Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

This case exemplifies our reason for creating the Employment Outtakes category. 

A California (where else?)appellate court (see Orlando v. Alarm One) has overturned a jury award of $500,000 in compensatory and $1 million in punitive damages to a 52 year old female on sexual battery and sex harassment claims that  arose out of spankings that she received during the course of "motivational meetings" to encourage the sale of security systems. Apparently, the spankings, among other rather unique motivational techniques, were administered to both male and female employees who performed poorly (for instance, by arriving at work late or not selling enough product) in front of their peers to motivate them  -- and all other employees --  to perform better. According to testimony, the spankings of females typically were accompanied by sexual comments, while male spankings were not. 

Therefore, with respect to the sex harassment claim, the appellate court, noting that males and females were both spankers and spankees, so to speak, held that the trial court's jury instructions were misguided because the jury was not instructed that one of the elements of sexual harassment was that plaintiff was harassed "because she was female." As a result, the court stated that the jury, in reaching its verdict, may have considered all offensive conduct, including conduct that was not gender-related. According to the court, if the jury had considered only conduct that occurred because the plaintiff was female, it might have concluded that that conduct was not “sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.” So, this case heads back to the trial court, hopefully to provide us with additional amusement.

Now you know where "The Office" gets its inspiration.

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Employers certainly have the right to comment about alleged employee misconduct in a grievance proceeding, right? Not so fast. A recent Ohio court of appeals decision suggests that Ohio employers may want to be even more careful regarding what they say about alleged employee misconduct. In Gintert v. WCI Steel, Inc., 2007-Ohio-6737 (11th Dist. Trumbull County 2007), a union employee was fired, in part because three fellow employees said they heard him use a racial slur toward another employee. Denying that he used the slur, the terminated employee sued the company, his supervisors, and two employees for defamation.

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Even in the chaotic world of Ohio workers’ compensation, crime still doesn’t pay – at least not for one enterprising Ohio claimant. Finding that the sale of crack cocaine over a three-year timeframe amounted to an exchange of labor for pay over a sustained period, the Ohio Supreme Court upheld the Industrial Commission’s determination that an injured worker was not entitled to permanent total disability compensation.   In reaching this rather obvious conclusion in State ex rel. Lynch v. Indus. Comm., 2007-Ohio-6668, the Ohio Supreme Court rejected the injured worker’s inspired argument that his activity could not be considered sustained remunerative employment because it was illegal.  

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As the Writers Guild of America’s strike against the Association of Motion Picture and Television Producers moves into its seventh week, cracks are beginning to appear in the union’s armor. Until this week, late night television staples such as Leno, O’Brien, Letterman, Stewart and Colbert were mired in “classic” episodes (read: reruns) without any end in sight. Now, it looks as if all but Letterman will be returning – albeit without writers – beginning in early January.  For its part, Letterman’s production company is seeking a separate, interim deal with the Guild to facilitate the return of new episodes of the Late Show.

As usual, the sticking points in the negotiations are monetary.  But, not surprisingly in Hollywood, the cost of health insurance is not at the top of the list. Instead, the writers primarily are seeking a greater share of DVD and “new media” (e.g. internet) revenues as a means of protecting their interests in ever-changing media markets. 

Until original network programming returns, we’ll have to make do with a number of humorous websites, blogs and youtube videos created by the writers themselves and spawned by the strike. For instance, check out:

Lateshowwritersonstrike.com
youtube.com/watch?v-PzRHIpEmr0w

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The importance of leaving your personal life at home–particularly if it involves a penchant for pornography–is amply highlighted by the Second Circuit’s decision in Patane v. Clark, No. 06-3446 (2nd Cir. Nov. 28, 2007).  In Patane, the court upheld a female college secretary’s right to pursue a hostile work environment claim under Title VII and state discrimination laws based on her male supervisor’s pornographic video and website viewing habits.  Apparently oblivious to the development of sexual harassment law over the last 40 years or so, the supervisor–who happened to be the chair of the college’s Classics Department–allegedly viewed sexually-explicit videotapes for one to two hours every day on his office television, which was visible to his secretary through a glass partition.  He also left pornographic videos scattered across his office floor, viewed pornographic websites on his secretary’s work computer, and required her, as a part of her secretarial duties, to open his mail, which–you guessed it–included pornographic videotapes that the supervisor had delivered to his office.

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