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In Oxford Health Plans, LLC v. Sutter, a case addressing an arbitration clause that was silent as to whether it permitted class-wide arbitration, the United States Supreme Court held that so long as an arbitrator's decision construes the parties' contract, the arbitrator has not "exceeded his powers" – which would permit a court to vacate the decision under §10(a)(4) of the Federal Arbitration Act (“FAA”) – and the arbitrator’s constructions should be upheld, “however good, bad, or ugly.”

Before we dig into Sutter, we have to go back a little to 2010 when the Supreme Court issued its decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., and held that the FAA bars class arbitration unless the parties have specifically agreed to it. Many, including Oxford Health who relied on Stolt-Nielsen heavily in its briefing, read Stolt-Nielsen as the curtain closing on class-wide arbitrations, but Sutter (and AT&T Mobility LLC v. Concepcion) makes clear that class-wide arbitration was not eradicated by Stolt-Nielsen.

The Facts Are Not Complicated, But the Procedure Is a Little Muddled
Sutter, a pediatrician, provided medical services to Oxford Health Plans’ insureds under a fee-for-services contract that required binding arbitration of contractual disputes, though it did not specify whether it covered class claims. The arbitration clause more broadly provided in relevant part:

“No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration.”

Nevertheless, Sutter filed a proposed class action claiming Oxford failed to properly pay him and others like him who had similar contracts with Oxford. Oxford moved to compel arbitration, and the parties agreed the arbitrator should decide whether the contract authorized class arbitration. The arbitrator found that it did, reasoning that the clause sent to arbitration “’the same universal class of disputes’ that it barred the parties from bringing ‘as civil actions’ in court: the ‘Intent of the clause’ was ‘to vest in the arbitration process everything that is prohibited from the court process.’” Oxford then filed a motion to vacate the arbitrator’s decision claiming the arbitrator “exceeded [his] powers” under the FAA. The trial court denied the motion, and the Third Circuit affirmed.

While Sutter proceeded to arbitration, the Supreme Court decided Stolt-Nielsen and held that an arbitrator may employ class procedures only if the parties have authorized him to do so. Oxford asked the arbitrator to reconsider his decision on the class arbitration in light of Stolt-Nielsen, and the arbitrator held that Stolt-Nielsen had no effect on Sutter because the agreement at issue authorized class arbitration. Oxford then renewed its motion to vacate the arbitrator’s decision on the same basis as before. Once again, the trial court denied the motion and the Third Circuit affirmed.

Now On to the Fun Stuff – The Supreme Court’s Decision and Analysis
The heavy burden required to overturn an arbitrator’s opinion was critical in the Supreme Court’s analysis. Oxford argued that the arbitrator’s decision should be vacated under §10(a)(4) of the FAA, i.e., that the arbitrator “exceeded [his] powers .” However, the Court stated, “’[i]t is not enough … to show that the [arbitrator] committed an error —or even a serious error….Because the parties ‘bargained for the arbitrator’s construction of their agreement,’ an arbitral decision ‘even arguably construing or applying the contract’ must stand, regardless of a court’s review of its (de)merits….Only if ‘the arbitrator act[s] outside the scope of his contractually delegated authority ‘—issuing an award that ‘simply reflect[s] [his] own notions of [economic] justice’ rather than ‘draw[ing] its essence from the contract] ‘—may a court overturn his determination.”

The Supreme Court looked at the arbitrator’s ruling, which recited the “question for construction” the parties had submitted to him: “whether [their] Agreement allows for class action arbitration.” The arbitrator concluded that the arbitration clause “on its face...expresses the parties’ intent that the class action arbitration can be maintained.”

In trying to undue the arbitrator’s decision, Oxford relied on Stolt-Nielsen and argued that §10(a)(4)’s heavy burden can be met when an arbitrator imposes class arbitration without a sufficient contractual basis and argued that a court can vacate an arbitrator’s decision for misconstruing a contract to approve class proceedings.

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In August 2009, Shaun Armstrong sustained minor physical injuries in a motor vehicle accident while in the scope of his employment. The other driver, who plowed into the back of Armstrong's truck, was killed.

Armstrong's workers' compensation claim was allowed for neck and back injuries. He also sought an allowance for PTSD, which the Industrial Commission also allowed. Armstrong's employer appealed the PTSD allowance to the common pleas court on the grounds that the PTSD was not caused by his physical injuries.

The parties stipulated that Armstrong had PTSD and conducted a bench trial to determine whether he was entitled to workers' compensation benefits for the condition. Armstrong's psychiatric expert witness testified that his physical injuries contributed to and were causal factors in his development of PTSD. The employer's expert, however, testified that Armstrong's physical injuries did not cause his PTSD, which instead was caused by witnessing the accident and “the mental observation of the severity of the injury, the fatality, [and] the fact that it could have been life-threatening to him at some point.” The employer's expert also believed that Armstrong would have developed PTSD even without his physical injuries.

The trial court held that Armstrong's PTSD was not compensable because it did not arise from his physical injuries. The Second District Court of Appeals affirmed, holding that the applicable statutory definition of “injury” includes psychiatric conditions only when they arise from a compensable physical injury. The court of appeals further determined that competent, credible evidence supported the trial court's factual finding that Armstrong's PTSD did not arise from his physical injuries.

On appeal, the Supreme Court in Armstrong v. John R. Jurgensen Co. was asked to address whether Ohio Revised Section 4123.01(C)(1) limits workers' compensation coverage for psychiatric conditions to those conditions caused by the claimant's compensable physical injury. That statute provides that psychiatric conditions are excluded from the general definition of “injury,” “except where the claimant's psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant.”

Armstrong's employer argued that R.C. 4123.01(C)(1) requires a direct and proximate causal relationship between the physical injury and the mental condition, but Armstrong maintained that "arisen from" is a broader concept than "caused by" and that his PTSD was compensable because it arose contemporaneously with the incident giving rise to the workers' compensation claim, regardless of whether an actual causal relationship between the physical and mental conditions existed.

The Court rejected Armstrong's statutory construction, noting that "the plain language of R.C. 4123.01(C) and (C)(1) requires that to constitute a compensable injury for purposes of workers' compensation, a psychiatric condition must be causally related to the claimant's compensable physical injury. Accordingly, the statute must be applied as written." The court suggested that any concerns regarding the narrowness of this statutory interpretation needed to be raised with the General Assembly.

Takeaways:  Because it limits the compensability of psychiatric conditions, which are notoriously difficult to defend against, the Armstrong decision of course is a very favorable decision for employers. Setting aside the reasonable debate as to whether an injured worker like Armstrong should be permitted to recover workers' compensation benefits for their psychological injuries, the Supreme Court definitely got this one right as a matter of statutory construction. Indeed, the legislature has made it very clear as a matter of public policy that purely psychiatric conditions should not be compensable in Ohio in the absence of some physical injury.

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In Davis v. Cintas Corp., No. 10-1662 (6th Cir. May 30, 2013), the Sixth Circuit affirmed the denial of a class certification bid in a sexual discrimination hiring case à la Wal–Mart Stores, Inc. v. Dukes and dismissed the plaintiff’s individual disparate treatment claim where the plaintiff claimed she was at least as qualified (if not more so) than male candidates who were hired. By way of key takeaways, Davis demonstrates that the Sixth Circuit endorses Dukes, so much so that it used the United States Supreme Court’s analysis in Dukes, which covered pay and promotion in employment class claims, and extended it to take down hiring, pre-employment class claims.

Factual Background
The crux of the claims (Tanesha Davis was the named plaintiff and sued on behalf of herself and those similarly situated to her) was that Cintas discriminated against females in hiring by refusing to hire them for the company's entry-level sales jobs. Specifically, that Cintas’ company-wide “Meticulous Hiring System” — which was made up of a 16-step process (that included interviews, route rides, and background screens among others) used to hire Service Sales Representatives (“SSRs”) was discriminatory. Evidence introduced in the case demonstrated that, historically, Cintas' SSRs were predominantly male, but after the company put the Meticulous Hiring System into practice in 2003, the percentage of women hired rose noticeably.

Davis claimed that Cintas' hiring practices led to company-wide gender discrimination in violation of Title VII, and the she herself had been subjected to disparate treatment on two separate occasions; once in 2003 when she applied for a position while managing a LensCrafters store, and in 2004. During the 2003 hiring process, the interviewer's notes indicated that she (yes, the interviewer was a female, which came into play in the Sixth Circuit’s discussion of the issue) screened out Davis because she said she disliked having to sell products she believed were overpriced and wanted to continue working at LensCrafters. In 2004, Davis got further along in the hiring process — she made it through the initial screen and went on a route ride — but the interviewer noted that, while Davis "did a lot of things well out on the route," he did have concerns about her level of physical energy and her efficiency. That critique cost Davis the position.

After Davis was not hired, she sued, but she was not the first to make such claims against Cintas. The first case started in California and it was later accompanied by Serrano v. Cintas, a case in the Eastern District of Michigan, with which Davis' case was later consolidated. In her suit, like the other two, Davis sought to bring class action claims for “all females who unsuccessfully applied for the SSR job..." and individual claims regarding her individual disparate treatment.

The district court denied Davis’ motion for class certification citing differences among hiring managers at different locations, as well as conflicts among the then plaintiff representatives and the proposed classes and threw out her individual claims as well. Davis appealed, and during that appeal, the United States Supreme Court decided the employer-friendly, anti-class action case, Dukes.

First Things First – The Class Claims
Given the Supreme Court's analysis in Dukes, there was little doubt that the Davis case would not be certified. Specifically, Davis argued the class certification portion of her case almost exactly like the Dukes plaintiffs did to the Ninth Circuit, who had been successful in their arguments until the Supreme Court overruled the Ninth Circuit. For example, she argued that the company's hiring practice was nationwide and faulted Cintas' corporate culture. She also presented expert testimony that Cintas had a "white-male dominated business culture", and produced statistical and anecdotal evidence to prove her claims.

The Sixth Circuit first reviewed the class claims pleaded under Rules 23(a)(2) and, relying heavily on Dukes, found that Davis could not establish the required commonality element. Under Dukes, Davis had to demonstrate that Cintas “used a biased testing procedure” or “operated under a general policy of discrimination." Davis did not and could not argue that there was some objective hiring criteria that led to the gender discrimination. Instead, she argued, wrongfully, that the discrimination was the result of individual hiring manager preference. No objective hiring criteria → no common question of fact → no commonality.

As for all of the evidence — sociological, statistical, anecdotal and otherwise — the Sixth Circuit determined it was “…not sufficient to show a uniform, companywide practice of exercising discretion in a way that favored men over women…” and found Cintas’ experts more persuasive.

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I present on the topic of background checks often, and when it comes to Q&A time, I almost always get the question (or some variation of it): "How does Title VII come into play when an employer has state law requirements regarding criminal background checks?" In Waldon v. Cincinnati Public Schools, No. 1:12-CV-00677 (S.D. Ohio Apr. 23, 2013), the Southern District of Ohio shed some light on this particular employer predicament and demonstrates the potential for employment discrimination liability for employers who have overly broad exclusionary hiring policies based on past criminal conduct, even when those policies are required by state law.

In 2007, the Ohio legislature amended a state law to require criminal background checks of all current public school employees, including those not responsible for the care, custody, or control of children. (HB 190, eff. Nov. 14, 2007) According to the law, if an employee had been convicted of any of a number of specified crimes, no matter how far in the past they occurred, nor how little they related to the employee's present qualifications, the law required the employer to terminate the employee.

To comply with the law, in 2008 the Cincinnati Public Schools terminated 10 employees with criminal convictions, nine of which were African American. Two of those nine, Gregory Waldon, who was found guilty of felonious assault in 1979 and incarcerated for two years, and Eartha Britton, who was convicted in 1983 of acting as a go-between in a $5.00 marijuana deal, sued the school district alleging that the state law had a racially discriminatory impact on African Americans contrary to Title VII and comparable Ohio state law.

The Defendant filed a motion to dismiss asking the court to throw out Plaintiffs' suit claiming it simply followed Ohio law when it terminated their employment. The Defendant contended it maintained no particular employment practice that caused a disparate impact, and that it was a business necessity for it to follow Ohio law and that to force it to litigate the suit would force it to defend a criminal records policy it had no role in creating.

The terminated employees argued that Title VII trumps state law, such that their terminations were "unlawful employment practices" based on disparate impact" and that compliance with the state law was no defense because a violation is a violation. In Plaintiffs' view, "whether Defendant was complying in good faith to state law goes to the remedy the Court should ultimately craft, and not to whether the terminations were in violation of Title VII."

The court found that Plaintiff "adequately plead[ed] a case of disparate impact" and that there was "no question that Defendant did not intend to discriminate"; however, the court went on to note that "intent is irrelevant" in a disparate impact case and the practice it "implemented had a greater impact of African-Americans than others."

The biggest issue on briefing was whether Plaintiffs could even attack Defendant's facially-neutral policy based on the state law mandate. The court rejected "Defendant's view that the state law must 'purport' to discrimination in order to be trumped by Title VII. Such a view would gut the purpose of Title VII ...." Quoting Title VII, the court went on to note that an employer may defend against a prima facie showing of disparate impact only by showing that the challenged practice is "job related for the position in question and consistent with business necessity".

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We wanted to take a moment to share the redesigned Porter Wright Technology Law Source blog with you.

Technology Law Source is designed for readers to quickly and easily learn about concepts that cut across the traditional lines of intellectual property and extend to evolving technologies, as well as concerns with privacy and data security.

Our authors routinely update the blog to provide the latest news and information about a range of areas relating to the industry, including:

• Copyright
• Data breach
• Data security
• Database management
• Electronic commerce
• Electronic discovery
• Electronic medical records
• Enforcements, disputes, and litigation
• HIPAA and HITECH Act compliance
• International law and regulation
• Internet law
• Legal issues in use of social media
• Online commerce
• Online marketing, advertising, and promotions
• Outsourcing
• Patent filing, prosecution, and enforcement
• Regulatory environment in privacy
• Trade secret protection and enforcement
• Trademark selection, enforcement, and brand protection
• Workplace privacy matters

We invite you to visit the blog, and let us know what you think.
 

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There is no doubt you know what YouTube is, but do you know about Vine? Well, Vine is a video app released by Twitter earlier this year that allows users to capture and share short looping six-second videos to Twitter and allows the user to tag people in the post. The app is easy to use and works a lot like Instagram (many call it the Instagram of video). When you tweet from Vine, it embeds your looped video — or what looks like an animated GIF — in your tweet and includes sound. Videos from Vine’s Make-a-Scene app appear in expanded tweets and play automatically. Vine videos can also include different clips stitched together into one video, rather than just allowing one continuous shot. In introducing the app, Twitter said the "brevity of the videos ... inspires creativity."

Sounds fun, right?  Well, Vine already had a porn problem, and when employers hear the words "creativity" and "video" in the same sentence they get scared, and with good reason. It was only a matter of time until workplace videos started to pop up. In a recent article, "The Latest Social Media Concern for Employers", The Wall Street Journal focused on the app and how searching such terms as "bored," "work" or "hatework" brings up some troubling workplace postings. Examples include videos of employee venting about their employers, a uniformed employee smoking from a bong and another of an employee looking through what appeared to be confidential documents. You can take a look for yourself. Here are a few fun ones: #sick #job #work; #wishIWasWorkingForXbox; and #Job #bor3dness #work4it, which contains footage of warehouse employees appearing to attempt sexual relations with a shelving unit, running and screaming through the facility and playing with safety equipment.

Daniel A. Schwartz, an employment law attorney at Pullman & Comley LLC in Hartford, Connecticut and editor of Connecticut Employment Law Blog, has been on top of this issue from the get go and has written a couple of great posts on this subject, which include links to some Vine workplace videos. He also noted the dangers of this App and with smartphones in general in the WSJ article: “Employers who are just concerned about what their employees are just doing on Facebook are missing the bigger picture of how smartphones are infiltrating the workplace.”

Takeaways: New technologies like Vine are popping up (or sprouting if you will) at an ever increasing pace, particularly for mobile devices. As more and more employees are bringing their mobile devices to work, employers must stay on top of these technological developments not only to take advantage of them for their own marketing purposes, but also to ensure that their workplace policies apply as broadly as possible to cover all new technologies, such as Vine, as they develop. This includes implementing proper BYOD policies and training employees to make clear what employees are and are not allowed to share on Vine and other social media platforms. With that, I'll leave it to Mr. Schwartz because I think he summed it up best: “Vine is one of the fastest growing social networks. And people aren’t posting what they had for breakfast anymore.”
 

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The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology ("Tasker") Case 04-CA-094222 on May 16, 2013 and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to "FIRE ME ... Make my day ..."

The Charging Party was employed by Tasker, which was a medical office with approximately nineteen employees. The Charging Employee along with a few current and former employees engaged in a private Facebook group message to organize a social event. The first hour of the exchange was non-eventful and focused on planning the social event. Things soon got interesting when a former employee made a joke. In response, the Charging Party mentioned that a former employee who had previously left was coming back to work and speculated that Tasker may make the returning employee a supervisor. The Charging Party then attacked her current supervisor claiming he "tried to tell [her] something today and [she] said aren't you the supervisor for mind and body ... in other words back the freak off..." But Charging Party was not done there and added, "[Tasker is] full of shit ... They seem to be staying away from me, you know I don't bite my [tongue] anymore, FUCK ... FIRE ME ... MAKE my day ..." Other than Charging Party, no other current employees took part in this portion of the conversation, but one did pipe up after Charging Party complained following a two hour lull that she had been deserted and there was "[n]o one to make [her]laugh." In response, the current employee said she made the Charging Party laugh and added "it's getting bad there [at Tasker], it's just annoying as hell. It's always some dumb shit going on." The Charging Party did not have anything substantive to add to this and no other current employee added anything else work-related.

As you might have guessed, one of the current employees included on the group message who did not say anything during the exchange showed the Facebook posts to the employer. The employer took Charging Party up on her request to be fired stating that it was "obvious" that she was not longer interested in working there, and indeed made her day.

The employee filed a charge alleging that her termination violated the National Labor Relations Act ("NLRA") because her Facebook comments constituted protected concerted activity. In an Advice Memorandum, the NLRB Office of the General Counsel concluded that the employee's Facebook message did not constitute protected concerted activity because they did not involve shared employee concerns over terms and conditions of employment. To understand this conclusion, it is important to understand the NLRB's test for concerted activity, which is whether the activity is engaged "in with or on the authority of other employees, and not solely by and on behalf of the employee himself" and includes circumstances where employees seek to "initiate or to induce or to prepare for group action," and where individual employees bring "truly group complaints" to the employer's attention. However, comments made "solely by and on behalf of the employee himself are not concerted" are not protected and neither is "mere griping" by an employee who does not look forward to any action.

Applying this to the facts at hand, the Advice Memorandum found that the employee's comments merely expressed an "individual gripe rather than any shared concerns about working conditions." Specifically, the employee's comments telling a supervisor to "back the freak off"; stated her employer was "full of shit"; and that her employer should "FIRE ME ... Make my day" reflected individual "griping" and personal contempt rather than shared employee concerns over terms and conditions of employment. In addition, there was no evidence that any of the Charging Party's coworkers interpreted the postings as shared concerns over their working conditions, not even the posting "it's getting bad there[,] it's just annoying as hell" because it was ambiguous and bore no relation to the Charging Party's earlier comments.

Takeaways: This one is a win for employers, but employers are still reminded to be cautious when terminating an employee for the things they say on social media. This case demonstrates that even when an employee's comments on social media are so outrageous that they literally ask the employer to fire the employee, the employer must still do some analysis to determine whether the comments may constitute concerted protected activity under the NLRA. So employers keep the NLRB's standard for concerted protected activity in mind before terminating an employer for social media posts and ask yourself: (1) What was said? (2) Who said it? (3) Who commented on it or chimed in on the conversation? (4) Could it be considered shared employee concerns about terms and conditions of employment?
 

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Two Sixth Circuit decisions issued last week underscore the hazards associated with terminating an employee between the time that she announces her pregnancy and any time shortly after she returns from pregnancy leave. Fortunately, both decisions, which uphold lower court summary judgment decisions, also demonstrate that an employer can escape liability when it has valid reasons for the termination, even when the termination was made at a time that was temporally close to the pregnancy announcement or the pregnancy itself. In the first decision, Madry v. Gibraltar National Corporation, the court upheld summary judgment for the employer on Madry’s claim that the FMLA required her employer, Gibraltar, to reinstate her to the position that she held prior to her leave. Gibraltar defended on the grounds that an employee returning from FMLA leave is not entitled to restoration unless she would have continued to be employed if she had not taken FMLA leave. Gibraltar claimed that Madry was terminated for lack of work caused by economic reasons. It does not appear that Madry relied on the retaliation provisions of the FMLA nor any state or federal pregnancy discrimination statutes to support her contention that her termination was unlawful.

Madry offered four reasons why the employer’s “lack of work” explanation should not be believed. First, she argued that another similarly situated employee whom the employer identified as having also been laid off during her FMLA leave for a “lack of work” really was a “problem employee who at best was laid off for multiple reasons and at worst because she performed poorly.” The court, however, easily rejected this argument because it did not refute that “lack of work” was one of the reasons for the layoff. Second, she argued that the economic data did not support the employer’s claim that it suffered a downturn in business, but in fact shows that business was slightly increasing. The court again, however, rejected this argument because the economic data for the critical two months leading up to the decision not to reinstate Madry supported the employer’s argument that its business was in decline prior to the termination decision. In addition, to the extent that Madry argued that Gibraltar was required to show that her termination was economically required, the court noted that reducing labor costs and improving efficiency are valid business reasons for conducting layoffs, even when the degree to which such actions are motivated by economic hardship is debatable. Third, Madry argued that any terminations occurring after her termination were irrelevant to her claim and Gibraltar’s proffered reason for her termination. Though the Sixth Circuit agreed with this argument, it also held that this evidence is not necessary in finding the employer’s proffered reason legitimate, as the pre-termination economic data amply supported its burden of production. Finally, Madry argued that Gibraltar did not produce any company communications from around the time of her leave and termination that indicate a necessity for company layoffs as a result of reduced business. The court held, however, that the lack of any formal communications regarding the necessity to lay off employees does not render its decision unreasonable.

In the second case -- Megivern v. Glacier Hills Incorporated -- the plaintiff alleged that her employment was unlawfully terminated on the basis of her pregnancy and that her employer interfered with benefits due her under the FMLA and ERISA. The facts of this case are quite long and involved. Suffice it to say that Megivern had ongoing performance issues that resulted in her being placed on a performance improvement plan (“PIP”) approximately two weeks after announcing her pregnancy to co-workers. Approximately five weeks later, she was terminated for not improving to satisfactory status after being placed on the PIP. As these cases typically develop, in upholding the lower court’s grant of summary judgment in Glacier Hills’ favor, the Sixth Circuit focused ultimately on whether Megivern had sufficient evidence to prove that Glacier Hills’ proffered performance reasons for the termination decision were pretextual. In particular, the court found that the temporal proximity between the pregnancy announcement and the termination was not sufficient by itself to establish pretext. Instead, the court required Megivern to present other, independent evidence of pretext, which she was unable to do. The court rejected Megivern’s primary argument that the reasons for her termination shifted over time, finding instead that “the rationale given for terminating Megivern’s employment was clearly articulated in the termination notice prepared by Thompson and has remained the same since. In addition, the court not surprisingly found that the final decision-maker’s failure to congratulate her on her pregnancy did not provide evidence of pretext, especially since there was no evidence that Megivern had ever told that she was pregnant directly. Finally, Megivern presented “me too” testimony from three other employees who contended that they too were treated badly based on their pregnancy, but the court upheld the rejection of this evidence because the others’ situations were all factually distinct from Megivern’s.

Madry and Megivern demonstrate that an employee’s pregnancy does not immunize her from discipline or termination. This, of course, does not mean that a discipline or termination decision is not going to result in lengthy and costly litigation against a potentially sympathetic plaintiff. Nevertheless, particularly where legitimate business reasons -- whether they be economic or performance-based -- can be documented, the employer may be better served by taking the litigation risk rather than whatever risks may be associated with retaining the employee.
 

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In today's world of social media, we know that employees live online. With LinkedIn, this includes having a living resume for anyone with a LinkedIn account to see. The up-to-date part, or rather how up-to-date someone's LinkedIn profile (or resume) is, has become somewhat of a concern.  The recent case of Jefferson Audio Video Sys. Inc. v. Light (W.D. Ky. May 8, 2013) demonstrates how the updating of a LinkedIn profile can become a concern for employers, particularly as it pertains to an employer's former employees. 

Here is the situation: An employee leaves a company for whatever reason yet fails to update his or her LinkedIn profile. To anyone who views the individual's profile or searches the company's name, the individual appears to be a current employee.

In Jefferson, the employer Jefferson Audio Video Systems, Inc. ("Jefferson") sued former employee Gunnar Light ("Light") in part because he said some pretty awful things about the company to a customer while employed and, in part, because he would not update his LinkedIn profile. So, how did that turn out for the employer? Not so well.

Jefferson hired Light as a Sales Manager. During a sales meeting with a customer, Light allegedly made some less-than-flattering statements about the company to the customer, including comments that Jefferson was "unorganized," that "they don't know what's going on," "they've made a mess of things," "I unfortunately am stuck with this Company that is very dysfunctional," and suggested that the fact that Jefferson had a business at all was "a miracle." While Light made the sale despite his employer bashing, the sale was for less than Jefferson had anticipated. Not surprisingly, when Jefferson became aware of Light's statements about the company, it fired him.

Jefferson sued Light alleging numerous state law claims including: defamation, tortious interference, breach of fiduciary duty, trade, disparagement, fraudulent misrepresentation, and breach of contract. Light moved to throw out Jefferson's lawsuit, and the court did.

Light’s failure to update his LinkedIn profile provided the basis for Jefferson's claim for fraudulent misrepresentation. Jefferson claimed that for several months following Light's May 9, 2011 termination, he "falsely represented on social media outlets, such as LinkedIn, that he held the position as ... International Managing Director after his date of termination." According to the opinion, Jefferson had contacted Light twice in May 2011 to request that he update his social media to indicate that he was not a current employee of Jefferson. Light responded that "he intended to promptly update his employment profile," but he did not change his information until after he received a third request in June, in which the company said it would file a formal complaint with LinkedIn.

The court found that Jefferson failed to plead the claim with the required particularity because Jefferson failed to "indicate it reasonably relied on Light's misrepresentation" and admitted as much in its response brief that it was "not asserting that it a was defrauded by Light but, instead, is making a claim that Light's fraudulent misrepresentation to the world damaged [Jefferson]." Because Jefferson failed to assert facts that it reasonably relied on Light's misrepresentation itself, a requirement to the claim, the court found the claim lacking and threw it out.

The company also attempted to argue that it was somehow advocating that Light committed fraud on potential third-party customers, but the court did not buy that argument either.

[C]iting no case law in support of its argument, [Jefferson] urges this Court to expand the scope of an actionable fraud claim by permitting it to assert a claim based upon third party rights. [Jefferson] wants to stand in the place of those customers with reference to the issues of intentional misrepresentation and reliance upon the same. While novel in its genesis, Kentucky courts have not recognized such an argument."

As an aside, the court's decision throwing out the employer's defamation claims is also instructive for employers because the court did a nice job of outlining what constitutes defamation in this setting and what does not. Here, the court tossed the employer’s defamation claims because it found Light's statement to be "protected expressions of opinion," which are not actionable as they are expressions that merely voice "subjective thought". So employers a caution: Statements of opinion, rather than fact, typically won’t provide a basis for a defamation claim.

Takeaways: Employers, while it is understandable that you do not want a terminated former employee holding out that he or she still works for you, it may not be worth your time to try to force the former employee to update their social medial through the courts. It might be more worthwhile to contact LinkedIn who may take up the issue with the user based on their user terms and conditions. In any case, if the saying "it's easier to find a job when you already have a job" is true, allowing a former employee to keep a "currently employed" status might allow your former employee to get a new job faster. The upside for you, it will stop unemployment payments to the former employee and, if the employee had a wrongful termination claim against you, it will stop any potential back pay from continuing to accrue. Another thought, you may include in the employee's offer letter and/or separation agreement a provision where the employee agrees to update all social media to reflect that he or she is no longer employed with the company no later than three days (or whatever you deem reasonable) after separation of employment for whatever reason.

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The Office of Federal Contract Compliance Programs (OFCCP) recently released a notice that the 2006-2010 census data must be used for all affirmative action plans for plan years beginning on January 1, 2014, and OFCCP will begin using 2006-2010 census data to evaluate affirmative action plans and efforts as of that same date. Keep in mind that, since the data was released in late November 2012, federal contractors were permitted to voluntarily begin using the census data, which is based on a compilation of 2006-2010 American Community Survey (ACS) data. Contractors should keep in mind that the data is coded and categorized differently than the 2000 census data and should plan accordingly regarding the preparation of any 2014 affirmative action plans.

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Recently, we pointed out that the effort by the National Labor Relations Board to impose on all employers an obligation to post notices about union organizing rights remains stalled. That article resulted in some questions about whether federal contractors and subcontractors are still required to post a notice about union organizing. The posting obligation for federal contractors and subcontractors is based on Executive Order 13496, which was signed by President Obama in 2009 and took effect in June, 2010. That obligation remains in effect for federal contractors and subcontractors. It is not changed by the NLRB's stalled effort to extend the obligation to all employers.

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It has been almost a year since there was news to report about the NLRB proposed rule requiring employers to post notices about union organizing rights. As you might recall, the NLRB issued the rule in the fall of 2011 and it caused immediate controversy. Many in the business community considered the posting an unwarranted effort by the NLRB to support union organizing. Many considered the rule to go well beyond the NLRB's authority under the National Labor Relations Act. Lawsuits were filed in two federal district courts challenging the NLRB's authority to issue and enforce the rule. The lower court decisions in those cases were in conflict. A district court in South Carolina ruled that the NLRB had exceeded its authority and could not enforce the rule. The district court for the District of Columbia upheld the NLRB's right to issue and enforce the rule in general, but overruled two specific aspects of the rule. Both of these lower court decisions were appealed to the federal Courts of Appeal; the Fourth Circuit Court of Appeal which covers South Carolina and the D.C. Circuit Court of Appeal. As a result of the litigation, in April of 2012, the NLRB issued an indefinite stay on the enforcement of the rule. Since then, we have been waiting to see how the issue would be decided by the Courts of Appeal.

On Tuesday, the D.C. Circuit Court of Appeal issued its decision in National Ass'n of Manufacturers, et al. v. National Labor Relations Board, et al. (U.S. Court of Appeals for the District Court of Columbia Circuit, Case No. 12-5068). The Court found that the NLRB cannot enforce the posting rule. The majority decision invalidates the rule because it essentially forces an employer to communicate to its workforce about unionization. The majority found that doing so violates the employers' right under the National Labor Relations Act to speak or be silent about union organizing issues. Because the rule was invalidated on those grounds, the majority decision does not address the question of whether the NLRB can even issue a rule requiring employers to take some affirmative step, like a posting. One of the arguments in the case was that the NLRB's specific role under the law is conducting union organizing elections and investigating alleged unfair labor practices, and that they have no authority to make employers do anything outside that limited role.

So, where do things stand now? The NLRB had already imposed an indefinite stay on enforcing the rule, so clearly the rule is currently dead. The decision by the D.C. Circuit Court of Appeals may make it less likely the rule will ever re-surface. But do not be too sure of that.

The NLRB will probably continue to fight the case pending in the Fourth Circuit Court of Appeals to see if it can obtain a different result there. The NLRB can also appeal the issue to the United States Supreme Court. Certainly, we will report on any further developments.
 

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First it was Wisconsin. Then Indiana. Then Michigan of all places. Right-to-work legislation is being considered, and in some cases passed, by legislatures throughout the Rust Belt. Given that trend, and the economic benefits to businesses and the state that follow with right-to-work, it was only a matter of time before regional pressures led the Ohio legislature to consider the idea notwithstanding the previously failed attempts on Senate Bill 5.

Just recently, two Ohio House of Representatives members, Kristina Roegner (R-Hudson) and Ron Maag (R-Lebanon), announced they are sponsoring bills that would enact right-to-work for both the public and private sectors in Ohio. There are two proposed avenues: by statute or by a constitutional amendment engraining right-to-work in the Ohio Constitution. The legislation encompasses a basic right-to-work provision and only prevents an employee from being forced to join a union or pay dues to a union as a condition of employment.

However, just the other day, all of this became a moot point—for now. Ohio Senate President Keith Faber announced that right-to-work legislation will not be taken up by the Ohio Senate. This effectively makes right-to-work “dead in the water.” It also has been reported that Governor John Kasich was not particularly interested in the idea. As of April 8, 2013, the New York Times’ expert pollster and election predictor Nate Silver of the FiveThirtyEight blog, places Governor Kasich in “better shape” for his reelection in 2014. According to Mr. Silver, surveys are showing Governor Kasich currently has a 50% job approval rating. This compares to a job approval rating in the 30s for Kasich in 2011 when Senate Bill 5 was in the forefront. For Kasich, he has nothing to gain (and everything to lose) by forcing a controversial issue and reigniting the firestorm.

But the question may be one of timing. Governor Kasich is up for reelection in 2014. Republicans are also trying to hold the U.S. House of Representatives and make gains in the U.S. Senate. Motivating unions to campaign with their union dues and get-out-the-vote efforts in 2014 by pushing right-to-work does not seem like the wisest course of action for Republicans in Ohio. It would heavily motivate the Democratic Party and Democratic voters. This was explicitly acknowledged by Ohio Senate President Faber, when he said “[t]he only purpose this discussion serves right now is to generate a bunch of breathless fundraising appeals from the Ohio Democratic Party.”

So, for now, right-to-work is on the minds of Ohio’s Republicans, but the expectation is no legislation will be forthcoming. Expect the issue to die out in time for the 2014 election, but then it may rear its head once again in 2015. If right-to-work can be enacted in Michigan, it can certainly be enacted in Ohio.
 

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Until the Ohio legislature enacted R.C. 2745.01 in 2005, the employer intentional tort exception to workers’ compensation immunity exasperated Ohio employers. Under the exception as interpreted by the Ohio Supreme Court, employers could be held liable for an intentional tort (with the accompanying tort damages such as punitive damages) so long as they had knowledge of a dangerous condition in its workplace that was substantially certain to cause injury and nevertheless required its employee to work under that condition. This was a very relaxed standard for an “intentional” tort and one that was made even more relaxed by increasingly liberal interpretations from Ohio appellate courts.

R.C. 2745.01 was designed to raise the standard by requiring employees to prove that the employer acted with “deliberate intent” to cause an employee to suffer an injury, a disease, a condition, or death. The statute created only two presumptions of a deliberate intent to injure: (a) if an employer deliberately lied to an employee about whether a substance was toxic or hazardous and as a result that substance injured the employee, or (b) if an employer deliberately removed an “equipment safety guard” and as a result of the removal the employee was injured. In those two circumstances, specific intent would be presumed.

Once the Ohio Supreme Court upheld the constitutionality of R.C. 2745.01 the plaintiffs’ bar attempted to find ways around the statute to once again open up the lucrative business of employer intentional torts. However, one-by-one early successes by the plaintiffs’ bar in the appellate courts have been overturned in the Ohio Supreme Court.

For example, in Houdek v. ThyssenKrupp Materials N.A., Inc., the Ohio Supreme Court rejected the Eighth Appellate District’s finding that R.C. 2745.01 did not really require deliberate intent to injure in order to establish an employer intentional tort. Similarly, in Hewitt v. L.E. Myers Co., the Ohio Supreme Court rejected the Sixth Appellate District’s broad interpretation of an “equipment safety guard” to include personal protective equipment (rather than a guard attached to a piece of a equipment) Had it been upheld, the lower court decision in Hewitt in effect would have imposed an affirmative duty on employers to make available personal protective equipment at the risk of being found liable for an employer intentional tort. In reaching its decision, the Ohio Supreme Court in Hewitt defined an equipment safety guard as “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.”

Despite the Ohio Supreme Court’s rejection of expansive interpretations of employer intentional torts from the intermediate courts of appeal, the Sixth Appellate District again has attempted to find a way around the statute. Specifically, in Pixley v. Pro-Pak Industries, Inc., the Sixth District concluded, contrary to the Supreme Court's Hewitt decision, that for purposes of interpreting R.C. 2745 an equipment safety guard need not be a device “designed to shield the operator [of the equipment] from injury.” Therefore, according to the Sixth District non-operators injured by removal of such a device from a piece of equipment could obtain a presumption of specific intent and proceed to a jury on an employer intentional tort claim. This interpretation by the Sixth District, if upheld by the Ohio Supreme Court, would substantially expand the scope of the intentional tort exception by expanding the types of devices that can constitute equipment safety guards as well as expanding the types of employees who could argue for the exception.

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