In Smizer v. Community Mennonite Early Learning Center, the employer told the employee that he was being fired due to a Facebook posting hed made. But the employee didnt buy it.  He claimed that he really was fired because of his tardiness and lack of cleanliness in his classroom.  He claimed that similarly situated female employees, who also were tardy and who kept equally messy classrooms, had not been fired.

If this claim were true, and there were late and messy female employees who had not been fired and the plaintiff was really fired for these reasons, it would support the plaintiffs Title VII claim.  So the plaintiff sought the court to compel his former employer to produce documents he claimed would show these failings of his female counterparts.

The employer responded that evidence relating to tardiness and messiness were not relevant to the suit because, as you may recall, it fired the plaintiff due to a troubling comment hed made about coworkers on his Facebook page. Thus, the employer contended, the evidence that the plaintiff sought was irrelevant to his claim.

The court disagreed.  In its opinion, it stated that the plaintiff had provided ample documentation tending to show that the Facebook posting may not have been the real reason for his termination.  Instead, the documentation apparently showed that the employer had claimed at various other times that there were other reasons for terminating Smizerincluding his tardiness and lack of cleanliness.  In employment-discrimination claims, a shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive.  Because evidence of shifting justifications may be admissible at trial, the requested documents were discoverable and ordered the employer to produce them. 

So whats the big lesson employers can learn from this story?  In short, pick a reason and stick to it.  One reason to terminate an employee is all you needand all you should have.  Certainly, there may be (and usually is) a long history of performance issues with the employee.  And all of these would be relevant to the employers decision to proceed to termination. But the final straw is not a bail of hay.  Pick a reason, stick with it, and dont muck it up by giving multiple reasons for the decision at the termination meeting or in a termination letter.  If youve done what youre supposed to do, youve addressed the other issues as they came up with the employee and hes aware of those issues. 

Smizer v. Community Mennonite Early Learning Ctr., No. 10 C 4304, 2011 U.S. Dist. LEXIS 102212 (N.D. Ill. Sept. 7, 2011).

See also:

Bad Reason #29 to Fire an Employee

Dont Hate Me Because Im Brilliant: One Employees Tale

3d Cir.: No Protection for an Employee Who Lies

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(PDF)

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According to the Texas Employment Law Update, thats exactly what one of North Texas largest employers has announced it will do. Baylor Health Care Systems announced that it will not hire or consider for hire any candidate who uses any nicotine product. This is additional evidence of a continuing trend in health care.

See also

A Whirlpool of Excitement about Rights of Employees Who Smoke

Employer Quits Its Smoking-Penalty Policy

Delaware Employers & Smoking Employees–Part 1

Delaware Employers & Smoking Employees–Part 2

Delaware Employers & Smoking Employees–Part 3

Delaware Employers & Smoking Employees–Part 4

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There are so many incredible labor-and-employment law blogs and bloggers online today that I cant imagine how tough it was to select just 25 of them for this award. I cant even limit my annual Top 100 Labor and Employment Law Blog list to 100 anymore. I am a fan of each of the blogs named to the list of Top 25 and I recommend that you pay a visit to any of the sites you may not yet know. Between the whole motley crew of us, youre almost guaranteed to get all of the up-to-the-minute coverage of whats happening in the area of workplace law.

Without playing favorites, I will point you in the direction of a handful of blogs written by long-time bloggers whose posts I consistently enjoy. For example, two gentlemen Ive had the pleasure of getting to know over the past few years, Dan Schwartz of the Connecticut Employment Law Blog and Jon Hyman of the Ohio Employer’s Law Blog, both post so often, they make my head spin! Dan, Jon, Phil Miles of Lawffice Space, Rob Radcliffe of Smooth Transitions, and I also collaborated on a recently published book, Think Before You Click, which is the first Human Resources publication dedicated to in-depth coverage of social-media related issues in the workplace.

I also would like to direct you to three blogs that I read religiously but whose authors Im sorry to say I have not yet met. Michael Fox has been blogging at Jottings by an Employer’s Lawyer since before most of the rest of us knew what a blog actually was! Timothy Eavenson of Current Employment hasnt been blogging quite as long (but, really, who has?), but still longer than most and yet consistently produces great posts on cases and issues that matter. And I am always amazed by Brian Hall of The Employer Law Report and his ability to constantly collect and curate stories from just about every sourceand has the content-rich posts to prove it.

Finally, I have to mention my friend Seth Borden of Labor Relations Today. Although Seths blog didnt appear in the LexisNexis list, Im absolutely certain that it was only due to an oversight because nobody, and I mean nobody writes a better labor blog than Seth.

Although I could go on and on about the great folks with whom Im so lucky to share the blogosphere with, Ill, instead, leave you with the rest of those honored by LexisNexis this year. There is apparently a race to the top with readers able to vote for their most favorite blog from the Top 25. If youre inclined to vote for this or any other blog on the list, you can do so here. That’s also the page where you can find the entire list of all 25 employment-law blogs. And, while youre there, be sure to check out all of the resources offered in the LexisNexis Labor and Employment Law Communitymany of the bloggers on the Top 25 list are contributors to this terrific resource.

But regardless of whether or for whom you vote, thanks for reading the Delaware Employment Law Blog and any of the other many high-quality employment law blogs that are published every day. This blogging stuff can be a lot of work! But for those of us who do it, its a labor of love and we do appreciate having you come along for the ride.

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The case arose when Ms. Dellinger applied for work with Science Applications. Science Applications made Ms. Dellinger a job offer, contingent upon her providing certain informationincluding a list of pending civil litigation in which she was a party. Shortly after revealing that she was involved in FLSA litigation against her former employer, Science Applications withdrew the job offer to Ms. Dellinger. Ms. Dellinger then filed suit against Science Applications, alleging that it violated the retaliation provisions of the FLSA. Science Applications moved to dismiss the suit on the grounds that the FLSA protects employees only, not prospective employees. The District Court dismissed the suit, and Ms. Dellinger appealed.

The Fourth Circuit affirmed the District Court decision. In its opinion, the Court emphasized that the FLSAs anti-retaliation provision relates to circumstances in which an employee alleges a violation by the employer. Given that context, the Court found that the retaliation provision cannot be expanded to cover prospective employees who have made no allegation against the prospective employer.

The Court also distinguished the FLSA from other statutes, including the National Labor Relations Act and the Occupational Safety and Health Act, noting the definition of employee under those statutes and enabling regulations is broader than the definition under the FLSA.

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The U.S. Supreme Court’s recent opinion in Kasten v. Saint-Gobain Performance Plastics Corporation gives employers yet another reason to worry about the FLSA. In Kasten, the Supreme Court ruled that an employee who complains to his employer about unpaid wages has engaged in “protected activity” under the FLSA. If the employee is subject to some adverse action (i.e., termination), in retaliation for his complaint (protected activity), the employer can be held liable. The critical holding in Kasten is the Court’s finding that, to qualify as a protected activity, the complaint need not be written; oral complaints are covered under the anti-relation provision of the FLSA.

The U.S. District Court for the Middle District of Florida (Tampa), is one of the first courts to apply the Kasten decision and may be the very first to decide a retaliation claim in the context of social media. In Morse v. JP Morgan Chase & Co., the plaintiff, Lilli Morse, alleged that her former employer failed to pay her overtime wages. She also alleged that she was terminated in violation of the FLSA’s anti-retaliation provision when she complained on her Facebook page.

The employer moved to dismiss both counts. The court ruled that the plaintiff had pleaded sufficient facts on her unpaid-overtime claim but dismissed the retaliation claim. The question before the court on the motion to dismiss was:

Whether a posting on an employee’s Facebook page constitutes the filing of a complaint within the meaning of the FLSA.

In answering this question in the negative, the court explained:

Morse does not allege that she made anything close to a serious complaint to her employer. In fact, she never complained to her employer at all. She simply voiced her disagreement with her employer’s payment practices on her Facebook page. This “letting off steam” falls far short of the activity protected by [the FLSA's anti-retaliation provision].

This decision is an important one for employers struggling to manage the complexities of social media and its impact on workplace laws and policies.

Morse v. JP Morgan Chase & Co., No. 8:11-CV-779-T-27EAJ (M.D. Fla. June 23, 2011).

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• the existence of an integrated enterprise or successor-entity status;
• the existence of an agency relationship;
• misappropriation of trade secrets. 

In this post, we’ll look at the potential implications of a former employee’s inaccurate LinkedIn profile.

In Asanov v. Legeido, a former employee posted, inaccurately, on his LinkedIn profile that he was the owner of the company by which he was previously employed.  The company alleged that the employee posted the inaccurate information in his profile to help his job search.  The company filed suit against the former employee alleging trademark infringement and intentional interference with its prospective business relations.

No. 3:07-1288, 2008 WL 481426, at *3 (M.D. Tenn. Oct. 31, 2008).

Now comes the really important question–what’s an employer to do?  There are two different problems to address.  First, the current employee who inaccurately states his job title on his LinkedIn profile (i.e., VP of Sales, instead of Inside Sales Manager).  Second, there’s the former employee whose LinkedIn profile describes his job duties and/or title held while employed by you as different (and, presumably, "better"), than they actually were.  Here are some thoughts on both problems.

The Current Employee

In the event that you discover that a current employee has slightly "enhanced" his job title or responsibilities in his LinkedIn profile, handle it in exactly the same way you would handle a "offline" problem (as opposed to an online one).

In other words, put aside for a minute the context–a professional social-networking site.  And turn, instead, to the real problem.  The real problem is that you’ve got an employee telling lies.  It’s irrelevant that the lie is being told in cyberspace. 

So what would you do if he spoke the lie instead of posting it?  It almost certainly depends.  You may not care one bit.  Fine.  You may care a lot, particularly because it relates to his employment and, as we’ve seen in the past several posts–your employee’s LinkedIn posts can be used against you.

The answer, then, is simple–deal with it in exactly the same way you would deal with it had you been told that he made the misstatement at a local ball game or at lunch with clients. 

The Former Employee

This is more difficult to deal with only because the employee is no longer within your "control;" in other words, you no longer have the leverage of termination or discipline since he no longer works with you.

The first step probably is to contact the employee directly and ask that he correct the inaccuracy.  If he refuses or fails to comply, you may want to involve legal counsel, depending on the nature of the misrepresentation.

One preventative step to consider is whether you want to address the issue at the exit interview or in a post-termination letter.  In other words, it may be wise to "gently remind" your recently separated employees to change their online social-networking profiles to reflect the change. 

The next question, then, is whether you should be monitoring the profiles of those individuals.  For employees who worked in sales or other direct-client positions, it may not be a bad idea.  Of course, it means one more commitment of your valuable time but, for certain positions, it could help to prevent a number of potential problems.

See also these prior, related posts:

LinkedIn Lessons for Employers: Part 1 (Integrated-Enterprise Status)

LinkedIn Lessons for Employers: Part 2 (Successor Liability)

LinkedIn Lessons for Employers: Part 3 (Agency Liability)

LinkedIn Lessons for Employers: Part 4 (Trade Secrets)

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In the first post in this series, I discussed Freire v. Keystone Title Settlement Services, in which the LinkedIn profile of the plaintiff’s manager was argued to constitute evidence that two entities should be considered a single, integrated enterprise. In the second post, I discussed Steinberg v. Young, in which the court found that the LinkedIn profiles of 5 employees constituted evidence that the defendant was the successor entity of the company that previously had employed the plaintiff.

In this post, I discuss a case involving the LinkedIn profile as the basis for holding an employer liable for online comments of another party.

3. Agency Relationship

In Park W. Galleries, Inc. v. Hochman, the defendant filed a counter-claim against the plaintiff-art gallery, alleging that an individual, acting on behalf of the gallery, posted defamatory statements about the gallery on his blog.  In response, the art gallery argued that there was no evidence to show that the individuals who made the statements were acting on the gallery’s behalf.  The gallery’s CEO testified that individual was not and had never been an agent or employee of the gallery and that the gallery had never authorized the individual to speak on its behalf. 

The test to determine whether there is an agency relationship such that an entity may be held liable for an individual’s actions or statements is whether the principal has a right to control the actions of the agent.  Under Michigan law, if there is any evidence to support the existence of an agency relationship, the question cannot be decided by the court but, instead, must be presented to the jury. 

The court determined that there was sufficient evidence to support the existence of an agency relationship between one of the individuals when he made the allegedly defamatory statement.  The evidence cited by the court was a posting on the individual’s LinkedIn profile, on which he had identified himself as a "Consultant/Writer at Park West Gallery."  In the "Experience" section of his profile, his profile included experience as a "Public Relations/Blogger/Writer" for the gallery.  And, according to the gallery’s website, the individual was editing a book to celebrate the gallery’s 40th anniversary. 

Based on this evidence, the court concluded that the individual could have been speaking on behalf at the behest of the gallery when he posted the allegedly defamatory statements on his blog.

No. 08-122471, 2010 U.S. Dist. LEXIS 12488, at *15 (E.D. Mich. Feb. 12, 2010).

See also:

LinkedIn Lessons for Employers: Part 1 (Integrated-Enterprise Status)

LinkedIn Lessons for Employers: Part 2 (Successor Liability)

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Upon his termination, Beyer filed a lawsuit against the Borough, alleging violation of his  First Amendment rights. Pursuant to the U.S. Supreme Courts decision in Garcetti v. Ceballos, a public employees speech is only protected by the First Amendment if the employee (1) speaks as a citizen (2) on a matter of public concern. Applying this standard, the District Court dismissed Beyers claim, holding that he was speaking in his official capacity as a police officer, not in his private capacity as a citizen. Beyer appealed the dismissal to the Third Circuit.

In reviewing Beyers appeal, the Third Circuit placed significant emphasis on the nature of Beyers speechanonymous internet posts. The Court found that anonymous posting supported both prongs of the Garcetti analysis. First, the Court indicated that anonymous online postings are inconsistent with conduct performed in an official capacity. As a result, the Court found that it was more likely that Beyer was speaking as a private citizen. Second, the Court found that the broad dissemination of Beyers statements over the internet supported the argument that he was speaking on a matter of public concern. Based on the foregoing, the Court reversed the District Courts dismissal.

So, whats a public employer to do? The Third Circuits decision does not prohibit monitoring of employee internet activity pursuant to a reasonable policy. It does, however, limit a public employers ability to discipline its employees for anonymous online activity critical of the employer. Going forward, public employers should be particularly careful of any disciplinary action taken in response to such conduct, and when in doubt consult an attorney.

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The Third Circuit ruled that the lower court correctly found that Delaware’s refusal to recognize out-of-state registered apprentices facially discriminated against out-of-state contractors without advancing a legitimate state interest. The case is Tri-M Group LLC v. Sharp.

Tri-M filed suit in September 2006 alleging the Delaware Department of Labor had put it at a competitive disadvantage for public works projects by allowing in-state contractors “to pay reduced wages to their apprentices while denying out-of-state contractors the same right.” Tri-M was registered with Pennsylvania’s federally approved apprenticeship council but was not eligible for Delaware’s program, which requires sponsors to maintain a permanent place of business in Delaware.

In the summer of 2006, while Tri-M was performing electrical work at a construction project in Milford, Del., officials with the Delaware Department of Labor found the company had violated labor laws by failing to pay its apprentices their full wages.

Tri-M made adjustments, and the DDOL determined it was in compliance. Soon after, the company launched a legal challenge to the measures.

On appeal, the DDOL argued unsuccessfully that the challenged procurement scheme — including the permanent place of business requirement — does not discriminate against interstate commerce, and that the contested apprentice program regulations were explicitly authorized by Congress and approved by the U.S. Department of Labor. The Third Circuit disagreed and affirmed the District Court’s decision.

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