The number of religious discrimination cases has risen steadily over the past decade. This trend may continue, at least in New York City, well into the future. On August 17, 2011, the New York City Council, NYC’s law-making body, passed Local Law Int. No. 632-A, which amended the NYC Human Rights Law – already one of the strongest in the nation – to provide increased protections against religious discrimination.
Written by Michael Arnold
Last year, New York nearly became the first state to pass a law protecting employees against workplace bullying. The New York State Senate passed the bill in May 2010 by a wide margin, but the following month, the New York Assembly Labor Committee voted to “hold” it in committee, effectively killing its chances at passage in 2010. Recently however, on February 2, 2011, Assemblyman Englebright reintroduced the anti-bullying bill (AB-4258) in the Labor Committee. A similar bill is expected to be introduced in the State Senate soon.
Typically, the law protects employees against experiencing discrimination in the workplace (e.g. on account of race, gender, national origin, age, religion, etc.). This law would significantly expand those protections by establishing a civil cause of action for employees subject to an “abusive work environment” generally. The bill defines an “abusive work environment” broadly – (1) where the employee is subject to “abusive conduct” so severe that they experience physical or psychological harm, and (2) where the employee complains to the employer about the conduct, but the employer fails to take corrective action. The bill also protects employees complaining about an abusive work environment from retaliation by their employers.
In other words, the law essentially seeks to establish a general “civility code” in the workplace – something the law has long abhorred – and otherwise further erodes New York’s longstanding status as an at-will state. The most problematic feature of the law however, is the uncertainly and confusion it will likely cause employers attempting to comply with its provisions. While most employers recognize the benefits of abuse-free workplace, requiring employers to ensure such an environment may prove difficult if not impossible, and undoubtedly, employers will face increased litigation costs.
We'll continue to track this bill’s movement through the State legislature.
The New York State Joine Enforcement Task Force on Employee Misclassification has been hard at work and reports that it has uncovered more than 12,000 instances of misclassification and recovered more than $400 million in unpaid wages. See a discussion of state and federal misclassification enforcement efforts here.
Many hospitals and other healthcare providers are government contractors, and must comply with various laws and regulations enforced by the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP), but don't realize it. As a result, they may be failing to satisfy various obligations imposed on government contractors, such as the requirement to have an affirmative action plan. For more on who's covered and what to do about it, see this article.
See this interesting write-up of the Supreme Court's decision in the text message privacy case, City of Ontario v Quon.
See this recent Mintz Levin advisory answering some "FAQs" on health care reform's impact on employee benefits.
Health care reform impacts employers in many significant ways. While the effects of reform on insurance coverage and other requirements have been widely publicized, much less well-understood are various amendments to the Fair Labor Standards Act (FLSA). One such amendment requires employers to provide nursing mothers break time to express milk and, perhaps more significantly for employers, a private and secure place, other than a bathroom, in which to do so. For more on these requirements, which are effective immediately, see Mintz Levin Advisory on Nursing Mothers Break Time and Private and Secure Place to Express Milk .
If you own, license, maintain, store or process the “personal information” of a Massachusetts resident – including that of your own employees – time is getting short for compliance with the Massachusetts data security regulations. Our colleagues in our Privacy and Security group have published a Privacy and Security Alert regarding the upcoming March 1 deadline. Also, check the link in the right navigation column of Mintz Levin's Privacy and Security Topics Blog for updates and additional compliance information.
Written by David Barmak
Here's a link to a short article I wrote for Employment Law 360 discussing the success FedEx has had in establishing that drivers for its FedEx Home subsidiary are independent contractors, not employees, including the D.C. Circuit's favorable decision which focused on the fact that the drivers have an "entrepreneurial interest" in their routes, militating in favor of independent contractor status.
Written by Martha Zackin
Anyone still listening at the end of President Obama’s first State of the Union Address heard him say the following: “We're going to crack down on violations of equal pay laws, so that women get equal pay for an equal day's work. "
He was serious, and the "crack down," likely won't be limited to equal pay law violations. Significant budget increases have been apportioned to the Department of Labor, the Equal Employment Opportunity Commission, the Occupational Health and Safety Agency, Immigration and Customs Enforcement, and the like, so that these agencies may step up their workplace audit and enforcement efforts. Be warned.
In an interesting case out of New York, the Second Circuit affirmed the District Court's refusal to enjoin an executive from working for his ex-employer's competitor where he had signed the contract in the wrong place an indicated an intention not to be bound by the Agreement. See Mintz Levin's Alert on the subject for more information on this case.
Written by Martha Zackin
Workplace Prof blog posted an interesting commentary on a recent California case, Nazir v. United Airlines, Inc., No. A121651 (Cal. App. Ct. October 8, 2009), in which the appellate court overturned the trial court’s decision granting summary judgment to the employer in a routine employment discrimination case.
Summary judgment is a means for the courts to dispose of cases truly lacking in merit, where there is no genuine issue of material fact that could justify a verdict for the party opposing the summary judgment motion. According to the Nazir court, “many employment cases fit that description, with some counsel too often willing to file suit whenever an employee in a protected class suffers some adverse employment decision.” Critics disagree, however, claiming that many employment cases present issues of intent, and motive, and other issues not determinable on paper. Addressing that point of view, the Nazir court stated that: “Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court.” (emphasis added).
After the plaintiff was fired from his job with United Airlines, and after having allegedly endured years abuse based on his Pakistani heritage, he filed a routine employment discrimination lawsuit against his employer and his supervisor. In due course, Defendants filed a motion for summary judgment. There was nothing routine about the motion, or about what happened next.
Defendants’ motion sought summary adjudication of 44 issues. The moving papers were comprised of 1056 pages, including a 196-page statement of facts and a 174-page request for judicial notice. Plaintiff’s opposition was nearly three times as long, and included a 1894-page separate statement of facts. Defendants’ reply, which included a 297-page separate statement and 325 pages of evidentiary objections, totaled 1150 pages.
In all, the trial court had before it 5415 pages of paper upon which to make its decision. It did so, after oral argument, finding in favor of Defendants. The plaintiff appealed.
Finding that the case presented a myriad of material facts that should be decided by a jury, the appellate court overturned the trial court’s decision. Opining that the trial court would not have found in Defendants’ favor had it read the underlying papers, the court stated:
While not reading the papers cannot be condoned, it can perhaps be understood, as we hesitate to speculate how long it would take a trial court to meaningfully digest over 2200 pages of separate statements, analyze and rule on 764 objections set out in 325 pages, review it all in light of the applicable law, and then write a proper order.
The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard. …
I have been practicing law for 20 years, nearly 14 of which were spent in-house for a large public company. During that time, I never, ever would have allowed my outside counsel to submit a motion for summary judgment or a reply, each of which totaled more than 1000 pages, for at least two reasons. First, I never would have authorized the extraordinary costs that must have been billed. Second, and perhaps more importantly, the best way to show that there is no material issue of fact to be decided is to lay out the evidence concisely, make your argument, and stop. Just stop. If it takes thousands of pages to show that summary judgment is appropriate, somewhere in all these reams of paper there has to be at least one material issue of disputed fact.
Written by Greg
A recent decision by the U.S. Court of Appeals for the Third Circuit illustrates how the Supreme Court’s opinion in Gross v. FBL Financial Services, Inc. serves to prevent previously-viable claims under the Age Discrimination in Employment Act (the “ADEA”) from reaching trial. In Kelly v. Moser, Patterson & Sheridan, LLP, No. 08-3318, the Third Circuit affirmed the District Court’s entry of summary judgment in favor of the employer because the employee failed to show that age was a “determinative ‘but for’ factor” in its decision to terminate his employment. Plaintiff John Kelly, a former fifty-two year-old “of counsel” attorney with the defendant law firm, Moser, Patterson & Sheridan, LLP (“Moser”), claimed the firm terminated his employment because of his age in violation of the ADEA. He relied on a handwritten note by the firm’s human resources director, written after his termination meeting, which referred to “older & better paid/younger & cheaper” lawyers. Moser said those words had been spoken by Kelly, but Kelly denied that and claimed that the note was direct evidence of discrimination.
The firm contended that it terminated Kelly’s employment because (i) he failed to meet the minimum annual billable hour requirement; (ii) he sued the firm; (iii) he had a disruptive relationship with his secretary; and (iv) one of the firm’s major clients complained about the plaintiff’s work and refused to let him perform further work on its behalf, causing the firm to write-off approximately $73,000 of his prior work. Relying on Gross, the Third Circuit held that the handwritten noted showed, at most, “that age was one of multiple motivations,” which was insufficient to prevail on an ADEA claim.
This opinion is a good example of how the Gross case favors employers. Before Gross, the handwritten note at issue in Kelly likely would have warranted the denial of summary judgment as some evidence of an unlawful age-based motive for terminating Kelly’s employment. Of course, as we discussed in an earlier post, legislation before Congress may spell the death knell for Gross, returning to the earlier and more employee friendly “mixed motive” standard of proof under which an employee need only show that age was a factor in the employer’s decision.
This alert talks about a recent decision by the Supreme Judicial Court of Massachusetts, which awarded Astra Zeneca about $7 million in salary and bonuses paid to its former CEO. The CEO had engaged in a long standing pattern of harassing female employees. The Court applied New York law. The full decision can be found here. Mintz Levin handled the case for Astra, led by partners Jeff Robbins, Henry Sullivan, Chip Phinney, and Joe Lipshitz.
Written by Greg and David
In a surprising number of cases, we’ve come across a situation where an employment agreement with original signatures, or some other important document, has gone missing. While a copy will sometimes suffice, a recent New York case highlights the importance of having an effective system for maintaining critical employment-related documents.
In Dreyfuss v. eTelecare Global Solutions-US Inc., 08-5903-CV, plaintiff James Dreyfuss filed suit in federal court against his prior employer, eTelecare Global Solutions-US Inc. (“eTelecare”), alleging that it owed him unpaid commissions. eTelecare filed a motion to compel arbitration on the basis of an arbitration agreement the plaintiff signed as a condition of his employment. But, all eTelecare had been able to find and produce for the Court was an agreement containing two of the three or more pages of the original agreement. The first page contained a broad arbitration clause which expressly covered any claims relating to the plaintiff’s employment or the termination of his employment. The agreement also stated that “[e]xcept as otherwise provided,” the parties would not initiate any lawsuit or administrative claim related to any claims covered by the agreement. However, because eTelecare couldn’t produce the entire second page of the agreement, the trial court held that it did not demonstrate that the parties had an agreement to arbitrate, and denied its motion to compel arbitration.
On appeal, eTelecare argued that the first and last pages of the arbitration agreement, by themselves, demonstrated that the parties agreed that the plaintiff’s claims for unpaid commissions should be submitted to arbitration, and that the missing pages contained only non-essential terms to that agreement. The Second Circuit disagreed, reasoning that eTelecare without being able to produce the entire agreement, eTelecare could not show that it and its employee had a meeting of the minds concerning arbitration. Therefore, it ruled, there was no binding arbitration agreement, and eTelecare’s motion to compel arbitration was properly denied.
The Second Circuit’s decision in Dreyfuss is contained in a Summary Order which does not constitute binding precedent. Nonetheless, the case illustrates what can go wrong when an employer cannot produce the original, or at least a complete copy, of an employment agreement. It serves as an important reminder that employers and employees must ensure that copies of important agreements and other documents are safely secured. HR should make sure that it receives complete originals of employment agreements and other necessary employment documents upon commencement of employment. Those documents should then be maintained securely, under lock and key in a secure file cabinet to which only a few designated individuals have access.
Written by David and Crystal
The Ninth Circuit’s opinion in LVRC Holdings LLC, v. Brekka et al. calls into question the utility of the Computer Fraud and Abuse Act (CFAA) for employers seeking to redress employee theft or misuse of company information. In LVRC Holdings, the Ninth Circuit affirmed a district court opinion finding that Christopher Brekka, a former employee of LVRC, did not violate the CFAA when he emailed company documents to his and his wife’s personal email account during his employment with LVRC.
LVRC operates a residential treatment center for addicted persons in Nevada and hired Brekka to oversee internet marketing programs and interact with LRVC’s internet provider, LOAD, Inc. While at LVRC, Brekka requested and received an administrative user name and password to access LRVC and LOAD websites. Near the end of his employment with LVRC, Brekka emailed multiple LVRC documents to his and his wife’s personal email account, including the company’s financial statement, marketing budget, admissions report for patients, and names of past and current patients. Brekka then left LVRC, which later discovered that someone using Brekka’s user name was accessing company websites.
LVRC brought suit in district court alleging that Brekka violated the CFAA, 18 U.S.C. § 1030, by accessing LVRC’s computer “without authorization” during and after his employment with LVRC. However, the Ninth Circuit concluded that an “employer gives an employee ‘authorization’ to access a company computer when the employer gives the employee permission to use it.” Here, the Court held, Brekka did not act “without authorization” because LVRC had given Brekka permission to use the computer during his employment. Importantly, the Court rejected LVRC’s argument relying on the Seventh Circuit decision in International Airport Centers, LLC v. Citrin, that an employee’s authorized use ends when he violates his duty of loyalty to the employer. In International Airport Centers, the Seventh Circuit, relying heavily on general principles of agency law, held that an employee’s breach of his duty of loyalty terminated any right he otherwise had to authorized access of his employer’s laptop. It concluded, therefore, that the employee’s deletion of data from the employer’s computer - - after the employee had already breached his duty of loyalty by deciding to, and taking steps in furtherance of, competing with his employer - - constituted unauthorized access of the employer’s computers in violation of the CFAA.
While the Ninth Circuit’s LVRC Holdings decision seemingly rejects reliance on general agency principles, it does expressly note that LVRC had neither an employment agreement with the employee, nor any policies or guidelines which expressly prohibited an employee from sending company documents to his personal email account. While it is not clear that the Ninth Circuit would have reached a different result had LVRC had such an employment agreement or policies, it is clear that the absence of an agreement and/or policies can be fatal to an employer’s CFAA claim, at least in the Ninth Circuit. This case serves as yet another reminder, then, that every employer is well served by having in place good computer and business systems policies which make clear the limits of each employee’s rights with respect to authorized access to and use of the employer’s systems.
The LVRC Holdings decision can be found at:
http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000009960
WRITTEN BY DAVID AND GREG
