Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘privacy’

Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Tuesday, November 23rd, 2010

ellen simon

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns….

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers’ criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that’s why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

This article was originally posted on Employee Rights Post.

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.

What Are the Biggest Taboos at Work?

Monday, October 5th, 2009

Last week, I was watching George Carlin on HBO. I started thinking about his famous list of the seven things you can’t say on television. So this week I’m going to present the Workplace911 variation on Carlin’s list — a list of five taboo words for today’s workplace. 

The first taboo in today’s workplace is the word “felony.” Corporations don’t like prison records. However, ex-offenders don’t need to worry too much, because this will change for two reasons. First, the dramatic increase of executives who visit the big house. If these guys keep getting arrested, every head honcho is going to have a rap sheet, and they have to work somewhere.

OK, Martha Stewart hasn’t gone out and hired a bunch of her former prison bunk mates to work at her company. But she has been speaking out about ex-offenders as potential contributors to society. And over time this will have an impact. That leads to the second reason why some of the sting may come out of the word felony at work. Though there are 44 million Gen-Xers in the workforce, they are greatly outnumbered by the 76 million baby boomers who will start planning for retirement in the next couple of decades. We’ll have to run our economy while millions of workers worry more about weekends and Winnebagos than their work. Something’s got to give, and the modern workforce is going to have to get creative to find new workers. I predict that with more than two million incarcerated in the U.S. and a dwindling supply of workers, ex-offenders will become more common around the office.

The second taboo at work is not a word but an acronym: “TMI” — too much information. This can apply to all manner of information, but of particular note is the often uncomfortable revealing of personal medical situations. People don’t want to hear about your medical challenges, your itchy rash, your surgery or your prostate, etc. Yes, the practice of avoiding running your mouth and disclosing TMI rules at work today.  Find a therapist, a mate or a relative who really cares about the medical details of your life. But don’t share it with your coworkers, because hearing about those things makes them uneasy and can make work an uncomfortable place to be.

The third taboo at work revolves around the word “relationships.” Don’t go there. People don’t want to hear about your marital or relationship problems. Through the years I can’t believe how many people have shared intimate information about their relationships with me. Call me a prude, but I think pillow talk should be reserved for conversations that actually take place over pillows.

The fourth taboo is the word “why.” As in “Why did you…” “Why do we…” Most corporations don’t take kindly to being asked this simple question. Sure, there are bosses who can handle it. I just think that they are rarer than most people think. Sometimes it’s better to just bite your tongue and forge ahead with an assignment, even if you’re not totally sure about the outcome. People who constantly question the worth of a project or a boss’s decision often get tagged as malcontents. So be careful when you drag out the “W” word.

And finally, the fifth taboo — “bravado.” 

Most of us learn at a very early age that we are never to show weakness or vulnerability at work. Bravado is the way; do what you can and fake what you can’t. I personally believe that the lack of vulnerability weakens organizations because it prevents real connection and real interactions between people.

If I had a magic wand I’d hope that we could all do a much better job of being more vulnerable at work. Sure it’s tough, but isn’t it time that we all brought a bit more humanity to our jobs? And what better way is there to do this than being genuine and vulnerable with the people we work with? So stash that bravado and learn to show a softer side — it will humanize you in the eyes of your coworkers and probably encourage them to do the same.

My five taboo words at work — felony, TMI, relationships, why and bravado. I’d love to hear yours.

Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via [email protected].

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