Porn Notice at KNBR.jpgOne employment law topic that never seems to go away is pornography in the workplace.

When the issue invariably arises, I remember my first attorney job out of law school. I began working at a medium-sized law firm. One partner I frequently worked with was a brilliant, chain-smoking, gruff, old white-collar defense and First Amendment attorney. A lot of his clients were in the “adult entertainment business.” The work was interesting to say the least.  

One day, I swung by his office to talk about a case and he had some porn on his computer (honestly – I was there just to talk about a case). I jokingly told him he was going to be in trouble if the firm’s IT director and the no nonsense firm president found out he was using company resources to indulge in such vices.

His response still makes me laugh: “Expletive them. This is expletive ‘legal research’ for me.” As a First Amendment attorney with a substantial client base in the adult entertainment industry, he made a convincing point.

Most, if any, employees cannot make the same argument when it comes to accessing porn in the workplace. Yet often times employers fail to properly investigate instances of employees using company time or resources to access pornography.

For example, as originally reported by Deadspin, a San Francisco Radio station apparently posted the above notice in response to discovering workplace pornography (you can almost hear the exasperation in the notice by the KNBR’s IT/management). KNBR’s notice provides a number of points on what not to do when it comes to investigating workplace pornography:

  • To begin with, the first line of defense against viewing or accessing pornography using employer provided resources, e.g., company Internet, emails, computers, etc.) should not be in a (misspelled) posting. Instead, employers should first cover the issue in an employment policy manual and potentially in a separate technology policy agreement, with express prohibitions against it and explaining that violations may result in discipline, up to and including discipline.
  • Second, once pornography is discovered on or accessed through company provided computers or resources, then upper management and the company’s attorney needs to become involved at the outset. Together, management and legal counsel can take the appropriate steps to reasonably investigate the issue. 
  • Third, taking the KNBR notice at face-value and building on the preceding point, KNBR did the right thing in taking the offending computer out of service. But it is a critical mistake for the company’s IT professionals to tamper with that computer, e.g., “rebuild,” reboot, or put it back into circulation. Such actions may result in destroying or altering evidence, which can undermine a company’s evidence supporting its disciplinary action and even expose the company to legal liability (often referred to as “spoliation”).
  • Fourth, a real concern that employers need to carefully evaluate is whether any pornography discovered in the workplace involves children. If so, the need to inform law enforcement should take immediate priority. See What Should An Employer Do if Child Pornography is Discovered in the Workplace? 

Workplace misconduct, including viewing or accessing pornography using employer-provided resources needs to be taken seriously and carefully investigated. For more information about best practices for preventing such misconduct or properly investigating employee misconduct, contact employment attorney Jason Shinn. Mr. Shinn routinely collaborates with businesses and their HR professionals to address federal and Michigan employment law issues, as well as planning and conducting workplace investigations of potential misconduct.  

Gavel on Cash.jpgOne of the core considerations any CEO or general counsel makes when the company is sued is to assess the anticipated cost of litigation versus settling resolving the claim. While settlement is often a distasteful consideration, especially where a claim borders on frivolous, no company can credibly take the position that it will take any and all cases to trial given the significant costs involved in litigation. 

In that regard, Mr. Jon Kyle, a former Republican senator from Arizona and now a senior adviser to a prominent Washington, D.C law firm, penned an editorial for the Wall Street Journal (1/20/2014) discussing the problem litigation costs pose for U.S. companies.  

… excessive litigation costs erode U.S. companies’ ability to compete in world markets and make foreign companies reluctant to invest here … 

The primary culprit for excessive cost and delay is ‘discovery’—the process of preserving, reviewing and disclosing vast amounts of corporate information. A 2010 survey of Fortune 200 companies by Lawyers for Civil Justice, the Civil Justice Reform Group and the U.S. Chamber Institute for Legal Reform found that in 2006-08 companies at the low end of the range were paying $620,000 per case, and those at the high end were paying almost $3 million per case in discovery costs. 

I don’t disagree with Mr. Kyle’s assessment. In representing business clients over the years, discovery costs consistently made up the largest portion of the litigation budget. And this is true regardless of the claims. And since beginning my legal career in 2001, those discovery costs have steadily increased, in large part due to the sheer amount of information businesses create and retain. 

But Mr. Kyle’s assessment, however, ignores a dirty secret in the legal industry – there is an inherent incentive driving attorney compensation – often referred to as the billable hour – that drives up the cost of litigation defense. In other words, the very law firms that represent the companies “victimized” by the cost of litigation are often a significant contributor to the increased litigation costs that U.S. companies face.

I repeatedly saw the paradoxical results of inefficient legal services resulting in increased law firm profits while I was a member of a national trial counsel team for a manufacturer involved in national product liability litigation. Prior to the client implementing a national trial team approach, local counsel were largely left to plan discovery with little oversight. While most attorneys implemented reasonable litigation plans, others did not. In those situations, litigation costs soared with little value to the overall trial strategy. But in both situations, we were able to bring down discovery costs by designing and implementing a coordinated discovery plan.  

More recently, I was legal counsel in a contract dispute between a company and its former executive. The details of the litigation are not particular sexy or complex: Party “A” enters into an executive employment with Party “B;” Party B pays under that contract for months; Party B decides it would like to pay less for same scope of work; Party A says thanks, but no thanks, I’ll keep what we agreed to; and Party B stops paying claiming there is a disagreement as to what the contract actually provides.

Despite this garden-variety claim, the company (Party B) was represented by a large Detroit law firm. It staffed this case with three partners (not associate attorneys) and then proceeded to tag team the depositions with one of these partners and then another associate attorney. Additionally, the defendant law firm pushed for forensic inspections of laptops – one acquired years after the time-period relevant to the formation of the contract and the actual breach of the contract. In sum, the defense counsel took a scorched earth approach. However, it is hard to imagine any CEO signing off on such an approach given the questionable value and limited damages.  

Attorney Patrick Lamb of the Valorem Law Group is a prominent thought leader on guarding against these sorts of self-induced out-of-control litigation costs. He recently commented on these perverse incentives when it comes to rewarding law firm inefficiency: 

Another law firm has motivated its associates to spend more time rather than less getting their work done. Kaye Scholer is paying upwards of $20,000 in additional bonuses to those who exceed 2,200 hours per year.

Mr. Lamb succinctly paraphrases what this means to clients: 

We haven’t figured out how to do work other than on an hourly basis, so we need lots more hours for the firm’s partners to take home their millions. So to squeeze out those hours from our clients, we’ll motivate our associates to spend more time on their matters. So even though our clients would benefit from a focus on efficiency and outcomes, that doesn’t help us–the partners–so we’ll just ignore that and keep doing what we’ve doing.

Closing Thoughts

Is Mr. Kyle correct in his assessment about the cost of litigation being too high and it takes too long in the United States? Yes. But his assessment overlooks the fact that the very attorneys representing those most affected by these problems are often the chief contributors or, at least, complacent co-conspirators.

For this reason, it is critical for CEOs and in-house counsel to diligently monitor legal fees, as well as having meaningful budgets and discussions with defense counsel about the company’s litigation strategy and this discussion needs to take place early in the litigation process. 

For more information about business and employment lawsuits, contact attorney Jason Shinn. Mr. Shinn has been representing businesses and executives in defending and pursuing litigation since 2001. The bulk of this experience involves employment discrimination, breach of contracts, trade secret and noncompete litigation, and other commercial litigation matters. 

Discrimination Underlined.jpgThis may be premature speculation, but it appears the Michigan Department of Civil Rights – the agency responsible for handling charges of discrimination against Michigan employers – has slightly revised its claims handling procedures.

Employment Discrimination Claims and the Michigan Department of Civil Rights

Specifically, an employee or job applicant may file a complaint with the Michigan Department of Civil Rights offices if the alleged act of discrimination occurred within the past 180 days. The Department is responsible for investigating such claims and enforcing Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). This statute prohibits discrimination against an employee or job applicant based upon that person’s race, color, religion, national origin, age, sex, height, weight, or marital status; sex discrimination includes sexual harassment or discrimination based on pregnancy.

At the conclusion of the investigation, the investigator often prepared a report containing detailed factual findings, even if the investigation did not disclose sufficient evidence to support the claimant’s allegations. In such an instance, the claimant would be issued a “Notice of Disposition and Order of Dismissal.”  

Michigan Department of Civil Rights and its Discrimination Investigation Process 

However, recently I’ve been receiving rather “vanilla” findings that are more similar to those issued by the Equal Employment Opportunity Commission when it closes a discrimination charge and issues a right to sue letter. And in one of the discrimination charges I was handling, opposing counsel also confirmed the same. Specifically, the following excerpt Michigan Department of Civil Rights 

Based upon all the evidence in the file, e.g. any applicable statements of witnesses, analysis of comparatives and review of documents, the department determined that there is insufficient evidence to proceed.     

The dismissal by the Michigan Department of Civil Rights does not restrict the employee who filed the claim from pursuing discrimination claims in court. But the apparent change in the department’s policy can have a practical impact with respect to settlement negotiations. 

What Changes May Mean to Employers and Employees

From an employer’s perspective, opening up a detailed finding from the Michigan Department of Civil Rights setting forth why a claim of employment discrimination was found to have no merit was like opening up presents on Christmas day – exciting (in a geeky, employment attorney kind of way)! Conversely, no plaintiff’s attorney wants to spend time and effort on a case riddled with the equivalent of legal and evidentiary potholes.

So when these issues were identified in the findings, they provided significant leverage for negotiating a resolution favorable to the employer. And while no employer wants to make it a business practice of paying out on questionable claims, there are certainly cost savings to be explored in resolving employment discrimination claims prior to a lawsuit being filed.

While I certainly appreciate my anecdotal observations about the apparent change in the claim an investigation process by the Michigan Department of Civil Rights may not provide a scientifically relevant data set, it is something that we will continue to monitor and employers and employees involved in charges of employment discrimination should be aware of.  

For more information about federal or Michigan employment discrimination, including responding to EEOC or state agency discrimination charges, contact  Jason Shinn who is a Michigan employment law attorney. Mr. Shinn routinely represents clients with respect to complying with employment related laws and, if necessary, handling charges of employment discrimination.

Contract Documents.jpgWhen it comes to non-compete agreements, one of the most important provisions to consider is what is referred to as a “choice of law” provision. This is because a non-compete agreement’s choice of law provision will often determine whether a non-compete will be enforceable and to what extent. 

Choice of Law and Noncompete Agreements

If a non-compete agreement dispute occurs, a choice of law provision determines the law to be applied to resolve the dispute. Such provisions are especially important where companies have employees dispersed across different states. This is because each state varies when it comes to enforcing non-compete agreements. For example, an employer seeking to enforce a non-compete agreement in Michigan will generally fair better than trying to enforce that same non-compete agreement under California law.    

A recent non-compete dispute discussed by Richard Tuschman illustrates this point. Specifically, in a non-compete lawsuit filed by Synthes USA Sales, LLC against its former employee and his new employer, an issue arose as to whether Pennsylvania or California law applied to a non-compete agreement.

The defendant and former employee lived and worked in California, but his non-compete agreement had a choice of law provision that read: ”This agreement will be governed by Pennsylvania law applicable to contracts entered into and performed in Pennsylvania.

The trial court took the view that the non-compete’s choice of law provision applied only to contracts actually performed in Pennsylvania. Under this view, the court determined California law applied and under that law, post-employment non-compete agreements are generally not enforceable except in limited circumstances, e.g., in the context of the sale of a business or to prevent the disclosure of trade secrets.

On appeal, however, the appellate court reversed the trial court’s decision and concluded that Pennsylvania law should apply. This ruling was a huge “win” for the former employer because in contrast to California’s unfavorable non-compete law, non-compete agreements under Pennsylvania law may be enforceable if the restrictions are reasonably necessary for the protection of the employer and are reasonably limited in duration and geographic area.

Michigan Law and Noncompete Agreements

Similar to Pennsylvania non-compete law, an employer and employee are free to enter into a non-compete agreement to protect the employer’s “reasonable competitive business interests” and to prevent post employment competition by the employee, as long as the agreement is reasonable in duration, geographical scope, and the type of activity restrained. For a more detailed discussion on whether a non-compete agreement is reasonable see My former employer can’t prevent me from working, right? Dissecting the Enforceability of a Non-compete Agreement.

As a non-compete attorney, and also similar to the Pennsylvania case discussed above, I know first-hand the critical role a choice of law provision plays in non-compete litigation. Specifically, I had a case where a former employer sued its former computer engineers and their new employer for alleged violations of a non-compete agreement and trade secret misappropriation. One of the central legal battles came down to the choice of law provision, which called for the application of California law. However, the former employer essentially argued against applying the contractual choice of law provision because California law was not favorable to its position. Trying to make this argument, however, turned the litigation into something analogous to Alice in Wonderland where up is down and down is up. At the end of the day the application of California law significantly undercut the former employer’s claims. 

The Take-Away for Employers

A non-compete agreement is a critical sword when it comes to protecting a company’s competitive interests. See Enforceable Non-compete Agreement Key to $2 Million Judgment Against Former Employee. But a poorly written non-compete agreement can also shield former employees from potential liability when it comes to non-compete disputes or, as was the situation in the trial court’s decision in the Synthes USA Sales litigation, give a court a reason to limit the scope of a non-compete agreement in favor of an employee. Accordingly, employers do not want to be penny wise, but a and pound foolish when it comes to non-compete agreements. 

And for employers with operations throughout the United States, it is absolutely critical to have a national non-compete strategy in response for differing state law treatment of non-compete agreements.

Jason Shinn is a Michigan non-compete attorney. Since 2001, he has worked with employers to draft enforceable non-compete agreements and to implement national non-compete programs. He has also represented companies, sales-representatives, executives, and other employees in litigating non-compete disputes in Michigan, Ohio, and federal courts, including obtaining or defending against preliminary injunctions. For more information about Michigan non-compete law, contact Mr. Shinn.

Computer Crime HandcuffsOne of the more noteworthy employer/employee trade-secret misappropriation and Computer Fraud and Abuse Act  (CFAA) cases came to an end earlier this week. Specifically, Mr. David Nosal wa sentenced on January 8, 2014 to one year and one day in prison. He was convicted for misappropriating his former employer’s trade secrets and improperly accessing the employer’s computer network.

We previously reported upon a trade secret misappropriation case and violation of the federal Computer Fraud and Abuse Act (CFAA) arising out of the employment relationship between David Nosal and his former employer. At the time we reported on this case, it was unusual in that the charges against Mr. Nosal essentially amounted to criminalization of violations of an employers’ computer use policy.

Specifically, Mr. Nosal had been charged by U.S. prosecutors with one count of conspiracy, three counts of unauthorized access to a computer used in interstate or foreign commerce or communication, one count of unauthorized downloading and copying of trade secrets, and one count of unauthorized receipt and possession of stolen trade secrets.

Mr. Nosal had challenged these criminal charges primarily arguing that the CFAA was “aimed primarily at computer hackers” and that it “does not cover employees who misappropriate information or who violate contractual confidentiality agreements.” This challenge resulted in an extensive and sometimes complicated procedural trail that saw the district court initially rejecting Mr.Nosal’s arguments only to later accept the arguments and dismissing five counts of the six count indictment. From here the government appealed this decision to the Ninth Circuit Court of Appeals and later to an en banc appeal (an appeal to the full bench as opposed to a panel selected to hear the appeal) followed. Follow this link for a full explanation of the trial and appellate time-line.

Ultimately after dust from the the trial and appeals settled, the jury returned a guilty verdict against Mr. Nosal on all six counts of the indictment finding that he had conspired to gain unauthorized access to the computer system of his former employer, the executive search firm Korn/Ferry International, and to illegally obtain trade secrets belonging to Korn/Ferry. The jury also found Nosal guilty of three substantive computer intrusions in April and July 2005 and two substantives trade secret offenses that occurred in April 2005. 

The Take-Away for Employers and Employees

The sentencing of Mr. Nosal is stark reminder to employees about the serious consequences that may result from trade secret misappropriation and engaging in unauthorized access to an employer’s computer system.

The Nosal decision also eventually resulted in “clarifying” the scope of the CFAA (at least for employers and employees within the jurisdiction of the Ninth Circuit Court of Appeals) in that the Court held under the CFAA, “an employee accesses a computer in excess of his or her authorization when that access violates the employer’s access restrictions, which may include restrictions on the employee’s use of the computer or of the information contained in that computer.” 

For more information about trade secret protections or investigating trade secret misappropriation issues, including matters involving the Computer Fraud and Abuse Act, contact attorney Jason Shinn. He is a legal-technology nerd and has been retained as an expert in various legal matters involving computers and misconduct. He also routinely investigates employment-based workplace computer issues and misconduct, as well as making sure employer’s meet their obligations when law enforcement needs to investigate suspected computer crimes involving employer provided computers and technology.

Contract Documents.jpgArbitration agreements are common in the employment relationship. And employers understand that normally an employee must sign such an agreement in order for it to be enforceable. But what happens if your company’s policy is to require employees to arbitrate a dispute unless the employee takes some action to opt-out of the employment arbitration agreement?

A recent employment dispute arising out of a Michigan federal district court answers this question and is a reminder that sometimes simpler is – if not better – more cost effective. 

Employment Discrimination Lawsuit Filed and Employer Moves to Arbitrate it.

Specifically, in Tillman v Macy’s, Inc (2013), the former employee represented herself in filing an employment discrimination lawsuit alleging that Macy’s discriminated against her on the basis of her race in violation of Title VII when it terminated her employment in 2009.

Macy’s responded by filing a motion to compel arbitration and stay the lawsuit pending arbitration, based on what Macy’s claimed was an agreement entered into by the parties to participate in a binding dispute-resolution program.  Macy’s argued that Tillman assented to participation in the program and therefore that suit in federal court was impermissible. 

The problem Macy’s faced in making this argument, however, was that Tillman did not sign an agreement to resolve employment disputes through binding arbitration or to otherwise waive her right to a jury trial. Instead, Macy’s had communicated to Tillman an offer to enter into a binding arbitration agreement and communicated that it was up to her to take certain steps to opt out of the arbitration agreement.

District Court’s Order Denying Arbitration is Reversed.

The district court rejected Macy’s position. However, on appeal, the Court reversed the decision and compelled Macy’s and its former employee to arbitrate the dispute.    

In reaching this decision, the court found that the employer had provided sufficient notice of its offer to enter into an arbitration agreement and plaintiff had accepted by continuing her employment and by not following the steps to opt out of the arbitration. Thus, arbitration should have been required, even in the absence of an agreement to arbitrate that was signed by the plaintiff-employee.

The Take-away for Employers

In reading the Macy’s opinion one point that jumped out was the convoluted nature of its process for binding employees to arbitration; A lot of paper and HR efforts went into putting employees like Tillman on notice that unless they opted out of the arbitration agreement, she would be bound by it.

On top of that effort, Macy’s ending up spending significant legal fees in order to convince a court – which it failed to do at the trial level – that its efforts and procedures applicable to its arbitration process were, taken together, sufficient to create an enforceable arbitration agreement despite having no signed arbitration agreement.  

While Macy’s employment arbitration opt-out procedure was ultimately upheld in favor of the employer, the legal fees and effort at the HR level can’t be ignored. In fact, the court noted that the employer could have avoided expending those resources as well as avoiding the risks inherent in the opt-out arbitration procedure:  

Tillman’s conduct following the communication of the offer objectively suggests that she accepted the arbitration agreement by continuing her employment without returning an opt-out form.

We recognize that opt-out schemes for accepting arbitration contain a risk greater than in opt-in systems that some employees do not know what they have agreed to. Cases like this one would likely be fewer if companies like Macy’s would use an opt-in system. But we cannot say that under Michigan law an opt-out system is inherently insufficient, and under the facts of this case a contract was created.

Is arbitration right for your company? Maybe not with recent changes to Michigan courts that are resulting in shorter litigation time-lines and measures intended to reduce the cost of litigation. 

For more information about these changes, as well as arbitrating employment disputes or implementing an arbitration procedure into your company’s HR procedures, contact Jason Shinn. Mr. Shinn is a Michigan employment attorney. Since 2001, he has represented manufacturers and closely held businesses in complying with or, if necessary, litigating federal and Michigan employment laws.

Constitution.jpg“The most terrifying words in the English language are: I’m from the government and I’m here to help.” – Ronald Reagan

 

Many employers can relate to the above quote from President Reagan. Unfortunately, many politicians forget this sage wisdom, at least when it is convenient to do so. The most recent example being an Alabama Republican politician’s recent announcement to introduce a legislation that essentially intrudes upon a private sector employer’s decision to discipline an employee.  

Specifically, Alabama Republican state Senator Jerry Fielding announced his plan to introduce a resolution that calls for the support of Mr. Robertson and a reversal of the decision made by Mr. Robertson’s employer to suspend him for the preceding comments.

We previously discussed the firestorm created by Duck Dynasty’s Phil Robertson’s statements about homosexuals and precivil rights race relations. See Of Ducks and Men – Duck Dynasty and the Misunderstanding of Religious Discrimination and First Amendment Rights in the Workplace. 

A draft of Mr. Fielding’s resolution makes it clear it is legislation for one; It would only apply to Phil Robertsen and his family who – according to the resolution – have “served as ambassadors of the love and grace of the Heavenly Father through their exemplary lives on and off the camera.” 

The resolution further chastises Mr. Robertson’s employer and pronounces that the employer should not be able to regulate its workplace when it comes to Mr. Robertson’s speech. Specially, it reads as follows: 

Phil should not be penalized in any way for practicing freedom of speech, but should be celebrated as a hero for courageously revealing his self-truth and Christian ideals in a world that can be unkind towards those with a conservative mind-set; and Whereas Phil Robertson and his family’s admirable stance on marriage, family, and faith reflects the meritorious ideals of the fine citizens of the entire State of Alabama, and it is a tremendous privilege to express our utmost solidarity for them; now therefore, Be it resolved by the Legislature of Alabama …. that this chamber of persons stand united in support of Phil Robertson and his family, and in opposition to the A&E Network’s deplorable action of suspending Phil indefinitely from Duck Dynasty for relaying his Christian beliefs.

Mr. Fielding’s proposal is no more than legislative chum thrown into the political feeding frenzy surrounding the Duck Dynasty issue. But as a management-side employment attorney, this sort of unwarranted intrusion into what is essentially a garden variety employment discipline issue is unnecessary and improper.

After all the First Amendment, reads “Congress shall make no law” not “private sector employers shall make no law” relative to the First Amendment. Going back to the above quote by Mr. Reagan and regardless of your company’s views on sexual orientation, LGBT issues, etc., is there any employer or shareholder who really believes extending First Amendment rights into private sector workplaces would be a good thing? 

For more information about complying with federal and Michigan employment laws or your employment law rights, contact Jason Shinn. He is a Michigan employment law attorney who has represented employers and  

Duck.jpgA&E recently suspended Duck Dynasty’s Phil Robertson “indefinitely” for comments he made in a GQ interview regarding his views on homosexuality and race relations. 

This suspension and those comments have erupted into a cultural firestorm. The bulk of that discussion, however, is based on incorrect assumptions that have began to masquerade as legitimate claims about the First Amendment and Religious freedoms in the workplace.  

Duck Dynasty – Singing the Blues about Race and Gays  

Mr. Robertson offered a range of comments in his GQ interview. On the subject of race, he said, “I tell you what … Pre-entitlement, pre-welfare, you say: Were they [blacks] happy? They were godly; they were happy; no one was singing the blues.”

 As to homosexuality, Mr. Robertson offered the following:

Everything is blurred on what’s right and what’s wrong. Sin becomes fine.”

Question: What, in your mind, is sinful?

Robertson: “Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men.”

Mr. Robertson also went on to articulate his (blunt) belief that homosexuality comes down to a choice of desirable preference:

It seems like, to me, a vagina — as a man — would be more desirable than a man’s anus. That’s just me … I mean, come on, dudes! You know what I’m saying? But hey, sin. It’s not logical, my man. It’s just not logical.

In response to Mr. Robertson’s suspension, politicians and special interests groups on both ends of the spectrum wasted no time in using it to push their respective agendas or to try and retain some degree of relevance. A GOP congressional candidate, Ian Bayne, went so far as to comparing Mr. Robertson to civil rights icon Rosa Parks and that these remarks should be protected against employer action.

Sadly, exploiting these sorts of matters is to be expected. But at a minimum, the discussion should at the very least use the correct factual and legal discussion about First Amendment and religious rights when it comes to private sector employees and their employers.    

First Amendment and the Private Sector Workplace

The first point that people need to understand is that First Amendment speech protections typically do not apply to private employers. Public employment, i.e., governmental jobs, is different in that there are generally First Amendment limitations on the extent to which public employers may regulate or prohibit employees’ speech. In fact, Michigan maintains a free speech statute for public employees.  

Mr. Robertson, like any other private sector employee, simply does not have First Amendment protections under these circumstances. 

Protections Against Religious Discrimination 

Mr. Robertson, like other employees does have protections against religious discrimination. Religious discrimination is actionable under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) and its federal counterpart Title VII.

Religious discrimination cases usually involve (i) disparate treatment; or (ii) an employer’s failure to reasonably accommodate the employee’s religious beliefs. But neither of these issues appears to be in play with respect to Mr. Robertson’s situation

Mr. Robertson – A victim of Religious Discrimination – Not Likely. 

So does Mr. Robertson have a claim for religious discrimination? Probably not.

Mr. Robertson arguably made his anti-gay comments in the context of discussing his religious beliefs. But it does not appear that A&E took adverse action against him because of his religious views. Instead, A&E’s decision seems to relate to the inflammatory anti-gay nature of the comments. In fact, it takes very little imagination to assume that if a Muslim, someone of the Jewish faith, or an atheist employed by A&E said equally offensive remarks about gays or any other group that the company would have taken similar action.  

It is also very likely that A&E’s decision to suspend Mr. Robertson would be bolstered by a common contract provision often referred to as a “morals clause.” Generally, morals clauses provide that if the employee acts or speaks in a manner that is insulting or disrespectful towards a religion, group, or person the employer reserves the right to suspend or terminate that employee. Further, employers with such clauses often reserve broad discretion to determining what speech or conduct violates the clause. 

And Mr. Robertson could have easily declined to agree to such a clause. However, it is easy to understand why he would not have; He and his family receive $200,000 per episode of Duck Dynasty. Whether you agree or disagree   

Closing Thoughts

I don’t watch Duck Dynasty. I tried one time, but I couldn’t make it to the next commercial. It just didn’t appeal to me. In contrast, Duck Dynasty’s millions of viewers must find the show entertaining or worthwhile. To each their own. That is should be one of the wonderful cornerstones of the U.S.  

I don’t agree with Mr. Robertson’s comments about homosexuals or his reinterpretation of the black experience prior to the civil rights movement. Again, a significant amount of the population believe homosexuality is inconsistent with their religious views and hopefully even less share his fond memories of the pre-civil rights era.

But when it comes to Mr. Robertson’s suspension from his private sector employment, my preferences or views and those conflicting preferences or views really do not matter: There is no First Amendment protections when it comes to private sector employment and by all accounts the suspension was not based on religious discrimination and is probably consistent with Mr. Robertson’s contract – a contract that has generously compensated Mr. Robertson.  

As an aside, a certain “Person of the Year” for 2013 who may not know much about duck calls but presumably knows a thing or two about religion was asked about homosexuals. He responded, “who am I to judge a gay person.” Perhaps instead of judging Mr. Robertson or A&E or pushing a particular agenda, more attention should be given to this question. If not, at the very least, a proper understanding of the correct legal principles should be used in judging the situation in order to have a more meaningful discussion about the rights employees and employers have when it comes to First Amendment and religious issues in the workplace.     

For more information about this blog post or religious discrimination legal issues under federal or Michigan employment laws, contact attorney Jason Shinn. Since 2001, he has worked with employers and employees to address a full range of federal and Michigan employment legal issues.

Risk, Reduce, Avoid.jpgWith Christmas quickly approaching, employers should expect that their employees will be enjoying new technology devices entering the new year. And this means employers should expect new employment law compliance issues and technology risks for their companies. 

Bring Your Own Devices and Employment Law Compliance Issues

Employee owned devices create a minefield for employers when it comes to employment law compliance issues. This is especially true when it comes to wage and hour claims. These claims generally arise out of allegations that an employer failed to pay overtime wages. Wage and hour claims may be brought under the federal Fair Labor Standards Act (FLSA) or state wage-hour statutes. In either circumstance, wage and hour lawsuits expose employers to significant damages (hundreds of thousands of dollars and up) and legal fees.

Companies that provide employees the ability to remotely access the workplace through the Internet or using company issued smart phones, tablets, computers, etc. or employee owned devices essentially allow for 24/7 access to the workplace. But this also means these employees are performing work they should be compensated for, including overtime. For a very good explanation of these wage and hour claims, see Caryl Flannery’s blog post, “Technology’s Got Me Working Overtime.” 

Bring Your Own Devices and Technology Risks to the Company

As to the technology risks, last year we published a blog post about managing such risks. See Tis the Season to Tech the Workplace Halls – Managing Employee Owned Technology Devices. This article highlighted four of the major risks that employee-owned devices create for employers.

One way to mitigate these risks is through the use of an appropriately drafted technology policy. Such policies, sometimes referred to as a “bring your own device” or a BYOD policy, can either be a stand-alone policy or incorporated into an employee manual.

A BYOD policy should be considered a “must have” for any employer whose workforce is allowed and/or expected to use their own smart phones, tablets or other mobile devices for work either while at the office or during nonworking hours. As to what should be in your company’s technology policy, the details should be discussed with management, your IT department, and legal counsel. The intent of bringing together these stakeholders is to make sure you end up with a workable policy that meets and balances the business needs with IT security and legal compliance issues.

Recommendations for What to Include in Your Company’s BYOD Policy

A discussion of specific language that you should include in your company’s technology policy is beyond the scope of this blog (the working draft our law firm uses for its business clients spans several pages). However, several points for discussion include: 

  • A process for registering or accounting for all employee devices. This should also include a means to confirm each such device is up-to-date as to anti-virus software and other security-related protections, e.g., tracking or remote disabling in the event a device is lost or stolen.
  • Implementing a procedure for reporting any device that is used for business purposes and that has been lost, stolen, or accessed by unauthorized persons or otherwise compromised.
  • Provisions making it clear that your company’s policies covering the handling and protection of its confidential information and intellectual property, including trade secrets extend to the use of all devices, whether provided by the company or owned by the employee.
  • Making it clear that all content created on, transmitted to, received or printed from, or stored or recorded on any device that relates in any way to your company’s business remains the the property of the company, regardless of who owns the device used. 

Employees should also be advised and consent to some degree of employer access to a device in order for the employer to monitor and enforce the technology policy. Unfortunately this should include investigating any instances of employee misconduct that may involve the device. 

For more information about technology related employment policies, including BYOD policies, contact Jason Shinn, an employment attorney who has addressed technology legal issues in the workplace since 2001. This technology experience includes investigating employee computer misconduct, managing e-discovery and litigation hold issues, and emerging social media legal issues. With this insight, Mr. Shinn works with companies to address the important steps that an organization should undertake when implementing a successful BYOD program – one that contains appropriate policies, procedures, and security measures to protect your company’s business information and network.

Playbook.jpgThe NFL’s Arizona Cardinals have been one of the surprising success stories this season. One of the reasons for the team’s success is the commitment it made to an older (ancient by NFL standards) coaching staff.

A recent article in the Wall Street Journal (Kevin Clark), The Cardinals’ Secret: Elderly Coaches, highlights the Cardinal organization’s deliberate choice in going with an older coaching staff. This staff includes head coach Bruce Arians who is 61, assistant coach Tom Pratt who is 78, and assistant Tom Moore who is 75. In fact, Mr. Pratt was a coach in Superbowl I, which was played in 1967, which I understand was played shortly after the invention of the wheel.    

Changing to an “older” coaching staff has paid off. Specifically, the Cardinals were a dismal 5-11 last season and fired their head coach. This year, the team is now 7-5 this season and has a realistic chance to make the playoffs. Despite this success, committing to an older coaching staff is an anomaly; The WSJ article further noted:

Bias against older coaches may be reflected in the fact that only three coaches in history coached their first NFL game at an age older than Arians did in starting this fall at age 60. Arians said some young coaches may feel intimated by the prospect of a more experienced assistant … Another fear is that older coaches may lack energy. 

However, these “fears,” especially when articulated by managers, are precisely the sort of stereotypes that often get employers into age discrimination lawsuits.  

Overview of Federal and Michigan Employment Age Discrimination Protections    

Before looking at a specific example of an age discrimination lawsuit, it is important to understand the statutory framework applicable to age discrimination. In that regard, both federal and Michigan employment law protect employees against age discrimination. Specifically, the federal Age Discrimination in Employment Act of 1967 (ADEA) and Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) prohibit employment discrimination on the basis of age.

Under both of the federal and Michigan statutes, an employer may not refuse to hire, discharge, or discriminate with regard to a term or condition of employment on the basis of an individual’s age. Both statutes also prohibit retaliation for filing a claim, for participating in any investigation or proceeding, or for opposing any unlawful practices.

Differences Between Federal and Michigan Age Discrimination Law

There are significant differences between the federal and Michigan employment age discrimination statutes.

First, the ADEA covers employers with 20 or more employees. In contrast, Michigan law applies to employers with 1 or more employees.

Second, the ADEA protects people who are 40 years of age or older. Michigan law, however, refers only to chronological age and does not contain any limitation. In other words, employees under the age of 40 may be protected against age discrimination. 

Age Discrimination in the Workplace – Theory vs. Reality   

Going back to the idea that anti-age discrimination statutes protects against negative stereotypes about older workers, a case example illustrates how articulating comments that could be construed to be discriminatory can result in an age discrimination lawsuit against the employer, as well as the difficulty plaintiff employees have in successfully maintaining such lawsuits. 

In the lawsuit captioned Sobieski v. Takata Seat Belts, Inc. a manager took over supervision of 7 project engineers, five of which were under thirty years of age. The remaining two were over 60 years of age. 

One of the two over 60 engineers eventually sued his employer for age discrimination after he was fired. In support of the plaintiff’s age discrimination claims, he relied heavily on the following comments made by his younger supervisor: 

  • “these [older] guys just won’t work and we’ve got to get more young people in here.”
  • “I can’t work with older guys.”

The plaintiff also presented evidence that he and the other over 60 engineer were both fired while under the supervision of the manager who made these comments.

The court, however, eventually ruled that the plaintiff employee did not meet his initial burden of proving that age discrimination was more likely than not a substantial or motivating factor in the decision to terminate his employment. Accordingly, rather than allowing the case to proceed to a jury in order to determine whether there was a causal connection between the supervisor’s age-related statements and the termination of plaintiff’s employment, the case was dismissed on the employer’s motion.

Take-Away for Employers

The Cardinals organization deliberately opting for an older coaching staff, i.e., managers, goes against the grain in terms of hiring practices. But the success attributable to that older staff certainly undercuts the age stereotypes used to explain why most NFL teams opt for youth when it comes to hiring coaches.  

As to the statements from the lawsuit discussed above, they were enough to give the plaintiff a factual and legal basis for suing his former employer for age discrimination. While that lawsuit was ultimately dismissed, the employer still incurred the cost of defending he lawsuit. And not all courts will take a view that is as favorable to the employer.

In my experience employers often do a good job of promoting “big picture” anti-discrimination policies and educational initiatives for management. However, as this sort of case illustrates, such policies must actually be implemented. And implementation requires special attention to limiting employment evaluations – informal and formal – to the merits of an employee’s performance, as well as avoiding comments that could later provide ammunition for a discrimination lawsuit.

For more information about complying with federal or Michigan age discrimination protections or discrimination lawsuits, contact Michigan employment attorney Jason Shinn. Since 2001, he has represented companies and individuals in complying with rights and obligations under federal and Michigan employment laws, as well as representing these clients if litigation is necessary.