I truly appreciate it when anyone reads this blog, whether they agree with me or not. And I especially appreciate receiving feedback about the issues I've raised. To that end, my cousin, Scott Welsh, who is a Wisconsin business owner (shameless plug for his real estate firm here) and fantastic human being, shot me a note giving me a ribbing on facebook for my recent post about the Wisconsin Assembly's vote to repeal the right to recover compensatory and punitive damages for employees who are the victims of employment discrimination. His comment stated:
"I know...."us" big bad employer's in Wisconsin have it made???"
I presume Scott was likely speaking on behalf of many Wisconsin business owners who aren't my friends on facebook. I also presume he withheld a number of expletives from his note because we were in each others' weddings.
I should also include this disclaimer: In addition to being a lawyer, I am also an employer. So if this post comes off as biased in favor of employers, please accept my apologies.
Anyway, Scott has a new champion in my friend Bart "T-Bomb" Torvik over at the Gillette-Torvik Blog, who is himself an attorney practicing in Illinois (just like Abe Lincoln!). I should note that it is an undisputed fact that Mr. Torvik is a rabid fan/supporter/martyr of and for Wisconsin. I'm not sure if that means he was sampled in this study or not.
T-Bomb has taken my recent Wisconsin v. Minnesota post, and his co-blogger Adam Gillette, to task by arguing, among other things, (1) that the Wisconsin Fair Employment Act (WFEA), which currently provides compensatory and punitive damages for victims of workplace discrimination, costs employers more and stifles job creation because it creates an additional level of administrative hearings, and (2) that employees can simply go to federal court because federal law provides the same remedies as the likely to be repealed WFEA. T-Bomb's blog post can be found here. T-Bomb does an admirable job defending my cousin Scott, but I have a few bones to pick with his analysis.
Currently, an employee may file a complaint of workplace discrimination with Wisconsin's Department of Workforce Development (DWD). The DWD has the power to investigate the claim, hold hearings and award an employee back pay, reinstatement, costs and attorneys' fees upon a finding that the employer engaged in discrimination. Repealing the WFEA in the manner proposed will not take away any of these administrative proceedings or remedies. Instead, under current law, after an employee has already proved discrimination once at a hearing in the DWD, she has to then go to state court and again prove discrimination in order to recover compensatory and punitive damages. It is the right to go to state court to recover these damages that is in danger of being repealed.
I can't dispute that the proposed legislation would reduce the attorneys' fees and costs (in addition to the potential damages) an employer may incur defending against a claim. But if reducing the cost of the proceedings is truly the goal here, then what the Assembly really should do is give the DWD the power to award compensatory and punitive damages after a hearing and finding of discrimination, rather than make the employee and employer go through two seperate proceedings. That would do away with the additional procedural cost of having to litigate the claim twice while requiring only those employers who are guilty of discrimination to pay more in damages. Win-win.
One could also argue that an employer could avoid unwanted attorneys fees and costs by not discriminating against the employee in the first place.
I also want address T-Bomb's argument that anti-discrimination laws cost employers money. Of course they do. But taking that argument to its logical conclusion means we should do away with all anti-discrimination legislation because they cost employers money and may, theoretically, result in less employees being hired. I know there are probably people out there who think that may be a good thing. My guess is that they have never met or do not really know someone who has been the victim of discrimination. Moreover, while it has had its ups and downs, I think the American economy has done quite well since 1964 when Title VII, the first federal anti-discrimination statute, was enacted into law. At the same time, minorities, women and others have received substantial benefits at work and in society at large because of these anti-discrimination statutes.
I also take issue with the whole premise that reducing the damages paid by employers that have been proven guilty of discrimination will create jobs. First, there is no guarantee that the employer who is relieved of paying compensatory and punitive damages is going to run out, create a new job and hire a new employee with that "savings." Second, are these the employers we want creating jobs? Remember, these are folks who have already been found guilty of workplace discrimination. My guess is that working for an employer who discriminates against its employees is much more demoralizing than working for an employer who does not discriminate in the workplace.
This management study argues that high employee morale leads to an increase in productivity and other significant benefits while low employee morale leads to a decrease in productivity, employee turnover, and other significant costs to the employer. So by letting guilty employers keep some of that cash, Wisconsin is encouraging the creation of jobs that will necessarily be less productive than if those funds were used elsewhere. No wonder they are drinking so much in Wisconsin! My guess is that providing compensation to that employee who proved she was the victim of discrimination to compensate her for her emotional distress would raise her morale and make her more productive which would truly benefit Wisconsin.
And T-Bomb's co-blogger Adam Gillette points out that neither T-Bomb nor the propaganda he links to from the Wisconsin Civil Justice Council, Inc. (Ironic name, isn't it?) in his post provide any data supporting the falicy that fewer anti-discrimination laws and penalties results in more jobs.
T-Bomb next argues that employees aren't really harmed by this proposed legislation because federal law provides a recovery for compensatory and punitive damages in federal court. That is true, but if the goal is to reduce litigation costs, the evidence shows federal court costs as much, if not more, than the procedures under the WFEA.
First, federal law mandates that, just like in Wisconsin, employees go through an administrative process at the Equal Employment Opportunity Commission (EEOC) before bringing suit. After that administrative procedure, the employee then must bring a lawsuit in federal court to recover any compensation. Thus, the federal system also requires both an administrative and judicial step to resolve these claims. No cost savings there.
Moreover, the costs of litigation in federal court tend to be higher than in state court for all parties. And don't forget (because I know you knew this), the federal courthouses in Wisconsin are located in Milwaukee and Madison. Conversely, state courts are located in every county throughout the state. Typically, both the employee and employer reside in the same or adjoining counties. It would appear that for a large segment of Wisconsin's population, the travel and litigation costs associated with a state court action are arguably much less than those in federal court. Thus, there does not seem to be evidence to prove that litigating in federal court is any cheaper, and in fact may be much more expensive, than under the WFEA.
In sum, it does not appear that repealing the WFEA will result in the job creation or economic benefits argued by its proponents. Nor will it reduce the cost of litigation. Instead, this proposed legislation prevents employees who have been discriminated against from recovering damages in the most economical and geographically convenient venue, state court.
Because this is the Minnesota Employment Law Blog, I should also briefly compare Minnesota's anti-discrimination law to Wisconsin, which is really, for our readers, the true test of who wins this border battle. The Minnesota Human Rights Act provides broader protection against discrimination than both Wisconsin and federal law. It also allows the employee the choice of bringing a lawsuit in court right away or submitting the claim administratively to the Minnesota Department of Human Rights. Employees can recover back pay, front pay, reinstatement, unlimited conpensatory damages, punitive damages up to $25,000 and their attorneys' fees and costs if they are successful. In some cases, the court can award an employee up to three times their actual damages. By this measure, Minnesota is by far a better environment for employees than Wisconsin. Hense the title of this post. T-Bomb can't quarrel with these facts.
And one final note. I went to school at the University of Iowa, so this blog has a strong policy against Iowa bashing. Go Hawks!
Friday, February 24, 2012
Thursday, February 23, 2012
Another Reason Minnesota Is Better Than Wisconsin
I can think of a number of reasons why Minnesota is better than Wisconsin. Professional hockey, a more vibrant cultural scene, a lower unemployment rate, not being referred to as a "cheesehead" or other similar state-based derogatory nickname, and according to this report, Wisconsin has the highest rate of binge drinking and heavy drinking in the country. (See p. 51 of the report) Some may place that last statistic in the plus column for Wisconsin, but I digress.
The Wisconsin Assembly has given those of us in Minnesota another reason to cheer, while at the same time providing me an additional reason to trash on Wisconsin. Specifically, the Wisconsin legislature has passed two pieces of legislation that severely restrict the rights of employees to sue and receive compensation for workplace discrimination.
First, the Wisconsin Assemby passed a bill that repeals an employee's right to recover compensatory and punitive damages when they have proven in court that they were the victims of workplace discrimination or harassment. While the bill has not been signed by Governor Scott Walker, I have no doubt he intends to sign it.
But what does that mean to everyday employees in Wisconsin? In these cases, compensatory damages often take the form of monetary compensation for the emotional distress they experienced when they were illegally discriminated against / terminated by their employer. And let's not forget, they recover these damages AFTER they have proven in court that they were the victims of discrimination. So these damages are only available to those employees who have proven that their boss was a biggot, sexist, etc.
The fact that someone may experience emotional distress when they are fired for their race, age, disability, gender, etc. is not a tough concept for folks to grasp. As one article states, the emotional toll the loss of a job creates is compounded when the job loss occurred for a discriminatory reason. Moreover, most of us intuitively understand how being sexually harassed in the workplace may cause, in some instances, severe emotional distress.
Punitive damages are those damages that are awarded against employer only when an employee makes an additional showing that the employer knowingly violated the anti-discrimination law at issue. In other words, these damages are only available when an employee can prove that the employer knew discriminating against the employee was illegal but consciously decides to do it anyway. I can tell you that obtaining punitive damages in discrimination cases can be, as a practical matter, difficult.
Wisconsin has passed this law presumably as part of some "pro-jobs" political agenda. However, one has to question how denying victims of discrimination full compensation for the workplace discrimination they experienced creates jobs. I guess the employer could use that extra cash to hire a younger, male, non-disabled person, but I doubt that argument is one anyone is willing to legitimately make. Moreover, the victims of discrimination are often terminated, resulting in less jobs, not more. Removing some of the teeth from these anti-discrimination laws could lead to an increase in discriminatory terminations because employers know the cost of engaging in discrimination is significantly less. Conversely, the realization that it may be liable for compensatory and punitive damages may deter an employer from engaging in a discriminatory termination, thus keeping a job. But I'm not a statistician, I'm a lawyer.
The other bill that passed the Wisconsin Assembly and is presumably sitting on Governor Walker's desk is even more bizarre. The Assembly has voted to repeal the state's Equal Pay Act (EPA), which guarantees women the same pay as men for doing the same work. I never would have guessed that there are people who would have the guts to publicly admit they have no problem paying women less than men, but I've been proven wrong again. And the irony of course, according to this representative, is that pay disparity between men and women has significantly dropped in Wisconsin since the passage of Wisconsin's EPA in 2009, which most of us would assume to be a good thing.
Assuming the argument for repealing the EPA is again some "pro-jobs" agenda, one may try to challenge the premise that engaging in overt sexism leads to job creation. Reasonable minds (and most women) may not see the nexus between the two. So I'm here to explain it. See, if you pay women half of what men make, you can hire two women for the price of one. We just created a job! Get it? And you wonder why those Wisconsinites have a such a problem with alcohol....
The Wisconsin Assembly has given those of us in Minnesota another reason to cheer, while at the same time providing me an additional reason to trash on Wisconsin. Specifically, the Wisconsin legislature has passed two pieces of legislation that severely restrict the rights of employees to sue and receive compensation for workplace discrimination.
First, the Wisconsin Assemby passed a bill that repeals an employee's right to recover compensatory and punitive damages when they have proven in court that they were the victims of workplace discrimination or harassment. While the bill has not been signed by Governor Scott Walker, I have no doubt he intends to sign it.
But what does that mean to everyday employees in Wisconsin? In these cases, compensatory damages often take the form of monetary compensation for the emotional distress they experienced when they were illegally discriminated against / terminated by their employer. And let's not forget, they recover these damages AFTER they have proven in court that they were the victims of discrimination. So these damages are only available to those employees who have proven that their boss was a biggot, sexist, etc.
The fact that someone may experience emotional distress when they are fired for their race, age, disability, gender, etc. is not a tough concept for folks to grasp. As one article states, the emotional toll the loss of a job creates is compounded when the job loss occurred for a discriminatory reason. Moreover, most of us intuitively understand how being sexually harassed in the workplace may cause, in some instances, severe emotional distress.
Punitive damages are those damages that are awarded against employer only when an employee makes an additional showing that the employer knowingly violated the anti-discrimination law at issue. In other words, these damages are only available when an employee can prove that the employer knew discriminating against the employee was illegal but consciously decides to do it anyway. I can tell you that obtaining punitive damages in discrimination cases can be, as a practical matter, difficult.
Wisconsin has passed this law presumably as part of some "pro-jobs" political agenda. However, one has to question how denying victims of discrimination full compensation for the workplace discrimination they experienced creates jobs. I guess the employer could use that extra cash to hire a younger, male, non-disabled person, but I doubt that argument is one anyone is willing to legitimately make. Moreover, the victims of discrimination are often terminated, resulting in less jobs, not more. Removing some of the teeth from these anti-discrimination laws could lead to an increase in discriminatory terminations because employers know the cost of engaging in discrimination is significantly less. Conversely, the realization that it may be liable for compensatory and punitive damages may deter an employer from engaging in a discriminatory termination, thus keeping a job. But I'm not a statistician, I'm a lawyer.
The other bill that passed the Wisconsin Assembly and is presumably sitting on Governor Walker's desk is even more bizarre. The Assembly has voted to repeal the state's Equal Pay Act (EPA), which guarantees women the same pay as men for doing the same work. I never would have guessed that there are people who would have the guts to publicly admit they have no problem paying women less than men, but I've been proven wrong again. And the irony of course, according to this representative, is that pay disparity between men and women has significantly dropped in Wisconsin since the passage of Wisconsin's EPA in 2009, which most of us would assume to be a good thing.
Assuming the argument for repealing the EPA is again some "pro-jobs" agenda, one may try to challenge the premise that engaging in overt sexism leads to job creation. Reasonable minds (and most women) may not see the nexus between the two. So I'm here to explain it. See, if you pay women half of what men make, you can hire two women for the price of one. We just created a job! Get it? And you wonder why those Wisconsinites have a such a problem with alcohol....
Friday, February 10, 2012
Governor Dayton Vetoes "Tort Reform" Bills
Minnesota Governor Mark Dayton vetoed four alleged "tort reform" bills that the legislature had recently passed. These bills would have cut the statute of limitations (the time in which you must bring a suit after the injury or illegal conduct occurred) on many negligence claims (such as personal injury claims) from six years to four, would have made it much more difficult for plaintiffs to obtain class action status, would have reduced the availability of attorneys' fees awards in employment claims and significantly reduced interest rates a plaintiff could recover on a judgment.
In vetoing these bills that proponents had labeled "jobs bills," Dayton noted that they did not create any jobs. Dayton also stated that he did not understand why these bills were necessary to create a better business climate in Minnesota when the U.S. Chamber of Commerce ranks Minnesota near the top of the list when it comes to the treatment of business in the courtroom.
For employees, the governor's veto of these bills was a significant. Many times employees come to me with claims that may be low in dollar value but it is clear that their employer has broken the law. These employees are also often out of work because they have been illegally fired and can't afford to pay an attorney. Without the possibility of obtaining attorneys' fees from the employer upon a showing that the employer violated the law, attorneys like myself could not afford to represent employees and these illegal practices would go unpunished. Also, the right of employees to bring a class action lawsuit when their claims and damages are sufficiently similar is also a strong tool that provides redress for illegal employment practices.
In vetoing these bills that proponents had labeled "jobs bills," Dayton noted that they did not create any jobs. Dayton also stated that he did not understand why these bills were necessary to create a better business climate in Minnesota when the U.S. Chamber of Commerce ranks Minnesota near the top of the list when it comes to the treatment of business in the courtroom.
For employees, the governor's veto of these bills was a significant. Many times employees come to me with claims that may be low in dollar value but it is clear that their employer has broken the law. These employees are also often out of work because they have been illegally fired and can't afford to pay an attorney. Without the possibility of obtaining attorneys' fees from the employer upon a showing that the employer violated the law, attorneys like myself could not afford to represent employees and these illegal practices would go unpunished. Also, the right of employees to bring a class action lawsuit when their claims and damages are sufficiently similar is also a strong tool that provides redress for illegal employment practices.
Thursday, February 9, 2012
Things At Work Aren't Always As Clear As They May Seem
The Eighth Circuit Court of Appeals released an opinion today in which it affirmed the dismissal of Karen Chambers' lawsuit against The Travelers Companies, Inc. Chambers was employed by the insurer as a managing director and oversaw six underwriters in her department. In 2007, Travelers' human resources department received a complaint that Chambers had a "controlling" management style, brought personal stress to the department, made inappropriate religious comments and sold religious items in the office. Travelers chose to conduct a "climate survey" of Chambers' department to see if others shared these opinions.
It turns out they did. According to the court's opinion, the employees who reported to Chambers described their work environment as dysfunctional, team morale as low or non-existent, and Chambers' management style as "blame and shame" (I personally had never heard of that one before, which is remarkable). They also stated they felt pressured into purchasing religious items she sold for missionary trips so they wouldn't be on her "bad side."
Travelers reported their findings to Chambers in a meeting. They provided her with some of the information from the climate study and asked for her response. Chambers was not receptive to the criticism. Chambers was subsequently placed on a written warning for her behavior.
According to the opinion, Travelers subsequently discovered that Chambers had taken family members on business trips and may have expensed their meals and drinks to the comapny. She was then terminated.
Chambers brought suit claiming that the employees who disciplined her defamed her in the written warning and by telling her that she was being terminated for "continuing issues." She also sued for breach of contract, claiming she was entitled to a $30,000 bonus for the year 2007.
The court affirmed the district court's decision to throw Chambers' claims out of court. Specifically, the court noted that Travelers and its employees had a "qualified privilege" to make the allegedly defamatory statements. A qualified privilege exists where an individuals is making a statement "upon a proper occasion, from a proper motive and based on reasonable or probable cause." Oftentimes, communications between an employer's agents made in the course of investigating or punishing an employee for misconduct will be protected by the qualified privilege. However, where the employee can show "actual malice," that is, the statement was made from "ill-will and improper motives, or causelessly or wantonly with the purpose of injuring the employee," the privilege will be lost.
Chambers argued that the employees who investigated the incidents did not conduct a thorough investigation and therefore they acted with actual malice. The court held that pointing to instances where Travelers might have done a better job in its investigation does not meet the actual malice standard. However, if Chambers could have provided evidence that the individuals was skewed or slanted their findings, or were biased in some way, Chambers likely would have presented sufficient evidence to get her claim in front of a jury. The take-away from this claim is that negative (and arguably defamatory) statements made during an investigation by an employer into alleged misconduct are typically privileged and no claim for defamation will exist.
The court also threw out her claim for the $30,000 bonus. Specifically, the court cited Travelers' policy which stated that the bonus payment Chambers was seeking "are discretionary awards used to reward superior performance." The court held that when a contract term (here the bonus policy) leaves a decision to the discretion of one party - here, Travelers had the discretion whether to award the bonus - a court won't second guess that discretionary decision. In addition, Travelers' policy stated that an employee is eligible for the bonus only if they are employed on the date the bonuses were distributed. Chambers had been fired by that time. Therefore, the court threw out that claim as well. The take-away from this claim is that you need to review your employer's compensation policies carefully. Those policies are often very one sided in favor of the employer and do not always entitle you to the bonus or other compensation you feel you have earned.
If you have questions about any of these issues, feel free to contact me at your convenience.
It turns out they did. According to the court's opinion, the employees who reported to Chambers described their work environment as dysfunctional, team morale as low or non-existent, and Chambers' management style as "blame and shame" (I personally had never heard of that one before, which is remarkable). They also stated they felt pressured into purchasing religious items she sold for missionary trips so they wouldn't be on her "bad side."
Travelers reported their findings to Chambers in a meeting. They provided her with some of the information from the climate study and asked for her response. Chambers was not receptive to the criticism. Chambers was subsequently placed on a written warning for her behavior.
According to the opinion, Travelers subsequently discovered that Chambers had taken family members on business trips and may have expensed their meals and drinks to the comapny. She was then terminated.
Chambers brought suit claiming that the employees who disciplined her defamed her in the written warning and by telling her that she was being terminated for "continuing issues." She also sued for breach of contract, claiming she was entitled to a $30,000 bonus for the year 2007.
The court affirmed the district court's decision to throw Chambers' claims out of court. Specifically, the court noted that Travelers and its employees had a "qualified privilege" to make the allegedly defamatory statements. A qualified privilege exists where an individuals is making a statement "upon a proper occasion, from a proper motive and based on reasonable or probable cause." Oftentimes, communications between an employer's agents made in the course of investigating or punishing an employee for misconduct will be protected by the qualified privilege. However, where the employee can show "actual malice," that is, the statement was made from "ill-will and improper motives, or causelessly or wantonly with the purpose of injuring the employee," the privilege will be lost.
Chambers argued that the employees who investigated the incidents did not conduct a thorough investigation and therefore they acted with actual malice. The court held that pointing to instances where Travelers might have done a better job in its investigation does not meet the actual malice standard. However, if Chambers could have provided evidence that the individuals was skewed or slanted their findings, or were biased in some way, Chambers likely would have presented sufficient evidence to get her claim in front of a jury. The take-away from this claim is that negative (and arguably defamatory) statements made during an investigation by an employer into alleged misconduct are typically privileged and no claim for defamation will exist.
The court also threw out her claim for the $30,000 bonus. Specifically, the court cited Travelers' policy which stated that the bonus payment Chambers was seeking "are discretionary awards used to reward superior performance." The court held that when a contract term (here the bonus policy) leaves a decision to the discretion of one party - here, Travelers had the discretion whether to award the bonus - a court won't second guess that discretionary decision. In addition, Travelers' policy stated that an employee is eligible for the bonus only if they are employed on the date the bonuses were distributed. Chambers had been fired by that time. Therefore, the court threw out that claim as well. The take-away from this claim is that you need to review your employer's compensation policies carefully. Those policies are often very one sided in favor of the employer and do not always entitle you to the bonus or other compensation you feel you have earned.
If you have questions about any of these issues, feel free to contact me at your convenience.
Your Boss Is Big Brother, Part 2
I recently saw this article about how access to the internet, the use of social media and how important connectivity is so important to the next generation of workers. These "digital natives" as they are sometimes referred, would prefer a lower paying job that provides them flexibility on their use of social media, the location of where they work and the devices they use to complete their work rather over a high paying job that restricts these practices. The author raises some questions for employers that look very much like the ones I raised in my prior post on social media and employment. The questions in the article included:
This is just another reminder that as our mobile devices and use of social media become an integrated part of our work life that we should remember Big Brother will be watching....
- What is the appropriate level of openness? Should employees be prevented from slamming their bosses' ideas, for example? Should managers be restricted in the kinds of things they can say to or about employees?
- How much blurring of public and private life is too much? Social media encourages people to mix work- and nonwork-related communication, but some workers prefer to keep their social lives strictly off-limits.
- How can the company prevent abuse of social media? Things can get ugly quickly — all it takes is one thoughtless comment. Employees and managers need to know that there will be serious consequences for any misuse of this potentially combustible form of communication.
- When employees from VPs to interns are sharing company information on Twitter, on Facebook, and in blogs while your competition is watching, how do you ensure that your employees understand what information is confidential and what is public?
This is just another reminder that as our mobile devices and use of social media become an integrated part of our work life that we should remember Big Brother will be watching....
Monday, February 6, 2012
Your Boss Is Big Brother
I can almost guarantee Noah Kravitz did not see this coming: Getting sued by his former employer for $340,000 because his former employer, PhoneDog, claimed his Twitter followers were a "trade secret." PhoneDog is a company that reviews mobile devices like phones and tablets. Kravitz was a writer for PhoneDog from 2006 until his resignation in 2010. At the time Kravitz resigned, he had approximately 17,000 Twitter followers on his handle "PhoneDog_Noah." When he quit, he changed the Twitter handle to "noahkravitz" but kept the 17,000 followers.
PhoneDog claims that Kravitz' Twitter followers were a "customer list" and "trade secret" that belonged to the company and brought suit in July 2011. Specifically, PhoneDog sued for misappropriation of trade secrets, intentional and negligent interference with prospective economic advantage, and conversion (theft). Kravitz sought to have the claims thrown out of court because he claimed the court lacked jurisdiction to hear the case. The court basically denied Kravitz' motion and is allowing the suit to move forward.
This case is interesting for a couple of reasons. First, it highlights the intersection of social media and the workplace. Are these Twitterers following Kravitz or the company? Does that matter? Who owns the Twitter account if Kravitz set it up on his own and was simply doing his employer a favor by tweeting a promotion once in a while? Can Twitter "followers" be a customer list given how fluid they may come and go and given the fact that most of them have likely never done business with PhoneDog? And how is it fair if these questions are answered in Kravitz' favor but he has to pay tens of thousands of dollars in attorneys' fees to establish he was in the right? This is all food for thought when any employee is venturing out into the social media universe on behalf of their employer. And it is a call for employers to make sure they have a well written social media policy that communicates the understanding of what constitutes company property, intellectual or otherwise.
Second, as this article points out, Kravitz claims that the company's lawsuit was brought only after he sued the company for failing to pay him his earned compensation following his resignation. While this may appear like a clear case of retaliation, Kravitz may not have a cause of action if he were to sue in Minnesota. Minnesota's Whistleblower Statute only provides protection for current employees. Because the retaliation in question took place after he quit, he would have no viable claim. Furthermore, Minnesota's wage and hour statutes also do not have an anti-retaliation cause of action on which Kravitz could base a claim.
I will leave you with a few additonal thoughts about social media and the internet:
1. Anything you do on your company's computers (email, internet searches, facebook, twitter, etc.) is not private. It is the company's computer, internet connection and email server that is in use, not yours. You have no expectation of privacy. Assume that your employee is reviewing everything you do on your work computer and act accordingly.
2. Things you put on social media about your employer may come back to haunt you. I would guess at least one of your "friends" is a coworker. Status updates like "My boss suckz!!!" have an uncanny knack for finding their way back to your boss. When you are fired for this, please spare me the phone call. You don't have a claim.
3. Don't have your settings set to "public" while your profile picture is of you doing a keg stand at the frat house. Employers are constantly sifting through social media and other information on the internet to find out about job applicants and current employees. They use this information to find a reason to disqualify you from consideration, not to see if there are any other awards or accomplishments you inadvertantly left off your resume.
4. And finally, if Mr. Kravitz and PhoneDog have taught you anything, keep your personal social media accounts and email addresses seperate from your work accounts.
PhoneDog claims that Kravitz' Twitter followers were a "customer list" and "trade secret" that belonged to the company and brought suit in July 2011. Specifically, PhoneDog sued for misappropriation of trade secrets, intentional and negligent interference with prospective economic advantage, and conversion (theft). Kravitz sought to have the claims thrown out of court because he claimed the court lacked jurisdiction to hear the case. The court basically denied Kravitz' motion and is allowing the suit to move forward.
This case is interesting for a couple of reasons. First, it highlights the intersection of social media and the workplace. Are these Twitterers following Kravitz or the company? Does that matter? Who owns the Twitter account if Kravitz set it up on his own and was simply doing his employer a favor by tweeting a promotion once in a while? Can Twitter "followers" be a customer list given how fluid they may come and go and given the fact that most of them have likely never done business with PhoneDog? And how is it fair if these questions are answered in Kravitz' favor but he has to pay tens of thousands of dollars in attorneys' fees to establish he was in the right? This is all food for thought when any employee is venturing out into the social media universe on behalf of their employer. And it is a call for employers to make sure they have a well written social media policy that communicates the understanding of what constitutes company property, intellectual or otherwise.
Second, as this article points out, Kravitz claims that the company's lawsuit was brought only after he sued the company for failing to pay him his earned compensation following his resignation. While this may appear like a clear case of retaliation, Kravitz may not have a cause of action if he were to sue in Minnesota. Minnesota's Whistleblower Statute only provides protection for current employees. Because the retaliation in question took place after he quit, he would have no viable claim. Furthermore, Minnesota's wage and hour statutes also do not have an anti-retaliation cause of action on which Kravitz could base a claim.
I will leave you with a few additonal thoughts about social media and the internet:
1. Anything you do on your company's computers (email, internet searches, facebook, twitter, etc.) is not private. It is the company's computer, internet connection and email server that is in use, not yours. You have no expectation of privacy. Assume that your employee is reviewing everything you do on your work computer and act accordingly.
2. Things you put on social media about your employer may come back to haunt you. I would guess at least one of your "friends" is a coworker. Status updates like "My boss suckz!!!" have an uncanny knack for finding their way back to your boss. When you are fired for this, please spare me the phone call. You don't have a claim.
3. Don't have your settings set to "public" while your profile picture is of you doing a keg stand at the frat house. Employers are constantly sifting through social media and other information on the internet to find out about job applicants and current employees. They use this information to find a reason to disqualify you from consideration, not to see if there are any other awards or accomplishments you inadvertantly left off your resume.
4. And finally, if Mr. Kravitz and PhoneDog have taught you anything, keep your personal social media accounts and email addresses seperate from your work accounts.
Saturday, February 4, 2012
Simply Being At The Center Of A Storm Doesn't Provide A Cause Of Action.
According to reports, Michael Brodkorb, the former communications chief of the Minnesota Senate and and deputy chair of the state Republican party, has hired attorneys to pursue potential legal claims relating to his termination from his position in the Senate. Brodkorb was terminated in December, a day after former Senate Majority Leader Amy Koch resigned her leadership position for having an affair with an unidentified male Senate staffer. The fact that Brodkorb was terminated the next day has raised speculation that he may have been the staffer with whom Koch was having the affair.
So what possible claims could Brodkorb have against the Senate?
At the outset, it appears Mr. Brodkorb, as an employee of the Senate, was a member of the "Unclassified Service," which means he was not a member of a union. Generally, union member are subject to a contract called a "Collective Bargaining Agreement" (CBA) that oftentimes provides greater job rights and protections than are available to the average worker. Because Mr. Brodkorb does not appear to be a union member, he likely will not have any claims under a CBA. Indeed, the Senate is claiming he signed an agreement of some type which states he was an employee at-will, meaning he could be fired for any reason so long is it is not an illegal one.
It is difficult to know what claims Brodkorb has because there have been no reports as to the reason for his termination and no one has confirmed that he was the staffer who had the affair with Koch. If Koch, however, used her position to force Brodkorb into having sex with her, he may have a claim for sexual harassment. Such a situation, known as "quid pro quo," oftentimes occurs where the employee is either threatened with adverse job consequences if he or she fails to engage in sexual contact with the supervisor, or is offered job perks in exchange for sexual favors. All of this falls under the broad definition of sexual harassment found in the Minnesota Human Rights Act. However, a voluntary sexual affair is not actionable. From most reports, it appears that Koch's affair was one that was voluntary between her and Mr. X.
Brodkorb may also try to bring some type of defamation action claiming his reputation has been damaged. Typically, to prove defamation, one needs to show (a) that a statement was false, (b) that the statement was communicated to someone other than the plaintiff, and (c) that the person's reputation was harmed. Brodkorb would have significant other problems in bringing a defamation suit. By being such a high profile political figure and former blogger, he likely would be considered a public figure. Speech related to public figures and public issues is considered the most important type of speech by the courts. Because of the First Amendment's clause granting us the freedom of speech, the courts provide individuals commenting on public issues significant protection from possible censorship through a defamation claim or otherwise. Thus, public figures have to prove "actual malice" in order to succeed on a defamation claim. "Actual malice" was defined by the U.S. Supreme Court as when the speaker knows the statement is false or speaks with a reckless disregard for the truth. Courts rarely find that public figures are able to meet this standard.
It is difficult to know what Brodkorb would claim has been said about him that was defamatory. The secrecy surrounding the reasons and circumstances for his termination are remarkable given his public position and the media attention it has received. The Senate has not provided any reason for his termination. No one has been quoted as saying he was doing a poor job, was incompetent, screwed something up or was Mr. X in the affair with Koch. It is even more unlikely that he would be able to show any alleged statement met the actual malice standard. However, until further details come out, we simply won't know.
In sum, the information in the public record to date does not indicate that Mr. Brodkorb has any legitimate claims. Either way, given his public role and position, we have a right to know all the details of any alleged claim, especially if Brodkorb is paid a settlement with taxpayer money.
So what possible claims could Brodkorb have against the Senate?
At the outset, it appears Mr. Brodkorb, as an employee of the Senate, was a member of the "Unclassified Service," which means he was not a member of a union. Generally, union member are subject to a contract called a "Collective Bargaining Agreement" (CBA) that oftentimes provides greater job rights and protections than are available to the average worker. Because Mr. Brodkorb does not appear to be a union member, he likely will not have any claims under a CBA. Indeed, the Senate is claiming he signed an agreement of some type which states he was an employee at-will, meaning he could be fired for any reason so long is it is not an illegal one.
It is difficult to know what claims Brodkorb has because there have been no reports as to the reason for his termination and no one has confirmed that he was the staffer who had the affair with Koch. If Koch, however, used her position to force Brodkorb into having sex with her, he may have a claim for sexual harassment. Such a situation, known as "quid pro quo," oftentimes occurs where the employee is either threatened with adverse job consequences if he or she fails to engage in sexual contact with the supervisor, or is offered job perks in exchange for sexual favors. All of this falls under the broad definition of sexual harassment found in the Minnesota Human Rights Act. However, a voluntary sexual affair is not actionable. From most reports, it appears that Koch's affair was one that was voluntary between her and Mr. X.
Brodkorb may also try to bring some type of defamation action claiming his reputation has been damaged. Typically, to prove defamation, one needs to show (a) that a statement was false, (b) that the statement was communicated to someone other than the plaintiff, and (c) that the person's reputation was harmed. Brodkorb would have significant other problems in bringing a defamation suit. By being such a high profile political figure and former blogger, he likely would be considered a public figure. Speech related to public figures and public issues is considered the most important type of speech by the courts. Because of the First Amendment's clause granting us the freedom of speech, the courts provide individuals commenting on public issues significant protection from possible censorship through a defamation claim or otherwise. Thus, public figures have to prove "actual malice" in order to succeed on a defamation claim. "Actual malice" was defined by the U.S. Supreme Court as when the speaker knows the statement is false or speaks with a reckless disregard for the truth. Courts rarely find that public figures are able to meet this standard.
It is difficult to know what Brodkorb would claim has been said about him that was defamatory. The secrecy surrounding the reasons and circumstances for his termination are remarkable given his public position and the media attention it has received. The Senate has not provided any reason for his termination. No one has been quoted as saying he was doing a poor job, was incompetent, screwed something up or was Mr. X in the affair with Koch. It is even more unlikely that he would be able to show any alleged statement met the actual malice standard. However, until further details come out, we simply won't know.
In sum, the information in the public record to date does not indicate that Mr. Brodkorb has any legitimate claims. Either way, given his public role and position, we have a right to know all the details of any alleged claim, especially if Brodkorb is paid a settlement with taxpayer money.
Subscribe to:
Posts (Atom)