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*Special thanks to Porter Wright summer law clerk, Grace Brown, for her assistance with this post.

It’s the summer of 2020, and someone from your company posts to her public Facebook page saying, “If Black people truly wanted equality, then they wouldn’t be isolating themselves into a separate group with Black Lives Matter. All lives matter!”

Your social media marketing team discovers the employee’s post after it was shared by someone who accuses that employee, and your company, of being racist.

What do you do?…
Continue Reading How employers can respond to social justice and free speech issues on social media

With increasing frequency, employers are raising the question about what can (or can’t) be done with employees who speak about polarizing issues, whether at work or in a way that affects the work environment. This question is arising often because of our current social and political climate. The legal and practical implications are complex. …
Continue Reading Employees and free speech

The United States Court of Appeals for the Third Circuit recently issued an opinion that reversed a decision by the National Labor Relations Board about whether a comment by a management representative was a threat to workers or a mere joke. The NLRB decision sheds interesting light on how remarks, such as this specific employer’s tweet, meant in jest can backfire. Fortunately for this employer, on appeal the Third Circuit “got the joke.”
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Continue Reading Third Circuit decides employer’s tweet was comedic, not coercive

In a follow up to its Whole Foods Market, Inc. decision, which found unlawful an employer policy prohibiting workplace recordings by employees without prior management approval, an NLRB panel majority in Mercedes Benz U.S. International, Inc. denied the General Counsel’s motion for summary judgment on a similar “no recording” policy. According to the majority, Mercedes was entitled to a hearing, which would provide an opportunity to present evidence regarding its business justifications for the policy, and about whether the policy was communicated or applied in a manner that clearly conveyed an intent to permit protected activity.

Member Pearce dissented, arguing that the employer’s policy which prohibited the use of cameras and video recording devices in the plant without prior authorization, was facially overbroad and did not provide any exceptions for protected concerted activity. As such, according to Member Pearce, the policy tends to impermissibly chill employee expression and therefore was unlawful regardless of the employer’s intent in adopting and implementing the policy and regardless of whether employees actually interpreted the policy as restricting their Section 7 rights.…

Continue Reading NLRB panel majority upholds employer right to justify “no recording” policy; denies general counsel summary judgment motion

A recently published decision of an Ohio Court of Appeals reminds us that, particularly in this electronic age, employers need to be very careful in the handling of confidential medical information. The decision is also a reminder that sometimes the outcome of a case can depend on the precedent in a particular appellate district.

In Templeton v. Fred. W. Albrecht Grocery Co. the 9th District Court of Appeals (for Summit County, Ohio) the employee responsible for managing workers’ compensation claims for the employer inadvertently sent a psychological report regarding the plaintiff to other employees rather than to the plaintiff’s attorney as she intended. The plaintiff brought suit alleging unauthorized disclosure, negligence and invasion of privacy. In response, the employer filed a motion to dismiss the claims as a matter of law.

The trial court dismissed the unauthorized disclosure and negligence claims at the outset and then, ultimately granted summary judgment as to the invasion of privacy claim. The plaintiff then appealed.…

Continue Reading Ohio Appellate Court dismisses privacy breach lawsuit against employer

Two recent decisions – one from the federal district court in New Jersey and one from a federal Administrative Law Judge – potentially will have significant impact on the Federal Trade Commission’s (“FTC”) enforcement of business’s data security obligations.

FTC v. Wyndam Worldwide

In FTC v. Wyndham Worldwide Corporation, the New Jersey federal district…

In an employment race discrimination case, a federal court recently held that the defendant-employer did not have “possession, custody, or control” over text messages sent or received by its employees on their personal cell phones. The court denied the plaintiff’s motion to compel the production of these text messages because there was no evidence that:

– the employer issued the cell phones to the employees;
– the employees used the cell phones for any work-related purpose; or
– the employer otherwise had any legal right to obtain employee text messages on demand.
Continue Reading Court Holds That Employer Did Not Have “Possession, Custody or Control” of Text Messages Sent or Received on its Employees’ Personal Cell Phones

When we think about the issues that employers have been struggling with relating to employee use of personal mobile devices for work, thoughts of data security, trade secret protection, record retention, and even FLSA compliance immediately come to mind – or at least my mind. But, I bet you wouldn’t anticipate what allegedly happened in Lazette v. Kulmatycki, a case decided by the federal court in the Northern District of Ohio on June 5, 2013.
Continue Reading Ohio Federal Court Permits Case Alleging Employer’s Accessing Of Former Employee’s Personal Emails To Proceed

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".…

Continue Reading Pick Your Poison – Violate State or Federal Law? Court Finds That Complying with State Law On Employee Criminal Background Checks Is Not a Defense to a Title VII Disparate Impact Claim