A U.S. District Court Judge in New Jersey has just found that private Facebook postings by an employee about her employer are subject to the Stored Communications Act, 18 U.S.C. §§2701-11 (SCA). The ruling raises significant potential hurdles for employers who act on private information posted by their employees on social media sites.
Since the 2011 United States Supreme Court decision in AT&T Mobility v. Concepcion, appellate courts have assessed whether arbitration clauses with class action waivers are enforceable. Concepcion said yes and most courts have followed that precedent. The Ninth Circuit in Richards v. Ernst & Young on August 21, 2013 also followed the majority of the case law and held that Ernst & Young’s arbitration agreement, which provided for a waiver of class action claims, was enforceable. The Ninth Circuit held that the individual claims must be arbitrated and they vacated the district court’s order certifying a class of plaintiffs with Richards as the class representative.
Picture this: you get to work on a Monday morning, grab a cup of coffee and turn on your computer only to find that 1,300 of your employees received an e-mail asking various questions about perceived age discrimination in your workplace as part of an “official inquiry” and a “federal investigation.” Would that ruin your day? It likely did for a group of HR and legal professionals at Case New Holland, Inc., a large agricultural and construction equipment business.
By signing Senate Bill (SB) 292 into law, California Governor Jerry Brown memorialized the seemingly non-controversial proposition that sexual harassment plaintiffs suing under the Fair Employment and Housing Act (FEHA) are not required to show that the harasser acted out of sexual desire. The new amendment to FEHA, effective January 1, 2014, was singularly focused on overturning the 2011 California Appeals Court opinion in Kelley v. The Conco Companies, 196 Cal.App.4th (2011), which, despite favorably citing seminal decisions on same-sex harassment and the role of gender in sexual harassment cases, strayed far from established jurisprudence.
As an employment law attorney, I regularly advise employers on personnel issues, including the conduct of internal investigations into employee complaints. Colleagues at my firm have a similar practice. We review investigation summaries and counsel human resources professionals in the conduct of investigations into internal complaints, including those involving discrimination, harassment and retaliation. I thought it would be interesting to take a survey of the attorneys at our firm regarding what issues regularly come up in our review and assistance of our clients with internal investigations. What follows is a list of the most common problems that arise and suggestions for best practices when conducting the investigations.
Would you believe that 1.1 billion people use Facebook and one-third of Americans use social media for at least an hour a work. Considering how prevalent social media is, you are behind the curve if you do not already have a social media policy. But what should it say?
HK Partner Dan Handman answered that question and many others in an article he recently wrote for Bloomberg News. You can access the article here.
- Dan Handman
Paula Deen, a celebrity chef known for her extreme Southern cooking and excesses, has been embroiled in scandal for the last several months, bringing together an odd mix of legal and marketing issues, celebrity, and Southern history. In 2012, former restaurant manager, Lisa Jackson, filed a hostile work environment and discrimination lawsuit against Paula Deen and her brother, Bubba Hiers, based on race and sex, among other claims. Deen and Hiers hired defense counsel and began to vigorously defend against the lawsuit. In what is clearly a publicity fiasco, Deen’s deposition, at which she admitted to having used racial epithets, has been admitted to the court of public opinion. Public opinion on this has been uniform and very negative, leading The Food Network, Wal-Mart, Target, and Sears to drop their affiliations with Deen.
In the salacious realm of sex discrimination law, the Iowa Supreme Court recently rendered an opinion that just might contend for the best blog fodder of 2013. Whether the decision in Nelson v. James H. Knight, DDS, P.C. will have any ripples in equal employment opportunity law outside Iowa remains to be seen, but it is surely thought provoking.