The NLRB/EEOC Landmine – When Does Offensive Speech Amount to Protected Activity?

The NLRB/EEOC Landmine – When Does Offensive Speech Amount to Protected Activity? Employers need to be on the lookout for instances of offensive employee speech, which may put them between a rock and a hard place as they navigate potential claims under either anti-discrimination laws or federal labor laws.

You have probably heard that Google terminated an employee earlier this month for saying (among other things) that gender inequality in the technology field resulted from biological differences. After James Damore (now former employee) circulated a lengthy written critique on the company’s diversity efforts, Google ended his employment. Google’s CEO sent a company-wide email announcing that Google terminated Damore because his statements violated the company’s code of conduct by “advancing harmful gender stereotypes in our workplace.”

Google’s response to the memo is not surprising. Over the last several years, the tech industry has faced increased scrutiny about gender inequality in the workforce. We have seen a handful of claims (both in and out of court) alleging sex discrimination and harassment in Silicon Valley. Ignoring for the moment the optics, workforce morale, and company culture potentially affected by Damore’s manifesto, the company acted to minimize its exposure under anti-discrimination laws. For example, if a female employee later sues Google for sex discrimination, Google can point to its hardline response as evidence that it is committed to the equal treatment of women in the workplace and does not tolerate attitudes to the contrary.

What Google may have failed to consider, however, are Damore’s potential claims under the National Labor Relations Act (NLRA), which protects employees’ rights to act together to improve pay and working conditions.

The day he was terminated, Damore filed a complaint with the National Labor Relations Board (NLRB), apparently claiming that his manifesto was protected activity and the company was trying to silence him by threatening his employment. (The actual complaint is not yet publicly available, but Damore has spoken out about it, and the NLRB site describes the nature of the complaint as “coercive statements.”) The day after Damore filed his NLRB complaint, the Eighth Circuit agreed with another NLRB order reinstating an employee terminated for making racial slurs to a group of African-American workers. Because that employee made the slurs during a nonviolent company strike, the Eighth Circuit held that he was participating in protected collective activity. Damore will likely point to the new Eighth Circuit opinion to support his NLRB complaint.

Whether offensive speech constitutes harassment is very fact-specific, as is whether an employee’s conduct amounts to protected concerted activity under the NLRA. Employers should always address instances of unprofessional or offensive comments, but they also need to be on the lookout for potential NLRB claims if the employee’s remarks reach a larger group of people (whether in person, in writing, or via social media).

You Might Feel a Small Stick: EEOC Sues on Failure to Accommodate Phlebotomist

By Anne R. Yuengert on August 16, 2017 Posted in ADA, Disability Discrimination, EEOC, Reasonable Accommodations

You Might Feel a Small Stick: EEOC Sues on Failure to Accommodate Phlebotomist If an employer provides a temporary reassignment to accommodate an employee’s disability/pregnancy restrictions, does it have to return her to that assignment after her maternity leave? The EEOC seems to think so. In Equal Employment Opportunity Commission v. Dependable Health Services, the EEOC alleged that Dependable Health Services (DHS) discriminated against Sheena Berry, who has sickle cell anemia. Although the facts are far from clear in the complaint, it appears that the EEOC is claiming that DHS initially failed to reassign Berry to accommodate pregnancy complications related to her sickle cell anemia. After she was reassigned, the EEOC alleges that DHS again failed to accommodate Berry by returning her to that reassignment when she was ready to return to work after her maternity leave. Finally, the EEOC claims DHS terminated Berry because of her disability.

Facts per the EEOC Complaint

Sheena Berry started work in March 2016 as a phlebotomist at Walter Reed National Military Medical Center. In September, DHS became Berry’s employer when it took over the contract at Walter Reed. Berry told DHS she was pregnant and disabled (the sickle cell anemia) which restricted her ability to lift and bend. She requested a reasonable accommodation—that she not work mobile blood drives. DHS said no but the mobile blood drives would “be kept short.” In October 2016, DHS changed its decision after Berry was working a blood drive and had premature contractions and was hospitalized. At that point, DHS assigned Berry to the Outpatient Phlebotomy Department (which did not require mobile blood drive work), and she worked there until she delivered her baby in November 2016.

While on maternity leave, in January 2017 Berry requested reassignment to the Outpatient Phlebotomy Department (which suggests that she understood that the original reassignment was temporary). Curiously, the complaint is silent about any information from Berry’s doctors supporting her requests. The EEOC alleged that DHS did not respond to Berry’s request or her follow-up requests, although it did ask for her return to work date.

On Friday, February 24, 2017, Berry told DHS she would return to work the following Tuesday. On Monday, DHS indicated it was going to backfill the position and terminated Berry, effective immediately.

The EEOC’s Claims

The EEOC has sued DHS under the Americans with Disabilities Act (ADA). It alleged that Berry was disabled—both because she has sickle cell anemia and because she had complications with her pregnancy related to her sickle cell anemia. They also alleged that Berry has a record of disability.

The complaint puts the first ADA violation in September 2016 when DHS failed to transfer Berry to the Outpatient Phlebotomy Department to accommodate her. Then, without any other details, the complaint alleges that DHS “failed to allow Berry to return to her phlebotomist position or reassign her; and instead discharged her because of her disability and record of disability.”

Takeaways

As always, remember that the complaint is just the EEOC’s side of this story. There is always another side with details that the EEOC (and we assume Ms. Berry) disputes. However, based on these allegations, there are a couple of good reminders:

Always engage in (and document) the interactive process to show you worked with an employee to find a reasonable accommodation. The EEOC is apparently claiming that DHS did not engage in this process. In most cases, failure to engage in the process is much harder to defend than denying a requested accommodation.
Even if you doubt the employee is disabled, engage in the interactive process. Recall that after the clumsily named Americans with Disabilities Act Amendments Act (the ADAAA), employers are supposed to focus on whether they can provide a reasonable accommodation and not on whether an employee is actually disabled (because almost everyone is under the ADAAA). I am not suggesting that you not request information from an employee’s doctor to support the claimed disability or the requested accommodation. I am suggesting that even if you don’t think the employee is disabled, engage in the interactive process anyway (because that is easier to defend).
One of the EEOC’s agenda items is leave as a reasonable accommodation. Even employees who have no FMLA rights can be entitled to leave for a disability. (Notice that the EEOC has not pled an FMLA claim– presumably because Berry was not covered.) The commission is looking for cases on this issue so make sure you handle leave requests with care.

New I-9 (And We Are Not Talking About Bingo) – Employers Must Use New Form Beginning September 18

By Keith Covington on August 9, 2017 Posted in Immigration Law

The U.S. Citizenship and Immigration Services (USCIS) issued a new version of the Employment Eligibility Verification, Form I-9 that employers will need to start using soon. As all employers know, the I- New I-9 (And We Are Not Talking About Bingo) – Employers Should Look For New Form by September 18 9 is the form used to verify employee work authorization. Employers may begin using the new Form I-9 (revision date 07/17/17) immediately, although the previous version (revision date 11/14/16) may also be used through September 17, 2017. Beginning on September 18, only the new version will be acceptable.

Is There a Difference?

The new Form I-9 contains only one minor change: a revision to the Lists of Acceptable Documents, List C. This list now includes the Form FS-240 Consular Report of Birth Abroad, the most current version of the certification or report of birth issued by the U.S. Department of State to individuals born abroad to a U.S. parent.

USCIS has also tweaked the accompanying Form I-9 Instructions, including a change to reflect that the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been renamed the Immigrant and Employee Rights Section (IER) of the Department of Justice’s Civil Rights Division.

Change Your Forms by September 18

Although these revisions will have almost no practical effect, it is imperative that employers begin using the new Form I-9 no later than September 18, 2017. Failure to use the new version is a Form I-9 violation that can lead to civil penalties in the event of an audit by Immigration and Customs Enforcement (ICE).

Sad Dad Wants Paid Leave to Care for Newborn Lad; Employer’s Leave Policy Is Not So Rad; ACLU Gets Mad

By J. William Manuel on August 8, 2017 Posted in EEOC, FMLA, Leave

Sad Dad Wants Paid Leave to Care for Newborn Lad; Employer’s Leave Policy Is Not So Rad; ACLU Gets Mad Can an employer distinguish between moms and dads when granting paid parental leave for care for a newborn? Bank JP Morgan appears to believe so. Derek Rotondo requested parental leave when his wife was expecting their second child. Under JP Morgan’s policies, mothers are by default considered primary caregivers and are automatically entitled to 16 weeks of paid parental leave. Fathers, however, are only entitled to two weeks of paid leave, unless the father could prove that the mother was “medically incapable” of taking care of the child. Mr. Rotondo did not meet that criteria and was denied the 16 weeks of paid leave. In response, he and the ACLU filed a charge with the EEOC alleging that JP Morgan’s policy violated Title VII because it enforced gender stereotypes—women as caregivers and men as workers.

Keep in mind we are not talking about whether men can take unpaid leave to care for a newborn. That issue was decided long ago with the FMLA’s passage. If a man working for an FMLA-covered employer is FMLA-eligible and requests 12 weeks of unpaid leave when a newborn enters his life, the employer’s answer is almost always a definite yes. The issue in this matter is about the employer’s paid leave policy.

EEOC Guidance

The EEOC has issued specific guidance on employers providing paid pregnancy and post-pregnancy leave. They suggest that employers should divide this type of leave into two categories:

(1) Pregnancy disability – leave related to any physical limitations imposed by pregnancy or childbirth

(2) Bonding – leave for purposes of bonding with and/or providing care for a child

Obviously, the first category can be limited to women affected by those conditions. However, if an employer chooses to extend paid leave to new mothers beyond the period of recuperation from childbirth, it must provide that leave to similarly situated men and women on the same terms. The guidance goes on to give an example of how an employer can phrase the distinction between the types of leave in their policies.

Takeaways

The JP Morgan charge is still in the early stages so it will be interesting to see how this plays out. However, as norms for childcare have evolved into a more equal status between mothers and fathers, employers may be confronted with similar requests by working dads. While the EEOC’s suggested language for a policy is only guidance, not a requirement, it is helpful as a starting point for discussions about what benefits an employer may want to provide. Keep in mind that you cannot discriminate against employees based on their sex—even if your intent is to give new mothers an extra benefit.

“But My Doctor Said It Was Cool”: Florida’s New Medical Marijuana Bill and Employment Considerations

By Mark A. Hanley on August 3, 2017 Posted in ADA, Disability Discrimination, Drug Testing, Reasonable Accommodations

“But My Doctor Said It Was Cool”: Florida’s New Medical Marijuana Bill and Employment Considerations Last month, Florida Gov. Rick Scott signed into law a medical marijuana use bill. This was the result of the overwhelming vote (71 percent) in favor of amending the Florida Constitution to allow medical marijuana use as prescribed by a licensed Florida physician. Florida now joins 27 other states that have legalized at least some form of marijuana use.

Details of Florida’s Law

To qualify for medical marijuana use in Florida, a patient must have a “debilitating medical condition.” The law specifies the following as qualifying conditions:

cancer, epilepsy, glaucoma, HIV/AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis and other debilitating medical conditions of the same kind or class or comparable to those enumerated.

Obviously, what constitutes “other debilitating medical conditions” leaves the door wide open for other medical conditions to come within the coverage of legal medical marijuana use. Some states, such as California and Washington, have defined “debilitating medical conditions” to include severe pain, cramping, anxiety, vomiting, and appetite loss. It is doubtful Florida would take such an expansive definition, but time will tell.

Interestingly, the final version of the law still bans the smoking of marijuana. Florida joins the states of Louisiana, Minnesota, New York and Pennsylvania, all which have legalized marijuana use in some form but still ban its smoking. Rather, in Florida, legal marijuana must be consumed in oil or edible form. How long this remains the law is in doubt since one of the major supporters of the law has already filed suit contesting the constitutionality of the no smoking ban.

It is worth noting that federal law, not state law, governs what constitutes an illegal drug. Under the Federal Controlled Substance Act, marijuana is still a Schedule I hallucinogen and its use is still illegal despite the legalization of its use in many states. Several state court decisions have relied on this principle in deciding to limit employee rights under the various state laws legalizing marijuana use.

Considerations for Florida Employers

So, what does a Florida employer do with an employee who is using medical marijuana?

Americans with Disabilities Act (ADA) Issues. Probably the most difficult challenge will be the interplay between the ADA and the legal use of marijuana. As you know, under the ADA an employer must make reasonable accommodations to a qualified individual with a disability—but illegal drug use is not considered a covered disability. I can envision the scenario where an employee presents a physician’s note supporting an accommodation of the employee being allowed to take marijuana during working hours to control a debilitating condition. But for the fact that marijuana is illegal under federal law, the ADA would seem to require that accommodation. The Florida law does not go that far.

Unlike some state laws (e.g., New York, Arizona, Minnesota, Illinois), the Florida law does not require an employer to accommodate on-site medical use of marijuana. To put it another way, Florida employers have no legal duty under this new law to allow employees to consume medical marijuana at the workplace. The law does not address off-site accommodation of medical marijuana use. However, considering the conservative nature of Florida employment laws, there is little concern that Florida employers need to accommodate medical marijuana use outside of the workplace either.

Drug Testing Policies. How will this affect a Florida employer’s drug testing policies? Unlike many states, the Florida Drug-Free Workplace Act (the Act) incentivizes employers to establish a drug-free workplace policy. The Act gives a Florida employer a credit on its workers’ compensation premiums if it has a qualified drug-free workplace policy. Even without such a policy, a Florida private employer still has the right to drug test its employees at any time. It remains to be seen if a Florida employer has the lawful right to terminate an employee who tests positive for legal (at least under state law) medical marijuana use. Once again, considering the conservative jurisprudence of the Florida courts, it would not surprise me that an employer still retains the right to fire that employee. In other states courts have upheld the employer’s right to do so considering marijuana use is still illegal under federal law. However, I am not unmindful of the argument that 71 percent of Florida voters voted in favor of medical marijuana use and such a firing would seem to be against the will of the electorate.

Takeaways

Even with the passage of this new bill, in the short term, I do not see it as having any major impact on Florida employers. Florida employers still do not need to accommodate medical marijuana use at work and can continue to fire employees who test positive for using it. Having said that, employers should remain vigilant in keeping abreast of the changing employment laws. While it seems unlikely under the current administration that federal laws will become more employee-friendly (i.e., legalizing marijuana use), Florida courts or the Eleventh Circuit may do just that. Issues could also arise under the FMLA, union contracts, whistle-blowing on a “drug user” and elsewhere.

Moral of this blog: Stay tuned.

No Union Protection for Employees “Sick” Over No Paid Absences

By Virginia Broughton Reeves on August 1, 2017 Posted in NLRB

No Union Protection for Employees “Sick” Over No Paid Absences Can employees protest a company sick leave policy with an internet meme that suggests the company’s food is not safe? Not according to a recent Eighth Circuit decision. MikLin (doing business as Jimmy John’s in Minnesota) recently prevailed in a case over whether workers that publicly complained about the company’s sick leave policy were protected under the National Labor Relations Act (NLRA). MikLin’s policy mandated that employees find their own replacement if they could not work, while missing work also led to disciplinary action. The Industrial Workers of the World (IWW) had been trying to unionize the stores and highlighted the issue of paid sick leave during the organizing campaign.

The Employees’ Controversial Poster and Protest

Four employees (the Poster Employees) protested this sick leave policy by creating a meme that features two identical side-by-side photographs of a sandwich. The sandwich on the left-hand side was labeled “Your Sandwich Made by a Healthy Jimmy John’s Worker,” while the one on the right-hand side said “Your Sandwich Made by a Sick Jimmy John’s Worker.” The poster went on to say “Can’t Tell The Difference?: That’s Too Bad Because Jimmy John’s Workers Don’t get Paid Sick Days. Shoot, We Can’t Even Call In Sick.” The poster didn’t stop there, adding “We Hope Your Immune System Is Ready Because You’re About To Take the Sandwich Test…” Still not finished, the poster then asked readers to go to a website to “Help Jimmy John’s Workers Win Sick Days.”

The Poster Employees met with managers and reported that employees were working while sick because they could not find replacements or afford to take unpaid time off. Ultimately, some of the Poster Employees were fired, while others received written warnings.

The Early Rounds of the Dispute

After the employees were discharged and disciplined, IWW filed three unfair labor practice charges alleging that MikLin violated Sections 8(a)(1) and (3) of the NLRA which protects workers engaged in unionization efforts. However, employees lose the act’s protection if the employer fires an employee for engaging in concerted activity that is detrimentally disloyal. The Administrative Law Judge (ALJ) issued a recommendation that MikLin had committed most of the allegations in the complaint.

MikLin filed an exception to the ALJ’s decision, asking the National Labor Relations Board (NLRB) to change the decision. The board affirmed the ALJ’s findings. The majority agreed that the posters were sufficiently related to a protected, ongoing labor dispute and that there was nothing so “disloyal, reckless, or maliciously untrue so as to cause the employees to lose the Act’s protection.”

Upon Miklin’s appeal, a three-judge panel on the Eighth Circuit agreed with the board. Miklin asked the entire Eighth Circuit to weigh in.

The Last Word and Takeaways

The full Eighth Circuit recently reversed, holding that MikLin did not violate the Poster Employees’ union organizing rights. The court found that even though the Poster Employees were fired for publicly protesting the company’s sick leave policy, the posters were disloyal and not protected. So what have we learned?

Employers should keep in mind that when employees are raising concerns about the terms and conditions of their employment, they are usually protected by Section 8(a). This applies to employers who do not have a union—even if there is not union organizing afoot.
There are limits to how employees can publicly protest. This poster was fairly extreme. If the Poster Employees had been a little more restrained, they might have won.

Shameless Self-promotion: Please Vote for Labor & Employment Insights in ABA Journal’s Web 100 Ranking

By Anne R. Yuengert and J. William Manuel on July 27, 2017 Posted in Uncategorized

Dear Readers,

We have been blogging for more than a year now and have tried to provide you informative and timely posts on changes in labor and employment law. We hope you have found it helpful and, at least a little entertaining. If you have found it worthwhile and think we deserve some PR, please consider nominating Labor & Employment Insights for the ABA Journal’s Web 100 best legal blogs competition. This is a ranking of the “best of the legal industry on the web” and we hope you think we belong in that group.

You have only a few days left to vote! The ABA Journal is accepting nominations through July 30 at 11:59 p.m. CT. It only takes a few minutes to fill out a nomination form. Thank you for taking the time to vote for us and for your continued support!

Sincerely,

Anne Yuengert and Will Manuel, Editors

Bradley’s Labor & Employment Insights

A Candidate Named Sue (or Maybe Regina)? Tread Carefully With the Litigious Job Applicant.

By Anne R. Yuengert on July 26, 2017 Posted in Discrimination, Title VII

A Candidate Named Sue (or Maybe Regina)? Tread Carefully With the Litigious Job Applicant. When is it safe to take action against an employee (or a former employee) who filed an EEOC charge against you? As the 7^th Circuit just found in Baines v. Walgreen Co., you can never –REPEAT, NEVER – take action because an employee filed a claim. In Baines, the court ruled that even though the protected activity was five years before, the plaintiff presented sufficient evidence that the company’s refusal to hire her could have been retaliatory and overturned the lower court’s grant of summary judgment.

Baines’ Complaints From 2007 and 2009

There are a lot of facts in this one, so stay with me.

In 2005, Regina Baines began working for Walgreens as a pharmacy tech in Milwaukee. In 2007, she filed an EEOC charge alleging discrimination based on her African American race. After she filed the charge, she claims that several managers, including Michelle Birch, met with her and said she had “messed up.” Birch allegedly asked what she wanted, and Baines said a promotion and a store transfer. She got neither and filed her second EEOC charge, alleging retaliation.

A year later, Baines requested and received a transfer to Georgia. So far, so good. When she arrived in Georgia, however, Baines found there was no work for her and filed her third charge – again alleging retaliation. The court record did not indicate what happened to these charges.

Jump to 2014

In 2014, Baines applied for a pharmacy tech job with Walgreens back in Wisconsin. The local store manager, Hannah Ruehs, interviewed her but then left her a voicemail that she had selected someone else. In a curious twist of fate, several days after the message, Ruehs interviewed and hired another applicant, Lisa Martin – who just happened to be Baines’ cousin – who had less pharmacy experience than Baines.

After Cousin Martin and Ruehs became BFFs, Ruehs told Martin that she had really wanted to hire an applicant named “Regina,” allegedly confiding that “You didn’t hear this from me, but I was told from higher up, Ms. Birch, that I could not hire her. Guess what? Baines filed a fourth EEOC charge alleging retaliation.

The EEOC Investigation and Baines’ Lawsuit

Initially, Ruehs told the EEOC she didn’t know Baines and had never interviewed her. After listening to the voicemail message (that Baines had cleverly preserved), Ruehs admitted she interviewed Baines. In another odd twist, Walgreens could not find any interview records for Baines’ interview (and apparently had no explanation). Baines’ name was not even on the list of candidates. The EEOC issued a right to sue letter, and Baines filed a lawsuit alleging retaliatory failure to hire.

In discovery, Birch denied that she told Ruehs not to hire Baines. For her part, Ruehs testified that she didn’t hire Baines because a former coworker gave her a negative review. Baines testified that the coworker told her he didn’t want to work around her because of her EEOC charges.

The district court granted Walgreens’ motion for summary judgment, finding that Baines did not establish a causal connection between her prior complaints and the failure to hire. It noted that Cousin Martin testified that Ruehs said Birch said she could not hire her – not that she could not hire her because of her prior complaints. The district court said the five-year gap between the last EEOC charge and the failure to rehire was just too long. The 7^th Circuit disagreed.

Circumstantial Evidence of a Causal Connection

The 7^th Circuit found that Baines presented “substantial evidence that can support a reasonable inference of retaliatory intent,” including the “mysteriously missing” interview records, Ruehs’ initial denial of interviewing Baines, and her apparent lie to Baines that she had hired someone else – because she interviewed and hired Martin several days later. The court also said that Ruehs hiring Martin, who had less experience than Baines, didn’t look so good and neither did Martin’s testimony about what Ruehs said that Birch said about not hiring Baines. The court also threw in that if Birch got involved in Ruehs’ hiring decisions, it significantly deviated from Walgreens’ normal practices – yet another indication that maybe Birch was retaliating against Baines.

The court noted that on summary judgment, it must accept Martin’s and Baines’ testimony as true and that testimony could not be squared with Birch’s and Ruehs’ versions of events – so there was a classic dispute of fact precluding summary judgment.

Does That Mean You Have to Rehire a Bad Employee Just Because She Filed a Charge?

No. When an employee files a charge or a lawsuit or even just an internal complaint, you must take steps to be sure that you don’t get a retaliation charge, even after that employee leaves. What are those steps?

People involved in the first complaint need to stay out of subsequent decisions. Again, we don’t know if Birch actually told Ruehs anything. However, if Birch only said “I wouldn’t hire her” or “that would be a big mistake” or “she had some troubles before,” that could provide a causal connection between the prior complaints and the new decision.
Ideally, you want people to make the subsequent decision who don’t know about the prior complaints. In this case, if Ruehs (who apparently knew nothing about the earlier complaints) had simply not hired Baines, we might not be reading this case. It was only Birch’s alleged involvement that raised a potential causal connection.
If you cannot get around the connection, think about adding independent decision-makers as a check. For example, if Ruehs knew about the charges, she could enlist two other interviewers so they can provide untainted assessments of Baines as a candidate. Keep in mind that this only works if the records are clear that the two independent interviewers didn’t like Baines based on her interview – not on what they were told by Ruehs.
Keep information about complaints to a small group. The only people who need to know about a charge are the people who need to know. The more people who know, the harder it is to have independent decision-makers.
Don’t talk out of school. We don’t know if Ruehs told Martin anything about wanting to hire Baines or whether Birch even got involved. Let’s just take it as a cautionary tale – don’t talk to employees about “the boss wouldn’t let me do it” or anything about an employment decision that doesn’t involve them. It is unprofessional and can get you sued.

Want to Peek at Your Employee’s Email? Be Careful!

By Clarence Webster III on July 20, 2017 Posted in Employee Rights, Termination

Want to Peak at Your Employee's Email? Be Careful! Can you look at an employee’s personal email account if you access it on company equipment? A recent opinion from the federal District Court of Maryland should at least make you think twice before doing that. In Levin, et al. v. ImpactOffice, the court denied a company’s motion to dismiss a former employee’s Stored Communication Act (SCA) claim, which arose out of just such a scenario. The court found that former employee Melissa Edwards could proceed with her claim because the accessed emails were retained on Gmail’s servers “for purposes of backup protection.”

The Facts

By way of background, Edwards and several other former employees filed suit against Impact, seeking a declaratory judgment that the restrictive covenants in their employment agreements were unenforceable. Edwards also asserted a claim under the SCA. In her complaint, Edwards alleges that after she resigned, Impact requested that she return her company-provided cellular phone. Edwards deleted all of her personal Gmail emails before returning the phone. After obtaining the phone, Impact used it to access Edwards’s Gmail account on at least 40 occasions, forwarding some of the emails to Impact’s counsel, including emails between Edwards and her counsel that were sent after Edwards resigned and clearly marked “privileged and confidential attorney-client communications and work product.” Impact also deleted from Edwards’s account all emails that would have revealed the forwarding of her emails to Impact. Edwards later filed suit against Impact, asserting two claims, one under the SCA.

The SCA and the Court’s Decision

A party may be held liable under the SCA where a person “intentionally accesses without authorization a facility through which an electronic communication service is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” Electronic storage is considered “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”

In its motion, Impact argued that Edwards’s SCA claim failed because she did not allege the emails Impact accessed were unopened. As such, the emails did not meet the definition of electronic storage. In response, Edwards argued the emails fell within part (B) of the definition because copies of the emails she deleted from the phone were maintained on Google’s server “for purposes of backup protection.” Therefore the read/receipt status of the email did not matter. While the court acknowledged the read/receipt status of an email could impact whether it fell within part (A) of the definition, the court agreed with Edwards that it was not germane under part (B).

The court ultimately concluded that Edwards had properly alleged a SCA claim under part (B) of the definition of “electronic storage,” relying, in part, on the Ninth Circuit’s holding in Theofel v. Farey-Jones. Specifically, the court found that the emails fell within the definition of electronic storage because they were downloaded or delivered to an electronic device with a copy retained on Gmail’s server. The court, however, excluded from that definition emails that are maintained on an ISP’s server only.

Takeaways

The court noted that applying the definition of electronic storage “is a difficult endeavor because the technology relating to emails and other electronic communication has changed since the enactment of the SCA.” As electronic communication technology advances, that difficulty will only increase. As such, employers should be very wary of accessing an employee’s web-based email account without permission. Doing so could expose the employer to actual damages, statutory damages in the amount of $1,000 per violation of the SCA, and claims for equitable relief and punitive damages, as well as attorney fees.

WELCOME (?) BACK! DOL Reinstates Wage and Hour Opinion Letters – Should it Matter to You?

By Mary Ann Couch on July 13, 2017 Posted in Department of Labor, FLSA, Labor Laws & Rights, Overtime, Wage and Hour

WELCOME (?) BACK! DOL Reinstates Wage and Hour Opinion Letters – Should it Matter to You? The U.S. Department of Labor recently announced that it will revive its practice of publishing opinion letters to provide guidance to employers and employees on wage and hour issues. This change (after a seven-year hiatus) reopens the door for employers and employees to gain clarity on important issues affecting the workplace.

What’s an opinion letter?

An opinion letter is an official opinion written by the DOL Wage and Hour Division addressing a specific issue that affects employers and/or employees. An employer or employee can submit a request for an opinion letter on the DOL’s webpage. The DOL will review the request and may issue an opinion letter, if appropriate. (They get lots of them, so every request won’t be a taker!) The request should summarize the relevant facts and pose a question or issue for the DOL to address. The opinion letter is the DOL’s written response to that request, based on the information provided by the requester (who remains anonymous to the public) and any assumptions made by the DOL.

Why would you request an opinion letter?

There are many scenarios where an opinion letter might be helpful to an employer or employee. For example, if an employee switches from nonexempt status to a fluctuating workweek, an employee might seek guidance about whether the employee’s old bonus plan fits into his or her new compensation structure. Or an employer offering online classes to employees in preparation for a voluntary job training class may want to know whether that training time is compensable under the FLSA, as in this 2009 opinion letter.

If you’ve got a question about wage and hour laws and you can’t seem to find the answer in other guidance, requesting an opinion letter might be the right step. It may also be helpful to review past opinion letters. But remember, opinion letters are just guidance—they aren’t the law, and they aren’t binding. When you’re navigating the intricacies of wage and hour issues, opinion letters can be a helpful tool.