Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Inc.’

Employee Rights Short Takes: Wage Discrimination, Race Discrimination, Sexual Harassment and More

Tuesday, May 18th, 2010

Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog. For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,” which the district court gave “little weight,” corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift — during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West’s lawyer requested which the Sixth Circuit both addressed and confirmed.

images: www.hickmankytourism.com

www.reclaimdemocracy.org

*This post originally appeared in Employee Rights Post on May 12, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Employee Has Privacy Interest In E-Mail Communications To Attorney On Company Computer

Thursday, April 15th, 2010

Employee’s E-Mails To Lawyer On Company Laptop Are Off Limits

The decision by the Supreme Court of New Jersey in Stengart v. Loving Care Agency has a lot  of lawyers talking. The case has to do with the privacy interests of an employee’s personal e-mail on a company computer and the attorney-client privilege.

The reason the case made ripples through the employment law community is because there simply aren’t many decisions on the issue and it hits a topic of real practical concern for both employers and employees.

What Happened In The Case

Marina Stengart worked for Loving Care Agency, Inc. (“Loving Care”), a home health care agency, as an Executive Director of Nursing.  Like many employers, Loving Care provided Stengart a laptop computer for company business. Stengart could send e-mails using her company e-mail account from the laptop and she could also access the Internet through Loving Care’s server.

In December of 2007, Stengart used her computer to access a personal, password-protected e-mail account on Yahoo’s website to communicate with an attorney about her situation at work. She never saved her Yahoo ID or password on the company laptop.

When she sent the personal e-mails Stengart didn’t know  that Loving Care’s browser software automatically saved a copy of each web page she viewed on the computer’s hard drive in a “cache” folder of temporary Internet files.

Stengart left Loving Care and returned the laptop computer.  A couple of months later, she filed a lawsuit with claims of discrimination, harassment and retaliation.

After the lawsuit was filed, Loving Care hired experts to create a forensic image of the laptop’s hard drive. Among the items retrieved were the e-mails Stengart exchanged with her lawyer via the personal Yahoo account.

Loving Care’s lawyers used the e-mails in the lawsuit. Stengart’s lawyers demanded that the e-mails be identified and returned. Loving Care’s Lawyers argued that Stengart had no expectation of privacy in light of the company’s electronic communications policy which stated in part:

  • Loving Care may review, access, and disclose all matters on the company’s media systems and services at any time
  • e-mails, Internet communications and computer files are the company’s business records and are not to be considered private or personal to any individual employee
  • occasional personal use of the computer is permitted

Stengart’s lawyers asked the trial court to order a return of the e-mails and disqualification of  Loving Care’s lawyers. The judge denied the request, concluding that Stengart waived the attorney client privilege by sending e-mails on the company computer.

Stenagart appealed.The Court of Appeals reversed.

It  found that Stengart had an expectation of privacy in the e-mails and that Loving Care’s lawyers violated the disciplinary rules by failing to alert Stengart’s lawyers that they had the e-mails before they read them.

It sent the case back to the trial court to determine whether disqualification of the firm, or some other sanction was appropriate. Loving Care appealed

The New Jersey Supreme Court Opinion

The Supreme Court of New Jersey agreed with Stengart and affirmed the Court of Appeals decision. In a long and thoughtful opinion, it framed the issue this way:

This case presents novel questions about the extent to which an employee can expect privacy and confidentiality  in personal e-mails with her attorney, which she accessed on a computer belonging to her employer.

Loving Care argued that its employees have no expectation of privacy in their use of company computers based on the company’s policy. It also contended that attorney client privilege either never attached or was waived.

Stengart argued that:

  1. she intended the e-mails with her lawyer to be confidential
  2. the company policy, even if it applied to her, failed to provide adequate warning that Loving Care would monitor the contents of e-mail sent from a personal account or save them on a hard drive
  3. when the lawyers encountered the e-mails, they should have been immediately returned

The Court found favor of Stengart.  In sum, this is what it held:

  • Under the circumstances, Stengart could reasonably expect that the e-mail communications with her lawyer through her personal, password protected, web-based e-mail account would remain private
  • Sending and receiving e-mails through the company laptop did not eliminate the attorney-client privilege that protected them
  • By using a personal e-mail account and not saving the password, Stengart had a subjective expectation of privacy
  • Her expectation of privacy was also objectively reasonable in light of the ambiguous language of the policy and the attorney-client nature of the communication
  • Stengart took reasonable steps to keep the messages confidential and did not know that Loving Care cold read communications sent on her Yahoo account

Regarding the company policy the Court wrote:

The Policy did not give Stengart, or a reasonable person in her position, cause to anticipate that Loving Care would be peering over her shoulder as she opened e-mails from her lawyer on her personal, password-protected Yahoo account.

None of this means that companies are prohibited from monitoring the use of workplace computers. As the Court stated:

Our conclusion that Stengart had an expectation of privacy in e-mails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers.

Companies can adopt and enforce lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies…..

But employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy.

The Court also found that the defense lawyers should have promptly notified Stengart’s lawyers when they discovered the nature of the e-mails. It sent the case back to the trial court judge to determine whether the firm should be disqualified, costs should be imposed, or whether some other remedy was appropriate.

Take Away

I represent employees, and many communicate with me by e-mail. I am always concerned that somehow these e-mails are going to be read by their employers – so this case is very good news because it clearly states that these communications are privileged and protected.

Management lawyers who get these e-mails are prohibited from reading them, must return them, and can be disqualified or sanctioned if they don’t.

Having said that, employees should still be extremely careful if they don’t want their personal e-mails read by their employers —  which means that the best practice is not to use the company computer for personal e-mails or surfing the net.

As far as employers go,  you can bet (and others agree) that many are reviewing their policies and trying to figure out  and address the implications of this decision.

The bottom line is that employers do not have carte blanche to read employees’ private, confidential personal e-mails and even a very good corporate policy is not going to change that fact –at least  for now.

image: www.afcea.org

This post originally appeared in Employee Rights Post on April 13, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

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