Posted by Gale Burns on Tue, May 15, 2012 @ 10:30 AM
May 15, 2012
John F. Buckley IV—Senior Attorney, National Legal Research Group
On March 23, 2010, President Obama signed into law a sweeping health-care reform measure entitled the "Patient Protection and Affordable Care Act" ("PPACA"), Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010). The Act was modified by the Health Care and Education Affordability Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029, signed on March 30, 2010. The PPACA as modified contains extensive health-care reform provisions, including a mandate that will require all individuals to obtain a minimum level of health insurance coverage by January 1, 2014. The Act also imposes many requirements that will impact employers regardless of whether they provide health insurance to employees. It is the individual coverage requirement, however, that has generated the most controversy and given rise to the greatest number of legal challenges. The most frequently asserted claim is that Congress lacks the power under the Constitution to require individuals to purchase private insurance.
The challenges to the PPACA have been received with mixed results by the courts. In November 2010, a federal district court in Virginia held that the employer and individual coverage provisions of the Act are lawful under the Constitution. Declaring that the provisions "are a regulation of interstate commerce authorized by the Commerce Clause," the court dismissed the lawsuit brought by an employer and several individual plaintiffs. Liberty Univ., Inc. v. Geithner, No. 6:10-cv-00015-nkm, 2010 WL 4860299 (W.D. Va. Nov. 30, 2010). An appeal to the U.S. Court of Appeals for the Fourth Circuit is expected.
The U.S. District Court for the Eastern District of Virginia found that Congress’s imposition of the individual requirement to purchase private insurance exceeded congressional power under the Commerce Clause and that the Necessary and Proper Clause did not save the measure. Further, the requirement could not survive as a tax because it was intended to penalize individuals who fail to obtain insurance, not to raise revenue. However, because the mandate could be severed from the rest of the PPACA, the court declined to strike down the entire Act. Virginia ex rel. Cuccinelli v. Sebelius, CA No. 3:10CV188-HEH, 2010 WL 5059718 (E.D. Va. Dec. 13, 2010). The federal government has indicated its intention to appeal this ruling. http://blogs.usdoj.gov/blog/archives/1106.
Two federal appellate courts have now ruled on constitutional challenges to the Act. The U.S. Court of Appeals for the Sixth Circuit upheld the Act in a 2-1 decision. Thomas More Law Center v. Obama, ___ F.3d ___, 2011 WL 2556039 (6th Cir.Jun. 29, 2011). The court held that the Act’s individual coverage requirement was a lawful exercise of Congress's power under the Commerce Clause. Asserting that Congress has the power under the Commerce Clause to regulate the interstate markets in health care delivery and health insurance, the court determined that Congress, in enacting the PPACA, had a rational basis for concluding that the individual coverage requirement was essential to the Act’s broader reforms to the interstate markets. Thus, the court held that the individual coverage requirement was facially constitutional under the Commerce Clause. The court also ruled, however, that the requirement could not survive as a tax because the penalty imposed for an individual’s failure to obtain insurance was intended as a regulatory penalty and not a revenue-raising measure. The plaintiff in the case, a public interest law firm, has filed a petition for review of the Sixth Circuit’s decision by the Supreme Court.
In a suit brought by twenty-six states, private individuals, and an organization of independent businesses, the Eleventh Circuit court of appeals upheld by a 2-1 majority the ruling of a federal district court that the individual mandate exceeded the boundaries of Congress's enumerated power under Commerce Clause. Florida ex rel. Atty. Gen. v. U.S. Dept. of Health and Human Services, 2011 WL 3519178 (11th Cir. 2011). Furthermore, the court ruled that the individual mandate operated as a civil regulatory penalty, not a tax, and therefore could not be authorized pursuant to the Taxing and Spending Clause. The court reversed one part of the district court’s opinion, however, holding that the unconstitutional individual mandate could be severed from the remainder of the Act's reforms. Although this part of the court’s ruling would allow the continued enforcement of provisions of the Act currently in effect, the central provisions of the Act designed to reform the health care insurance system are unlikely to be effective without the individual mandate. As one analyst has observed, “Take away the mandate, and what you’re left with is an insurance market that really wouldn’t work.” The court’s ruling makes the individual mandate unenforceable in Alabama, Florida and Georgia.
The Supreme Court granted a petition for review from the Eleventh Circuit decision, and heard oral argument in the case on March 28, 2012. The Court is set to review the following issues: 1) The constitutionality of the individual mandate requirement; 2) Whether some or all of the overall law must fail if the mandate is struck down; 3) Whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate; and 4) The constitutionality of the expansion of the Medicaid program for the poor and disabled. The questions and comments from the Justices have led some Court-watchers to conclude that the Supreme Court may strike down the individual mandate. Predicting the outcome of a decision based on what is said in oral argument, however, is always a difficult proposition. The fact that the Court granted an unusually large amount of time for oral argument—five and one-half hours—indicates that the Justices view the decision as a close one.
Posted by Gale Burns on Fri, Feb 03, 2012 @ 03:20 PM
The Lawletter Vol 36 No 7
John Buckley, Senior Attorney, National Legal Research Group
Maintaining a website has become a matter of business necessity for most professional, commercial, and retail establishments. Despite its undisputed advantages, however, the operation of a website also presents new areas of exposure to liability for its owner or operator. Fifty percent of businesses now report experiencing between one and five cyber risk incidents, and several recent high‑profile cases have significantly increased interest in a new form of insurance: Cyber Liability Insurance. This type of insurance is designed primarily to protect businesses from liability arising from the ownership or operation of a website. Sources of potential liability include infringement, privacy, defamation, reliance, or accessibility.
In addition to these sources of liability, a recent case involving a popular social media website demonstrates that there are other potential sources of liability for operating a website. In late 2011, Match.com settled a lawsuit filed by a victim of sexual assault and agreed to screen its members against state and national sex offender registries. See Doe v. Match.com (Cal. Super. Ct. filed Apr. 13, 2011).
Although the potential for liability is not in dispute, there is some debate about the degree of care a social media site must exercise. Some experts believe that the accessibility of sex offender registries will create a duty on the part of other sites to screen users, while other experts believe that Match.com made a mistake in agreeing to screen users and that the screening itself may give rise to liability. Nevertheless, eHarmony and Zoosk have since indicated that they, too, would be enhancing security for members and screening for sex offenders.
Although this Match.com lawsuit did not establish any legal precedent, it does underscore the trend toward increasing recognition of website liability. On the other hand, it may be the case that Match.com unnecessarily exposed itself to liability for the voluntary screening. Should a sex offender make it through the screening process and cause injury to another user, it could be significantly more difficult for Match.com to argue in a subsequent lawsuit that it does not have a duty to screen for not only sex offenders but other potentially dangerous users as well. Thus, the case has significance beyond the social media context, in that it demonstrates the difficulty website operators face in establishing policies calculated to reduce liability.
The Match.com lawsuit was preceded by two earlier actions asserting more conventional bases for liability. In Nat'l Fed'n of the Blind v. Target Corp., 582 F. Supp. 2d 1185 (N.D. Cal. 2007), a lawsuit was brought against Target Corporation, based on the retailer's failure to make its website accessible to blind persons by including coding that would make the website compatible with screen‑reading software that vocalizes text and describes graphics. After several years of litigation, Target agreed to modify its website for blind users and to pay $6 million into a settlement fund that would be used to pay valid claims submitted by members of the California subclass. See also In re Nations Title Agency, Inc., No. 052‑3117, 2006 WL 1367834 (FTC May 10, 2006) (despite having assured consumers that it maintained "physical, electronic, and procedural safeguards" to protect their personal information, real estate title company nonetheless discarded unshredded consumer home loan applications into open trash dumpster, for which it faced FTC charges of inadequate storage and disposal procedures for sensitive consumer information; charges ultimately settled for undisclosed amount).
[The attorneys of the National Legal Research Group have prepared a White Paper that analyzes the many potential sources of website liability and shows owners/operators of websites how they can avoid liability. This White Paper includes actual examples of how some website owners/operators have been exposed to liability and how others have avoided liability. We have also prepared a White Paper addressing the special problems involved in law firm websites, including compliance with ethics and lawyer advertising rules. If you or your clients operate a website, you need to be aware of the legal implications. These White Papers gather together the information that you and your clients need to cover all the bases. To order, click here and select either Employer and Law Firm Website LiabilityCLaw Office Edition or Employer and Law Firm LiabilityCStandard Edition. You may also call our toll-free number, 1‑800‑727‑6574, to order.]
Posted by Gale Burns on Mon, Jan 23, 2012 @ 03:24 PM
January 24, 2012
John F. Buckley IV, Senior Attorney, National Legal Research Group
In 2007, the State of Arizona enacted the Legal Arizona Workers Act, Ariz. Rev. Stat. §§ 23-211 to -216, which imposed what were at the time the nation’s toughest sanctions against employers that knowingly hired undocumented workers. The Act provided that an Arizona business caught in more than one such violation would lose its license to operate. In addition, the Act required all employers to check the legal status of their new hires using the federal E-Verify program. A federal court challenge to the new law was unsuccessful at the district court level, and, on March 1, 2008, Arizona’s county prosecutors became authorized to prosecute employers for violations of the Act. On May 1, 2008, Arizona’s governor signed legislation amending the Act to provide additional safeguards for employers who made good-faith efforts to comply with the law.
In the meantime, the federal court challenge to the Act worked its way up to the Court of Appeals for the Ninth Circuit, which affirmed the district court’s order upholding the Act.
Chicanos por la Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009). Ultimately, the case reached the U.S. Supreme Court, and, on May 26, 2011, the Court upheld the Act in a 5-3 decision,
U.S. Chamber of Commerce. v. Whiting, 131 S. Ct. 1968 (2011). First, the Court determined that the provision of the Act allowing suspension and revocation of business licenses fell within the federal Immigration Reform and Control Act’s (“IRCA”) savings clause for licensing laws and that, therefore, the provision was not expressly preempted by the federal law. The Court noted that the Arizona law did no more than impose licensing conditions on businesses operating within the state. Although the IRCA prohibits states from imposing civil or criminal sanctions on those who employ unauthorized aliens, it expressly preserves state authority to impose sanctions through licensing and similar laws. Next, the Court held that the provision was not impliedly preempted by the IRCA, as the regulation of in-state businesses through licensing laws does not involve uniquely federal areas of interest and the operation of the Arizona law does not interfere with the operation of a federal program. Finally, concerning the Arizona law’s E-Verify requirement, the Court held that the requirement was not preempted, either expressly or impliedly, by any provision of federal law. Although the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 made the E-Verify program voluntary at the national level, it expressed no intent to prevent the states from mandating participation in the program, and Arizona’s use of the program did not conflict with the federal scheme.
Posted by Gale Burns on Wed, Oct 12, 2011 @ 09:12 AM
December 23, 2011
John F. Buckley IV, Senior Attorney, National Legal Research Group
The National Labor Relations Board ("NLRB") has promulgated a new rule, 76 Fed. Reg. 54006 (Aug. 30, 2011) (to be codified at 29 C.F.R. pt. 104), requiring employers to post and maintain a notice of employee rights under the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151–169. The rule was originally scheduled to take effect on November 14, 2011, but on December 23, 2011, the NLRB announced that it would postpone the effective date until April 30, 2012. Pursuant to this rule, an employer who falls under the NLRB's jurisdiction must post a notice of employees' rights to organize a union and bargain collectively with the employer. The rule also sets out the size, form, and content of the notice and contains enforcement provisions. According to the NLRB, the rule is needed because employees are not aware of their union rights under the NLRA, and the rule will increase awareness to allow employees to effectively exercise those rights. See 76 Fed. Reg. at 54006.
The rule applies to any employer covered by the NLRA. Those employers who are excluded from coverage under the NLRA are not subject to the rule, including the federal government, any state or political subdivision, any person subject to the Railway Act, and any labor organization (other than when acting as an employer). As to retail businesses, including home construction, the NLRB will assert jurisdiction over employers that have a gross annual volume of business of $500,000 or more. For nonretail businesses, the standard is based upon either the amount of goods sold or services provided by the employer out of state, or the goods or services purchased by the employer from out of state. Jurisdiction attaches to an employer that has an annual inflow or outflow of at least $50,000. The rule also sets out a table categorizing certain employers and the required amounts of annual gross volume of business required to meet NLRB jurisdiction. See 29 C.F.R. § 104.204 tbl.
The NLRB will provide at no cost to employers the actual form notice, entitled "Employee Rights under the National Labor Relations Act," to be posted at workplaces. Id. § 104.202. The notice must be 11 inches by 17 inches and may be printed in black and white. The notice must be displayed conspicuously in a place where the employer customarily posts such notices. If the employer has an intranet or Internet website on which personnel rules or policies are customarily posted, the employer must also post the notice there. In addition, if at least 20% of the employees are not proficient in English, the notice must be posted in the language that those employees speak.
The rule sets out the content that must be included in the notice, informing employees that they have the right to organize a union to negotiate with the employer concerning wages, hours, and other terms and conditions of employment; to form, join, or assist a union; to bargain collectively with the employer for wages, benefits, hours, and other working conditions; to discuss wages and benefits and other terms and conditions of employment or union organizing with coworkers or with a union; to take action with one or more coworkers to improve working conditions; to strike or picket, depending on the purpose or means of the strike or picketing; and to choose not to do any of the activities, including joining or remaining a member of a union.
The rule further sets forth illegal conduct by the employer, including prohibiting employees from talking about or soliciting for a union during nonwork time; questioning employees about union support or activities in a manner that discourages them from engaging in that activity; firing, demoting, or transferring employees because of their support of, or membership in, a union; and threatening to close the workplace if workers choose to join a union. The rule also sets out unlawful conduct by the union, including threatening or coercing employees; refusing to process grievances because of an employee's criticism of a union; and taking adverse action against an employee because he or she has not joined or does not support the union. See id. subpt. A app. Employees must be informed that if they believe their rights have been violated, they must file a complaint generally within six months of the unlawful conduct. See id.; see also 29 U.S.C. § 160(b).
A significant aspect of the rule is that an unfair-labor-practice finding may be made against an employer for the employer's failure to post the notice. Although the NLRB states that most failures to post the notice will be inadvertent and may be informally remedied, the NLRB has the right to bring formal charges against the employer for unfair labor practices. 29 C.F.R. § 104.210. The NLRB asserts that an employer's failure to post the notice may be considered interfering with, restraining, or coercing employees in the exercise of the rights guaranteed under the NLRA. Furthermore, the six-month statute of limitations under the NLRA may be tolled in other unfair-labor-practice actions based on the employer's failure to post the notice. Id. § 104.214(a). Tolling will not apply, however, if the employee had actual or constructive notice that the employer's conduct was unlawful. Id. Significantly, if an employer's failure to post the notice is deemed to be knowing and willful, it may be used as evidence of motive in cases in which motive is an issue. Id. § 104.214(b).
Noting that union membership has declined significantly, the NLRB contends that employees are not organizing or joining unions because they are not aware of their NLRA rights and that the notice will increase their awareness. See 76 Fed. Reg. at 54006. The rule is controversial, and employer groups and members of Congress have questioned the NLRB's statutory authority to enact it. Other federal Acts, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-10, the Age Discrimination in Employment Act, 29 U.S.C. § 627, and the Family and Medical Leave Act, 29 U.S.C. § 2619(a), expressly require employers to post the notices. However, the NLRA is silent on that issue. The Society for Human Resources Management ("SHRM") opposed the rule, maintaining that the NLRB had exceeded its authority. Furthermore, the NLRB is expressly creating a new unfair labor practice for failure to post the notice, a task that, SHRM maintains, should be left to Congress through legislation. Because the six-month statute of limitations may now potentially be tolled by the NLRB in any unfair-labor-practice charge against an employer if the employer has failed to post the notice, such tolling could subject employers to unfair-labor-practice claims that were previously barred. Legislation has been proposed that would reverse the NLRB's August 30 decision. H.R. 2833, 112th Cong. (Sept. 1, 2011); see http://thehill.com/blogs/floor-action/house/179513-quayle-bill-would-reverse-nlrb-requirement-to-post-employee-rights.
The NLRB will have the notice available for download on its website, http://www.nlrb.gov/poster, by November 1, 2011. Employers may also request a copy of the notice by contacting the NLRB at 1099 14th Street, N.W., Washington, DC 20570, or by contacting one of the NLRB's regional, subregional, or resident offices. 29 C.F.R. § 104.202(e).
Posted by Gale Burns on Fri, Jun 03, 2011 @ 09:36 AM
June 7, 2011
John Buckley, Senior Attorney, National Legal Research Group
Title VII makes it unlawful for an employer to "discharge any individual, or otherwise discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). "Religion" includes "all aspects of religious observance and practice, . . . unless an employer demonstrates that he is unable to reasonably accommodate . . . an employee's . . . religious observance or practice without undue hardship on the . . . employer's business." Id. § 2000e(j). Thus, it is unlawful for an employer not to make reasonable accommodations for an employee's religious practices, unless doing so would impose an undue hardship. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 & n.1 (1986).
In Maroko v. Werner Enterprises, Civ. No. 10-63 (RHK/JJG), 2011 WL 1429216, at *1 (D. Minn. Apr. 14, 2011), a former delivery driver brought an action under Title VII and the Minnesota Human Rights Act, the analogous state fair employment practices Act, claiming that he had been denied an accommodation for the observance of his Sabbath. The Plaintiff, Maroko, was a Seventh-Day Adventist, whose religious beliefs prevented him from working on the Sabbath, from sundown Friday to sundown Saturday. Although managers for the employer, Werner, assured Maroko at the time of his recruitment and hiring that the accommodation would not be an issue, the accommodation was denied when Maroko actually began work. According to Maroko's supervisor at that time, the Friday/Saturday period was too busy to allow Maroko to take the time off.
Werner asserted, among other things, that it had offered Maroko a reasonable accommodation by offering to assign him to a "NetOp" route, although no such position was available at the time. Until a "NetOp" position opened, Werner purportedly gave Maroko a choice: either to work on the Sabbath or to take a 30-day leave of absence in the hope that a position would open in that time frame.
An "employer's statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977). Accordingly, the "unanimous weight of authority" indicates that the "reasonableness of any given accommodation is a fact-intensive inquiry that depends on the totality of the circumstances." Haliye v. Celestica Corp., 717 F. Supp. 2d 873, 878 (D. Minn. 2010).
Werner supposedly gave Maroko two choices: to continue working on the Sabbath or to take a 30-day leave of absence until a NetOp position opened. The court found that the first choice would have done nothing to eliminate the conflict between Maroko's religious beliefs and his Sabbath work requirement, at least until a new position became available. Furthermore, other options, such as a lateral transfer to another department, appeared to have been available. As for the second choice offered to Maroko, a leave of absence, the court stated that it is not unreasonable to ask an employee to take unpaid leave while attempting to place him in another position. See Philbrook, 479 U.S. at 70 ("The provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work."). In this case, however, Werner could not guarantee that a "NetOp" position would become available during a 30-day leave of absence.
The court concluded that Werner had had alternatives available to it that would have eliminated Maroko's religion/work conflict, but that it had not offered those alternatives to him. Instead, its proposed accommodation would have either required Maroko's working on the Sabbath or, in the event of a leave of absence, raised the prospect of his termination if a "NetOp" position had not become available quickly.
Finally, the court addressed the issue of whether the accommodation of Maroko's religious observance would have resulted in an undue hardship to Werner. Under Title VII, even if an employer fails to make an accommodation, it can still prevail by showing that accommodating the religious belief would have resulted in undue hardship. With respect to religious accommodation, anything more than a de minimis cost will be considered an undue hardship. See Hardison, 432 U.S. at 84 ("To require [an employer] to bear more than a de minimis cost . . . is an undue hardship.").
The primary basis for Werner's undue-hardship argument was that Maroko had "demanded" to work on the Tomah Account yet had insisted that he not work on the Sabbath. According to Werner, it could not accommodate this request, because Friday nights and Saturdays were the busiest times on the Tomah Account, requiring every driver to work in order to timely complete all of Wal-Mart's deliveries. If Maroko had not been not working, Werner argued, Werner would have been required to hire an extra driver to cover his absence, imposing more than a de minimis burden (both financially and logistically).
Contrary to Werner's argument, however, the court found that the record indicated a willingness on Maroko's part to accept "any other [position] open to work," including, for example, "an option that maybe [would require him to] to go New York." 2011 WL 1429216, at *7 (alterations in original). Kriutzfeld, one of Werner's own witnesses, confirmed that Maroko had sought work "[o]n any account with the Sabbath off, not necessarily the Tomah [A]ccount." Id.
Whether an employer has offered a reasonable accommodation or faced undue hardship ultimately "boils down to . . . whether the employer has acted reasonably." Beadle v. City of Tampa, 42 F.3d 633, 636 (11th Cir. 1995) (citation omitted). That question could not be answered as a matter of law in Maroko, and, therefore, the court denied the employer's motion for summary judgment.
* * *
In reviewing employee handbooks and policies, one of the more common deficiencies we come across is the failure to include a provision dealing with accommodating the religious observances of employees. Because supervisors often use employee handbooks to determine what their obligations are in a particular situation, the omission of such a provision can lead to administrative charges, lawsuits, and liability.
Do your clients have appropriate and effective employment policies? We will provide a complimentary review and consultation regarding an existing employment policy, or an assessment to determine what policies are needed for your clients. To take advantage of this offer, contact
John F. Buckley IV, Esquire
National Legal Research Group, Inc.
Post Office Box 7187
Charlottesville, Virginia 22906
(800) 727‑6574
You can also fax an existing policy to (434) 817‑6570, e‑mail the policy to jbuckley@nlrg.com, or call with questions at (800) 727‑6574.
John F. Buckley IV is the Director of Human Resources Consulting and Publications at the National Legal Research Group and a nationally known author and authority on human resources and employment law. For more information, visit http://www.nlrg.com/legal‑content/books‑authored‑by‑nlrg‑attorneys.
Posted by Gale Burns on Tue, May 24, 2011 @ 10:00 AM
May 6, 2011
John Buckley, Senior Attorney, National Legal Research Group
If an employee's supervisor performs an act motivated by antimilitary animus and if that act is a proximate cause of an ultimate adverse employment action, then the employer is liable under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). So the Supreme Court recently held in a case in which a U.S. Army reservist relied on the "cat's paw" theory of liability. Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011). A "cat's paw" case is one in which a plaintiff employee seeks to hold his or her employer liable for the discriminatory animus of a supervisor who did not make the ultimate employment decision but who nonetheless influenced that decision. In applying a tort "proximate cause" analysis to the case, the Court reversed the Seventh Circuit's holding that a court cannot admit evidence of a nondecisionmaking supervisor's animus unless it has first determined whether a reasonable jury could find that the supervisor exerted a "singular influence" over the ultimate decisionmaker.
At trial of the case, the jury found in favor of the reservist on his claim that he had been discharged from his position as a technologist at a hospital due to antimilitary animus, rejecting the hospital's contention that he had been terminated for insubordination. Although the vice president of human resources, who made the discharge decision, did not harbor any antimilitary animus, the reservist argued that such animus should be imputed to the employer because the vice president's decision had been influenced by the reservist's immediate supervisor and that supervisor's supervisor ("the Supervisors"), who did harbor antimilitary animus.
In rejecting the Seventh Circuit's holding that the nondecisionmaking Supervisors would have to have exerted a "singular influence" over the decisionmaker's adverse employment decision, the Supreme Court first noted that the statutory language itself forbids an employer from denying "employment, reemployment, retention in employment, promotion, or any benefit of employment" based on a person's "membership" in or "obligation to perform service in a uniformed service," 38 U.S.C. § 4311(a), and provides that liability is established "if the person's membership . . . is a motivating factor in the employer's action," id. § 4311(c)(1). The Court then observed that USERRA is "very similar to Title VII," which states that discrimination is established when race, color, religion, sex, or national origin is "a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e‑2(a), (m). In construing the USERRA phrase "motivating factor in the employer's action," the Court started from the premise that "when Congress creates a federal tort it adopts the background of general tort law." 131 S. Ct. at 1191.
After discussing tort principles, the Court held that if a nondecisionmaking supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action and if that act is the proximate cause of the ultimate employment action, then the employer is liable under USERRA, notwithstanding that the supervisor did not make the ultimate employment decision. The Court explained that "proximate cause" requires only some direct relation between the injury asserted and the injurious conduct alleged and excludes only those links that are too remote, purely contingent, or indirect.
Although concluding that the "singular influence" standard applied by the Seventh Circuit was improper, the Supreme Court did not automatically reinstate the jury's verdict for the plaintiff. Noting that the jury instruction had not precisely reflected the "proximate cause" standard the Court had just adopted (the instruction had required only that the jury find that "military status was a motivating factor in [the hospital's] decision to discharge him,"
id. at 1190), the Court advised that the Seventh Circuit should consider in the first instance whether the variance between the instruction and the new rule was harmless error or warranted a new trial. Thus, the case was remanded to the Seventh Circuit for this purpose.
Posted by Gale Burns on Wed, Feb 09, 2011 @ 03:50 PM
January 21, 2011
John Buckley, Senior Attorney, National Legal Research Group
The use of computers and other electronic communications devices in the workplace is now commonplace. As employee use of such devices has grown, so has litigation involving, on the one hand, an employee's expectation of privacy in his or her use of these devices (such as use of a workplace computer to visit Internet websites) and communications sent via these devices (such as e-mail or texting via a workplace computer or handheld device), and, on the other hand, the reasonableness of an employer's monitoring or reviewing such use and/or communications. A recent Supreme Court case, City of Ontario v. Quon, 78 U.S.L.W. 4591, 2010 WL 2400087 (U.S. June 17, 2010) (No. 08-1332), addressed some of these difficult issues, concluding that an employer's review of two months' worth of text messages sent by an employee was reasonable under the circumstances of the case.
The employer in the case was the City of Ontario, California. The City had bought a number of alphanumeric pagers able to send and receive text messages and had issued them to its police officers. The City's contract with its service provider placed a monthly limit on the number of characters each pager could send or receive and provided that usage exceeding that number would result in an additional fee. When some of the officers exceeded their monthly character limits several months in a row, the police chief sought to determine whether the existing limit was too low for the sending of work-related messages or whether the overages were attributable to personal messages also being sent. After obtaining transcripts from the service provider of some of the officers' text messages sent over a two-month period, the police chief discovered that many of the messages sent by a particular officer were not work-related and some were sexually explicit. The officer's work schedule was then consulted in order to redact from the transcript any messages sent while off duty, but the transcript still showed that few on-duty messages related to police business. The offending officer was disciplined for violating police department rules. He then brought a civil rights action against the City and the police department, alleging that his Fourth Amendment rights had been violated by the defendants' obtaining and reviewing the transcripts of his text messages. (The Fourth Amendment was implicated because the employer was a governmental unit.)
The Supreme Court first assumed, without deciding that the officer had a reasonable privacy expectation in his text message communications, that the defendants' review of the transcript constituted a Fourth Amendment search and that the principles applicable to a government employer's search of an employee's physical office "apply with at least the same force . . . in the electronic sphere." 2010 WL 2400087, at *10. The Court thought it prudent not to use the case to "establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices." Id. at *9.
The Court then held that even if the officer had an expectation of privacy in his text messages, the police department's warrantless review of his pager transcripts was reasonable because it was motivated by a legitimate work-related purpose and it was not excessive in scope. There were reasonable grounds for finding the review necessary for a noninvestigatory, work-related purpose, in that the police chief had ordered the audit to determine whether the contractual character limit was sufficient to meet the City's needs. The review was also reasonably related to the objectives of the search because both the City and the police department had a legitimate interest in ensuring that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine what factors had caused the officer's overages. And the review was not excessively intrusive. Although the officer had exceeded his monthly allotment several times, the police department had requested transcripts for only a two-month period in order to obtain a large enough sample to decide the character limits' efficaciousness, and all the messages that the officer had sent while off duty were redacted.
Although the Quon case involved a public employer, the case is useful to private employers by analogy because it demonstrates that, in order to reduce liability exposure, an employer's actions with regard to employee use of workplace electronic devices should be reasonable. One of the factors often examined by the courts in assessing the reasonableness of an employer's actions is whether the employer had in place a policy outlining the permissible parameters of employee Internet use, or an Internet Acceptable Use Policy ("IAUP"). See, e.g., In re Pesant, 63 A.D.3d 1411, 881 N.Y.S.2d 227 (2009) (claimant was disqualified from receiving unemployment insurance benefits, because his employment was terminated due to misconduct; claimant continually violated his employer's reasonable Internet policy). For the most part, the promulgation and enforcement of an IAUP has been recognized as a legitimate business decision. See Pacenza v. IBM Corp., No. 04 Civ. 5831(PGG), 2009 WL 890060, at *8 (S.D.N.Y. Apr. 2, 2009) (granting summary judgment in favor of employer in employee's discrimination suit; "IBM's policies prohibited the internet use that Pacenza engaged in and that prompted his termination[.]"); Johnson v. Midcoast Aviation, No. 4:06-CV-1805(CEJ), 2008 WL 3200801 (E.D. Mo. Aug. 6, 2008) (mem. & order) (granting summary judgment to employer on issue of damages in religious discrimination claim, because the court found that the employer would have terminated the plaintiff's employment anyway when it discovered the plaintiff's violation of the employer's Internet usage policy).
Posted by Gale Burns on Wed, Feb 09, 2011 @ 02:04 PM
The Lawletter Vol 34 No 3, June 4, 2010
John Buckley, Senior Attorney, National Legal Research Group
As many employers have discovered too late, unrestricted use of the Internet and e-mail not only has the potential to drain productivity but also may subject an employer to liability for the improper use. These consequences were recently illustrated by employees of the SEC who spent up to eight hours a day surfing the Internet for pornography. Employers can protect themselves from liability, however, by implementing and enforcing a policy outlining the permissible parameters of employee Internet use, or an Internet acceptable-use policy ("IAUP").
The need for a well‑drafted and properly enforced IAUP is illustrated by several recent cases. In one case, Taxel Creative, Inc. v. Kelly, No. 93378, 2010‑Ohio‑263, 2010 WL 323430 (Ct. App. Jan. 28, 2010), the court held that an employee's termination was without just cause, despite the employee's purported violation of the employer's Internet use policy, and that, therefore, the termination did not render the employee ineligible for unemployment benefits. The employee had been terminated for excessive personal use of the Internet, but the employer's policy did not define what level of personal use was permissible, although it indicated that some amount of personal Internet use during business hours was expected. However, in another case, In re Pesant, 63 A.D.3d 1411, 881 N.Y.S.2d 227 (2009), the court held that a claimant was disqualified from receiving unemployment insurance benefits, because his employment had been terminated due to misconduct; the evidence established that the claimant had continued to violate his employer's Internet policy by downloading inappropriate materials to his assigned computer even though he had been previously warned about the consequences of such behavior.
A recent case from a New Jersey state court held that in order for an Internet policy to be effective in converting an employee's personal e-mails into company property, the policy must further a legitimate business interest of the employer's. Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54, 973 A.2d 390 (App. Div. 2009). Thus, the employer could not use the employee's personal e-mails to her attorney in her discrimination lawsuit brought against the employer. Significantly, the fact that the e-mails were directed to the employee's attorney was a deciding factor in the Stengart court's decision. In addition, the employee had been using a personal, Web‑based, password‑protected Yahoo e-mail account.
For the most part, the promulgation and enforcement of an IAUP has been recognized as a legitimate business decision. Pacenza v. IBM Corp., No. 04 Civ. 5831(PGG), 2009 WL 890060, at *8 (S.D.N.Y. Apr. 2, 2009) (slip copy) (granting summary judgment in favor of employer in employee's discrimination suit, stating: "IBM's policies prohibited the internet use that Pacenza engaged in and that prompted his termination."); Johnson v. Midcoast Aviation, No. 4:06‑CV‑1805(CEJ), 2008 WL 3200801 (E.D. Mo. Aug. 6, 2008) (unreported) (granting summary judgment to employer on issue of damages, because the court found that the employer would have terminated the plaintiff's employment when it discovered the plaintiff's violation of its Internet usage policy).