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.
Thursday, February 9, 2012
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.
Wednesday, December 21, 2011
Severe Obesity Is A Disability Under The ADA
Recently, the Federal District Court for the Eastern District of Louisiana held that "severe obesity" qualifies as a disability under the Americans With Disabilities Act (ADA). The court also held that someone who is "severely obese" (defined by the EEOC as someone with a body weight of more that 100% over the norm) need not show that they have some underlying physiological disorder causing the obesity in order to be protected by the ADA. This is a signficant departure from many former court decisions which held that simply being obese did not constitute a disability under the ADA. The court notes that while being overwieght is not, in and of itself, a disability, those individuals who are severely obese or have an underlying physiological condition causing the obesity would qualify as disabled under the ADA.
The Louisiana Court applied recent amendments to the ADA that took effect in January 2009 which, among other things, signficantly broadened the definition of "disability." Prior to these amendments, the courts had interpreted the definition of "disability" in the ADA very narrowly, denying ADA protection to numerous individuals with very serious disabilities like diabetes, multiple sclerosis and cancer. The text of the ADA amendments specifically states that they were intended to overturn two U.S. Supreme Court opinions that excluded numerous individuals from the ADA's protection. An instructional chart setting forth some of the differences between the old version of the ADA as interpreted by the courts and the new ADA amendments can be found here. In sum, these new amendments were intended to move the focus away from whether the employee is disabled and turn attention to whether the employer was making discriminatory decisions based on an employee's impairment. In my experience, the amendments are having their intended effect.
There is one interesting side note to the enactment of the ADA amendments. The amendments clearly broadened the coverage of the ADA to many more people. This, in theory, could increase the number of employees (individuals) who may decide to sue their employers (businesses) for discrimination. While one would assume that typical political battle lines would be drawn in favor of, and in opposition to, the ADA amendments, that was not the case. Remarkably, as noted in various articles and elsewhere, the ADA amendments passed with overwhelming bipartisan support in Congress, were signed by President Bush and were born from a collaboration between disability, civil rights and employer groups. I wonder if these amendments would pass today?
The Louisiana Court applied recent amendments to the ADA that took effect in January 2009 which, among other things, signficantly broadened the definition of "disability." Prior to these amendments, the courts had interpreted the definition of "disability" in the ADA very narrowly, denying ADA protection to numerous individuals with very serious disabilities like diabetes, multiple sclerosis and cancer. The text of the ADA amendments specifically states that they were intended to overturn two U.S. Supreme Court opinions that excluded numerous individuals from the ADA's protection. An instructional chart setting forth some of the differences between the old version of the ADA as interpreted by the courts and the new ADA amendments can be found here. In sum, these new amendments were intended to move the focus away from whether the employee is disabled and turn attention to whether the employer was making discriminatory decisions based on an employee's impairment. In my experience, the amendments are having their intended effect.
There is one interesting side note to the enactment of the ADA amendments. The amendments clearly broadened the coverage of the ADA to many more people. This, in theory, could increase the number of employees (individuals) who may decide to sue their employers (businesses) for discrimination. While one would assume that typical political battle lines would be drawn in favor of, and in opposition to, the ADA amendments, that was not the case. Remarkably, as noted in various articles and elsewhere, the ADA amendments passed with overwhelming bipartisan support in Congress, were signed by President Bush and were born from a collaboration between disability, civil rights and employer groups. I wonder if these amendments would pass today?
Saturday, December 17, 2011
"They encourage you to report something and when you do, it seems as if it's taken out on you...."
According to the New York Times, those were the words used by Warren Glover, a former NBA security director and former police officer, in his attempt to explain his termination as a long time NBA security director following his reports of sex harassment and discrimination against female coworkers prior to his termination in July 2011. Glover has now sued the NBA and a number of individuals for retaliation.
Glover alleges that he had accumulated a "glowing performance record," but once he began reporting instances of harassment and discrimination of women in the workplace to his superiors, he received veiled and overt threats of retaliation and received poor performance reviews. Specifically, Glover states he communicated complaints from female employees to his superiors that they were shown pornographic material on the computer and were subject to offensive and intimidating remarks from male supervisors and coworkers.
In addition, Annette Smith, an administrative assistant who worked for Glover, complained to Glover that Bernard Tolbert, the NBA's then Senior Vice President for Security, engaged in a pattern of sexual harassment towards her. Smith complained that Tolbert exhibited a demeaning attitude and conduct towards women. As an example, Tolbert allegedly had shown Smith a photo of an obese, naked woman lying on top of a man who was barely visible in the picture. Tolbert, according to Glover, wanted Smith to incorporate the image in a presentation to NBA players warning them about the dangers of drinking. When Glover told Tolbert how offended Smith was by the conduct, Tolbert allegedly responded: "If she doesn’t like it, she can quit. One monkey don’t stop no show."
Smith prudently followed Tolbert's advice, quit her job and sued both Tolbert and the NBA. Following the initiation of Smith's lawsuit, Gregory Robinson, Glover's immediate supervisor, allegedly told Glover that he “was in trouble” and that any involvement in Smith's case “would be detrimental to his [Glover's] career.” I suspect that Robinson's statements, if true, had not been vetted by the NBA's general counsel.
Despite Robinson's overt threat of retaliation, Glover gave a deposition in Smith's case in May 2009 in which I suspect he substantiated many of Smith's allegations of harassment. Following his deposition, Tolbert allegedly stated to Glover: "It’s all your fault. You testified for your girl." Tolbert left the NBA near the end of 2010 following a "sizable settlement" that was paid to Smith, according to Glover. Glover was then terminated by James Cowley, Tolbert's replacement, for alleged performance reasons in July 2011. The termination, coincidentally, occurred one month after Glover had received a congratulatory letter and gold watch from the NBA Commissioner David Stern thanking him for his 10 years of dedicated service in June 2011.
Retaliation, or reprisal as it is called in the Minnesota Human Rights Act, is a form of workplace discrimination that is illegal under both federal and Minnesota law. In essence, it is illegal to retaliate against someone for reporting discrimination or harassment in the workplace. It is also illegal to retaliate against someone for participating in a discrimination investigation or testifying in a discrimination proceeding as Glover did here. Many employers, like the NBA, have written policies encouraging their employees to report discrimination or harassment to their supervisors or human resources department. Those policies also promise that the employee will not be retaliated against for making the report of discrimination.
The U.S. Supreme Court has held that retaliation can take many different forms depending on the nature of the job and the unique culture of each workplace. Terminations, demotions and pay cuts are obvious forms of retaliation. But the Supreme Court held that retaliation could, in certain circumstances, come in the form of a suspension, shift change or reassignment of job duties, among other things. In essence, the Court held that if the employer's retaliatory conduct would dissuade a reasonable person from making a complaint of discrimination in the first place, it can form the basis of a retaliation claim.
While the goal of prohibiting retaliation is a noble one, it is often very difficult for employers to follow in practice. Oftentimes, complaints of discrimination or harassment are directed at supervisors or coworkers we have to see and interact with every day. The accused get angry at their accuser for making what they often believe are baseless allegations and putting their employment in jeopardy. Their natural reaction is to lash out at their accuser. In some instances, when the accused is an important person in the organization, others will retaliate against the accuser because they don't want anything to jeopardize the employer's relationship with this key employee. The accused, or their supporters, often know retaliation is wrong and illegal. Nonetheless, they may say or do things that result in actionable retaliation claims. According to Equal Employment Opportunity Commission (EEOC), retaliation claims have become a much larger percentage of its workload, comprising over 36% of all claims made to the agency in 2010.
Employees are not protected for reporting any slight or injustice that may occur in the workplace. These anti-discrimination statutes clearly limit protection against retaliation to those who are reporting violations of those statutes that prevent discrimination against a individuals in a "protected class," i.e., discrimination on the basis of sex, race, national origin, age, religion, disability, sexual orientation, marital status, etc. Minnesota also has what is commonly referred to as the "Whistleblower Act," which also prohibits retaliation against an employee for reporting illegal conduct to the employer or governmental authorities.
One thing that is important to remember, however, is that there is no law prohibiting an employer from retaliating against an employee for reporting other types of unfair treatment in the workplace. I often receive calls from people who have complained to their employer that they are being treated differently than their coworkers, their reviews weren't fair, their boss is a jerk, or that their coworker is treating them disrespectfully, among a litany of other complaints. Unless you can show that the underlying conduct was directed at you because you belong to a "protected class" or have engaged in other protected conduct, you likely will not be able to bring a claim of retaliation. If you have any question about whether you have legal protection when making a report to your employer, it is always best to call a lawyer before making your report.
(Hat tip: Gillette-Torvik Blog)
Glover alleges that he had accumulated a "glowing performance record," but once he began reporting instances of harassment and discrimination of women in the workplace to his superiors, he received veiled and overt threats of retaliation and received poor performance reviews. Specifically, Glover states he communicated complaints from female employees to his superiors that they were shown pornographic material on the computer and were subject to offensive and intimidating remarks from male supervisors and coworkers.
In addition, Annette Smith, an administrative assistant who worked for Glover, complained to Glover that Bernard Tolbert, the NBA's then Senior Vice President for Security, engaged in a pattern of sexual harassment towards her. Smith complained that Tolbert exhibited a demeaning attitude and conduct towards women. As an example, Tolbert allegedly had shown Smith a photo of an obese, naked woman lying on top of a man who was barely visible in the picture. Tolbert, according to Glover, wanted Smith to incorporate the image in a presentation to NBA players warning them about the dangers of drinking. When Glover told Tolbert how offended Smith was by the conduct, Tolbert allegedly responded: "If she doesn’t like it, she can quit. One monkey don’t stop no show."
Smith prudently followed Tolbert's advice, quit her job and sued both Tolbert and the NBA. Following the initiation of Smith's lawsuit, Gregory Robinson, Glover's immediate supervisor, allegedly told Glover that he “was in trouble” and that any involvement in Smith's case “would be detrimental to his [Glover's] career.” I suspect that Robinson's statements, if true, had not been vetted by the NBA's general counsel.
Despite Robinson's overt threat of retaliation, Glover gave a deposition in Smith's case in May 2009 in which I suspect he substantiated many of Smith's allegations of harassment. Following his deposition, Tolbert allegedly stated to Glover: "It’s all your fault. You testified for your girl." Tolbert left the NBA near the end of 2010 following a "sizable settlement" that was paid to Smith, according to Glover. Glover was then terminated by James Cowley, Tolbert's replacement, for alleged performance reasons in July 2011. The termination, coincidentally, occurred one month after Glover had received a congratulatory letter and gold watch from the NBA Commissioner David Stern thanking him for his 10 years of dedicated service in June 2011.
Retaliation, or reprisal as it is called in the Minnesota Human Rights Act, is a form of workplace discrimination that is illegal under both federal and Minnesota law. In essence, it is illegal to retaliate against someone for reporting discrimination or harassment in the workplace. It is also illegal to retaliate against someone for participating in a discrimination investigation or testifying in a discrimination proceeding as Glover did here. Many employers, like the NBA, have written policies encouraging their employees to report discrimination or harassment to their supervisors or human resources department. Those policies also promise that the employee will not be retaliated against for making the report of discrimination.
The U.S. Supreme Court has held that retaliation can take many different forms depending on the nature of the job and the unique culture of each workplace. Terminations, demotions and pay cuts are obvious forms of retaliation. But the Supreme Court held that retaliation could, in certain circumstances, come in the form of a suspension, shift change or reassignment of job duties, among other things. In essence, the Court held that if the employer's retaliatory conduct would dissuade a reasonable person from making a complaint of discrimination in the first place, it can form the basis of a retaliation claim.
While the goal of prohibiting retaliation is a noble one, it is often very difficult for employers to follow in practice. Oftentimes, complaints of discrimination or harassment are directed at supervisors or coworkers we have to see and interact with every day. The accused get angry at their accuser for making what they often believe are baseless allegations and putting their employment in jeopardy. Their natural reaction is to lash out at their accuser. In some instances, when the accused is an important person in the organization, others will retaliate against the accuser because they don't want anything to jeopardize the employer's relationship with this key employee. The accused, or their supporters, often know retaliation is wrong and illegal. Nonetheless, they may say or do things that result in actionable retaliation claims. According to Equal Employment Opportunity Commission (EEOC), retaliation claims have become a much larger percentage of its workload, comprising over 36% of all claims made to the agency in 2010.
Employees are not protected for reporting any slight or injustice that may occur in the workplace. These anti-discrimination statutes clearly limit protection against retaliation to those who are reporting violations of those statutes that prevent discrimination against a individuals in a "protected class," i.e., discrimination on the basis of sex, race, national origin, age, religion, disability, sexual orientation, marital status, etc. Minnesota also has what is commonly referred to as the "Whistleblower Act," which also prohibits retaliation against an employee for reporting illegal conduct to the employer or governmental authorities.
One thing that is important to remember, however, is that there is no law prohibiting an employer from retaliating against an employee for reporting other types of unfair treatment in the workplace. I often receive calls from people who have complained to their employer that they are being treated differently than their coworkers, their reviews weren't fair, their boss is a jerk, or that their coworker is treating them disrespectfully, among a litany of other complaints. Unless you can show that the underlying conduct was directed at you because you belong to a "protected class" or have engaged in other protected conduct, you likely will not be able to bring a claim of retaliation. If you have any question about whether you have legal protection when making a report to your employer, it is always best to call a lawyer before making your report.
(Hat tip: Gillette-Torvik Blog)
Monday, December 5, 2011
Your Friend Is Wrong: A Non-Compete Agreement Is Typically Enforceable in Minnesota
I probably get three or four phone calls a month from individuals who are unhappy at work, are thinking about making a change in their employment but wonder if that non-compete agreement they signed a year ago is really enforceable. The conversation generally goes like this:
Potential Client [PC]: "Everyone I've talked to says these things [non-compete agreements] aren't enforceable."
Me: "Well, who have you spoken with exactly?"
PC: "Everyone."
Me: "Have you spoken to another lawyer about whether your non-compete is enforceable?"
PC: "No. But how can it be enforceable? I have a right to work."
Me: "I wish it were that simple."
Indeed, as one recent article in the Minneapolis Star Tribune accurately stated, the increasing mobility of the workforce has resulted in an increase in the number and types of employees subject to non-compete agreements. As a general matter, non-compete agreement agreements are enforceable if its terms are reasonable and the employee is getting something a sufficient value in return.
When evaluating whether the terms of the non-compete agreement are reasonable, factors to consider include (1) what the employee did for the employer, (2) the type of work the employee will be prohibited from doing for a new employer, (3) the length of the time the employee is restricted from competing with the employer, and (4) the geographic scope of the restriction (i.e., whether you are prohibited from working in a particular town, state, country or the entire world). Generally, courts will uphold those agreements that are reasonable under the circumstances. The court also has the ability to unilaterally modify the restrictions to make them "reasonable" under the circumstances, which is often referred to as the "blue pencil doctrine."
A court also will look to see whether the employee received adequate consideration in exchange for signing the non-compete agreement. In other words, courts want to make sure the employee received something of sufficient value in exchange for giving up some of their post-employment rights. Typically, if a non-compete is signed at the beginning of the employment, the court will hold that the employment itself is of sufficient value to support the enforceability of the non-compete agreement. However, if the non-compete is being presented to a current employee after employment has began, the employer typically needs to offer more than the promise of continued employment. Courts typically find that a bonus, stock options, pay raise, promotion or other type of tangible benefit will, in most instances, be sufficient. In the end, the court will look at whether the consideration given was reasonable given the terms of the non-compete and all other circumstances.
Most people sign a non-compete without appreciating the implications to their future employment. A non-compete can be especially oppressive if you have specialized experience in a particular industry or have a particular expertise that you will not be able to utilize for a period of time following separation from your employer. This may result in a significant limitation in the types of positions you may be eligible to apply or may result in a decrease in your expected pay because you won't be able to use those skills that make you the most valuable in the job market.
My suggestion is that you spend time negotiating the scope of the non-compete with the potential employer to make sure it protects both the employer's legitimate interests while it allows you to be as marketable to future employers as possible.
Potential Client [PC]: "Everyone I've talked to says these things [non-compete agreements] aren't enforceable."
Me: "Well, who have you spoken with exactly?"
PC: "Everyone."
Me: "Have you spoken to another lawyer about whether your non-compete is enforceable?"
PC: "No. But how can it be enforceable? I have a right to work."
Me: "I wish it were that simple."
Indeed, as one recent article in the Minneapolis Star Tribune accurately stated, the increasing mobility of the workforce has resulted in an increase in the number and types of employees subject to non-compete agreements. As a general matter, non-compete agreement agreements are enforceable if its terms are reasonable and the employee is getting something a sufficient value in return.
When evaluating whether the terms of the non-compete agreement are reasonable, factors to consider include (1) what the employee did for the employer, (2) the type of work the employee will be prohibited from doing for a new employer, (3) the length of the time the employee is restricted from competing with the employer, and (4) the geographic scope of the restriction (i.e., whether you are prohibited from working in a particular town, state, country or the entire world). Generally, courts will uphold those agreements that are reasonable under the circumstances. The court also has the ability to unilaterally modify the restrictions to make them "reasonable" under the circumstances, which is often referred to as the "blue pencil doctrine."
A court also will look to see whether the employee received adequate consideration in exchange for signing the non-compete agreement. In other words, courts want to make sure the employee received something of sufficient value in exchange for giving up some of their post-employment rights. Typically, if a non-compete is signed at the beginning of the employment, the court will hold that the employment itself is of sufficient value to support the enforceability of the non-compete agreement. However, if the non-compete is being presented to a current employee after employment has began, the employer typically needs to offer more than the promise of continued employment. Courts typically find that a bonus, stock options, pay raise, promotion or other type of tangible benefit will, in most instances, be sufficient. In the end, the court will look at whether the consideration given was reasonable given the terms of the non-compete and all other circumstances.
Most people sign a non-compete without appreciating the implications to their future employment. A non-compete can be especially oppressive if you have specialized experience in a particular industry or have a particular expertise that you will not be able to utilize for a period of time following separation from your employer. This may result in a significant limitation in the types of positions you may be eligible to apply or may result in a decrease in your expected pay because you won't be able to use those skills that make you the most valuable in the job market.
My suggestion is that you spend time negotiating the scope of the non-compete with the potential employer to make sure it protects both the employer's legitimate interests while it allows you to be as marketable to future employers as possible.
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