proves that the employer was negligent in controlling working conditions. Since, by definition, one co-employee, unlike a supervisor, has not been delegated authority over another co-
5.7 employee by the employer, the plaintiff must prove that the employer was negligent in order to subject the employer to liability for the acts of its harassing employees. This, in turn, requires the plaintiff to establish that the employer (1) knew or should have known of the harassing conduct; and (2) failed to take prompt and appropriate remedial action.
Consequently, it is critical to resolution of the employer liability issue in a sexual harassment claim to determine whether or not the alleged harasser was a “supervisor”. In Vance, a 5-4 decision, the majority ruled that an employee is a “supervisor” for these purposes only when he or she was empowered by the employer to take tangible employment actions against the alleged victim. In so ruling, the Court expressly rejected what it termed the “nebulous” standard employed by the EEOC and some federal circuits which tied supervisory status simply to the ability to exercise significant direction over another worker’s daily work. Although the majority acknowledged that “supervisor” has varying meanings both in colloquial usage and in the law, it criticized the EEOC’s “open ended” standard as making supervisory status determinations dependent upon a highly case-specific evaluation of numerous factors rather than the more “easily workable” tangible employment-based standard that it chose to adopt. Under its chosen definition, the majority insisted, supervisory status typically could and would be resolved as a matter of law prior to trial, thereby simplifying the task of the jury at trial. Moreover, in response to the dissenters’ claim that an employee possessing the power to direct another worker’s tasks was capable of creating a hostile working environment; the majority noted that the same could be said of co-workers. Finally, the majority emphasized that its ruling did not leave workers unprotected against harassment by co- workers who possess the authority to create a hostile environment by assigning them unpleasant tasks. It simply requires such plaintiffs to prove employer negligence in order to recover under Title VII.
G. Sexual Harassment Claims: Same-Sex Claims
EEOC v. Boh Brothers Construction Co., 731 F.3d 444 (5th Cir. 2013)(en banc) — a male iron worker on a construction site repairing the Twin Spans bridges between New Orleans and Slidell operated by the defendant claimed that the employer’s crew superintendent engaged in same-sex harassment against him by referring to him in raw homophobic epithets and lewd gestures including simulating anal intercourse with the aggrieved and exposing his sexual organ to the aggrieved. The worker filed an EEOC charge alleging sexual harassment and retaliation and the EEOC filed suit on his behalf claiming sexual harassment and retaliation. After a three day trial, the jury in the EDLa issued a verdict in favor of the plaintiff on a hostile environment claim and awarded $201,000 in compensatory and $250,000 in punitive damages. District Judge Lemelle denied the employer’s request for judgment nov but reduced the total award to comply with the statutory $300,000 cap on the sum of compensatory and punitive damages.
A circuit panel overturned the jury verdict on the ground that there was insufficient evidence to conclude that the aggrieved had been discriminated because of his sex. The en banc court affirmed and reversed in part. It expressly rejected the defendant’s assertion that the
5.8 evidentiary paths set forth in Oncale were the exclusive methods of proving sex-based causation in a same-sex harassment claim. Instead, it ruled that these evidentiary routes were illustrative and not exhaustive and agreed with the plaintiff that the sex-stereotyping doctrine recognized by the Supreme Court in Price Waterhouse was applicable in the same-sex harassment context. Accordingly, it ruled that a plaintiff in a same-sex harassment case can prove that the sexual harassment was conducted because of the victim’s sex by relying on gender-stereotyping evidence that the plaintiff was harassed because he did not conform to the harasser’s stereotyped view of appropriate gendered conduct. It thereby concluded that the evidence supported the jury’s liability finding. But it reversed the award of punitive damages on the ground that the uncontroverted evidence demonstrated that the defendant did not subjectively perceive a risk of violation of federal law and therefore found that the plaintiff had not met the high standard of proving that the defendant had engaged in intentional discrimination in the face of a perceived risk that is requisite to issuing an award of punitive damages. It did uphold the award of $201,000 in compensatory damages and since that was not below the $300,000 cap on damages, reinstated the totality of that award (some of which had been reduced by the trial judge to meet the cap).
H. Ministerial Exception – all antidiscrimination statutes
Hosanna-Tabor Lutheran Church & School v. E.E.O.C., ___ U.S. ___ 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) -- for four decades, the circuit courts uniformly read into Title VII a “ministerial exception” that totally exempted all decisions made by a “church” that concerned the employment of a “minister” from challenge under Title VII. Although the circuits could not agree on whether this exemption was mandated by either the Free Exercise or Establishment Clause of the First Amendment, or both, they did recognize that any application of Title VII to decisions concerning the employment relationship between a “church” and its “ministers” would violate either or both of the Religion Clauses. And though there was rarely litigation on whether a particular defendant constituted a “church” within the meaning of this exemption, there was a significant divergence between the circuits in determining when a particular individual was a “minister” for purposes of insulating the church employer’s decision from Title VII scrutiny.
The Supreme Court finally addressed the scope and nature of the ministerial exemption, albeit in a case brought under the Americans with Disabilities Act (ADA), in Hosanna-Tabor. The defendant was an elementary school that was owned and operated by a Lutheran Church and that offered a “Christ-centered education”. The school employed both lay and “called” teachers. “Called” teachers were individuals deemed to have been called for this vocation by God. In order to receive a “call” from the congregation, an individual had to complete a program of theological study at a Lutheran college or university, pass an oral examination, and obtain the endorsement of the local Synod district. Once “called”, a teacher received the title “Minister of Religion, Commissioned”. “Called” and lay teachers taught the same secular and religious courses, but the school employed lay teachers only when called teachers were unavailable. Cheryl Perich was initially employed as a lay
5.9 teacher but subsequently was asked to become a called teacher, accepted the call and received designation as a commissioned minister. After developing narcolepsy, Perich was put on disability leave but when she informed the school that she was able to return to work the following month, the school told her that she had been replaced by a lay teacher and offered to let her resign as a called teacher in exchange for payment of some of her health insurance premiums. Perich refused that offer and subsequently informed the school’s principal that she intended to assert her legal rights. The congregation voted to rescind the plaintiff’s call and she was terminated on the ground that her threat to take legal action damaged her working relationship with the church and violated the Church’s belief that Christians should resolve their disputes internally.
Perich filed an EEOC charge alleging that she had been terminated in violation of the ADA. The EEOC brought suit on her behalf under the anti-retaliation provision of the ADA, alleging that her she had been terminated in retaliation for threatening to file an ADA suit. The trial court granted summary judgment to the defense, concluding that the suit was barred by the ministerial exception. But the Sixth Circuit vacated that ruling on the ground that Perich did not qualify as a minister since her duties as a called teacher were identical to the duties performed by lay teachers.
The Supreme Court unanimously reversed the Sixth Circuit and reinstated the trial court’s grant of summary judgment. The unanimous Court expressly recognized the existence of the ministerial exception, stating that it was mandated by both Religion Clauses of the First Amendment in order to prevent the government from interfering with the employment relationship between a religious institution and its ministers. Although the instant suit was brought under the ADA, the Court announced in broad terms that any employment discrimination statute would be unconstitutional to the extent it attempted to regulate in any way a “church’s” employment relationship with any of its “ministers”. And although all the Justices joined in the unanimous opinion authored by Chief Justice Roberts, there were concurring opinions written by Justices Thomas and Alito (who was joined by Justice Kagan) that sought to offer a different approach towards determining when a particular individual qualified as a “minister” when a defendant sought to invoke this blanket exemption from statutory coverage.
In his opinion, the Chief Justice stated that the Court was “reluctant * * * to adopt a rigid formula for deciding when an employee qualifies as a minister.” It was sufficient, he continued, to conclude that this employee fell within the ministerial exception. That determination, in turn, was based on the Court’s assessment of several factors: (1) the Church held Perich out as a minister by giving her the title “Minister of Religion, Commissioned”; (2) she was tasked with performing her job “according to the Word of God” and the standards of the Lutheran Church as draws from sacred scriptures; (3) Perich’s was granted the title of Minister by the congregation only after a significant degree of religious training followed by a formal commissioning process culminating in election by the congregation; (4) Perich had held herself out as a minister by claiming a special housing allowance on her tax return that was available only to employees who earn compensation in the exercise of the
5.10 ministry; (5) Perich’s job duties reflected a role in conveying the Church’s message and carrying out its religion mission of transmitting the faith to the next generation in that she taught religion classes, led the students in daily prayers, and occasionally led chapel services. Based on all of these factors, and in the face of a finding that Perich’s religious duties consumed only 45 minutes of each workday and that the rest of her day was devoted to teaching secular subjects, the Court concluded that Perich was a minister covered by the exemption. Though none of these factors was individual dispositive, each one was relevant to making the ministerial determination. Moreover, the Court rejected the Sixth Circuit’s conclusion that the fact that these same functions were performed by lay teachers automatically precluded Perich from being designated a minister. Similarly, it rejected the EEOC’s claim that the ministerial exception should be restricted to individuals who perform exclusively religious functions, noting that most, if not all, clergy perform a mix of duties, including secular ones. The Court also noted that its ruling applied only to suits brought under employment discrimination statutes. It left for another day the question of whether a ministerial exception should be recognized in employment-related breach of contract or tort actions by employees against religious institutions. Finally, it added, by way of footnote, that the ministerial exception was a waivable affirmative defense and not a (nonwaivable) jurisdictional bar to suit.
In a concurring opinion, Justice Thomas took a narrower view of the Court’s proper role in the ministerial designation process. In order to give full effect to the Religion Clauses, he maintained, the courts should defer to the religions organization’s good faith determination of who qualifies as its minister. If the courts could second-guess a religious entity’s determination of who was one of its ministers, he maintained, that organization’s constitutional right to choose its own ministers without governmental interference would be hollow. Moreover, he added, the determination of who is a minister was itself a religious question which needed to be within the sole province of the religious institution. Since, in his view, the defendant sincerely considered Perich to be a minister, that was enough for him to invoke the ministerial exception.
Justice Alito, joined by Justice Kagan, offered a third approach. Their primary concern was based on the use of the word “minister” to define those employees subject to the exemption since that precise designation, although used by many Protestant denominations to refer to members of their clergy, was not employed by other religious groups such as Catholics, Jews, Muslims, Hindus, or Buddhists. Additionally, they were concerned that the term might encompass a requirement of ordination, a concept or practice that was not a prerequisite to being a member of the clergy of many religions. So they proposed that the courts undertake a functional, rather than titular analysis of the employee in question to determine whether or not that person was subject to the exemption. For Justices Alito and Kagan, in order to maintain the constitutionally-mandated autonomy of religious institutions, the key question was whether the individuals performed important functions in worship services and in the performance of religious ceremonies and rituals and whether they were entrusted with teaching the tents of the faith to the next generation. Neither a ministerial title nor ordination, while relevant to making that determination, they declared, was either
5.11 necessary or sufficient to resolution of the functional analysis. Based on this approach, these two Justices agreed that Perich was an employee as to whom the exemption applied.
I. Affirmative Action
Fisher v. University of Texas at Austin, 133 S.Ct. 2411, 186 L.Ed.2d 474 (2013) — in its preceding affirmative action in school admissions opinions in companion cases Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003) involving admissions requirements of the University of Michigan and its Law School, the Court had deferred to the defendant state university’s determination that the objective of attaining of a diverse student body constituted a compelling state interest for Equal Protection Purposes. Subsequently, in Fisher, by a 7-1 vote (Justice Kagan did not participate), the Court added that such deference was not appropriate to the second half of the strict scrutiny standard applied to all governmental uses of race or ethnicity-based criteria. In determining whether the use of race was narrowly tailored to achieve the compelling state interest of attaining a diverse student body, the Court declared, it was the judiciary’s obligation to undertake “careful judicial scrutiny into whether a university could achieve sufficient diversity without using racial classifications.” The majority quickly noted that such scrutiny does not require the University to establish that it exhausted every conceivable race-neutral alternative before explicitly relying on a racial classification. Rather, the Court continued, it was the judiciary’s task to examine “with care, and not defer to” a university’s “serious, good faith consideration of workable race- neutral alternatives.” To meet the strict scrutiny standard, the university must convince the court that “no workable race-neutral alternatives would produce the educational benefits of diversity.” If a race-neutral strategy could promote the diversity objective “about as well and at tolerable administrative expense”, the Court continued, then the university’s reliance on race would contravene the dictates of the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals in this case had limited its consideration to determining whether the university’s use of race had been in “good faith” and, moreover, had presumed that the University acted in good faith and therefore required the plaintiff to rebut that presumption. This, the Court held, was inconsistent with its formulation of the “narrowly tailored” portion of the strict scrutiny standard applicable to all governmental uses of racial classifications. Accordingly, it vacated the lower court’s grant of summary judgment in favor of the defendant and remanded for reconsideration by that court under the Court’s articulated standard.
Schuette v. Coalition to Defend Affirmative Action, 134 S.Ct. 1623 (2014), a six member majority ( a plurality of three signed onto the opinion of the Court with a concurring opinion joined in by Justices Scalia and Thomas and another concurrence written by Justice Breyer) of the Court (Justice Kagan recused herself) reversed the Sixth Circuit, expressly rejecting that court’s reliance on the “political process doctrine” that the circuit court had read as emanating from three prior Supreme Court rulings. The Sixth Circuit interpreted these three prior opinions to mean that a State could not change the governmental decision-making process by removing authority from political officials to address racial issues in a way that burden the interest of minority groups. Such a broad
5.12 statement of law, the opinion of the Court announced, went beyond the necessary holding of those cases and also created its own constitutional problems by, inter alia, removing from the people their fundamental right of self-governance. To say that the question of how to resolve racial issues was beyond the capacity of voters was, the plurality declared, demeaning to the democratic process. Consequently, the Court emphasized, its ruling did not touch on the constitutionality of governmental use of race-based preferences, but, rather, only on the question of whether voters could be restricted in their ability to prohibit governmental use of racial preferences. The issue was not how the debate over racial preferences was to be resolved, but about who can resolve it. “There is no authority in the Constitution of the United States or in this Court’s precedents,” the Court concluded, “for the judiciary to set aside * * * laws that commit this policy determination to the voters.” Justices Scalia and Thomas agreed with the plurality’s rejection of the political process doctrine. Justice Breyer voted to uphold the Michigan amendment solely on the limited basis that the U.S. Constitution did not prohibit a state from moving decision-making from an unelected administrative body (the State University trustees and administrators) to a politically responsive one (the voters) with respect to a race-conscious admissions program that considered race solely in order to obtain the educational benefits derived from a diverse student body.
II. Pending Case Before the U.S. Supreme Court
EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 013), cert. granted, 135 U.S. 44 (10/2/2014) (argued 2/25/2015) – issue in this case is whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee. The Tenth Circuit issued summary judgment in favor of the employer on the ground that the plaintiff’s to inform the employer prior to its hiring decision that she wore her headscarf for religious reasons and that she needed an accommodation due to a conflict between her religious practice and Abercrombie’s clothing policy was fatal to her claim. Under Abercrombie’s “Look Policy”, all employees were required to dress in clothing consistent with the clothing that Abercrombie sold in its stores in order to promote its “preppy” brand. This policy prohibited employees from wearing black clothing and “caps” (although “Caps” was not defined in the policy). This policy is communicated to job applicants during the job interview and though interviewers are instructed not to ask an applicant about his or her religion, they are instructed that if an applicant requests a deviation from the policy for religious reasons, the interviewers are to contact the HR department or direct supervisor. HR officers are authorized to grant accommodations if doing so will not harm the brand. The instant job applicant was interviewed by someone at the store who had previously seen her wear a headscarf and assumed she was Muslim. But the issue of a headscarf was never raised during the interview and the candidate never indicated she wore one or would need an accommodation for religious reasons. Nevertheless, she was not hired because of her headscarf. The EEOC filed suit on her behalf, alleging failure to accommodate her religious
5.13 beliefs by not making an exception to the “Look Policy”. The Circuit panel concluded that the plaintiff in a religious accommodation case must establish a prima facie case by proving (1) that she had a bona fide religious belief that conflicts with an employment requirement; and (2) that she informed the employer of this belief; and (3) that she was not hired for failure to comply with the conflicting employment requirement. Since there was undisputed evidence that the plaintiff had not informed the employer of her religiously- based conflict, the court concluded that the plaintiff had not established a prima facie case and issued summary judgment in favor of the defense. Moreover, the court noted, even if it were to assume that an employer could be put on notice of the conflict by someone other than the applicant, that source would have to provide the employer with sufficient information to give the employer actual knowledge that the conflicting practice of the particular applicant was based on that person’s religious beliefs and that he or she needed an accommodation for it. It would not be enough, the court added, to impose liability on an employer based on a determination that the employer should have guessed, surmised, or otherwise figured out from the surrounding circumstances that the practice conflicted with the applicant’s religious beliefs and that an accommodation was needed.
5.14 SOCIAL MEDIA IN THE WORKPLACE
By
Gregory A. Hearing Tampa Social Media in the Workplace
Gregory A. Hearing Jeffery L. Patenaude Thompson, Sizemore, Gonzalez & Hearing, P.A, Tampa, Florida
In today’s society, social media permeates many facets of everyday life. The workplace
is no exception. For many employers, social media is a key business tool. For most employees,
accessing social media is a daily ritual. Indeed, a recent survey revealed that 72% of workers
access social media on the job at least one time each day, a majority of which access social
media several times per day, while 28% of employees spend at least an hour on social
networking sites each day.1 From “liking” on Facebook2 to a Mexican vacation scuttling an
FMLA claim,3 the cases related to social media litigation issues continue to be reported almost
daily. These materials provide a survey of recent cases and issues concerning social media in the workplace.
A. Social Media and the National Labor Relations Act
Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, is entitled “Rights of employees as to organization, collective bargaining, etc.” and states:
Employees have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 159 (a)(3) (emphasis added).
1 See National Business Ethics Survey of Social Networkers: New Risks and Opportunities at Work, Ethics Res. Ctr. 1, 8, 20 (2013), http://www.ethics.org/downloads/SocialNetworkingFinal.pdf; see also Julie A. Totten and Melissa C. Hammock, Personal Electronic Devices in the Workplace: Balancing Interests in a BYOD World, 30 A.B.A. J. Lab. & Emp. L. 1 (2014). 2 See Bland, et al v. Roberts, 730 F.3d 368 (4th Cir. 2013); see also Triple Play Sports Bar, 361 NLRB No. 31 (Aug. 22, 2014). 3 See Lineberry v. Richards and Detroit Medical Center, No. 11-13752, 2013 WL 438689 (E.D. Mich. Feb. 5, 2013).
6.1 In turn, Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section
7.” A reading of Section 7 reveals that it does not just cover union activities. Rather, Section 7 rights extend to concerted activities for the purpose of mutual aid or protection. Thus, Section 7 rights are implicated even in the absence of “union” activity. Protected concerted activities involve employees joining in concert to affect wages, hours, and other terms and conditions of employment. Examples include:
• Refusal to work overtime on a particular occasion. See Polytech, Inc., 195 NLRB 695 (1972);
• Complaints about dangerous working conditions. See Wray Electric Contracting, Inc., 210 NLRB 757 (1974); and
• Criticizing management and company policies during a group meeting. See NLRB v. Caval Tool Div., Chromalloy Gas Turbine Corp., 262 F.3d 184 (2d Cir. 2001).
Special attention must be given to the impact of social media on Section 7, and the developments flowing from it. Specifically, several recent NLRB Operations Management memoranda have offered insight on the agency views of a wide variety on social media issues, including:
• Memorandum from the NLRB Office of Gen. Counsel (OM 11-74)(Aug. 18, 2011);
• Memorandum from the NLRB Office of Gen. Counsel (OM 12-31)(Jan. 24, 2012);
• Memorandum from the NLRB Office of Gen. Counsel (OM 12-59) (May 30, 2012).4
The Operations Management memoranda explain that social media policies are unlawful when they interfere with the employees’ Section 7 rights, and provide examples of policies that
4 The NLRB’s memoranda can be located at http://www.nlrb.gov/.
2
6.2 the Board deems unlawful. They explain, inter alia, that section 8(a)(1) of the NLRA is violated
by an employer when the employer implements a work rule that “would reasonably tend to chill
employees in the exercise of their Section 7 rights.”5 The NLRB explains that, to determine
whether a work rule would have such an effect, it uses a two step inquiry.6 First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities.7 If the rule does not explicitly
restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1)
employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule
was promulgated in response to union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.8
Just recently, the NLRB’s Office of the General Counsel released an additional
memorandum, Memorandum from the NLRB Office of Gen. Counsel (OM 15-04) (March 18,
2015), concerning employee handbooks.9 Among other things, the memorandum identifies
specific handbook provisions concerning social media which the Board deems unlawful.10 For
example, the Board opined that the following language violated Sections 7 and/or 8(a)(1):
• “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation”;
• “[Do] not use any Company logos, trademarks, graphics, or advertising materials [in social media]”;
• “Refrain from commenting on the company’s business, financial performance, strategies, clients, policies, employees or competitors in any social media, without the advanced approval of your supervisor, Human
5 Id. 6 Id. 7 Id. 8 Id. 9 The Memorandum can be found at http://www.nlrb.gov. 10 Id. The Memorandum largely focuses on the NLRB’s review of a prior employee handbook maintained by Wendy’s International, LLC’s (“Wendy’s”) and the Board’s eventual settlement with Wendy’s concerning the same. Id.
3
6.3 Resources and Communications Departments. Anything you say or post may be construed as representing the Company’s opinion or point of view (when it does not), or it may reflect negatively on the Company. If you wish to make a complaint or report a complaint or troubling behavior, please follow the complaint procedure in the applicable Company policy”;
• “Respect copyrights and similar laws. Do not use any copyrighted or otherwise protected information or property without the owner’s written consent”;
• “[You may not e]mail, post, comment or blog anonymously. You may think it is anonymous, but is most likely traceable to you and the Company”;
• “[You may not m]ake false or misleading representations about your credentials or your work”; and
• “Be thoughtful and respectful in all your communications and dealings with others, including email and social media. Do not harass, threaten, libel, malign, defame, or disparage fellow professionals, employees, clients, competitors or anyone else. Do not make personal insults, use obscenities or engage in any conduct that would be unacceptable in a professional environment.”11
The memorandum does, however, identify some social media provisions which the Board explains are lawful, including:
• “Do not comment on trade secrets and proprietary Company information (business, financial and marketing strategies) without the advance approval of your supervisor, Human Resources and Communications Departments”;
• “Do not make negative comments about our customers in any social media”;
• “Use of social media on Company equipment during working time is permitted if your use is for legitimate, preapproved Company business. Please discuss the nature of your anticipated business use and the content of your message with your supervisor and Human Resources. Obtain their approval prior to such use”;
11 Id.
4
6.4 • “Respect copyright, trademark and similar laws and use such protected information in compliance with applicable legal standards”;
• “Be thoughtful in all your communications and dealings with others, including email and social media. Never harass (as defined by our anti- harassment policy), threaten, libel, or defame fellow professionals, employees, clients, competitors or anyone else. In general, it is always wise to remember what you say in social media can often be seen by anyone. Accordingly, harassing comments, obscenities or similar conduct that would violate Company policies is discouraged in general and is never allowed using Wendy’s equipment or during your working time.”12
In addition to the Operations Management memoranda discussed above, recent cases
reflect the NLRB’s view on social media:
• Triple Play Sports Bar, 361 NLRB No. 31 (Aug. 22, 2014) (holding that Triple Play violated Section 8(a)(1) of the NLRA by threatening to terminate, and actually terminating, employees due to their participation in a Facebook status discussion (with profane language) concerning claims that they owed taxes because of the employer’s withholding mistakes as well as the “liking” of a Facebook status by one of the employees);
• Metro-W. Ambulance Serv., Inc., 360 NLRB 124, 2014 WL 2448663, at *1, *16, *41-42 (May 30, 2014) (holding that employer unlawfully retaliated against a paramedic’s Section 7 activities where the paramedic set up a pro-union Facebook page “to provide a forum for employees to discuss the Union” and the employer subsequently placed him a performance improvement plan);
• Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012)13 (holding that Costco's electronic posting policy, prohibiting posting that "damage the Company, defame any individual or damage any person's reputation," violated the NLRA because it could deter employees from participating in protected Section 7 communications critical of Costco);14
12 Id. 13 Costco was decided during the now invalid “Noel Canning” period (see National Labor Relations Board v. Noel Canning, 134 S.Ct. 2550 (2014)). As of December 30, 2014, the case had been dismissed at the appellate level, but is open before the Board. See http://www.nlrb.gov/case/34-CA-012421 (last accessed 3/23/15). 14 Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012) was another important case in which the Board found it unlawful for a non-profit organization to terminate five employees for posting Facebook comments about a coworker who planned to complain to management about their work performance, and determining that such postings constituted protected concerted activity. But Hispanics United was decided during the now invalid Noel Canning period, and the online docket with the NLRB
5
6.5 • Design Technology Group, LLC d/b/a Bettie Page Clothing, 361 NLRB No. 79 (Oct. 31, 2014), appeal pending, Case No. 14-1232 (D.C. Cir.).15 (holding that an employer unlawfully terminated employees who complained to management about working late hours in an unsafe neighborhood and who later continued their protest on Facebook, because, inter alia, they amounted to complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns).16
As is plain from the above, the NLRB continues to take a broad position on employees’
rights under the NLRA in relation to social media. Notwithstanding the broad scope of
protection the NLRB seeks to afford social media expressions in recent years, the fact remains
that other cases and advice memos have previously found a handful of circumstances where
social media speech was unprotected. See, e.g., Advice Memorandum from the NLRB Office of
Gen. Counsel (August 13, 2012) (explaining that employers may require employees to post
disclaimers on social media to state their views are their own and not those of their employer);17
Flagstaff Medical Center, Inc., 357 N.L.R.B. 65 (2011), enf’d, 715 F.3d 928 (D.C. Cir. 2013)
(approving of hospital’s policy prohibiting the use of portable electronic equipment, including
iPods and cameras, during work time as well as the use of cameras for recording images of the
hospital’s property, patients, and equipment); Richmond District Neighborhood Center et al.,
361 N.L.R.B. 74, 2014 WL 5465462 (October 28, 2014) (finding that employees’ statements in a
references some form of settlement and lists the case as closed. See http://www.nlrb.gov/case/03-CA- 027872 (last accessed 3/23/15). 15 Originally, this case decision issued as 359 NLRB No. 96 (Apr. 19, 2013), but it was re-visited and some adjustments made after the Noel Canning invalidation. It is now on appeal. 16 Another case of interest was Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012), in which the NLRB affirmed an ALJ's findings that a car dealership did not violate the NLRA after it terminated a salesperson for his posts on Facebook that were unrelated to terms of employment (i.e., the posting of pictures and flippant remarks about a car accident that had occurred at his employer’s Land Rover dealership across the street). But this too was decided during the invalid Noel Canning period, and now the online docket shows the case as closed with no new decision. See http://www.nlrb.gov/case/13-CA- 046452 (last accessed 3/23/15). 17 Although this Memorandum was originally prepared in August 2012, the NLRB did not release it until September 2014. The Memorandum can be found at http://www.nlrb.gov.
6
6.6 Facebook conversation lost protection under the NLRA where the statements advocated
insubordinate acts such as “[l]et’s fuck it up. I would hate to be the person takin your old job,”
“[l]et’s do some cool shit, and let them figure out the money,” and “[f]uck em. Field trips all the
time to wherever the fuck we want!”); Landry’s Inc., No. 32-CA-118213 (N.L.R.B. A.L.J. June
26, 2014) (holding that the employer’s handbook policy which stated, “the Company urges all
employees not to post information regarding the Company, their job, or other employees which
could lead to morale issues in the workplace or detrimentally affect the Company’s business” did
not violate the NLRA) (emphasis added).18
Although not addressing social media, also noteworthy is the NLRB’s recent finding that
it is presumptively unlawful for an employer to prohibit employees who already have been given
access to the company’s e-mail system for work purposes from using their company e-mail
accounts to engage in protected activities on non-working time. See Purple Communications,
Inc., 361 NLRB No. 126 (Dec. 11, 2014). It is yet to be seen what impact Purple
Communications will have on employees’ use of social media or other forms of communication.
18 See also Endicott Interconnect Technologies, Inc., 345 N.L.R.B. 448, 2005 WL 2115872 (Aug. 27, 2005), enf. denied, order vac'd, 453 F.3d 532 (D.C. Cir. 2006) (overruling the NLRB’s decision that an employee’s comments on an internet posting were protected and explaining that the employee’s statement on a newspaper’s “public forum” were detrimentally disloyal and his discharge did not violate the NLRA); Wal-Mart, 2011 WL 3223852 (N.L.R.B.G.C. Jul. 19, 2011) (finding that an individual profane rant on Facebook was not protected); Martin House, 2011 WL 3223853 (N.L.R.B.G.C. 2011) (ruling that there was no violation of the NLRA when an employee was fired for inappropriate Facebook comments concerning disabled clients); JT’s Porch Saloon & Eatery, Ltd., 2011 WL 2960964 (N.L.R.B.G.C. Jul. 7, 2011) (finding that complaints on Facebook about work were not protected activity); Lee Enterprises, Inc., d/b/a Arizona Daily Star, 2011 WL 1825089 (N.L.R.B.G.C. Apr. 21, 2011) (holding that the employer did not violate the NLRA when it fired an employee for inappropriate and unprofessional tweets, after having warned the employee against them); Monmouth Ocean Hospital Service, 2010 WL 4685855 (N.L.R.B.G.C. May 5, 2010) (finding that the employer did not violate the NLRA by disciplining employees based upon postings that did not involve protected concerted activity or union activity); Sears Holdings (Roebucks), 2009 WL 5593880 (N.L.R.B.G.C. Dec. 4, 2009) (finding that the social media policy at issue did not violate NLRA).
7
6.7 B. Social Media and Florida’s Public Employees Relations Act
It is expected that social media utterances do and will have some level of protection
under the Public Employees Relations Act, Chapter 447, Part II, Florida Statutes (“PERA”). In
general, the Florida Public Relations Commission follows the well-known Pasco County test, so
such a claim would require a showing by a preponderance of evidence that the conduct was
protected and it was a substantial and motivating factor in the employer’s decision.19 If the
employer was motivated by an impermissible reason under the Act, the burden shifts to the
employer to demonstrate that it would have taken the same adverse action anyway.20 To be
protected, the conduct must also be concerted in nature, that is, whether the conduct is for “the
well-being of fellow employees.”21 For a contract grievance to be protected under the Act, it has
to seek more than personal benefits for the grievant or it must have been “prepared in
collaboration with or on behalf of employees other than himself.”22 This means that, at least thus far under PERA, personal complaints about work or a supervisor do not constitute protected concerted activity and “criticism for ‘criticism’s sake”’ is treated as mere griping and not as an effort to obtain a remedy over wages, hours, and other terms and conditions.23 As a result, when
the social media postings at issue are limited to what the Commission would consider griping
alone, protection may be unlikely.
Very few cases have been decided on social media issues under PERA, but several bear
mentioning here. First, in Orange County Professional Fire Fighters, IAFF v. Orange County
Board of County Commissioners, 38 FPER ¶ 131 (2011), the Commission defined the
19 See Pasco County. Sch. Bd. v. Fla. Pub. Emp. Relations Comm’n, 353 So. 2d 108, 117 (Fla. 1st DCA 1977). 20 Id. 21 Enrico v. City of Cape Coral, 39 FPER ¶ 185 (2012). 22 Lewis v. City of Mount Dora, 8 FPER ¶ 13260 (1982). 23 Palm Beach County Firefighters v. City of Palm Beach Gardens, 17 FPER ¶ 22052 (1991), aff’d, Palm Beach County Firefighters v. City of Palm Beach Gardens, 590 So. 2d 50 (Fla. 4th DCA 1991).
8
6.8 parameters permitted for a public sector social media policy under PERA, holding that certain
portions of a policy were overbroad and thus not permitted under PERA. Specifically, the
hearing officer found that the verbiage from Section 4.1 of the Standard Operating Procedures
(“SOP”) at issue, which stated: “Employees of the Department shall not criticize or ridicule or
debase the reputation of the Department, its policies, its officers or other employees” was overly
broad. The hearing officer also found unlawful SOP subsections 4.1(b) and (c), which restricted
employees from posting communications on social media websites that “tend[ed] to interfere
with the maintenance of proper discipline; and/or damages or impairs the reputation and/or
efficiency of the Department or its employees.” In so holding, the hearing officer relied on
another recent case, Dickey v. David Gee, Sheriff of Hillsborough County,24 regarding social
media that involved similar employer imposed restrictions on non-employer websites.
Dickey is one of several individual social media related disputes. In Dickey, the
Commission concluded that a police union president engaged in protected concerted activity
when his two articles were posted on the union’s website discussing contract issues, and which
also contained disparaging, belittling, and insubordinate statements about the sheriff’s chief
deputy.25 Another case, Gator Lodge 67, Inc., Fraternal Order of Police, et al v. Sheriff of
Alachua Count, involved the working hours prohibition under PERA, and caused PERC to
dismiss a charge involving a union official disciplined for using the employer's email system to
urge employees to vote against a pending labor agreement negotiated by an incumbent union and
24 35 FPER ¶ 191 (2009), per cur. aff’d, 32 So. 3d 631 (Fla. 2d DCA 2010). 25 Dickey, 35 FPER ¶ 191. Had the case involved speech or an activity that was libelous, coercive, physically threatening, or “create[d] a real threat of immediate disruption in the workplace,” it likely would not have been protected. See, e.g., Palm Beach Junior College, 11 FPER ¶ 16101; Miami Ass’n of Fire Fighters, 11 FPER ¶ 16007 (1984). Similarly, “[i]nsubordinate behavior, including a verbal act, that creates a real threat of disruption in the workplace is not protected even if the employee acts in concert with others.” Palm Beach Gardens, 17 FPER ¶ 22052 (1991).
9
6.9 encouraged the fellow employees to join his competing union.26 Also of note in the public employee context is a recent career service decision involving emails sent privately but via a
Facebook account which included as part of its public profile a clear identification of the sender as a police officer with the Florida School for the Deaf and Blind. See Bryant v. Florida School
for the Deaf and Blind, 26 FCSR 206 (2011) per. cur. aff’d., 85 So. 3d 488 (Fla. 1st DCA 2012).
Termination for misconduct was ultimately upheld.27
C. Social Media in Workplace Investigations
Whether they are acting in their own self-interests or trying to avoid liabilities for failing to properly investigate workplace violations, employers routinely conduct investigations into the activities of employees and prospective employees by reviewing these employees’ social media accounts. Such a practice presents both benefits and risks. For example, on the defense side, social media has helped the defense in a pair of FMLA cases where the employer suspected abuse. See, e.g., Lineberry v. Detroit Medical Ctr., No. 11-13752, 2013 WL 438689 (E.D. Mich.
Feb. 5, 2013) (finding that the employer had an honest suspicion of FMLA fraud where the
employee admitted to lying after being confronted with Facebook photos of the employee on
vacation in Mexico); Jaszczyszyn v. Advantage Health Physician Network, 504 F.App’x 440
(6th Cir. 2012) (upholding the termination of a plaintiff on intermittent FMLA who posted
pictures of herself attending a Polish heritage festival where she spent eight hours socializing
with friends and, after several of Plaintiff’s coworkers saw the pictures, was reported to her
supervisor, who investigated the same).
26 Gator Lodge 67, Inc., Fraternal Order of Police, et al v. Sheriff of Alachua County, 36 FPER ¶ 16 (2010), per cur. affd., 50 So.3d 1139 (Fla. 1st DCA 2011). 27 Id.
10
6.10 Likewise, reviewing a prospective employee’s social media account may provide
employers insight into the employee and whether he/she may be the best candidate for a position.
When investigating prospective employees through social media, employers generally may rely on publicly-available information posted by the applicant on a social media website,28 however,
employers must keep in mind that the information posted on social media websites may not be
entirely inaccurate. Furthermore, employers should consider the risks of conducting such
investigations. Indeed, accessing information through social media poses the risk of stumbling
upon a person’s legally protected characteristics and could lead to the discovery of information
regarding an applicant that may be unlawful to consider during the interview process. 29 Should employers conduct social media investigations, it is important that they retain the results of their
search, especially if a candidate is disqualified from employment as a result of his or her postings
or social media behavior. See Butler v. Edwards-Brown, No. 13-1378, 2014 WL 1776035 (E.D.
Mich. May 5, 2014) (denying summary judgment in part due to the absence of the exact text that
the plaintiff posted on her Facebook account and upon which the defendants relied in denying
her work assignments).
Despite some of the benefits that social media investigations provide, there has been a
trend to curb employers’ access to employees’ and prospective employees’ social media
accounts. Indeed, eighteen states now restrict employers’ abilities to demand that employees
and/or applicants disclose means for accessing their personal social media accounts (i.e., user
28 See Christine Lyon and Melissa Crespo, Employer Access to Employee Social Media: Applicant Screening, ‘Friend’ Requests and Workplace Investigations (March 17, 2014), available at http://media.mofo.com/files/Uploads/Images/140317-Employee-Social-Media.pdf. 29 Such issues were specifically discussed during a March 12, 2014, hearing held by the EEOC concerning employers’ use of social media. See http://www.eeoc.gov/eeoc/newsroom/release/3-12- 14.cfm.
11
6.11 names and passwords).30 This trend has gained momentum within the last few years and is
likely to continue. States began enacting these laws in 2012 and, in 2014 alone, six states
(Louisiana, Oklahoma, Rhode Island, Tennessee, and Wisconsin) enacted them.31 These statutes
provide a variety of protection to employees. As for applicant screening, many of them prohibit
employers from requesting log-in credentials, permission to view social media accounts, and
privacy setting changes.32 With respect to workplace investigations, some of the statutes provide
limited exceptions for such investigations, while others do not.33 For example, Illinois and
Nevada do not provide any exception for workplace investigations that might require access to
an employee’s personal social media accounts.34 In contrast, California, Oregon, and
Washington provide exceptions to investigations of legal violations and alleged misconduct,
allowing employers to ask employees to provide social media account content relating to alleged
misconduct.35 Still, Arkansas permits an employer to request any employee’s social media login
credential to investigate workplace misconduct.36 Notably, all but one of the state statutes
(Oklahoma) exempt devices or accounts provided by the employer to the employee from protection.37
Beyond the specific statutes discussed above, and as addressed more fully in Section F
infra, employers may risk potential violations of the Stored Communications Act by accessing employees’ social media accounts as part of workplace investigations.
30 See Bryan Knedler and William Welkowitz, States Continue to Protect Workers’ Social Media Privacy in 2014, BNA Social Media Law & Policy Report (February 10, 2015) available at http://www.bna.com/states-continue-protect-n17179922967/. 31 Id. Notably, in 2014, the Florida Senate attempted to pass a social media privacy statute, however, the bill died in committee. See https://www.flsenate.gov/Session/Bill/2014/0198. 32 See Lyon and Crespo, supra note 28. 33 Id. 34 Id. 35 Id. 36 Id. 37 See Knedler and Welkowitz, supra note 30.
12
6.12 D. Social Media and Harassment/Retaliation/Discrimination
The workplace is no longer limited to a nine-to-five schedule. Cell phones and other
digital devices connect employees to each other constantly. This added connectivity allows for
greater employee engagement and can lead to better employee morale. However, it also creates
opportunities for harassment and blurs boundaries of appropriate conduct. Employers must keep
in mind that governmental agencies and courts have viewed harassment via social media and
digital devices in the same manner as they view face-to-face harassment. Even where employees
post harassing comments about coworkers outside the workplace, employers may be liable for a
hostile work environment if they were aware of the comments or if the employee posting the
comments used devices or accounts owned by the employer. Indeed, it was noted during a
January 14, 2015, meeting held by the EEOC that workplace harassment is alleged in roughly 30
percent of all EEOC charges and that the ease of posting and responding to messages and images
through social media has spawned employee complaints of harassment.38
Recent cases highlight the seriousness of employee harassment through social media.
For example, in Espinoza v. County of Orange, No. G043067, 2012 WL 420149 (Cal. App.
2012), the California Court of Appeals upheld a $1.6 million verdict against an employer where
the plaintiff was harassed by co-workers on a blog who reported the harassment to his supervisor
which was not addressed. Additionally, in August 2012, the EEOC reached a $2.3 million
settlement with national retailer Fry’s Electronics in a case involving an assistant store manager
sending frequent sexually charged text messages to a twenty-year-old sales associate.39
38 See EEOC Press Release, Workplace Harassment Still a Major Problem Experts Tell EEOC at Meeting (January 14, 2015) available at http://www.eeoc.gov/eeoc/newsroom/release/1-14-15.cfm. 39 See EEOC Press Release, Fry’s Electronics Pays $2.3 Million to Settle EEOC Sexual Harassment and Retaliation Lawsuit (August 30, 2012) available at http://www.eeoc.gov/eeoc/newsroom/release/8-30- 12.cfm.
13
6.13 Another interesting case is Amira-Jabbar v. Travel Services, Inc., 726 F. Supp. 2d 77 (D.
P.R. 2010). In Amira-Jabbar, the plaintiff sued her former employer under Title VII for harassment on the basis of race due, in part, to allegedly racially derogatory comments by a co- worker concerning the plaintiff on a social networking site.40 The comments at issue were posted in the caption of a photo displayed on the co-worker’s personal Facebook page depicting the plaintiff and other co-workers at a work-related function.41 The plaintiff argued that her former employer was liable for the Facebook comment because it allowed employees to post comments and photos on social networking sites during company time and for company purposes.42 The harassment claim was ultimately dismissed by the court as not sufficiently severe and/or pervasive to create a hostile work environment and because the employer promptly investigated the plaintiff’s complaint and took prompt, remedial action (including the blocking of employee access to the various social media platforms on all office computers).43 However, the facts of the case raises the issue of whether employee access to social media platforms during work hours or for work purposes will cause or contribute to employer liability.
Notably, other courts have found that a manager’s social media posts concerning a terminated employee could be relied on to find the employer liable for retaliation. See Stewart v.
CUS Nashville, LLC, No. 3:11-CV-0342, 2013 WL 456482, at *11 (M.D. Tenn. Feb. 6, 2013).
Additionally, there also has been at least one case within the Eleventh Circuit in which social media became an issue of claimed disparate treatment. Specifically, Tiffany Marshall sued the
City of Savannah, Georgia and several individual defendants under 42 U.S.C. § 1983 and Title
VII, alleging that the city subjected her to gender discrimination and retaliation through the
40 Id. at 83-84. 41 Id. 42 Id. 43 Id.
14
6.14 enforcement of its workplace policies in the context of her social networking activity. See
Marshall v. Mayor and Alderman of the City of Savannah, Georgia, 366 Fed. App’x 91 (11th Cir.
2010). The plaintiff, who was employed as a firefighter, was reprimanded for conduct
detrimental to the department when she posted work-related photos and department training and
recruitment videos without authorization on her personal MySpace account which also contained
personal modeling photos of a provocative nature containing partial nudity.44 The employee claimed that she was not given the same opportunity to remove the offending photos as similarly situated male employees.45 Although the court ultimately found that the employee’s claims were
meritless, the case brings to mind yet one more source of possible liability in the social media
context.
E. Public Employees’ Privacy Rights In Social Media
1. Social Media Protections under the First Amendment
Within the Eleventh Circuit, a public employee can sustain a claim of retaliation for
protected speech under the First Amendment if the employee can show the following by a
preponderance of the evidence:
(1) the employee’s speech is on a matter of public concern; (2) the employee’s First Amendment interest in engaging in the speech outweighs the employer’s interest in prohibiting the speech to promote the efficiency of the public services it performs through its employees; and (3) the employee’s speech played a “substantial part” in the employer’s decision to demote or discharge the employee. Once the employee succeeds in showing the preceding factors, the burden then shifts to the employer to show, by a preponderance of the evidence, that “it would have reached the same decision . . . even in the absence of the protected conduct.”
44 366 Fed. App’x 94. 45 Id. at 96.
15
6.15 Battle v. Bd. of Regents, 468 F.3d 755, 760 (11th Cir. 2006) citing Anderson v. Burke County,
Ga., 239 F.3d 1216, 1219 (11th Cir. 2001) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 97 S.Ct. 568, 576 (1977)).
The Battle court went on to explain that “[i]n determining whether a public employee’s
speech is entitled to constitutional protection, we must first ask whether the employee spoke as a
citizen on a matter of public concern. If the answer is no, the employee has no First Amendment
cause of action based on his or her employer’s reaction to the speech.” Battle at 760 citing
Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006) (citations omitted); see also Morgan v. Ford, 6
F.3d 750, 754 (11th Cir. 1993) (noting, “we consider whether the speech at issue was made
primarily in the employee’s role as citizen, or primarily in the role of employee”) (citations and
internal quotations omitted). Furthermore, the United States Supreme Court has explained that,
“when public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti, 126 S. Ct. at 1960.
The application of First Amendment principles to speech in the context of social media
has been growing. Spanierman v. Hughes serves as one of the early cases demonstrating the
application of the First Amendment to social media postings.46 In Spanierman, a high school
teacher’s MySpace page contained inappropriate pictures of naked men as well as conversations
between the teacher and his students about non-school related items including “what [students] did over the weekend at a party, or about their personal problems.”47 After a school guidance
counselor expressed concern, the page was deactivated but a new and similar MySpace profile
46 Spanierman v. Hughes, et al, 576 F. Supp. 2d 292 (D. Conn. 2008). 47 Id. at 298.
16
6.16 and page created by the plaintiff soon followed.48 The school district eventually decided to not
renew the plaintiff’s contract and he sued alleging several claims, including First Amendment
retaliation.49
Addressing first the issue of whether the MySpace page was part of the teacher’s official
duties under Garcetti, the Court concluded it was not, and thus rejected Garcetti’s application.50
But upon reaching the issue of whether the speech at issue was a matter of “public concern,” the
district court found that at least one element of the page (a poem demonstrating opposition to the
Iraq war) could be considered a protected political statement. 51 The bulk of the communications
and posts were not of public concern, however, because, as noted by the Court, “[t]he majority of
the profile page consisted of personal conversations between the Plaintiff and other MySpace
users or creative writing.”52 The arguably protected posting (the poem) could not save the plaintiff’s First Amendment claim, however, because the district court further concluded that the
plaintiff could not link the poem to the adverse action.53
That is not to say that protection under the First Amendment cannot exist or is never afforded. The First Amendment can and has been applied to cover public employee speech in the social media context. See, e.g., Velazquez v. Autonomous Municipality of Carolina, et al,
48 Id. at 298-299. 49 Id. at 299, 308. 50 Id. at 309. 51 Id. at 310-11. 52 Id. at 310. 53 Id. at 311-312. See also Curran v. Cousins, 509 F.3d 36 45-50 (1st Cir. 2007) (affirming judgment on pleadings and explaining that, while some of the correction officer’s posts on a website were of public concern, the nature of portions of the speech at issue were such that no First Amendment violation found); but see, Beyer v. Duncannon Borough, 34 IER Cases (BNA) 719, 2012 WL 4506044 (M.D. Pa. 2012) (denying summary judgment for Council where a police officer spoke as a private citizen about matters of public concern when he posted anonymous online commentary discussing the negative impact of the Council’s decision to remove certain rifles from service). The plaintiff in Spanierman also brought a “Freedom of Association” claim, which the court rejected by finding his MySpace page was not an “organization” for the purposes of advocating a public concern and, even if it was, he could not establish the requisite causal connection. Spanierman, 576 F. Supp. 2d. at 313-314.
17
6.17 No. 11-1586, 2012 WL 6552789 at *9 (D. P.R. Dec. 14, 2012) (holding that the plaintiff stated a
First Amendment retaliation claim based on Facebook comments criticizing her employer for
“making decisions that jeopardized the smooth and efficient operations of the Municipal Police .
. . , putting in harms way the life of fellow officers” and for posting pictures of a fellow
employee sleeping on the job); Greer v. City of Warren, No. 1:10-cv-01065, 2012 WL 1014658 at *7 (W.D. Ark. Mar. 23, 2012) (ruling that a confederate flag display on a police officer’s
MySpace page was protected speech); Love v. Rehfus, et al, 946 N.E.2d 1 (Ind. 2011)
(concluding that a firefighter’s email criticizing administration and supporting a political
candidate was protected public-employee speech); see also, Navab-Safavi v. Broadcasting Bd.
Of Governors, et al, 650 F. Supp. 2d 40 (D.D.C. 2009), aff’d., 637 F.3d 311 (D.C. Cir. 2011)
(finding that a contractor terminated over a YouTube video protesting the Iraq War had
sufficiently pled a First Amendment claim so as to survive a motion to dismiss).
Not all claims have met with success. See, e.g., Dible v. City of Chandler, 515 F.3d 918
(9th Cir. 2008) (ruling that a police officer terminated for operating a sexually explicit website did not have a viable First Amendment claim); Richerson v. Beckon, No. C07-5590, 2008 WL
833076 (W.D. Wash. 2008) (finding that a school district’s involuntary reassignment of a teacher
due to inappropriate blog comments did not violate the First Amendment); Ranck v. Rundle, No.
08-22235-CIV, 2009 WL 1684645 (S.D. Fla. June 16, 2009) (holding that a public employer had
legitimate grounds for taking an adverse employment action and that employee, an Assistant
State Attorney, could not establish a violation of his First Amendment rights when he was
suspended for thirty days without pay. Although a memo relating to an ongoing investigation in
the employee’s blog was protected speech entitled to First Amendment protection, the employer
provided several other reasons for the adverse employment action, including the employee’s lack
18
6.18 of candor in securing approval for payment of expert witness fees and additional blog entries
with unprotected and disrespectful comments about the employee's superiors); see also, Yoder v.
University of Louisville, No. 3:09-CV-00205, 2012 WL 1078819 (W.D. Ky. Mar. 30, 2012)
(finding that a nursing student’s First Amendment claim failed where the student posted patient information on the student’s MySpace page in violation of the school’s confidentiality agreement); Snyder v. Millersville University, No. 07-1660, 2008 WL 5093140 (E.D. Pa. Dec. 3,
2008) (denying an injunction sought by a student teacher whose MySpace page contained
admittedly personal pictures of her as a “drunken pirate,” and which in turn led to student not
completing teaching practicum).
Moreover, applying First Amendment principles has become somewhat mired in
controversy since the Bland, et. al v. Roberts decision in which a United States district court held
that merely “liking” a Facebook post was “insufficient speech to merit constitutional
protection.”54 In the lower court Bland case, a deputy sheriff “liked” the Facebook page of a
person running against the current Sheriff.55 After the election, the Sheriff decided not to retain
several employees and several sued alleging that Sheriff Roberts retaliated against them for their
support of his opponent in the election.56 Rejecting the deputy sheriffs’ claim that clicking
Facebook’s “like” button triggered First Amendment protection, the district court found that
“[i]n cases where courts have found that constitutional speech protections extended to Facebook
posts, actual statements existed within the record.”57 Thus the district court explained:
54 857 F. Supp. 2d 599 (E.D. Va. 2012). 55 Id. at 603. 56 Id. at 601-602. 57 Id. at 603-604. In that regard, the Court cited to Mattingly v. Milligan, No. 4:11CV00215, 2011 WL 5184283 (E.D. Ark. Nov. 1, 2011) and Gresham v. City of Atlanta, No. 1:10-CV-1301, 2011 WL 4601022 (N.D. Ga. Aug. 29, 2011), report and recommendation adopted in part, rejected in part on other grounds, No. 1:10-CV-1301, 2011 WL 4601020 (N.D. Ga. Sept. 30, 2011), adhering to on reconsideration, No. 1:10-CV-1301, 2012 WL 1600439 (N.D. Ga. May 7, 2012), affd., No. 1:10-CV-
19
6.19 No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.58
However, and probably not surprisingly, the lower court Bland was reversed on appeal.59
Indeed, various commentators had weighed in with the perspective that “liking” someone on
Facebook is sufficient, and even the ACLU filed an amicus brief in Bland to reverse the lower
court ruling.60 Thus, the Fourth Circuit's explanation on the issue of “liking” on Facebook that
“liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it" was not unexpected.61 As further
explained by the appellate court, "liking" is "the Internet equivalent of displaying a political sign
in one’s front yard, which the Supreme Court has held is substantive speech."62
2. Fourth Amendment Issues: From O’Connor to Quon and Beyond
Since the landmark decision in O’Connor v. Ortega, 480 U.S. 709 (1987), it has been
well established that the Fourth Amendment protects public employees from unreasonable
searches. In the context of social media, however, which often can involve technology searches,
the Supreme Court has not always been clear in defining what is “unreasonable.” The
framework for Fourth Amendment analysis under O’Connor involves first determining whether
1301, 2013 WL 5645316 (11th Cir. Oct. 17, 2013), the latter of which was recently affirmed. 58 857 F. Supp. 2d at 604 (italics in original). 59 Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Va. 2012), aff’d. in part, rev’d. in part, 730 F.3d 368 (4th Cir. 2013). 60 See Brief of Amici Curiae American Civil Liberties Union and ACLU of Virginia in Support of Plaintiffs-Appellants’ Appeal Seeking Reversal, No. 12-1671, 2012 WL 3191380 (4th Cir. Aug. 6, 2012). 61 730 F.3d at 386. 62 Id. at 386.
20
6.20 an employee had a legitimate expectation of privacy.63 Even if such an expectation exists, the
employer may still conduct the search as long as the purpose of the search is legitimate at its
inception and the scope of the search is reasonably related to the employer’s objectives.64
In the years leading up to City of Ontario v. Quon,65 much of the litigation centered on
specific facts of the search, the clarity of an employer’s policies regarding computer searches, and the reasonableness of a search in a given circumstance. Typically, plaintiffs whose circumstances surrounding computer use negated privacy expectations have generally fared poorly under the Fourth Amendment, often in a criminal context on a motion to suppress evidence gathered, with courts frequently finding no reasonable expectation of privacy as to computers and documents created there.66 In other cases, individuals have been able to establish
a privacy expectation, although that alone is not a guarantee of success.67
63 480 U.S. at 717-719. 64 Id. at 730. 65 130 S.Ct. 2619 (2010). 66 See, e.g., Biby v. Board of Regents of the Univ. of Nebraska, 419 F.3d 845 (8th Cir. 2005) (holding that the search of a computer by the employer in context of discovery request in litigation was not in violation of the Fourth Amendment); Cf., U.S. v. Ziegler, 474 F.3d 1184 (9th Cir. 2007) (finding that, while a defendant in criminal case had expectation of privacy in office and computer, the employer owned the computer and its consent to search was valid); U.S. v. Barrows, 481 F.3d 1246 (10th Cir. 2007) (finding, on motion to suppress, that a City employee had no expectation of privacy in a personal computer he voluntarily brought to work and used to network into the work system); Doe v. XYC Corp., 887 A.2d 1156 (App. Div. 2005) (finding no reasonable expectation of privacy in a work computer and internet access in the context of claim against the employer for failure to act after notice of the employee’s inappropriate actions); U.S. v. Reilly, No. 01CR.1114, 2002 WL 1163572 (S.D. NY June 3, 2002) (ruling, on motion to suppress, that there was no expectation of privacy in the defendant’s office and seizure of disks was permitted under Fourth Amendment); United States v. Angevine, 281 F.3d 1130, 1135 (10th Cir. 2002) (rejecting suggestion that the “Fourth Amendment protects employees who slip obscene computer data past network administrators in violation of public employer’s reasonable office policy”). 67 See, e.g., Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001)(upholding search, but finding a reasonable expectation of privacy in a work computer and matters contained therein based on facts presented despite an official policy prohibiting use of state equipment for personal business); Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010) (holding that, under state law privacy analysis, there was a reasonable expectation of privacy in communications of the employee with her lawyer via a personal, password-protected email account, even if accessed on an employer-issued computer); but see,
21
6.21 City of Ontario v. Quon is one of the most recent examples of how the Supreme Court
will examine these issues. The issue before the Supreme Court was the Ontario Police
Department’s search of an employee’s text messages on his employer-issued pager. Not
surprisingly, the Police Department had a policy under which it reserved “the right to monitor
and log all network activity, including email and internet use, with or without notice to
employees.”68 Employees were told text messages would be treated the same as emails and the policy stated that “users should have no expectation of privacy or confidentiality when using these resources.”69
Even though the Police Department had a policy that all text messages were subject to
monitoring, the employee’s supervisor suggested to him and several other officers that he would
not enforce the policy of inspection, and instead allowed officers, including the employee, to
incur overage fees for texts beyond the limit allotted by the City’s contract.70 After an audit that
included a review of the text messages, the Police Department learned that many of the
employee’s messages were personal and he was disciplined for violating the department’s
policy.71 The employee and several other officers sued under the Fourth Amendment, but the
Supreme Court held that the search of the text messages was reasonable and therefore did not
violate the Fourth Amendment.72 Before ruling, the Court first expressed concern over broadly defining privacy expectations as they relate to electronic equipment in the workplace, stating:
The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear… Prudence counsels caution before the facts in the instant case are used to establish
In re Information Management Services, 2013 WL 4772670 (Del. Ch. 2013)(rejecting privilege when work email used). 68 Id. at 2625. 69 Id. at 2625. 70 Id. at 2625-26. 71 Id. at 2626. 72 Id. at 2633.
22
6.22 far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer provided communication devices.
Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. . . . At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve. . . . A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.73
Therefore, rather than issuing a broad holding as to the extent of public employee privacy
rights regarding employer-provided electronic devices, the Court instead made certain key
assumptions as a predicate to its ruling, namely that the employee had a reasonable expectation of privacy in the text messages sent on the employer-provided pager; that the department’s viewing of the texts was a search under the Fourth Amendment; and that the standards applicable to office searches applied equally to the search of a government employee’s employer-provided electronic device.74 With that, the majority then found that the search was justified because there
were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory
work-related purpose,”75 and that its scope was reasonable because it was limited to two months and reading the transcript was an efficient way to determine if the device was used for personal activity.76 The Court also found it was unreasonable for the employee to believe that his
personal communications on an employer-provided device would be immune from an audit.77
Thus, the Court found that, even assuming both the reasonable expectation of privacy and that
73 Id. at 2629-2630 (internal citations omitted). 74 Id. at 2630. 75 Id. at 2631 (quoting O’Connor, 480 U.S. at 726). 76 Id. 77 Id.
23
6.23 the audit review was a search, O’Connor was satisfied because it was motivated by a legitimate work-related purpose and was not excessive in scope.78
Twitter privacy has also been the subject of Fourth Amendment litigation in recent months. In one recent case involving a student, Fourth Amendment protection was denied based on a lack of any reasonable privacy expectation. In so holding, the Court explained:
When a user with a public privacy setting tweets a message, he or she intends the message to be heard by the public at large. It just happens that typically the only people that read the tweet are the users' followers. A tweet from a user with public privacy settings is just a twenty-first century equivalent of an attempt to publish an opinion piece or commentary in the New York Times or the Las Vegas Sun. When a person with a public privacy setting tweets, he or she intends that anyone that wants to read the tweet may do so, so there can be no reasonable expectation of privacy.
See Roasio v. Clark County School District, 2013 WL 3679375, *5 (D. Nev. 2013).
This reasoning is consistent with the idea that there is no “limited-audience” expectation of privacy. As the Court explained:
A Twitter user with his or her privacy setting set to private has a more colorable argument about the reasonable expectation of privacy in his or her tweets than a user with a public setting. However, even with a private account, the user is still “disseminat[ing] his postings and information to the public, [and] they are not protected by the Fourth Amendment.”79
The Court in Roasio also rejected any suggestion that a Fourth Amendment violation occurred when one of the plaintiff's Twitter followers gave the tweets to the defendant, explaining:
… it is well-established that when a person shares information with a third party, that person takes the risk that third person will share it with the government. United States v. Choate, 576 F.2d 165, 175 (9th Cir. 1978) (“This Court has repeatedly held that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be
78 Id. at 2633. 79 Id. at *5-6 citing United States v. Meregildo, 883 F. Supp. 2d 523, 526 (S.D.N.Y. 2012) (explaining that, "[w]hen a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment").
24
6.24 used only for a limited purpose and the confidence placed in the third party will not be betrayed.”); United States v. White, 401 U.S. 745, 751–52 (1971)(“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”).
This logic applies with equal force in the social media context. When a person tweets on Twitter to his or her friends, that person takes the risk that the friend will turn the information over to the government. Meregildo, 883 F. Supp. 2d at 526 (“Where Facebook privacy settings allow viewership of postings by ‘friends,’ the Government may access them through a cooperating witness who is a ‘friend’ without violating the Fourth Amendment”).80
As is obvious from the above, Fourth Amendment issues have been and will continue to be litigated as the framework for analyzing its application to current technology evolves.
F. Other Employee Social Media Protections
The Electronic Communications Privacy Act (“ECPA”), 18 U.S.C.A. § 2510, was enacted by Congress “to update and to clarify federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.” 132 Cong. Rec. S.
14441 (1986). More recently, the ECPA was updated to include the Stored Communications Act
(“SCA”), 18 U.S.C. §§ 2701-2712, which prohibits the intentional access of stored communications without, or in excess of, authorization. Cases interpreting the application of these statutes in the context of social media are becoming more prevalent as the court systems catch up to the use of these technologies by society and in the workplace.
By way of example and of interest is the recent decision in Rodriguez v. Widener
University, No. 13-1336, 2013 WL 3009736 (E.D. PA June 17, 2013). In that case, and within the context of a motion to dismiss, the district court declined to dismiss a claim brought under the ECPA and SCA based on allegedly unlawful access to the plaintiff’s Facebook account. The university had argued that the posts “were accessible to the general public and/or forwarded to
80 Id. at *6.
25
6.25 [the defendants] by concerned students who had equal and permitted access to [the plaintiff’s]
Facebook postings.”81 However, because of the case posture (i.e., on a motion to dismiss), the court was unable to dismiss due to the absence of a factual basis in the complaint to support the public or non-public nature of the plaintiff’s Facebook page.82
The accessing of email, especially after an employee has left the company, also continues
to be problematic. Consider the recent case of Lazette v. Kulmatycki, 949 F.Supp.2d 748 (N.D.
Ohio 2013). In Lazette, the employee's former supervisor continued to access the plaintiff's
personal email account for some 18 months (and viewing some 48,000 emails) after her
departure, claiming he was “authorized” to do so both because the former employee had failed to
properly delete the account from her phone before turning it in and because she failed to tell the
employer not to access her personal emails during the 18 months following the end of her
employment.83 At the motion to dismiss stage, the court held that the SCA applied and declined
to dismiss the SCA claim.
While litigation continues to evolve in this area, some of the reported decisions have
helped to exemplify the breadth of ongoing litigation around this issue. See, e.g., Ehling v.
Monmouth-Ocean Hosp. Service Corp., 961 F.Supp.2d 659 (D. N.J. 2013) (finding that non-
public Facebook wall posts are covered by the SCA, but that the authorized user exception
applied when a Facebook friend on his own and without solicitation or coercion gave screen
shots to non-friend management); Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587
F.Supp.2d 548 (S.D. N.Y. 2008) (finding that the employer’s access of an employee’s personal e-mails, which were stored and accessed directly from accounts maintained by outside electronic
81 Id. at *8-9. 82 Id. 83 Id. at *3.
26
6.26 communication service provider, was unauthorized, and thus violated SCA where the employee
did not store any of the communications on the employer’s computers, servers, or systems, did
not send or receive such communications through the company e-mail system or computer, had a reasonable expectation of privacy in his personal, password protected e-mail accounts, and since nothing in the employer’s policy suggested that viewing of e-mail from a third party e-mail
provider over the employer’s computers would subject all personal e-mails on the account to
inspection); Lukowski v. County of Seneca, No. 08-CV-6098, 2009 WL 467075 (W.D.N.Y. Feb.
24, 2009) (interpreting the application of the ECPA and SCA to prohibit the defendant from compelling the disclosure by website chat room provider of user e-mail addresses and other
personally identifiable information for the purpose of identifying citizens responsible for posts
that were critical of county government officials); Pietrylo v. Hillstone Restaurant Group, No.
06-5754, 2008 WL 6085437 (D. N.J. July 25, 2008) (permitting an employee’s SCA claim to
proceed to trial on the issue of whether the employer obtained proper authorization to access
stored communications contained on the employee’s MySpace accounts when it obtained
usernames and passwords from the employee under apparent threat of adverse employment
action).
G. Discovery and Social Media
1. Discoverability of Social Media
Not surprisingly in this very digital age, litigation has already been building over access
to social media accounts in the context of litigation. Social media presents a potential treasure
trove of useful evidence, but can also be fraught with discovery disputes. The litigation can
generally be thought of as falling into several broad categories, namely litigation over
27
6.27 entitlement, litigation over who produces it (and how), and litigation over collateral issues
surrounding discovery.
As to the first, the litigation has evolved enough that it is probably safe to say that social
media material is generally going to be discoverable if the necessary thresholds are met, that is,
the material is relevant to a claim or defense and discovery of the same is not limited for reasons
of oppression, embarrassment and the like.84 The employment litigation in this area continues to
yield a number of cases permitting social media discovery. See, e.g., EEOC v. The Original
Honeybaked Ham Company of Georgia, Inc., No. 11-cv-02560, 2012 WL 5430974, *2-3 (D.
Col. Nov. 7, 2012) (establishing a special master process to facilitate the production and
inspection of Facebook material); Glazer v. Fireman’s Fund Ins. Co., No. 11Civ.4374, 2012 WL
1197167 (S.D.N.Y. Apr. 5, 2012) (ordering production of social media material); E.E.O.C. v.
Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (holding that postings on
social networking sites were discoverable regarding emotional or mental state or other references
to sexual harassment or emotional distress claims); Ledbetter v. Wal-Mart Stores, Inc., No. 06-
cv-01958, 2009 WL 1067018 (D. Colo. Apr. 21, 2009) (permitting the defendant to subpoena the
content of the plaintiffs’ social networking sites); Bass ex rel. Bass v. Miss Porter’s School, No.
3:08cv1807, 2009 WL 3724968 (D. Conn. Oct. 27, 2009) (allowing Facebook discovery); Beye
v. Horizon Blue Cross Blue Shield of New Jersey, Case 2007 WL 7393489, n. 3 (D. N.J. 2007)
(ordering the production of the plaintiff’s Facebook or MySpace postings shared with others).
It is interesting to note, however, that as litigation progresses, courts are becoming more attuned to the nuances of social media accounts (including the volume of information they contain), and are requiring that requesting parties hone their requests based on relevance. See,
84 See, e.g., Gensler, Steven S., Special Rules for Social Media Discovery, 65 Ark. L. Rev. 7 (2012) (discussing discovery parameters).
28
6.28 e.g., Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1347 (M.D. Fla. 2014) (noting that social media content is neither privileged nor protected by any right of privacy, but that this principle does not give defendants the right to serve overbroad discovery requests designed to rummage at will through information a plaintiff has limited from public view); Giacchetto v.
Patchogue-Medford Union Free School Dist., 293 F.R.D. 112 (E.D. N.Y. 2013) (limiting
discovery to postings that specifically referenced the plaintiff’s claimed emotional distress,
treatment she received, or alternative potential stressors as well as accounts of the events alleged
her amended complaint on social networking sites, whether contradictory or otherwise).85 Note also that the Stored Communications Act, discussed above, has, in several cases, served to block attempts to obtain access to social media via the provider itself.86 Facebook itself, on its website,
states its legal position that it is not subject to civil subpoenas because it is precluded from
disclosing user content under the SCA, but it now has a feature allowing users to download their
information themselves.87 Practitioners should also know that the SCA may not block access
when the information sought is stored on the computer itself.88
85 See also, Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. CA 2012) (holding that discovery requests for social networking site content must be reasonably calculated to lead to the discovery of admissible evidence and describe the information to be produced with reasonable particularity). 86 See, e.g., Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) (quashing subpoenas served on Facebook and MySpace and ruling that webmail and private messaging services provided on social networking and website hosting websites were not subject to subpoena under the Stored Communications Act); Chasten v. Franklin, No. C10-80205, 2010 WL 4065606 (N.D. Cal. Oct. 14, 2010) (ruling that a Yahoo email account was not subject to subpoena under the SCA); Barnes v. Cus Nashville, LLC, No. 3:09-0764, 2010 WL 2196591 (M.D. Tenn. May 27, 2010) (explaining that the SCA prohibits disclosure of information in response to a subpoena served on Facebook); see also, Hankins, Allen, Compelling Disclosure of Facebook Content Under the Stored Communications Act, 17 Suffolk J. Trial & App. Advoc. 295 (2012). 87 See https://facebook.com/help/133221086752707. 88 See, e.g., Thompson v. Ross, No. 2:10-cv-479, 2010 WL 3896533 (W.D. Pa. Sept. 30, 2010) (district court, in case where messages from AOL and Yahoo accounts already saved on a laptop computer, rejected argument that saving the messages to the laptop constituted “backup storage” under SCA).
29
6.29 Florida has been no stranger to social media discovery disputes. Indeed, two recent
Florida appellate decisions have directly addressed discovery requests for social media
documents. See Root v. Balfour Beatty Const. LLC, 132 So. 3d 867 (Fla. 2d DCA 2014); Nucci
v. Target, No. 4D14-138, 2015 WL 71726 (Fla. 4th DCA Jan. 7, 2015). In Root, a mother
brought a claim for negligence on behalf of her son who was injured when a vehicle operated by
the son’s seventeen year old aunt was hit by another vehicle.89 The defendants raised numerous
affirmative defenses, including negligent entrustment.90 Throughout discovery, the trial court
entered an order compelling the plaintiff to produce postings from her Facebook accounts before
or after the accident regarding psychological care obtained by the plaintiff; postings, statuses,
photos, likes, or videos relating to the plaintiff’s relationship with her son and other children,
relationships with other family members, boyfriends, husbands and/or significant others; mental
health, stress complaints, alcohol use or other substance use; and postings relating to any lawsuit
filed after the accident.91 On appeal, the plaintiff challenged the requests as overbroad and seeking personal information unrelated to the plaintiff’s claim for loss of consortium or defendants’ defenses.92 The appellate court agreed with the plaintiff and quashed the trial court
order.93
Nucci involved a personal injury case arising from an injury that the plaintiff sustained
while slipping on a substance on the floor at a Target.94 Target initially moved to compel
inspection of the plaintiff’s Facebook page, arguing that such an inspection was warranted due to
89 Root, 132 So. 3d at 868. 90 Id. 91 Id. at 869. The trial court entered the order despite one of the defendant’s acknowledgement that the requested documents may not be relevant and the trial court’s recognition that a majority of the documents would likely not be relevant. Id. at 870. 92 Id. at 869. 93 Id. at 871. 94 See Nucci, 2015 WL 71726 at *1.
30
6.30 the plaintiff placing her physical and mental conditions at issue.95 The plaintiff objected, arguing
that she had an expectation of privacy in her Facebook account and that Target’s request was
overbroad.96 After Target agreed to narrow its request to photographs of the plaintiff, the court
ordered the plaintiff to produce all social media photographs from two years after the accident
and all pictures of the accident.97 The plaintiff appealed, arguing, inter alia, that the request
impinged upon her privacy rights, sought irrelevant documents, and sought information not
discoverable under the SCA.98 The appellate court held that the information was relevant as it related to the plaintiff’s damages.99 It also concluded that the requests did not violate the
plaintiff’s right to privacy as social media users have an expectation that their personal
information will be shared with others and because the SCA did not apply to the plaintiff.100
Although Root and Nucci did not involve employment claims, their holdings concerning
the discoverability of social media will no doubt impact employment cases. Indeed, Root and
Nucci address the same arguments commonly raised by plaintiffs and defendants in employment
law cases implicating social media discovery disputes, including those discussed above.
2. Spoliation Issues
Both the plaintiff and defense bars must be sensitive to the issues of e-discovery and the
risks of spoliation. One recent case, Gatto v. United Airlines, speaks to the issue of the lawyers
and their duty to take an active role in the preservation and/or production of clients’ social-media
contents.101 In Gatto, several defendants sought sanctions for spoliation related to the deletion of
a plaintiff’s Facebook account. The plaintiff in Gatto deactivated his Facebook account after
95 Id. 96 Id. 97 Id. at *2. 98 Id. 99 Id. at *4. 100 Id. at *5-*7. 101 Gatto, No. 10-cv-1090, 2013 WL 1285285 (D. N.J. Mar. 25, 2013)
31
6.31 learning it had been accessed by an unfamiliar IP address.102 In doing so, he triggered an
automatic 14-day deletion by Facebook, resulting in all contents being lost. While various
aspects of production were disputed, the Court ultimately concluded that, regardless of the
reason, the plaintiff had intentionally deactivated the account, which caused evidence to be
lost.103 For that reason, the Court ordered that an adverse inference instruction was to be given
at trial.104
Another recent case, In re Pfizer, Inc. Securities Litigation, is illustrative of how technology can be pervasive and yet still escape notice.105 While both parties in In re Pfizer
were fighting over ESI issues, of particular interest is the portion of the case dealing with the claim that Pfizer failed to preserve employee “eRooms.” According to the case, the eRoom was
"a collaborative application” where Pfizer employees could “share documents, share calendars, archive email, conduct discussions/instant messaging, and [conduct] informal polls.”106 It was
only after the plaintiffs sought discovery of documents “sent to or maintained in the ‘e-room’ for
safety materials” that the company’s counsel discovered that the company had decommissioned
the use of e-Rooms and archived the content.107 Unfortunately, the eRoom archives, when
restored, were discovered to contain only the documents and corresponding metadata that had
existed in them at the time they were archived.108 In the end, sanctions were denied based on a
number of factors, including that the documents were mostly duplicative, the company had made
substantial efforts at preservation (and thus was at most negligent in this case), and that the
102 Id. at * 4. 103 Id. at *4. 104 Id. at *5. 105 Pfizer, 288 F.R.D. 297 (S.D.N.Y. 2013). 106 Id. at 305. 107 Id. 108 Id. at 305-306.
32
6.32 plaintiffs could not show material harm insofar as being denied relevant evidence.109 But this
case does remind practitioners of the need to examine all possible formats and locations of
possible evidence to meet preservation obligations.
3. Bring Your Own Device Policies
Another issue parties should be especially sensitive to is the impact of “Bring Your Own
Device” (BYOD) policies on discovery. Certainly, BYOD has become quite the norm in many workplaces. Although legal guidance on BYOD policies is scant,110 such policies implicate
numerous concerns, including issues surrounding lost or stolen devices,111 confidentiality of
health protected information contained on employee-owned devices,112 and the protection of
company trade secret/confidential information contained on employee-owned devices.113 Putting
aside these concerns as well as other issues surrounding cyber-security, non-exempt wage-and-
hour issues, and even record preservation issues under the Public Records Act, what is not yet
known is how BYOD policies will affect e-discovery.
At least one court addressing the issue denied a plaintiff’s motion to compel text
messages sent or received by employees on their personal cell phones because of a lack of any
109 Id. at 316-327. 110 Indeed, there is little case law addressing BYOD policies. Furthermore, neither the NLRB nor the courts have ruled on the NLRA’s application to BYOD policies. See Totten and Hammock, supra note 1. 111 For example, while employers may adopt procedures allowing them to remotely wipe employer- owned devices where a device is stolen or lost, their ability to wipe employee-owned devices (which results in the wiping of all data on the devices) without the employee’s written consent may be limited by the Stored Communications Act and/or the Computer Fraud and Abuse Act. Id. 112 Employers that access employee-owned devices may run afoul of The Health Insurance Portability and Accountability Act (“HIPAA”) or the Genetic Information Nondiscrimination Act (“GINA”). A simple hypothetical offered by other authors illustrates the point: An employee has diabetes and downloads an app allowing him to access his glucose levels and other medical records. The employer places updates on the employee’s phone and, during the update, sees glucose data and other medical records through the app. In such a situation, the employer could arguably have violated GINA. Id. HIPAA violations could likewise easily result from an employee’s loss of a device which is capable of accessing protected health information belonging to an employer’s customers. Id. 113 Protecting confidential and trade secret information is the biggest concern for most employers. Indeed, a 2012 survey revealed that half of employees who left or lost a job in the preceding twelve months retained confidential corporate data, and 40% planned to use it in their new jobs. Id.
33
6.33 showing that the employer had any legal right to obtain the text messages. See Cotton v. Costco
Wholesale Corp, No. 12-2731, 2013 WL 3819974 at *6 (D. Kan. July 24, 2013). The decision was based on the lack of custody or control, with the court noting that the plaintiff had not
claimed that Costco issued the phones or that the employees had used their phones for work-
related business. The outcome could be different if BYOD was the policy.
4. Evidentiary Considerations
To the extent that parties attempt to use social media postings or comments as evidence
to support or refute employment claims, they must consider evidentiary issues, including
authentication and hearsay issues, surrounding such evidence. See In re Carrsow-Franklin, 456
B.R. 753, 756-57 (Bankr. D. S.C. 2011) (explaining that blogs are not self-authenticating and rejecting blog evidence due to failure to present authentication testimony); see also Miles v.
Raycom Media, Inc., No. 1:09cv713-LG-RHW, 2010 WL 4791764 *3 n.1 (S.D. Miss. Nov. 18,
2010) (holding that unsworn statements made on Facebook page by nonparties were inadmissible
under FRE 801).
H. Social Media Use During Ongoing Litigation
Litigants must also be cognizant of their use of social media during litigation. The case
of Gulliver Schools, Inc. v. Snay, 137 So.3d 1045 (Fla. 3d DCA 2014) is instructive. In
Gulliver, a private school’s headmaster brought claims against the school for age discrimination and retaliation after the school did not renew his contract.114 The school and headmaster
eventually entered into a settlement agreement wherein the school agreed to pay $90,000 to the
former headmaster and $60,000 to his attorneys in exchange for a release of the headmaster’s
114 Id. at 1046.
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6.34 claims.115 Among the settlement agreement’s provisions was a detailed confidentiality provision
which provided that the agreement’s existence and terms were to be kept strictly confidential and
that a portion of the settlement proceeds ($80,000) would be disgorged if the headmaster or wife
violated the confidentiality provision.116 Four days after the parties signed the settlement
agreement, the school notified the headmaster that it believed he had breached the agreement based on a Facebook posting by the headmaster’s college-age daughter which stated, “Mama and
Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to
Europe this summer. SUCK IT.”117 The post was viewable by the daughter’s approximately
1,200 friends, many whom were current or past students of the school.118
Subsequently, counsel for the school tendered payment of the attorney’s fees sum to the
headmaster’s counsel, but withheld the remaining payments on the basis that the headmaster had
breached the settlement agreement’s confidentiality provision.119 Thereafter, the headmaster
filed a motion to enforce the settlement agreement, which the lower court granted.120 On appeal,
the appellate court reversed the lower court, explaining that the confidentiality provision was
unambiguous and that the headmaster’s admission that he had told his daughter that the case had
settled and that he was happy with the results violated the provision.121
Gulliver underscores the importance of, and enforceability of, confidentiality provisions
and the dangers of social media surrounding the same. Employees and employers would be wise
to refrain from commenting on active litigation through social media channels.
115 Id. 116 Id. 117 Id. 118 Id. 119 Id. at 1047. 120 Id. 121 Id. at 1048.
35
6.35 I. Ethical Considerations Regarding Social Media
The preservation of social media-related documents and information implicate ethical considerations. For example, on January 23, 2015, The Florida Bar’s Professional Ethics
Committee issued Proposed Advisor Opinion 14-1 concerning the ethical obligations on attorneys advising clients to “clean up” social media pages prior to litigation to remove embarrassing information which the lawyers believe are not material to the litigation.122 The
Opinion provides, inter alia, that:
[A] lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.123
Some states have offered guidance on whether legal ethics rules should apply to blogs.
For example, the California Committee on Professional Responsibility and Conduct recently
released a draft ethics opinion concerning the instances in which its state rules of professional
conduct should apply to attorneys and law firms that publish blog posts.124 In particular, the
opinion provides that blogging by an attorney is subject to California’s ethical rules on
advertising if the blog expresses the attorney’s availability for professional employment directly
through “words of invitation” or offers to provide legal services, or implicitly through its
description of the type and character of legal services offered by the attorney, details descriptions
122 On January 26, 2015, the Professional Ethics Committee requested comments on the proposed opinion, which were due by March 17, 2015. The Opinion can be found at http://www.floridabar.org/DIVEXE/RRTFBResources.nsf/Attachments/8E73C71636D8C23785257DD9 006E5816/$FILE/14-01%20PAO.pdf?OpenElement=. 123 Id. 124 See Neil, Matha, When is a blog lawyer advertising? Proposed California state bar opinion offers guidance, ABA Journal (Feb. 18, 2015), available at http://www.abajournal.com/news/article/proposed_state_bar_opinion_would_limit_blogging_by_lawyers /?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly.
36
6.36 of case results, or both.125 Likewise, on March 10, 2015, the New York County Lawyers
Association Professional Ethics Committee released Formal Opinion 748, concerning the ethical
implications of attorney profiles on LinkedIn.126 The Opinion provides, inter alia, 1) that a
LinkedIn profile containing only an attorney’s education and current and past employers does
not constitute attorney advertising; 2) that if an attorney includes additional information in his or
her profile (e.g., descriptions of areas of practice, certain skills, or endorsements), the profile
may be considered attorney advertising and thus should contain an advertising disclaimer; and 3)
that categorizing certain information under “skills” or “endorsements” heading does not
constitute a claim to be a “specialist” (and thus not barred), provided the information is true and
accurate.127 The Opinion further provides that attorneys must ensure that all information on their
LinkedIn profiles is truthful and not misleading, and should periodically monitor and review the
content of their profiles to ensure accuracy.128
Other state bars have suspended attorneys for their use of social media. For example, the
Louisiana Attorney Disciplinary Board recently recommended the suspension of an attorney which, in conjunction with her client, used social media to urge readers to sign an online petition and contact two judges in cases involving child sex abuse allegations.129 More specifically, the
attorney, who represented a mother alleging child abuse by the father of her children in a child
custody/visitation case, used Twitter and other social media to publish misleading and inflammatory statements concerning judges overseeing the case, including stating that the judges
125 Id. 126 See https://www.nycla.org/siteFiles/Publications/Publications1748_0.pdf. 127 Id. 128 Id. 129 See Weiss, Debra C., ‘Social Media Blitz’ In Custody Case Yields Possible Suspension for Louisiana Lawyer, ABA Journal (February 17, 2015) available at http://www.abajournal.com/news/article/social_media_blitz_in_custody_case_brings_possible_suspensio n_for_louisiana/?utm_campaign=weekly_email&utm_source=maestro&utm_medium=email&job_id=15 0219AT.
37
6.37 refused to properly consider evidence.130 Among the postings, the attorney requested readers to promote a petition criticizing the judges’ rulings and also requested that the readers call the judges to communicate their dissatisfaction with the rulings.131
There are also ethical issues surrounding the practice of “friending” judges and jurors on social media. In 2009, the Florida’s Judicial Ethics Advisory Committee released an ethics opinion, Opinion Number 2009-20, which provided that a judge is not permitted to be Facebook friends with a lawyer who may appear before him or her. Notwithstanding that Opinion, two recent cases highlight the problems surrounding this area. In Domville v. State, 103 So.3d 184,
186 (Fla. 4th DCA 2012), the court held that a judge was required to recuse himself from a case in which the prosecutor was his Facebook friend, noting that the existence of the friendship could
“create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Additionally, this past year, in Chace v. Loisel, No. 5D13-4449, 2014 WL 258620 (Fla.
5th DCA Jan 24, 2014), the Fifth District Court of Appeal, in ruling on a challenge to the denial of a party’s motion to disqualify, called into question Domville’s reasoning, explaining:
The word “friend” on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville's logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.132
130 Id. 131 Id. 132 Id. at *2.
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6.38 Notwithstanding its critique of Domville, the court in Chace nevertheless held that the trial court
judge should have followed Domville’s guidance and recused herself as 1) Domville was, at the
time, the only Florida appellate decision on the Facebook friend issue, and 2) the judge’s actions
in Chace, which included sending a friend request to one of the litigants while her divorce
litigation was pending, were much more egregious and likely to result in bias.133 In light of the
Domville and Chace decisions, the lines surrounding friending have been blurred. For many of
these same reasons, attorneys should also avoid friending members of a jury. Indeed, the ABA
Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion
466,134 instructing that a lawyer cannot send an “access request” to the juror’s or potential juror’s
social media account.
J. Conclusion
Social media has caused, and continues to cause, many legal issues in the employment law arena. Because social media cases and decisions are issued nearly every day, it is impossible to capture them all in these materials. Nevertheless, the sampling of topics and cases discussed herein provide insight into some of the most salient issues employers and employees face. Both employers and employees must be cognizant of these issues and topics, and be on the lookout for new developments in this evolving area of the law. In a prior articles, this author opined that
times were “a changin’” due to the evolution of technology.135 The materials discussed above
133 Id. 134 See http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ formal_opinion_466_final_04_23_14.authcheckdam.pdf. 135 See Gregory Hearing and Brian Ussery, The Times They Are a Changin’: The Impact of Technology and Social Media on the Public Workplace, Part I, 86 Fla. Bar J. 3 (2012), available at http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/5497d9 12f2859b55852579b2004d2aba!OpenDocument&Highlight=0,*; see also Gregory Hearing and Brian Ussery, The Times They Are a Changin’: The Impact of Technology and Social Media on the Public Workplace, Part II, 86 Fla. Bar J. 4 (2012) available at http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/DAFB17AF14E35016852579D100660B5C.
39
6.39 demonstrate that times have certainly changed over the last several years and that more change is likely on the horizon.
Disclaimer: The information contained in these materials is intended as an informational report on legal developments of general interest. It is not intended to provide a complete analysis or discussion of each subject covered. Applicability to a particular situation depends upon an investigation of the specific facts and more exhaustive study of applicable law than can be provided in this format.
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6.40 6/4/2015
Gregory A. Hearing Jeffery L. Patenaude Thompson, Sizemore, Gonzalez & Hearing, P.A. Tampa, Florida
Accessing social media is a daily ritual for most employees. ◦ A 2013 survey by the Ethics Resource Center shows:
72% of workers access social media on the job at least one time each day, a majority of which access social media several times per day.
28% of employees spend at least an hour on social networking sites each day.
New social media decisions come out daily.
2
Social Media and the NLRA;
Social Media and Florida’s Public Employees Relations Act;
Social Media in Workplace Investigations;
Social Media and Harassment/Retaliation/Discrimination;
Employees’ Privacy Rights in Social Media;
Discovery and Social Media;
Social Media in Ongoing Litigation;
Ethical Considerations Regarding Social Media.
3
6.41 1 6/4/2015
There has been recent attention on Sections 7 and 8 of the National Labor Relations Act.
◦ Section 7:
Employees have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 159 (a)(3) (emphasis added).
◦ Section 8(a)(1):
It is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”
4
Section 7 rights apply to union and non-union workplaces.
Protected concerted activities involve employees joining in concert to affect wages, hours, and other terms and conditions of employment. Examples include:
◦ Refusal to work overtime on a particular occasion. See Polytech, Inc., 195 NLRB 695 (1972);
◦ Complaints about dangerous working conditions. See Wray Electric Contracting, Inc., 210 NLRB 757 (1974); and
◦ Criticizing management and company policies during a group meeting. See NLRB v. Caval Tool Div., Chromalloy Gas Turbine Corp., 262 F.3d 184 (2d Cir. 2001).
5
Recent NLRB Operations Management memoranda have offered insight on the agency views on a wide variety of social media issues, including:
◦ Memorandum from the NLRB Office of Gen. Counsel (OM 11-74)(Aug. 18, 2011); ◦ Memorandum from the NLRB Office of Gen. Counsel (OM 12-31)(Jan. 24, 2012); ◦ Memorandum from the NLRB Office of Gen. Counsel (OM 12-59) (May 30, 2012).
The Operations Management memoranda affirm that social media policies are unlawful when they interfere with employees’ Section 7 rights and provide examples of policies that the Board deems unlawful.
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6.42 2 6/4/2015
The Memoranda emphasize that violations occur when a work rule “would reasonably tend to chill employees in the exercise of their Section 7 rights.”
To determine whether a work rule would have such a chilling effect, the NLRB uses a two step inquiry:
◦ First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities;
◦ Next, if the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
7
Most recently, the NLRB released Memorandum from the NLRB Office of Gen. Counsel (OM 15-04) (March 18, 2015), concerning employee handbooks.
The memorandum identifies specific handbook provisions, including social media provisions, which the Board deems lawful and unlawful.
8
Social media language found unlawful (taken from Office of Gen. Counsel (OM 15-04)):
◦ “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation”;
◦ “[Do] not use any Company logos, trademarks, graphics, or advertising materials [in social media]”;
◦ “[You may not e]mail, post, comment or blog anonymously. You may think it is anonymous, but is most likely traceable to you and the Company”;
◦ “Be thoughtful and respectful in all your communications and dealings with others, including email and social media. Do not harass, threaten, libel, malign, defame, or disparage fellow professionals, employees, clients, competitors or anyone else. Do not make personal insults, use obscenities or engage in any conduct that would be unacceptable in a professional environment.”
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Social media language found lawful (taken from Office of Gen. Counsel (OM 15-04)):
◦ “Do not make negative comments about our customers in any social media”;
◦ “Use of social media on Company equipment during working time is permitted if your use is for legitimate, preapproved Company business. Please discuss the nature of your anticipated business use and the content of your message with your supervisor and Human Resources. Obtain their approval prior to such use”;
◦ “Be thoughtful in all your communications and dealings with others, including email and social media. Never harass (as defined by our anti-harassment policy), threaten, libel, or defame fellow professionals, employees, clients, competitors or anyone else. In general, it is always wise to remember what you say in social media can often be seen by anyone. Accordingly, harassing comments, obscenities or similar conduct that would violate Company policies is discouraged in general and is never allowed using Wendy’s equipment or during your working time.”
10
Note: A “savings clause” may not necessarily protect the employer.
Recent example: ◦ Macy’s, Inc., NLRB ALJ, No. 1-CA-123640 (May 12, 2015): An NLRB Administrative Law Judge ruled that Macy’s handbook policies (including confidentiality provisions and restrictions on sharing employee information) violated employees’ Section 8(a)(1) of the NLRA despite Macy’s “savings clause” assuring employees that the company would not interfere with their labor rights. The ALJ held that the savings clause contained in Macy’s handbook was too generic, explaining that the “savings clause simply tells [employees] that nothing contained in the handbook is intended to limit them from engaging in their rights protected by the Act, including protected concerted activities.”
11
Recent cases also reflect the NLRB’s broad view of Section 7 rights in social media speech. For example:
◦ Pier Sixty, LLC, 362 NLRB No. 59 (March 31, 2015) (upholding an ALJ’s determination that the employer violated Section 8(a)(1) by discharging an employee who posted comments on Facebook about a company assistant director during a work break, including “Bob is such a NASTY MOTHER F****R don’t know how to talk to people!!!!!!! F**k his mother and his entire f*****g family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”).
◦ Triple Play Sports Bar, 361 NLRB No. 31 (Aug. 22, 2014) (holding that Triple Play violated Section 8(a)(1) of the NLRA by threatening to terminate, and actually terminating, employees due to their participation in a Facebook status discussion (with profane language) concerning claims that they owed taxes because of the employer’s withholding mistakes as well as the “liking” of a Facebook status by one of the employees).
12
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But other cases and advice memos have previously found circumstances where social media speech was unprotected.
For example:
◦ Advice Memorandum from the NLRB Office of Gen. Counsel (August 13, 2012) (Released in September 2014, this Memorandum explained that employers may require employees to post disclaimers on social media to state their views are their own and not those of their employer);
◦ Flagstaff Medical Center, Inc., 357 N.L.R.B. 65 (2011), enf’d, 715 F.3d 928 (D.C. Cir. 2013) (approving of hospital’s policy prohibiting the use of portable electronic equipment, including iPods and cameras, during work time as well as the use of cameras for recording images of the hospital’s property, patients, and equipment);
13
Additional examples:
◦ Richmond District Neighborhood Center et al., 361 N.L.R.B. 74, 2014 WL 5465462 (October 28, 2014) (finding that employees’ statements in a Facebook conversation lost protection under the NLRA where the statements advocated insubordinate acts such as “[l]et’s f**k it up. I would hate to be the person takin your old job,” “[l]et’s do some cool s**t, and let them figure out the money,” and “[f]**k em. Field trips all the time to wherever the f**k we want!”);
◦ Landry’s Inc., No. 32-CA-118213 (N.L.R.B. A.L.J. June 26, 2014) (holding that the employer’s handbook policy which stated, “the Company urges all employees not to post information regarding the Company, their job, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business” did not violate the NLRA) (emphasis added).
14
Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014):
◦ Although not addressing social media, the NLRB found that it is presumptively unlawful for an employer to prohibit employees who already have been given access to the company’s e-mail system for work purposes from using their company e-mail accounts to engage in protected activities on non-working time.
It is yet to be seen what impact Purple Communications will have on employees’ use of social media or other forms of communication.
Use of electronic communications may impact the success of union campaigns.
◦ The NLRB recently released statistical data showing that, in 2014, the total number of union elections held and the number of elections won by unions increased.
The NLRB conducted 1,425 elections in 2014 vs. 1,374 in 2013. Unions won 977 elections in 2014 vs. 890 wins in 2013.
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Social Media and the NLRA;
Social Media and Florida’s Public Employees Relations Act;
Social Media in Workplace Investigations;
Social Media and Harassment/Retaliation/Discrimination;
Employees’ Privacy Rights in Social Media;
Discovery and Social Media;
Social Media in Ongoing Litigation;
Ethical Considerations Regarding Social Media.
16
Social media utterances also have some level of protection under the Public Employees Relations Act, Chapter 447, Part II, Florida Statutes (“PERA”).
In general, the Florida Public Relations Commission follows the well- known Pasco County test (Pasco County. Sch. Bd. v. Fla. Pub. Emp. Relations Comm’n, 353 So. 2d 108, 117 (Fla. 1st DCA 1977)), so such a successful ULP would entail a showing by a preponderance of evidence that the conduct at issue was protected and it was a substantial and motivating factor in the employer’s decision.
◦ If the employer was motivated by an impermissible reason under the Act, the burden shifts to the employer to demonstrate that it would have taken the same adverse action anyway.
◦ To be protected, the conduct also must be concerted in nature, that is, the conduct must be for “the well-being of fellow employees.”
17
Thus, under PERA, personal complaints about work or a supervisor’s actions do not constitute protected concerted activity and “criticism for ‘criticism’s sake”’ is treated as mere griping and not as an effort to obtain a remedy over wages, hours, and other terms and conditions.
◦ As a result, if the social media postings at issue are limited to what the Commission would consider griping alone, protection may be unlikely.
18
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Case illustration:
◦ In Orange County Professional Fire Fighters, IAFF v. Orange County Board of County Commissioners, 38 FPER ¶ 131 (2011), the Commission defined the parameters permitted for a public sector social media policy under PERA:
The hearing officer found as overly broad the following verbiage from Section 4.1 of the County’s Standard Operating Procedures (“SOP”): “Employees of the Department shall not criticize or ridicule or debase the reputation of the Department, its policies, its officers or other employees.”
The hearing officer also found unlawful SOP subsections 4.1(b) and (c), which restricted employees from posting communications on social media websites that “tend[ed] to interfere with the maintenance of proper discipline; and/or damages or impairs the reputation and/or efficiency of the Department or its employees.”
19
Social Media and the NLRA;
Social Media and Florida’s Public Employees Relations Act;
Social Media in Workplace Investigations;
Social Media and Harassment/Retaliation/Discrimination;
Employees’ Privacy Rights in Social Media;
Discovery and Social Media;
Social Media in Ongoing Litigation;
Ethical Considerations Regarding Social Media.
20
Review of social media in workplace investigations is common.
◦ This practice, however, presents both benefits and risks.
Reviewing social media accounts may provide pertinent information.
◦ Employers generally may rely on publicly-available information posted by the applicant on a social media website.
◦ However, social media websites may be inaccurate.
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Case Illustrations:
Lineberry v. Detroit Medical Ctr., No. 11-13752, 2013 WL 438689 (E.D. Mich. Feb. 5, 2013) (finding that the employer had an honest suspicion of FMLA fraud where the employee admitted to lying after being confronted with Facebook photos of the employee on vacation in Mexico);
Jaszczyszyn v. Advantage Health Physician Network, 504 F.App’x 440 (6th Cir. 2012) (upholding the termination of a plaintiff on intermittent FMLA who posted pictures of herself attending a Polish heritage festival where she spent eight hours socializing with friends and, after several of Plaintiff’s coworkers saw the pictures, was reported to her supervisor, who investigated the same).
Yet, accessing information through social media may expose employers to risk by discovering legally protected characteristics which may not be lawfully considered during the interview process.
22
When conducting social media investigations, it is important for employers to retain search results, particularly where an applicant is disqualified due to some social media activity.
◦ Case illustration: Butler v. Edwards-Brown, No. 13- 1378, 2014 WL 1776035 (E.D. Mich. May 5, 2014) (denying employer’s summary judgment in part due to the absence of the exact text that the plaintiff posted on her Facebook account and upon which the defendants relied in denying the plaintiff work assignments).
23
Numerous states have sought to curb employers’ access to employees’ and prospective employees’ social media accounts:
◦ 18 states now restrict employers’ abilities to demand that employees and/or applicants disclose means for accessing their personal social media accounts (i.e., user names and passwords).
◦ States began enacting these laws in 2012 and, in 2014 alone, six states (Louisiana, Oklahoma, Rhode Island, Tennessee, and Wisconsin) enacted them.
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6.48 8 6/4/2015
These statutes provide a variety of protection to employees:
◦ As for applicant screening, many of them prohibit employers from requesting log-in credentials, permission to view social media accounts, and privacy setting changes;
◦ With respect to workplace investigations, some of the statutes provide limited exceptions for such investigations, while others do not:
Illinois and Nevada do not provide any exception for workplace investigations that might require access to an employee’s personal social media accounts;
California, Oregon, and Washington provide exceptions to investigations of legal violations and alleged misconduct, allowing employers to ask employees to provide social media account content relating to alleged misconduct
Still, Arkansas permits an employer to request any employee’s social media login credential to investigate workplace misconduct.
◦ Notably, all but one of the state statutes (Oklahoma) exempt employer provided devices or accounts from protection.
25
Social Media and the NLRA;
Social Media and Florida’s Public Employees Relations Act;
Social Media in Workplace Investigations;
Social Media and Harassment/Retaliation/Discrimination;
Employees’ Privacy Rights in Social Media;
Discovery and Social Media;
Social Media in Ongoing Litigation;
Ethical Considerations Regarding Social Media.
26
The workplace is no longer limited to a nine-to-five schedule due to electronic devices.
Added connectivity creates opportunities for harassment and often blurs boundaries of appropriate conduct.
Governmental agencies and courts have viewed harassment via social media and digital devices in the same manner as they view face-to-face harassment.
◦ For example: It was noted during a January 14, 2015, EEOC press release that workplace harassment is alleged in roughly 30 percent of all EEOC charges and that the ease of posting and responding to messages and images through social media has spawned employee complaints of harassment
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Recent cases highlight the seriousness of employee harassment through social media:
◦ Espinoza v. County of Orange, No. G043067, 2012 WL 420149 (Cal. App. 2012) (upholding a $1.6 million verdict against an employer where the plaintiff was harassed by co-workers on a blog who reported the harassment to his supervisor which was not addressed).
◦ In August 2012, the EEOC reached a $2.3 million settlement with national retailer Fry’s Electronics in a case involving an assistant store manager sending frequent sexually charged text messages to a twenty- year-old sales associate.
28
Other examples: ◦ Amira-Jabbar v. Travel Services, Inc., 726 F. Supp. 2d 77 (D. P.R. 2010):
The plaintiff sued her former employer for race discrimination based on racially derogatory comments posted by a co-worker on Facebook. The comments were contained in the caption of a photo displayed on the co-worker’s Facebook page showing the plaintiff and other co-workers at a work function.
The plaintiff argued that her employer was liable for the comment because it allowed employees to post comments and photos on social networking sites during company time and for company purposes.
The court dismissed the harassment claim as not sufficiently severe and/or pervasive to create a hostile work environment and because the employer promptly investigated the plaintiff’s complaint and took prompt, effective remedial action (including the blocking of employee access to the various social media platforms).
This case raises the issue of whether employee access to social media platforms during work hours or for work purposes will cause or contribute to employer liability.
◦ Stewart v. CUS Nashville, LLC, No. 3:11-CV-0342, 2013 WL 456482, at *11 (M.D. Tenn. Feb. 6, 2013) (finding that a manager’s social media posts concerning a terminated employee could be relied on to find the employer liable for retaliation).
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Social Media and the NLRA;
Social Media and Florida’s Public Employees Relations Act;
Social Media in Workplace Investigations;
Social Media and Harassment/Retaliation/Discrimination;
Employees’ Privacy Rights in Social Media;
Discovery and Social Media;
Social Media in Ongoing Litigation;
Ethical Considerations Regarding Social Media.
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Social Media Protections under the First Amendment.
Within the Eleventh Circuit, a public employee can sustain a claim of retaliation for protected speech under the First Amendment if the employee can show the following by a preponderance of the evidence: ◦ (1) the employee’s speech is on a matter of public concern;
◦ (2) the employee’s First Amendment interest in engaging in the speech outweighs the employer’s interest in prohibiting the speech to promote the efficiency of the public services it performs through its employees; and
◦ (3) the employee’s speech played a “substantial part” in the employer’s decision to demote or discharge the employee. Once the employee succeeds in showing the preceding factors, the burden then shifts to the employer to show, by a preponderance of the evidence, that “it would have reached the same decision . . . even in the absence of the protected conduct.” See Battle v. Bd. of Regents, 468 F.3d 755, 760 (11th Cir. 2006).
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In determining whether a public employee’s speech is entitled to constitutional protection, the court asks “whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Battle at 760 citing Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006) (citations omitted).
Furthermore, the United States Supreme Court has explained that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 126 S. Ct. at 1960.
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The application of First Amendment protection in the context of social media has been growing.
Past cases:
◦ Spanierman v. Hughes, et al, 576 F. Supp. 2d 292 (D. Conn. 2008) (Holding that a high school teacher’s MySpace page containing inappropriate pictures of naked men as well as conversations between the teacher and his students about non-school related items including “what [students] did over the weekend at a party, or about their personal problems” was not protected by the First Amendment).
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Cases wherein public employee’s social media use was protected under the First Amendment:
◦ Velazquez v. Autonomous Municipality of Carolina, et al, No. 11-1586, 2012 WL 6552789 at *9 (D. P.R. Dec. 14, 2012) (holding that the plaintiff stated a First Amendment retaliation claim based on Facebook comments criticizing her employer for “making decisions that jeopardized the smooth and efficient operations of the Municipal Police . . . , putting in harms way the life of fellow officers” and for posting pictures of a fellow employee sleeping on the job);
◦ Greer v. City of Warren, No. 1:10-cv-01065, 2012 WL 1014658 at *7 (W.D. Ark. Mar. 23, 2012) (ruling that a confederate flag display on a police officer’s MySpace page was protected speech);
◦ Love v. Rehfus, et al, 946 N.E.2d 1 (Ind. 2011) (concluding that a firefighter’s email criticizing administration and supporting a political candidate was protected public-employee speech).
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Cases wherein public employee’s social media use was not protected by the First Amendment:
◦ Dible v. City of Chandler, 515 F.3d 918 (9th Cir. 2008) (ruling that a police officer terminated for operating a sexually explicit website did not have a viable First Amendment claim);
◦ Yoder v. University of Louisville, No. 3:09-CV-00205, 2012 WL 1078819 (W.D. Ky. Mar. 30, 2012) (finding that a nursing student’s First Amendment claim failed where the student posted patient information on the student’s MySpace page in violation of the school’s confidentiality agreement).
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Recent issue: is “liking” a post on social media protected by the First Amendment?
Bland, et. al v. Roberts 857 F. Supp. 2d 599 (E.D. Va. 2012): Court holds that merely “liking” a Facebook post was “insufficient speech to merit constitutional protection.” ◦ In the lower court Bland case, a deputy sheriff “liked” the Facebook page of a person running against the current Sheriff.
◦ After the election, the Sheriff decided not to retain several employees and several sued alleging that Sheriff Roberts retaliated against them for their support of his opponent in the election.
◦ Rejecting the deputy sheriff’s claim that clicking Facebook’s “like” button triggered First Amendment protection, the district court found that “[i]n cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”
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Bland, however, was reversed on appeal (730 F.3d 368 (4th Cir. 2013):
◦ The Fourth Circuit explained that “liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it" was not unexpected.
◦ As explained by the appellate court, "liking" is "the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech."
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Social media protection under the Fourth Amendment.
While the Fourth Amendment protects public employees from unreasonable searches, in the context of social media, courts have not been clear in defining what is “unreasonable.”
This issue came to a head in City of Ontario v. Quon,130 S.Ct. 2619 (2010).
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Quon’s Facts:
◦ Involved the Ontario Police Department’s search of an employee’s text messages on his employer-issued pager.
◦ The Police Department had a policy reserving “the right to monitor and log all network activity, including email and internet use, with or without notice to employees.”
◦ Employees were told text messages would be treated the same as emails and the policy stated that “users should have no expectation of privacy or confidentiality when using these resources.”
◦ While the Police Department had a policy that all text messages were subject to monitoring, the employee’s supervisor suggested to him and other officers that he would not enforce the policy of inspection.
◦ After an audit that included a review of the text messages, the Police Department learned that many of the employee’s messages were personal and he was disciplined for violating the department’s policy.
◦ The employee and several other officers sued under the Fourth Amendment.
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Quon’s holding:
◦ The Supreme Court held that the search of the text messages was reasonable
◦ The Court made certain key assumptions as a predicate to its ruling, namely:
That the employee had a reasonable expectation of privacy in the text messages sent on the employer-provided pager;
That the department’s viewing of the texts was a search under the Fourth Amendment; and
That the standards applicable to office searches applied equally to the search of a government employee’s employer- provided electronic device.
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The majority found:
• That the search was justified because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose,” and
• That its scope was reasonable because it was limited to two months and reading the transcript was an efficient way to determine if the device was used for personal activity.
The Court also found it was unreasonable for the employee to believe that his personal communications on an employer- provided device would be immune from an audit.
• Thus, the Court found that, even assuming both the reasonable expectation of privacy and that the audit review was a search, the search was motivated by a legitimate work-related purpose and was not excessive in scope.
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Twitter privacy has also been the subject of Fourth Amendment litigation.
Case illustration: Roasio v. Clark County School District, 2013 WL 3679375, *5 (D. Nev. 2013). ◦ In Roasio, the court denied a student Fourth Amendment protection in connection with twitter postings based on a lack of any reasonable privacy expectation. In so holding, the Court explained:
“When a user with a public privacy setting tweets a message, he or she intends the message to be heard by the public at large. It just happens that typically the only people that read the tweet are the users' followers. A tweet from a user with public privacy settings is just a twenty-first century equivalent of an attempt to publish an opinion piece or commentary in the New York Times or the Las Vegas Sun. When a person with a public privacy setting tweets, he or she intends that anyone that wants to read the tweet may do so, so there can be no reasonable expectation of privacy.”
Thus, privacy settings do not necessary provide an expectation of privacy to employees.
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Other protections afforded to social media use: The Electronic Communications Privacy Act (“ECPA”).
Congress enacted the EPCA “to update and to clarify federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.”
◦ More recently, the ECPA was updated to include the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712, which prohibits the intentional access of stored communications without authorization.
Cases interpreting the application of these statutes in the context of social media are becoming more prevalent.
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Case Illustration:
◦ Rodriguez v. Widener University, No. 13-1336, 2013 WL 3009736 (E.D. PA June 17, 2013) (declining to dismiss a claim brought under the ECPA and SCA based on allegedly unlawful access to the plaintiff’s Facebook account despite university’s argument that the posts “were accessible to the general public and/or forwarded to [the defendants] by concerned students who had equal and permitted access to [the plaintiff’s] Facebook postings”).
Accessing of email, especially after an employee has left the company, also continues to be problematic:
◦ See, e.g., Lazette v. Kulmatycki, 949 F.Supp.2d 748 (N.D. Ohio 2013). In Lazette, the employee's former supervisor continued to access the plaintiff's personal email account for some 18 months (and viewing some 48,000 emails) after her departure, claiming he was “authorized” to do so both because the former employee had failed to properly delete the account from her phone before turning it in and because she failed to tell the employer not to access her personal emails during the 18 months following the end of her employment. At the motion to dismiss stage, the court held that the SCA applied and declined to dismiss the claim.
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Some noteworthy reported decisions:
◦ Ehling v. Monmouth-Ocean Hosp. Service Corp., 961 F.Supp.2d 659 (D. N.J. 2013) (finding that non-public Facebook wall posts are covered by the SCA, but that the authorized user exception applied when a Facebook friend on his own and without solicitation or coercion gave screen shots to non- friend management);
◦ Lukowski v. County of Seneca, No. 08-CV-6098, 2009 WL 467075 (W.D.N.Y. Feb. 24, 2009) (interpreting the application of the ECPA and SCA to prohibit the defendant from compelling the disclosure by website chat room provider of user e-mail addresses and other personally identifiable information for the purpose of identifying citizens responsible for posts that were critical of county government officials);
◦ Pietrylo v. Hillstone Restaurant Group, No. 06-5754, 2008 WL 6085437 (D. N.J. July 25, 2008) (permitting an employee’s SCA claim to proceed to trial on the issue of whether the employer obtained proper authorization to access stored communications contained on the employee’s MySpace accounts when it obtained usernames and passwords from the employee under apparent threat of adverse employment action).
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Social Media and the NLRA;
Social Media and Florida’s Public Employees Relations Act;
Social Media in Workplace Investigations;
Social Media and Harassment/Retaliation/Discrimination;
Employees’ Privacy Rights in Social Media;
Discovery and Social Media;
Social Media in Ongoing Litigation;
Ethical Considerations Regarding Social Media.
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Discoverability of social media.
Social media presents a potential treasure trove of relevant evidence, but attempts at discovering the same often lead to discovery disputes.
◦ Disputes generally fall into one of several categories:
Litigation over entitlement;
Litigation over who produces it (and how); and/or
Litigation over collateral issues surrounding discovery.
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Social media material is generally discoverable if necessary thresholds are met (i.e., the material is relevant to a claim or defense and discovery of the same is not limited for reasons of oppression, embarrassment and the like).
Case Illustrations:
◦ EEOC v. The Original Honeybaked Ham Company of Georgia, Inc., No. 11-cv- 02560, 2012 WL 5430974, *2-3 (D. Col. Nov. 7, 2012) (establishing a special master process to facilitate the production and inspection of Facebook material);
◦ Glazer v. Fireman’s Fund Ins. Co., No. 11Civ.4374, 2012 WL 1197167 (S.D.N.Y. Apr. 5, 2012) (ordering production of social media material);
◦ E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (holding that postings on social networking sites were discoverable regarding emotional or mental state or other references to sexual harassment or emotional distress claims).
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Courts are becoming more attuned to the nuances of social media accounts (including the volume of information they contain), and are requiring that requesting parties hone their requests based on relevance.
For example:
◦ Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1347 (M.D. Fla. 2014) (noting that social media content is neither privileged nor protected by any right of privacy, but that this principle does not give defendants the right to serve overbroad discovery requests designed to rummage at will through information a plaintiff has limited from public view);
◦ Giacchetto v. Patchogue-Medford Union Free School Dist., 293 F.R.D. 112 (E.D. N.Y. 2013) (limiting discovery to postings that specifically referenced the plaintiff’s claimed emotional distress, treatment she received, or alternative potential stressors as well as accounts of the events alleged her amended complaint on social networking sites, whether contradictory or otherwise);
◦ Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. CA 2012) (holding that discovery requests for social networking site content must be reasonably calculated to lead to the discovery of admissible evidence and describe the information to be produced with reasonable particularity).
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In some cases, the Stored Communications Act has served to block attempts to obtain access to social media via the provider. For example:
◦ Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) (quashing subpoenas served on Facebook and MySpace and ruling that webmail and private messaging services provided on social networking and website hosting websites were not subject to subpoena under the Stored Communications Act);
◦ Chasten v. Franklin, No. C10-80205, 2010 WL 4065606 (N.D. Cal. Oct. 14, 2010) (ruling that a Yahoo email account was not subject to subpoena under the SCA);
◦ Barnes v. Cus Nashville, LLC, No. 3:09-0764, 2010 WL 2196591 (M.D. Tenn. May 27, 2010) (explaining that the SCA prohibits disclosure of information in response to a subpoena served on Facebook).
Facebook itself, on its website, states its legal position that it is not subject to civil subpoenas because it is precluded from disclosing user content under the SCA, but it now has a feature allowing users to download their information themselves.
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Two recent Florida appellate courts have addressed the permissibility of social media discovery:
Root v. Balfour Beatty Const. LLC, 132 So. 3d 867 (Fla. 2d DCA 2014):
◦ A mother brought a claim for negligence on behalf of her son who was injured when a vehicle operated by the son’s seventeen year old aunt was hit by another vehicle.
◦ The defendants raised numerous affirmative defenses, including negligent entrustment.
◦ Throughout discovery, the trial court entered an order compelling the plaintiff to produce postings from her Facebook accounts before or after the accident regarding psychological care obtained by the plaintiff; postings, statuses, photos, likes, or videos relating to the plaintiff’s relationship with her son and other children, relationships with other family members, boyfriends, husbands and/or significant others; mental health, stress complaints, alcohol use or other substance use; and postings relating to any lawsuit filed after the accident.
◦ On appeal, the plaintiff challenged the requests as overbroad and seeking personal information unrelated to the plaintiff’s claim for loss of consortium or defendants’ defenses.
◦ The appellate court agreed with the plaintiff and quashed the trial court order.
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Nucci v. Target, No. 4D14-138, 2015 WL 71726 (Fla. 4th DCA Jan. 7, 2015).
◦ Involved a personal injury case arising from an injury that the plaintiff sustained while slipping on a substance on the floor at a Target.
◦ Target initially moved to compel inspection of the plaintiff’s Facebook page, arguing that such an inspection was warranted due to the plaintiff placing her physical and mental conditions at issue.
◦ The plaintiff objected, arguing that she had an expectation of privacy in her Facebook account and that Target’s request was overbroad. After Target agreed to narrow its request to photographs of the plaintiff, the court ordered the plaintiff to produce all social media photographs from two years after the accident and all pictures of the accident.
◦ The plaintiff appealed, arguing, inter alia, that the request impinged upon her privacy rights, sought irrelevant documents, and sought information not discoverable under the SCA.
◦ The appellate court held that the information was relevant as it related to the plaintiff’s damages.
◦ The court also concluded that the requests did not violate the plaintiff’s right to privacy as social media users have an expectation that their personal information will be shared with others and because the SCA did not apply to the plaintiff.
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Although Root and Nucci did not involve employment claims, their holdings concerning the discoverability of social media will no doubt impact employment cases.
Indeed, Root and Nucci address the same arguments commonly raised by plaintiffs and defendants in employment law cases implicating social media discovery disputes, including those discussed above.
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Both the plaintiff and defense bars must be sensitive to the issues of social media discovery and the risks of spoliation.
Case Illustration:
◦ Gatto v. United Airlines, No. 10-cv-1090, 2013 WL 1285285 (D. N.J. Mar. 25, 2013):
Several defendants sought sanctions for spoliation related to the deletion of a plaintiff’s Facebook account.
The plaintiff deactivated his Facebook account after learning it had been accessed by an unfamiliar IP address. In doing so, he triggered an automatic 14-day deletion by Facebook, resulting in all contents being lost.
While various aspects of production were disputed, the Court ultimately concluded that, regardless of the reason, the plaintiff had intentionally deactivated the account, which caused evidence to be lost. For that reason, the Court ordered that an adverse inference instruction was to be given at trial.
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Parties should also be sensitive to the impact of “Bring Your Own Device” (BYOD) policies on discovery.
Although legal guidance on BYOD policies is scant, such policies implicate numerous concerns, including:
◦ Issues surrounding lost or stolen devices;
◦ Confidentiality of health protected information contained on employee-owned devices; and
◦ The protection of company trade secret/confidential information contained on employee-owned devices.
Neither the NLRB nor the courts have ruled on the NLRA’s application to BYOD policies.
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At least one court has touched on the BYOD issue. See (Cotton v. Costco Wholesale Corp, No. 12-2731, 2013 WL 3819974 at *6 (D. Kan. July 24, 2013).
◦ In Cotton, the court denied a plaintiff’s motion to compel text messages sent or received by employees on their personal cell phones because of a lack of any showing that the employer had any legal right to obtain the text messages.
◦ The decision was based on the lack of custody or control, with the court noting that the plaintiff had not claimed that Costco issued the phones or that the employees had used their phones for work-related business. The outcome could be different if BYOD was the policy.
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Social media also implicates evidentiary concerns.
To the extent that parties attempt to use social media postings or comments as evidence to support or refute employment claims, they must consider evidentiary issues, including authentication and hearsay issues, surrounding such evidence:
◦ In re Carrsow-Franklin, 456 B.R. 753, 756-57 (Bankr. D. S.C. 2011) (explaining that blogs are not self-authenticating and rejecting blog evidence due to failure to present authentication testimony);
◦ Miles v. Raycom Media, Inc., No. 1:09cv713-LG-RHW, 2010 WL 4791764 *3 n.1 (S.D. Miss. Nov. 18, 2010) (holding that unsworn statements made on Facebook page by nonparties were inadmissible under FRE 801).
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Social Media and the NLRA;
Social Media and Florida’s Public Employees Relations Act;
Social Media in Workplace Investigations;
Social Media and Harassment/Retaliation/Discrimination;
Employees’ Privacy Rights in Social Media;
Discovery and Social Media;
Social Media in Ongoing Litigation;
Ethical Considerations Regarding Social Media.
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Litigants must also be cognizant of their use of social media during litigation.
Case Illustration: Gulliver Schools, Inc. v. Snay, 137 So.3d 1045 (Fla. 3d DCA 2014).
◦ A headmaster sued a school for age discrimination and retaliation. The parties entered into settlement agreement wherein the school agreed to pay $90,000 to him and $60,000 to his attorneys in exchange for a general release.
◦ The settlement agreement included a confidentiality provision providing that a portion of the settlement proceeds would be disgorged if the headmaster or his wife violated the confidentiality provision.
◦ After the parties signed the settlement agreement, the school notified the headmaster that he had breached the agreement due to a Facebook posting by the headmaster’s college-age daughter stating, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” The post was viewable by the daughter’s approximately 1,200 friends, many whom were current or past students of the school.
◦ Subsequently, counsel for the school tendered payment of the attorney’s fees sum to the headmaster’s counsel, but withheld the remaining payments on the basis that the headmaster had breached the settlement agreement’s confidentiality provision.
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The headmaster subsequently filed a motion to enforce the settlement agreement, which the lower court granted.
On appeal, the appellate court reversed the lower court, explaining that the confidentiality provision was unambiguous and that the headmaster’s admission that he had told his daughter that the case had settled and that he was happy with the results violated the provision.
Gulliver underscores the importance of, and enforceability of, confidentiality provisions and the dangers of social media surrounding the same.
◦ Employees and employers would be wise to refrain from commenting on active litigation through social media channels.
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Social Media and the NLRA;
Social Media and Florida’s Public Employees Relations Act;
Social Media in Workplace Investigations;
Social Media and Harassment/Retaliation/Discrimination;
Employees’ Privacy Rights in Social Media;
Discovery and Social Media;
Social Media in Ongoing Litigation;
Ethical Considerations Regarding Social Media.
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The preservation of social media-related documents and information implicate ethical considerations.
For example, on January 23, 2015, The Florida Bar’s Professional Ethics Committee issued Proposed Advisory Opinion 14-1 concerning the ethical obligations on attorneys advising clients to “clean up” social media pages prior to litigation to remove embarrassing information which the lawyers believe are not material to the litigation.
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The Opinion provides, inter alia, that:
“[A] lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.”
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Some states have offered guidance on whether legal ethics rules should apply to blogs.
For example, the California Committee on Professional Responsibility and Conduct recently released a draft ethics opinion concerning the instances in which its state rules of professional conduct should apply to attorneys and law firms that publish blog posts.
◦ The California Opinion provides that blogging by an attorney is subject to California’s ethical rules on advertising if the blog expresses the attorney’s availability for professional employment directly through “words of invitation” or offers to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, details descriptions of case results, or both.
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Also, on March 10, 2015, the New York County Lawyers Association Professional Ethics Committee released Formal Opinion 748, concerning the ethical implications of attorney profiles on LinkedIn.
The Opinion provides, inter alia:
◦ 1) That a LinkedIn profile containing only an attorney’s education and current and past employers does not constitute attorney advertising;
◦ 2) That if an attorney includes additional information in his or her profile (e.g., descriptions of areas of practice, certain skills, or endorsements), the profile may be considered attorney advertising and thus should contain an advertising disclaimer; and
◦ 3) That categorizing certain information under “skills” or “endorsements” heading does not constitute a claim to be a “specialist” (and thus not barred), provided the information is true and accurate.
The Opinion further provides that attorneys must ensure that all information on their LinkedIn profiles is truthful and not misleading, and should periodically monitor and review the content of their profiles to ensure accuracy.
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Other state bars have suspended attorneys for their use of social media.
For example, in February 2015, the Louisiana Attorney Disciplinary Board recently recommended the suspension of an attorney which, in conjunction with her client, used social media to urge readers to sign an online petition and contact two judges in cases involving child sex abuse allegations.
◦ The attorney, who represented a mother alleging child abuse by the father of her children in a child custody/visitation case, used Twitter and other social media to publish misleading and inflammatory statements concerning judges overseeing the case, including stating that the judges refused to properly consider evidence.
◦ Among the postings, the attorney requested readers to promote a petition criticizing the judges’ rulings and also requested that the readers call the judges to communicate their dissatisfaction with the rulings.
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There are also ethical issues surrounding the practice of “friending” judges and jurors on social media.
In 2009, the Florida’s Judicial Ethics Advisory Committee released an ethics opinion, Opinion Number 2009-20, which provided that a judge is not permitted to be Facebook friends with a lawyer who may appear before him or her.
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Notwithstanding Opinion Number 2009-20, two recent cases highlight the issues surrounding this area.
In Domville v. State, 103 So.3d 184, 186 (Fla. 4th DCA 2012), the court held that a judge was required to recuse himself from a case in which the prosecutor was his Facebook friend, noting that the existence of the friendship could “create in a reasonably prudent person a well- founded fear of not receiving a fair and impartial trial.”
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However, in Chace v. Loisel, No. 5D13-4449, 2014 WL 258620 (Fla. 5th DCA Jan 24, 2014), the Fifth District Court of Appeal, in ruling on a challenge to the denial of a party’s motion to disqualify, called into question Domville’s reasoning, explaining:
“The word “friend” on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville's logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow” (emphasis added).
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Notwithstanding its critique of Domville, the court in Chace nevertheless held that the trial court judge should have followed Domville’s guidance and recused herself as
◦ 1) Domville was, at the time, the only Florida appellate decision on the Facebook friend issue, and
◦ 2) the judge’s actions in Chace, which included sending a friend request to one of the litigants while her divorce litigation was pending, were much more egregious and likely to result in bias.
In light of the Domville and Chace decisions, the lines surrounding friending have been blurred.
For many of these same reasons, attorneys should also avoid friending members of a jury. Indeed, the ABA Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 466, instructing that a lawyer cannot send an “access request” to the juror’s or potential juror’s social media account.
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Social media has caused, and continues to cause, many legal issues in the employment law arena.
Because social media cases and decisions are issued nearly every day, it is impossible to capture them all in single presentation.
Both employers and employees must be cognizant of social media issues and topics, and be on the lookout for new developments in this evolving area of the law.
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QUESTIONS?
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