Workplace Prof Blog

Rubinstein on Employment Status

Mitch Rubinstein (NYLS, Rutgers, Adjunct Prof Blog) has just posted on SSRN his article (14 U. Pa. J. Bus. L. 605 (2012)) Employees, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland between an Employer-and-Employee Relationship.  Here's the abstract:

In most cases, coverage under our nation’s employment laws boils down to the question of whether or not the individuals in question are “employees” and whether or not the entity in question is an “employer.” Significantly, however, there are burgeoning numbers of cases where employer status is found in the absence of a direct relationship to a statutory employer. This Article refers to these entities as quasi-employers because they are not employers in the traditional sense, yet they are subject to the dictates of employment law legislation.

This Article reviews the following theories of quasi-employer responsibility: the Sibley Interference Theory, the Spirt Delegation Theory, the Joint Employer Theory, and the Single Employer Theory. This Article also reviews the issue of individual supervisory liability as employers under the major employment statutes. Individuals are not normally thought of as employers, but they sometimes have a great deal of influence over the terms and conditions of employees’ employment. Therefore, this Article considers them to be a type of quasi-employer.

In order to analyze the definitional status of employers and quasi-employers, it is necessary to examine the definitional status of employees. Significantly, however, the law is in a complete state of disarray with regard to the definition of employee. Therefore, it should come as no surprise that the definition of employer is also often unclear. Nevertheless, there is a significant body of law that supports treating quasi-employers as employers. Unfortunately, there has not been much scholarship focusing on employer status and virtually no academic commentary discussing the status of quasi-employers.

As with employee status, it is important for there to be a clear definition of who is an employer so that both employees and employers know what their rights and responsibilities are. The consequences of not knowing who ones’ employer is can be fatal to any litigation. It is also important to outline clear criteria because future generations will be looking to established case law to determine employer status in work environments that may look very different from work environments of today.

It is hoped that this Article contributes to bringing about certainty to, in Justice Rutledge’s words, “the borderland” between what is an employer-employee relationship and what is not.

rb

Kim on Electronic Privacy & Ee Speech

Pauline Kim (Washington U. - St. Louis) has just posted on SSRN her article (forthcoming 2012 Chicago-Kent L. Rev.) Electronic Privacy and Employee Speech.  Here's the abstract:

The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased protection for some socially valued forms of employee speech — are at odds because privacy and speech are closely connected. As privacy scholars have emphasized, protecting privacy promotes speech values by granting individuals space to explore and test new ideas, and to associate with like-minded others — activities that are often important precursors to public speech. Similarly, in the workplace context, some measure of privacy to explore ideas and communicate with others may be necessary to ensure that employees actually speak out in socially valued ways. Ironically, then, the law is simultaneously expecting more from employee speech and protecting employee privacy less, even though the latter may be necessary to produce the former.

rb

Bring Your Guns to Campus

In Kentucky, it violates public policy for a university to fire an employee for driving onto campus with a gun in the glove compartment of his car. See Mitchell v. University of Kentucky.  Hat tip: Bryce Rhoades.

rb

Cunningham-Parmeter on Federalism and Immigration

Apropos of yesterday's federalism decision in the FMLA/11th Amendment context, Keith Cunningham-Parmeter (Willamette) has a nice piece on federalism in immigration laws: Forced Federalism: States as Laboratories of Immigration Reform. Here's the abstract:

This Article questions the experimental value of state immigration laws. Analyzing the Supreme Court’s major decisions in this area, including Chamber of Commerce v. Whiting, the Article explains why state immigration laws fail to satisfy two necessary conditions of effective experimentation: internalization and replication. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms — far from the type of diverse testing associated with true innovation. 

Today’s state immigration laws also fail to internalize costs — another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states but are felt by the nation as a whole. 

Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies.

Very timely issue and thoughtful piece!

MM

Levinson on Labor Arbitration of Employment Claims

Ariana Levinson (Louisville) has just posted on SSRN her article (forthcoming U. Michigan J. Law Reform, 2013) What the Awards Tell Us About Labor Arbitration of Employment Discrimination Claims.  I'm fairly certain this is the first study of its kind.  Here's the abstract:

This article contributes to the debate over mandatory arbitration of employment discrimination claims in the unionized sector, which, in light of the proposed prohibition on union waivers in the Arbitration Fairness Act, has significant practical implications. Fundamentally, the article is about access to justice. The article examines 160 labor arbitration opinions and awards in employment discrimination cases. The author concludes that labor arbitration is a forum in which employment discrimination claims can be and, in some cases, are, successfully resolved. Based upon close examination of the opinions and awards, the article recommends legislative improvements targeting statutes of limitations, compulsory process, remedies, class actions and, in certain cases, discovery, the standard of review, and a union’s duty of fair representation.

rb

Bagchi on Parallel Contract

Aditi Bagchi (University of Pennsylvania Law School) has recently posted on SSRN her new paper: Parallel Contract.

Here is the Abstract:

This Article describes a new model of contract. In parallel contract, one party enters into a series of contracts with many similarly situated individuals on background terms that are presumptively identical. Parallel contracts depart from the classical model of contract in two fundamental ways. First, obligations are not robustly dyadic in that they are neither tailored to the two parties to a given agreement nor understood by those parties by way of communications with each other. Second, obligations are not fixed at a discrete moment of contract. Parallel contracts should be interpreted differently than agreements more consistent with the classic model; in particular, the obligations of the repeat contractor should be understood by reference to its most recent practices and communications with any of the other parties in a given setting.

The second part of this paper excavates the deep reasons why some theories of contract resist distinct models of contract. I propose a typology of contract theory that roughly tracks John Rawls’ distinctions between pure, perfect and imperfect theories of procedural justice. Pure and perfect theories of contract will tend to justify the rules by which we identify and enforce contractual obligation based on general features of contract; hence those rules will be deemed appropriate across contractual settings. Theories of contract which regard contract as an imperfect means by which parties manage exchange are more likely to endorse specialized rules, such as those appropriate to parallel contract.

The piece suggests an alternative to the implied contract paradigm in the interpretation of employment contracts.  It is a contract theory piece, but Aditi sees employment contacts as the primary context of application.

I think Aditi is correct that her paper will have special relevance for the world of employment contracts and the world of employment-at-will. Check it out!

PS

Facebook as Job Predictor

I am cross-posting, with permission, Bill Henderson's post on The Legal Whiteboard (if you haven't checked out the Whiteboard blog, take a look -- it's a great resource on the marketplace for legal education; if you haven't heard Bill speak on the economics of legal education, invite him to speak at your school.  His data-driven message is sobering to say the least.).

An interesting study on Facebook as a job predictor is making the rounds on the internet.  It is a serious study published in the Journal of Applied Social Psychology.   Perhaps its most interesting feature is that it maps the content of participants' Facebook pages onto scales for the Big Five personality traits.

The Big Five are the five very broad but stable personality traits that have emerged from over 50 years of psychological research on personality and job performance.  The Big Five are sometimes summarized by the acronym OCEAN:  Openness to Experience, Conscientiousness, Extroversion, Agreeableness, and Neuroticism (this last measure is often referred to as Emotional Stability, which has a less clinical ring).  Each of the Big Five traits is typically comprised of four of five subconstructs.  (Go to this link to take for free the same Big Five assessment used in the study.)

The Big Five are connected to research on lawyers through the landmark Shultz-Zedeck Predicting Lawyer Effectiveness study.  One of the personality assessments utilized by Shultz and Zedeck was the Hogan Personality Inventory (HPI), which is seven-scale instrument based on the Big Five.   Shultz and Zedeck identified 26 lawyer effectiveness factors and subsequently assembled a sample of peer and supervisor evaluations on over 1,100 graduates of UC Berkeley and UC Hastings.  The HPI scales were positively correlated at statistically significant levels with a combined 25 of 26 effectiveness factors.   In contrast, academic predictors (UGPA, LSAT and 1st year grades) were correlated with a combined total of 11 effectiveness factors, albeit two of the correlations were negative.

One of the limitations of most personality tests is the self-reported nature of the data.  The test-taker is often interested in managing impressions.  In contrast, the test adminstrators are trying to measure the respondents' actual attitudes and behaviors.  Well, on that count, Facebook reveals quite a bit.  In fact, raters with a mere two hours of training obtained Big Five measures of study participants' personalities that were (a) strongly correlated with the self-reported measures but (b) better predictors of subsequent job performance.

The implication?  Someday a computer spider may be mining Facebook pages to create employability profiles on job candidates.  Such a product may be too cheap and too useful for employers to ignore -- potentially better and faster, and less discriminatory, than the current ubquitious Google search.

(emphasis added)

rb

Sullivan on the Tortification of Discrimination Law

Charlie Sullivan (Seton Hall) has just posted on SSRN his article Tortifying Employment Discrimination.  Here's the abstract:

Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons.

First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening the notion of discriminatory intent, which Staub at first blush seems to do, the opinion actually adds another layer to the plaintiff’s burden – for liability, the decision-maker must now both have the requisite wrongful motivation and either desire a resulting “adverse employment action” or believe that such an action is substantially certain to occur.

Second, and perhaps more important, Staub for the first time imported the concept of proximate cause into the antidiscrimination context from its usual home in negligence law. Such a transplant is especially remarkable because proximate cause was unnecessary for resolving the case before the Court. The only purpose of adding a proximate cause requirement is to limit liability short of the full reach of but-for causation, and limiting employer liability tracks what the Court has done in other areas of federal statutory law. In those areas, the Court has not only applied proximate cause to intentional conduct (a phenomenon largely foreign to tort law from which the Court is theoretically borrowing) but has also adopted a more rigorous view of what proximate cause requires. Rather than looking only to the foreseeability of the plaintiff or the harm, which is the majority approach in the negligence arena, the Court has articulated a policy-driven perspective that allows it to restrict liability in the name of applying traditional tort doctrine.

After exploring these issues, the Article argues that Staub’s deployment of proximate cause in the discrimination area may have been intended to set the stage for a later effort to narrow the reach of Title VII and the other discrimination statutes by finding that “cognitive bias” does not proximately cause a resulting adverse employment action. While there is a spirited debate about whether Title VII bars adverse employment actions resulting from such bias, Staub may have set the stage for resolving that controversy by marking the path for a holding that only conscious bias can proximately cause an adverse employment action.

rb

Electronic Drafts of Restatement of Employment Law Available

My friend and mentor, Sam Estriecher (NYU) writes to tell the readers of this blog that the American Law Institute (ALI) employment restatement chapters are now available free of charge – go to ali.org/publications.

PS

Cheverud on Tax Liability in Employment Awards

Eirik Cheverud (8th Cir. Staff Attny's Office) has just posted on SSRN his Note (NYLS L. Rev.) Increased Tax Liability Awards after Eshelman: A Call for Expanded Acceptance Beyond the Realm of Anti-Discrimination Statutes.  Here's the abstract:

When an employee suffers an unlawful adverse employment decision, her remedy generally lies in a backpay award. These awards are normally provided in one lump sum, which in turn is taxed as income in the year received. Often, the result is this: the employee would have paid less in taxes if no illegal action had occurred. This law review note details the historical background of this problem (an interesting romp of U.S. tax-policy history), and discusses how courts have begun to address it using increased tax liability awards (ITLAs) -- an additional monetary award increasing a plaintiff's backpay award, intended to offset the negative tax consequences of the backpay award's lump-sum distribution. It next weighs arguments made by courts that have rejected ITLAs, and demonstrates how the reasoning in Eshelman v. Agere Systems, a recent Third Circuit case announcing the availability of ITLAs under anti-discrimination statutes, effectively counters those courts' concerns. The note goes further to suggest that courts could, and should, provide ITLAs under most employment statutes (as opposed to being limited to the anti-discrimination context, which thus far has been the only area where courts, and even most scholars, have addressed ITLA applicability), including the Employee Retirement Income Security Act (ERISA), the Fair Labor Standards Act (FLSA), and the National Labor Relations Act (NLRA).

rb

 

UNLV Symposium: Democracy & the Workplace

The UNLV Saltman Center for Conflict Resolution will host a symposium February 23-25, 2012 on Democracy and the Workplace.  Here's the weblink; here's the list of stellar panels and speakers; and here's the symposium description:

Collective bargaining has become an issue in the United States, riots have roiled Britain, and the Arab spring continues to change politics in many ways. Protests by people who work and who are out of work are becoming more common. To explore the connection between having a voice at work and a voice in democracy, the Saltman Center will host a symposium at the William S. Boyd School of Law at the University of Nevada, Las Vegas from Thursday, Feb. 23 to Saturday, Feb. 25. Leading scholars and practitioners in labor and employment law, human resource management, dispute resolution, dialogue and deliberation, and democracy will speak on the topic.

rb

What the Experts are saying …. Ken Dau-Schmidt

Today, begins the start of a series of workplace law professor essays on the Restatement of Employment Law. These essays stem from a meeting of law professors in Chicago in November to discuss the on-going Restatement project.  Each of these essays are from individuals who spoke at the conference. In addition, Chief Reporter Sam Estreicher and his Associate Reporters have been invited to submit their own expert essays and may do so in the future.

PS

We begin today with Professor Ken Dau-Schmidt of the Indiana-Bloomington (Maurer) Law School:

On November 18-19, 2011, a group of labor law experts gathered to provide the second critique on the Restatement of Employment Law Project of the American Law Institute.

This conference taking place at the American Bar Foundation in Chicago, follows a previous conference held at Hasting Law School in February 2009.

When the first draft of the proposed restatement came out in 2006, the Labor Law Group sponsored a session on the ALI’s proposal at which both Mike Harper and Matt Finkin spoke.  After that session, there was sufficient concern among the experts in the field about the project that the Labor Law Group drafted a petition requesting reconsideration of the project and circulated it among members of the academy. The petition signed by sixty-two members of the legal academy was submitted to the ALI membership at their annual meeting.  The petition did not result in a major rethinking of the project; it did result in postponement of the approval of the initial draft by the ALI membership for one year. 

The Labor Law Group used that year to plan the Hastings conference and provide a more detailed critique of the ALI drafts up to that date. Working committees addressed the issues raised in Chapters 1, 2, and 4 of the proposed Restatement.  The resulting papers were published in 13 Employee Rts & Employment Policy J. (April 2009).  The ALI reporters and advisors were all invited to attend the Hastings conference and participate in the discussion.  Although none of the reporters attended the Hastings meeting, the meeting was attended by one member of the Council and a number of the projects’ advisers. Later, Timothy Glynn, Mike Zimmer, and Charlie Sullivan put together a panel at Seton Hall where the reporters heard some of the criticisms. 

These several critiques yielded criticisms of two general forms.

The first form of criticism was that the project was in some way fundamentally misguided.  For example, several commentators argued that the employment relation is evolving so quickly that it is too early to take a meaningful look backward in a Restatement.  These critics argued that a restatement at this time could not capture the dynamic changes in the law, or worse might serve to discourage further evolution of the law.  Others argued that the restatement project was fundamentally flawed because it had no unifying theme or theory to motivate a restatement of employment law that would be separate and complete.  The argument is that, in order to get a restatement of employment law that is internally consistent and consistent with the other related restatements of contract tort and agency, one would have to discuss why employment law is distinct from other areas of law and why a separate restatement would be needed by considering the underlying purpose of employment law.  Some went so far as to propose unifying principles around which employment law could be organized.  Alan Hyde said that the field could be unified around the idea of protecting employees’ rights.  Matt Finkin said that the field could be unified around the principle of protecting employees against exploitation because they typically have less power in the employment relationship.  The reporters and membership of the ALI have decided not to follow these advisory opinions and suggestions.  Thus there is currently no unifying theory among the various chapters that are proposed. 

The second form of criticism has been to consider the project on its own terms, in other words, to assess how well the reporters are doing in drafting a restatement of employment law that accomplishes what the ALI purports to do through restatements. 

I went back and looked at the ALI’s Reporters’ handbook which sets for the ALI’s objectives for reporters in drafting a restatement.  The general statement of these objectives is that in its restatements, the ALI seeks an authoritative consensus, among academics, practitioners and judges, on what the law is or on what it ought to be that is both internally consistent and consistent with other restatements.  In other words the ALI is seeking both a positive statement of what the law currently is, as well as a normative or aspirational statement about what the law should be.  Although the reporters should generally follow the doctrine in the majority of states, where it is necessary to make the restatement logical and consistent, both internally and with other restatements, the reporters can choose the “better rule” even where it is the minority rule, or does not yet exist in the common law. 

Trying to draft an appropriate positive restatement of the law among 50 odd jurisdictions is difficult enough, let alone figuring out what the law “ought” to be.  One narrow view of the normative objective would be to merely simplify or make consistent the common law.  In this case the approach would be to make small little changes “hammering out the dents” in the law in order to produce consistency.  However there is also a broader view of the normative role that the proposed Restatement can choose the minority rule if it proves to be logically better, and certainly if there is a trend in that direction.

            So far the critics have had more luck in critiquing the draft restatement on its own terms. The most visible success is in the area of the doctrine of the “inevitable disclosure” of trade secrets, which is now omitted from the restatement draft.  The reporters have also adopted a very limited form of the doctrine of self-publication of defamation in the employment context in response to criticisms that were made at the Seton Hall conference. Also at Seton Hall, a lot of criticisms were focused on privacy concerns and how to make a common law right to privacy real and meaningful when the employer can easily get consent from employees and because the employer can shape the employees’ expectations of privacy.  Matt Bodie has now added a section on employee to the privacy draft, so there has been some movement in response to this criticism.  Bodie’s draft on employee autonomy has little express basis in existing cases which poses an interesting question of the tension between the positive and the normative purposes of the ALI restatement.  Should the critics be happy that Bodie’s draft now makes more sense than the common law on the subject, or criticize it because it does not have adequate support in existing cases?

*************************************************************************

As Matt Finkin has said, a restatement of employment law will inevitably be a “dog’s lunch” of odds and ends which might not be that appealing, but as Charlie Sullivan has said the question is how to make that lunch as palatable as possible.

British Consider Further Restrictions on Unfair-Dismissal Rights

The BBC reports [via PJH Law] that consideration is being given to some radical changes to Employment Law including:

.

• Allowing small employers to fire employees without legal oversight, if the employer pays the employee a severance.
• Making people work for two years before they could make a claim for unfair dismissal - up from one year at present. 
• Reducing the 90 day consultation period for 100+ layoffs at a single establishment.
• Allowing employers to have frank off-the-record conversations about poor performance.
• Requiring all Tribunal Claims to go to ACAS [Advisory, Conciliation and Arbitration Service] before being allowed to go to Tribunal (at present claims go to Tribunal and ACAS are involved after the claim has been sent to the Tribunal unless the parties ask ACAS to become involved in pre-claim conciliation on their own initiative).
• Creating a rapid resolution scheme to resolve simple cases in less than 3 months.

rb

Conference on Employment Restatement

Here's the Agenda for the Experts’ Meeting on the Restatement of Employment Law Project, November 18-19, 2011, Northwestern Law School in Chicago.  This is the second meeting of recognized experts to discuss the ongoing Restatement of Employment Law Project being undertaken by the American Law Institute.  The first meeting took place in 2008 at Hastings Law School in 2008. Papers were published in the Journal of Employee Rights and Employment Policy.  In 2008, only two chapters of the Restatement had been written.  This meeting takes up the continuing critique of the project in response to additional chapters and the project as a whole.  Papers from the conference will again be published.  The conference again, like the one in Hastings, is being sponsored in part by The Labor Law Group.

rb

The Impact of DSM Revisions on Labor/Employment Laws

David Foley over at LaborRelated has a terrific post about the ongoing process of revising the American Psychiatric Association's Diagnostic and Statistical Manual (DSM).  David explains that

the debate about the [proposed] changes is a good thing to keep an eye on because although inclusion of a condition in the DSM-IV has not been completely synonymous with coverage under various employment laws, the courts have often looked to it for guidance.  Among others, the changes in the DSM-V could impact Americans with Disabilities Act claims (is the plaintiff disabled, what is a reasonable accommodation, etc), Family Medical Leave Act claims (does plaintiff suffer from a serious illness) and workers compensation laws (does plaintiff have an illness and was it caused by work).

David's post is extensive, discusses several of the proposed changes, and is worth a close read.

rb

Expert's Meeting on Restatement, Part II

Expert’s Meeting on the Restatement of Employment Law Project
November 18-19, 2011
750 North Lake Shore Drive, 4th Floor, Chicago

This is the second meeting of experts to discuss the ongoing Restatement of Employment Law Project being undertaken by the American Law Institute. As a meeting of experts, this meeting is only open to persons who are judges of state Supreme Courts and other courts, council members of the American Law Institute, and recognized experts in the area of Employment Law.

The first meeting took place in California at Hastings Law School in 2008 and the papers were published in the Journal of Employee Rights and Employment Policy. At that point, only two chapters of the Restatement had been written. This second meeting takes up the continuing critique as additional chapters are being added and additional critique is necessary on the project as a whole. Papers from the conference will again be published.

The meeting is sponsored by the Labor Law Group, the American Bar Foundation, Northwestern Law School, and Loyola Chicago Law School.  Here's the agenda.

rb

Trade Secret Take-Down: Hooters vs. Twin Peaks

Who says employee trade secret disputes have to be dry and boring affairs?  From the Huffington Post:

WASHINGTON -- Hooters, the restaurant chain famous for its scantily clad Hooters Girls, sued the partner of an upstart rival in Georgia federal court this week, accusing the company developing Twin Peaks restaurants and a former Hooters executive of stealing trade secrets in their bid to take on the “delightfully tacky yet unrefined” restaurant chain.

In their lawsuit, Hooters claims that Joseph Hummel, former Hooters vice president, jumped ship to help develop the similarly themed Twin Peaks restaurants (motto: “Eats, Drinks, Scenic Views”) in July and took “sensitive business information” with him. The alleged trade secrets apparently involve more than just skimpy waitress outfits. According to the suit, in the weeks leading up to his departure to Twin Peaks development partner La Cima Restaurants, Hummel downloaded and emailed to his private account a “substantial volume” of Hooters documents, including plans related to management, recruitment, distribution and sales.

If the allegations are true, Hooters has a strong case to enjoin Hummel and Twin Peaks from competing against them. Unclear, whether any convenants not to compete are involved in this affair.

In any event, all this litigation might mean there will be fewer "scenic views" of the human variety in Georgia when all is said and done.

Hat Tip: Joe Seiner

PS

Fired for Shooting Back

LaborRelated has a terrific post on a Detroit-area Walgreen's clerk who got fired after firing back at two robbers who fired at him.  Video included.  Discharge in violation of public policy?  John Holmquist over at Michigan Employment Law Connection says absolutely not.

rb

6th Circuit: Arbitration Clause in Employee Policy Not Enough

The Sixth Circuit issued an important arbitration opinion yesterday in Hergenreder v. Bickford Senior Living Group, LLC. The plaintiff in the case was a registered nurse, who shortly after being hired, had to take a leave of absence for cancer treatment, and was subsequently fired because of that leave. Hergenreder wanted to sue Bickford under the ADA, but Bickford asserted that she had to arbitrate her claim, and the district court agreed. The Sixth Circuit disagreed and so reversed and remanded the case to proceed.

The arbitration clause was contained in a dispute resolution policy. That policy was not itself contained in the employee handbook. Instead, in one brief sentence, the employee handbook stated that there was a dispute resolution policy and that employees should look at it for the details. Hergenreder signed a form stating that she had read and understood that handbook, but the Sixth Circuit ruled that there was not sufficient evidence that Hergenreder had been informed of the arbitration policy and actually agreed to be bound by it. The employee handbook itself never mentioned arbitration, and although the policy statement the handbook referred to had an explicit arbitration clause, and did state that agreeing to the arbitration clause was a condition of employment, there was no separate acknowledgement by Hergenreder that she had been notified of the contents of the dispute resolution policy. The oblique reference in the employee handbook was not enough to constitute an offer under state contract law.

It also seems to have helped that Bickford's employment handbook was carefully worded, as many are, to make clear to employees that the policies it contained were not binding on it. To drive that point home, the handbook stated "“[t]his handbook is intended as a summary only and is not a contract between Bickford Cottage and its employees." It further provided, in a separate section,

This handbook has been provided to you for the purpose of acquainting you with the personnel policies and procedures, responsibilities of Bickford Cottage. It does not constitute a contract of employment in whole or in part. Bickford Cottage may add to, change or delete any of the contents at any time with no notice.

This is an important lesson for employers, I think, on information management and clarity of communications. On the one hand employers don't want to be bound by most things that are put into employee handbooks, but use those as a way to let employees know what is expected of them to up front, which is a good business practice to create a sort of due process of the workplace. That kind of informal due process tends to make employees more comfortable, both because they feel like they know what to expect, and because they have at least an impression that the employer will act fairnly and consistently. Employers want to be able to be flexible, though, to address situations they hadn't envisioned or to change with changing circumstances.

On the other hand, employers do want employees to be bound to arbitration agreements. To be sure that they have created a contract for that, employers have to be careful about the amount of information they give employees at one time, and the manner in which that information is delivered. Having a separate arbitration policy made sense here, and this employer even had a form that employees were to sign, acknowledging knowledge of the policy (and presumably acceptance by accepting employment). The problem was that Bickford could not show that Hergenreder had actually received a copy of that policy or that she had signed any acknowledgement form. No actual knowledge here, no offer and acceptance, and no contract.

MM

Smartphone Surveillance

David Koeppel writes in Business Insider:

[S]martphones and other pocket-sized devices have given employees and employers a powerful tool to easily record playbacks of sensitive workplace conversations.... The recordings can be used in court or administrative hearings--or subject the parties involved to public criticism. Many cases involve disciplinary proceedings or union organizing.

Katrina Patrick, a Houston lawyer who represents aggrieved employees, says that more than 50 percent of the people who come to her office bring digital evidence. "I'm more surprised when someone comes into my office without digital evidence," she says.

For more, see More People Are Using Smartphones To Secretly Record Office Conversations.  Hat tip: Jennifer Clemons.

Update: David Foley over at LaborRelated asks whether this will create a CSI effect in litigated employment cases:

Are labor and employment cases going to be decided by jurors who don't feel comfortable without science in the equation or wonder things like, "If the boss kept saying stuff like that, why didn't she just record it with her cell phone?"

rb