When Does An Employer’s Obligation To Preserve Electronic Information Begin?

December 1, 2011

Complaints filed with the Equal Employment Opportunity Commission (“EEOC”) by current and former employees are at a record high – 99,947 in fiscal year 2011.  Electronic information is now the number one piece of evidence in employment discrimination cases.  With so many discrimination cases being filed, an employer may wonder when its obligation to preserve electronic information begins.  It begins when a party “reasonably anticipates” litigation, which in no event is later than when a charge of discrimination is received.  The obligation to preserve electronic information may arise even earlier than when a charge is filed, but this article is simply a reminder that in no event does that obligation arise later than when the charge of discrimination if filed. It has long been understood that the duty to preserve evidence arises when a party reasonably anticipates litigation. The United States District Court for the Middle District of Pennsylvania recently held that, in the employment context, the duty to preserve evidence, including electronically stored information (ESI), arises when an employee files a formal complaint with the EEOC. The plaintiff in Culler v. Shinseki, 2011 WL 3795009 (M.D.Pa. Aug. 26, 2011), filed an age discrimination and retaliation complaint in federal court in 2009.  In July of 2011, the plaintiff filed a motion for sanctions contending that the defendant had failed to properly preserve, search and produce ESI responsive to his claims. The plaintiff asserted that the defendant’s duty to preserve ESI was triggered in 2004, when he filed his first formal complaint with the EEOC. He argued that he was prejudiced by the defendant’s failure to institute a litigation hold mandating that all relevant evidence be preserved as of that date.  The defendant responded that its duty to preserve relevant documentation did not arise until it was served with the federal complaint in 2009. Read More

Firm Newsletter, Winter 2011

November 26, 2011

Articles In This Issue: 1. America Invents Act Provides Sweeping Patent Reform 2. Class Actions Limited: Wal-Mart Stores, Inc. v. Betty Dukes, Et Al., The Supreme Court Steps In to Rein In Class Action Litigation 3. The Foreign Corrupt Practices Act: Can Your Company Survive The Wave? Related Information: Firm Newsletter, Winter 2011 Read More

Wal-Mart Stores, Inc. V. Betty Dukes, et al., The Supreme Court Steps In To Rein In Class Action Litigation

November 1, 2011

On June 20, 2011, the United States Supreme Court refused to certify a class action lawsuit against Wal-Mart, which would have comprised approximately 1.5 million members. The three named Plaintiffs seeking to represent the class claimed they had been discriminatorily denied promotions and pay in violation of Title VII because the local supervisors exercised unfettered discretion over pay and promotion matters. Interestingly, their legal theory, which may have doomed their case, was that the claimed discrimination to which they had been subjected was common to every one of Wal-Mart’s female employees. The Supreme Court held because the Plaintiffs provided no convincing proof of a company-wide discriminatory pay and promotion policy, the class could not establish the existence of any common question. Because no common question existed, the Supreme Court refused to certify the class. How did the Supreme Court reach its conclusion refusing to certify the class? In reaching its decision, the Supreme Court did not focus on the incredible size of the class to demonstrate that joinder of all members was impracticable, which perhaps would have been an easier approach, but focused on the requirement that there must be questions of law or fact common to all members of the proposed class in order for the class to be certified. In finding there was no commonality within the class, the Court reasoned that the Rule 23 language requiring commonality is easy to misread since any competently crafted class complaint literally raises common questions. Simply asking whether all the plaintiffs work for Wal-Mart, or whether managers have discretion over pay, or whether an unlawful employment practice existed are not sufficient questions to obtain class certification. As the Court explained, commonality requires the plaintiff to demonstrate that the class members have suffered the same injury and not merely that they have all suffered a violation of the same provision of law. Read More

Sweeping ADAAA Regulations Promise Increased Challenges For Employers

August 18, 2011

On March 25, 2011, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations implementing the broad and sweeping changes to the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”).[1] These final regulations take effect May 24, 2011 and cover employers with 15 or more employees. Congress has stated that the purpose of the ADAAA is “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” Individuals with many types of impairments, including epilepsy, diabetes, HIV infection, cancer, multiple sclerosis, intellectual impairments, major depression and bipolar disorder, had been unable to assert claims under the original Americans with Disabilities Act (“ADA”) because they fell outside the scope of the ADA’s definition of “disability. Congress, however, believed that these disabilities must be covered and they revised the ADA accordingly, even overturning Supreme Court precedent in the process. The EEOC has stated that these final regulations are necessary to fully implement the requirements of the ADAAA’s broader definition of “disability.” To meet the goal of broadening the definition of “disability,” the EEOC regulations clarify numerous terms, including, but not limited to, “physical or mental impairment,” “major life activity,” and “substantially limits.” Neither the ADA nor the ADAAA provide a definition of “physical or mental impairment,” so the EEOC supplied non-exhaustive lists of physical and mental impairments that would be covered under the ADAAA. Under Sections 1630.2(h)(1) and (2), a “physical or mental impairment” means: (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body system, such as neurological, musculoskeletal, special sense organs, respiratory (including speech), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine; or (2) Any mental or physiological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities. Read More

Defining Disabilities: Three Recent EEOC Cases To Test The Boundaries Of The Amended ADA

July 19, 2011

For 20 years, the Americans with Disabilities Act (“ADA”) provided solace and relief to employees who believed their employers discriminated against them because of a real or perceived disability. Through voluminous decisions, courts have defined the contours and limits of individuals defined as disabled under the ADA. Believing the Supreme Court and lower courts overly limited the definition of the term “disability,” Congress enacted the Americans with Disabilities Act Amendments Act (“ADAAA”), effective January 1, 2009. Because these amendments are not retroactive, cases interpreting these new amendments are few. The case Rohr v. Salt River Project Agricultural Imp. and Power Dist., 555 F.3d 850 (9thCir. 2009), provides a detailed description of the changes to the ADA, but applies the prior act. The Ninth Circuit court of appeals did note that the ADAAA could provide the plaintiff, a diabetic, with additional support. On September 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) announced the filing of three cases that will test the limits under the modified definition of the term “disability” under the ADAAA. First, a brief description of this modified “disability” definition. With the ADAAA, Congress overrode the limiting Supreme Court decisions, such as Sutton v. United Airlines Inc., by significantly broadening the definition of “disability” in three significant ways. First, the definition contains language that clarifies what activities are “major life activities,” and explicitly lists the following as “major life activities:” caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The Act also includes the following bodily functions as “major life activities:” functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive. Second, the ADAAA broadly encompasses impairments that substantially limit major life activities. An impairment need only substantially limit one major life activity to be considered a disability. Read More

The Role Of Outside Counsel In Title IX Compliance

June 9, 2011

Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any federally funded education program or activity. Sexual harassment of students, which includes acts of sexual violence, is discrimination prohibited by Title IX. On April 4, 2011, the Department of Education (“DOEd”) issued guidelines for colleges and schools to address sexual violence on campuses. The guidelines came in the form of a 19 page “Dear Colleague” letter (“Letter”). At first blush, the Letter seems directed only to school administrators, in-house counsel, and Title IX coordinators. Upon closer examination however, there is a significant role to be played by outside counsel in helping schools accomplish the directives stated in the Letter. The Prompt and Equitable Requirements of Title IX A significant section of the Letter is devoted to clarifying the procedures schools must have in place to comply with Title IX. In the Letter, DOEd listed the following elements as critical to achieving compliance with the prompt and equitable requirements of Title IX: Notice to students, parents and employees of the grievance procedures including where complaints may be filed; The DOEd recommends that the grievance procedures be prominently posted on school websites; sent electronically to all members of the school community and be disseminated in a variety of other ways; Application of the procedures to complaints alleging harassment carried out by employees, other students, or third parties; Adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence; Designated and reasonably prompt time frames for the major stages of the complaint process; Notice to the parties of the outcome of the complaint; and An assurance that the school will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate. Read More

Firm Newsletter, Spring 2011

2011/05/01

Articles In This Issue: 1. Defining Disabilities: What DoesThe Future Hold For Employers? 2. Proposed SEC Rules Undermine Dodd-Frank’s Whistleblower Incentives 3. Why An Understanding Of Copyright Law Is Vital For Architects Related Information: Firm Newsletter, Spring 2011 Read More

New Title VII Plaintiff Identified

February 9, 2011

The United States Supreme Court recently held that Title VII creates a cause of action for a third party retaliation claim when the plaintiff himself did not engage in protected activity.  In Thompson v. North American Stainless, the plaintiff and his fiancée worked at the same employer.  The plaintiff was terminated after his fiancée filed a sex discrimination charge with the EEOC against the employer.  The plaintiff, therefore, sued under Title VII, claiming that the employer fired him in order to retaliate against his fiancée for filing the EEOC charge. The Supreme Court held that the plaintiff had a third party cause of action under Title VII.  The Court noted that Title VII’s prohibition on retaliation was broadly construed and, in this situation, a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.  Interestingly, the Court declined to set a bright line rule for a “fixed class” of relationships for which a third party action would be appropriate.  Rather, the Court noted that it depended on the particular circumstances of each case and, more specifically, the relationship between two individuals and the level of reprisal that the employer inflicted.  The Court went on to hold that the plaintiff had standing to sue because he fell within the “zone of interests” protected by Title VII.  Specifically, the plaintiff’s termination was the employer’s means of harming the plaintiff’s fiancée and, therefore, he was a “person aggrieved” under Title VII. This holding is significant for employers because it substantially widens the range of potential claims under Title VII.  Employers should be cognizant of the relationships between individual employees, and carefully assess all ramifications of certain employment actions. Read More

Walking A Fine Line: An Employer’s Right To Review Its Employees’ Electronic Messages

November 16, 2010

The increased use of text messaging and email by employees has risen dramatically, with no end in sight. In the workplace, text messages and emails may be sent by employees using employer-issued computers, BlackBerry devices and cell phones. But what happens when an employee uses these employer-issued devices for personal messages? Does an employer have any right to access and read those messages? When does an employer cross over the line between controlling the use of employer-issued electronic devices and the privacy rights of its employees? Several recent court decisions have highlighted the fundamental need for employers to have clearly worded policies addressing employee use of work-issued electronic devices. For example, the City of Ontario, CA police department found itself in litigation when it reviewed personal text messages sent to and from a City-issued pager. The police department distributed pagers to its officers so they could quickly respond to emergencies. The City’s contract with its service provider set a monthly limit on the number of characters sent or received – – if employees went over this limit, they were charged a fee. One of the officers went significantly over the limit, and the police department elected to examine whether the overage was due to work-related text messages or personal text messages. When the police department obtained a transcript of the officer’s messages, it discovered that many of them were sexually explicit, and were sent while the officer was on duty. Because this conduct violated the police department’s policies, the officer was disciplined, and later initiated a lawsuit against the department. The United States Supreme Court held that the officer did not have a right to privacy in this situation. The police department had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, and that the City was not paying for excessive personal communications. Read More

Employee Assistance Program Triggers Litigation

November 2, 2010

Employee Assistance Programs (“EAPs”) are common among employers.  These programs are designed to assist employees with personal issues arising within or outside the office, that may affect their work performance and productivity.  The use of EAP, however, can impact litigation. Recently, the United States District Court for the Eastern District of Pennsylvania highlighted the significance of EAPs as they relate to claims under the Americans with Disabilities Act (“ADA”).  In Hobson v. St. Luke’s Hospital, the plaintiff, a paramedic, sued his former employer for, among other things, discrimination under the ADA.  The plaintiff had repeatedly made advances toward a co-worker, who then complained to her supervisor.  During the course of the investigation, the supervisor commented to the plaintiff that he was “obsessed” with the co-worker and had a mental disability.  The supervisor then recommended that the plaintiff seek counseling through the company’s EAP.  Ultimately, the plaintiff was terminated. The plaintiff sued and alleged, among other things, that he had been discriminated against based on a perceived disability in violation of the ADA.  His perceived disability claim was based in large part on the supervisor’s recommendation that he seek counseling through the EAP.  The plaintiff argued that the fact of the recommendation showed that he was “regarded as” being disabled by his employer.  The Court, however, disagreed. An employee is “disabled” and, thus, covered by the ADA’s protection if he is “regarded as” having a physical impairment that substantially limits one or more major life activities – – here, the major life activity was working.  The Court found that the supervisor had merely expressed concern about the plaintiff’s mental health when it was suggested that the plaintiff seek counseling through the EAP.  The Court found support for its conclusion in recent case law holding that an employee is not “regarded as” being disabled simply because the employer requires a pre-return health evaluation prior to the employee returning to work after being out for medical leave. Read More