And Y'all Thought Employment Law Was Boring!

Just when you might be tempted to think that employment law was pie-in-the-sky academic mumbo jumbo, there's a story to shatter that misconception. To wit: even pop culture punch lines have to pay attention to employment law.

Oops! She did it again. It seems Britney Spears may on the hook for failing to pay her bodyguards for overtime work. From an AP story at Yahoo! News:

Three men hired to guard pop star Britney Spears have filed a lawsuit claiming they worked long hours and were not paid overtime.

The lawsuit, filed Tuesday in Superior Court, names three companies — Britney Brands Inc., Britney Touring Inc. and Team Tours Inc. — as responsible for not properly compensating former bodyguards Lonnie Jones, Randy Jones and Silas Dukes.

Together, the three men are seeking damages exceeding $25,000 for unpaid wages and benefits, their attorney Daniel Emilio said Wednesday.

"OMG, y'all! I'm totally gettin' sued. What will little Sean Preston think?"

Okay, back to the more serious pursuits on this blog . . . .

Hat tip: Workplace Prof Blog

Unique Religion

In class we discussed that the more dominant religions in the world may have shaped the way we accept religious discrimination claims, and we asked, what about more less-known religions? Well below is a law suit by a person claiming to be of the Church of Body Modification, yes, you read it right, Body Modification. I've included the website of this church below the excerpt, so really, tell us what you think about her claim.

"Kimberly Cloutier, of West Springfield, MA, has filed a lawsuit against her former employer, Costco Wholesale Corporation, for religious discrimination. Cloutier, who wore an eyebrow ring, among other body piercings, for 2 ½ years while employed with Costco, was fired when the company changed its dress code to ban facial piercings, which she refused to remove claiming religious beliefs' She claims she wears them as a sign of faith, which helps to 'unite her mind, body and soul in her religious participation with the Church of Body Modification ­ "an interfaith church whose members practice an assortment of ancient body modification rituals, which [they] believe are essential to [their] spiritual salvation.' Cloutier filed a claim with the Equal Employment Opportunity Commission (EEOC) which found in May, 2002 that Costco had 'probably violated religious discrimination laws' when they fired her. Because the company did not rehire her following the EEOC ruling, Cloutier has filed a $2 million lawsuit against Costco.
—Source: Union-News (Massachusetts)"

Website to Church of Body Modification: http://www.uscobm.com/

Civil Rights in an Unlikely Place

While searching for something interesting related to employment law, I happened across this article in Slate by Ian Ayres (incidentally, he's the Yale professor whose FE mark we discussed last week): Looking Out for No. 2. Once I was done giggling at the incongruity of claiming single-use, gendered toilets was discrimination: ("Yale is discriminating on the basis of sex in the conditions of my employment. I can't use this women's bathroom because I'm a man.") I realized there might be some validity in this argument, particularly when considering ways to make the employment world more friendly to groups such as transgendered individuals.

What are your thoughts? Is this something to be taken seriously? Bathroom revolution: ready, go!

Employer Sanctions

The vast majority of migrant laborers working in the agricultural fields of California, New Mexico, Arizona, and Texas are of Latino decent. In addition, many of these individuals are non-U.S. citizens, either possessing temporary work permits, or working in this country illegally with fake documents. congress, in an effort to enforce the president's "war against terror" has passed laws limiting the freedom, both personal and in the work force, granted to non-U.S. citizens, including migrant workers. For example, if a non-U.S. citizen commits a crime (infractions that qualify as a crime are listed in a Congressional master list, including getting into a bar brawl, driving under the influence, and robbery, among other crimes), he/she will be most likely sentenced to undergo immigration detention proceedings, in addition to having to undergo and criminal proceedings. Before the proceedings even begin, the non-U.S. citizen would be detained at an immigration detention center, no questions asked. In short, this wave of detention of non-U.S. citizens is consistent with the president's effort to rid the U.S. of possible terrorists, people who, according to the administration's ideology, are not citizens. Though anti-terrorist enforcement has the possibiliy of limiting the freedoms of non-U.S. citizens, regardless if they have intentions of committing terrorists act or not, the administration's strategy also has the possibility of hindering employer's objectives.

Given that there is a lack of citizen employees who are willing to work the agricultural jobs, for instance, employers are "forced" to choose from a group of non-U.S. citizens, as mentioned. In order to find work, millions of illegal workers pretend to present valid documents, and thousands of employers pretend to believe them. The law imposes no obligation on the employer to verify that a worker is actually qualified to work, and as long as the proffered documents are not patently phony, the employer will nearly always be insulated from liability merely by having eyeballed them. In order to find an employer guilty of "hiring fraud", the one would have to prove that the employer knew that phony documents were in fact fake, an almost impossible task. Moreover, employers could qualify for "employer sanctions", giving them the freedom to not ask for any type of documentation at all, and although this may allow them to hire more workers, it also gives them the freedom to discriminate against employees who, given that they may not be citizens, have limited options in retaliating via a law suit. Granting employer sanctions is just one strategy used by the administration to support the lack of workers in the agricultural industry while still focusing on the enforcement of illegal aliens. What do you think? Hypocritical? Is it fair?

-Aldo Huitzil

Suing former employees

There was recently a post in the employment law blog, suits in the work place (http://suitsintheworkplace.com/blogs/archive/2006/03/14/78.aspx) that I found particulary interesting, which talked about International Airport Centers, LLC v. Citrin, No. 05-1522, 7th Cir. March 8, 2006.

This is just one of many expamples where the politicians who are writing laws about technology, don't exactly know what they are doing. The real problem is probably that they try and leave the laws that they are writing particularly vague to allow them to be adappted to new technologies, but at the same time means that they may be applied to situations that were not intended.

The case above refers to an employee who was using his company laptop to help start a company while he was still working for his old company, which probably was not a good idea. When he left the company was not happy because he decided to delete everything that was on his computer, using a program. This deleted everything on his computer including files that were on his computer that the company did not have duplicates of. Because of this fact, the company used a provision in the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, to charge the employee. The employee according to his contract was allowed to return or destroy the data on the laptop.

In the computer world first of all there is a very big difference beween deleting information and destroying information. If he wanted to destroy information he would have to load a program, because windows does not have an adequate means of doing this. (when you delete something on a computer you are really only deleting the index of the information and allowing the computer to write over the information the next time space is needed)

The origninal law was written to protect malicious hackers and employees to loading programs onto company machines without anyones knowledge. While the company did not know what was going on the rules that applied to the personal laptop seemed to allow what was permited.

Hopefully when the suit is reinstated the employees lawyers will be able to defend the employee, because this could be a very problematic situation for any one who uses a similar program. If someone wanted to destroy classified information there would be no way to do so, because there is a possibility that there will be a problem since you can't prove what you were destroying.

Geographic Limits of Title VII for Some

As American business goes international, into a territory where laws are undefined and far from universal, sticky situations are bound to occur. If your company sends you overseas, are you still protected by Title VII, and other similar laws? According to an article in the Rhode Island Employment Law Letter, "Limiting Title VII: when a title really makes a difference"
The answer is yes, if you're a U.S. citizen, but no if you are anything but.

The article discusses the instance of Valadimir Shekoyan, an Armenian who was designated a "lawful permanent resident" of the U.S. While working in Georgia (the country, not the state), he was terminated--in his eyes, because of his national origin. He wasn't given the chance to prove this, however, as the provision stating that Title VII applies to citizens overseas (while it didn't originally) wasn't seen as covering anyone who is anything less.

Considering a) the number of non-native employees working for American companies, and b) the increasing globalizations of said companies, this could have enormous implications. While on the one hand, it might be overkill to require companies to apply Title VII to all non-US employees (in the example, of, say, a factory in China entirely staffed by local Chinese), it does seem reasonable to me to extend such protections to someone like Shekoyan who had taken up residence in the United States, and could have just as reasonably been employed in a U.S. location.

What are your thoughts? Should U.S. laws be extended to cover more than purely citizens, or are the economic disadvantages for the company greater than the benefits? Also, what do you think of the tone of the article, particularly the advice of looking for exceptions?

Since reading Mona Harrington’s book, Women Lawyers: Rewriting the Rules (an excellent read, if you have time), I have been fascinated by the sometimes invisible, but certainly real, barriers women face when trying to succeed in this fairly elite profession. Throughout discussions with many people, however, I have encountered skepticism that any problems exist. I have been told that I’m seeing monsters where they don’t exist, and claiming there’s discrimination where instead women are self-selecting themselves out of the profession.

A recent article in the NY Times--Why Do So Few Women Reach the Top of Big Law Firms? not only addresses similar hurdles as the book I read, but also provides explanations for the disparity between people’s perceptions of women in the legal profession versus the actual experience.

"Firms want women to stay. Men at the firms want women to stay, and women want to stay. So why aren't they?" asks Karen M. Lockwood, a partner at Howrey in Washington. "Law firms are way beyond discrimination — this is about advancement and retention. Problems with advancement and retention are grounded in biases, not discrimination."

The mommy bias we discussed in class pops up in this article, again referencing the stereotype that a woman with children will not be as dedicated, and that women feel forced to choose a family life instead of continuing along a career path.

The major issue, though, seems an oblivion towards these biases and problems.

According to "Women in Law," a 2001 study by Catalyst, a New York research firm that tracks women's experiences in a wide range of workplaces, most male lawyers don't see a lack of mentoring and networking opportunities — or commitments to family and personal responsibilities — as significant barriers to women's advancement. Those biases, says Catalyst, are more pronounced in the legal world than in other industries and professions.

How do you think awareness can be increased, without it seeming like an accusation of discrimination? Is it possible to eventually change the role the various genders play in childcare responsibility, or is motherhood something that needs to be worked around permanently? Have you considered how you plan on balancing your own career with a family, or are you choosing one over the other? I know that I'm still conflicted, and frustrated by the feeling that, regardless of the individual choice I make, it may still be hard to be truly happy and successful within both realms.

GPS Tracking Systems

When I was home last week there were a few articles about the use of GPS in town trucks on Long Island. The thought behind them was that they would prevent workers from breaking laws/rules because they know that the town is watching and punish those that do break any laws or rules. Another major benefit that the town is hoping for is avoiding false accusations from people who feel that a town truck was in an accident or damaged something, because they would be able to know where all of their vehicles were. During emergencies such as snowstorms and huricanes the town would also be able to quickly know where all of their trucks are.

The GPS system is not fool proof. In Baltimore, "At a recent meeting, Transportation Commissioner Alfred Foxx was upbraided for allowing a bucket truck to stay idle for 156 days. A closer investigation revealed that the truck's GPS unit had simply malfunctioned, and continuously broadcast the same location for five months (GPS useful but not foolproof)." Problems can also occur with the GPS system when they are tracking employees who are on a lunch break and they are allowed to use their vehicles and go where ever they are. Problems could arise if the company or government agency sees that you are going to certain stores or a Planned Parenting center and may ask if you are pregnant. It could also be a problem if they see what you are eating and are worried about health premiums. (The Naked Employee, Fredrick S. Lane III)

GPS useful but not foolproof

City officials in Baltimore said they've seen good, if imperfect, results from the GPS units installed in Department of Transportation trucks last year. But they said workers balked when the devices first went online...

Workers object to Babylon's tracking system

When the Town of Babylon installed global positioning system technology in
most of its fleet of 250 vehicles in January, officials touted it as a way to
improve efficiency, particularly during emergencies such as snowstorms. However,
the system also is being used to monitor worker behavior -- a realization that
has left town .employees increasingly nervous...

(Newsday - Long Island, New York)

March Madness and Worker Productivity

It's that time of year . . . and here in the Hoosier state it may be even more pronounced than elsewhere (especially this year when the home town team actually gets to play). March Madness. Worker productivity grinds to a halt today and tomorrow as nearly everyone gets caught up in following his or her favorite team and tracking his or her successes and failures in the office pool.

Today's USA Today reports on the productivity losses associated with March Madness.

Some excerpts:

Employers will lose $237 million in wages for every 13.5 minutes workers spend on the Internet tracking games, according to an estimate by outplacement firm Challenger Gray & Christmas . . . .

A big new draw: CBS Sports is offering online viewing live, except for locally televised games. For about 12 hours on Thursday and Friday, as many as 200,000 people will be able to simultaneously view games. In all, millions may watch . . . .

Given the expected crush to view CBS' service — and other tournament-related websites — some corporate computer networks might be taxed, says Mike Hronek, a networking engineer at information technology firm CDW. "If a company is not set up to handle excessive traffic, it could certainly slow network performance," he says. "The company could block access to certain websites, but their employees might head to other sites" . . . .

An estimated $4 billion to $5 billion will be wagered on the 63-game tournament this year — about a third on the Internet, says gaming consultant Michael Tew.

Excuse the Lag in Posting . . .

while the posters indulge in spring break.

Back to posting next week.

We're Going International!

While researching for my paper in this class, I stumbled upon an interesting article (the link can be found at the end of this post under "Articles on Interest") that touches on sexual orientation discrimination, sexual harassment, and employment at will. While the incident takes place in London, try to focus on the main issues presented here and how they apply to the U.S. workplace.

Summary:

In 2004, Peter Lewis was fired from his job as Global Head of Equity Trading for HSBC (the world's 3rd largest bank). HSBC claims that Lewis was fired for "gross personal misconduct," stemming from an incident that resulted in another employee filing a complaint of sexual harassment towards him. The incident in question is when Lewis was caught masturbating while staring at his coworker in a shower stall adjacent to him. A second incident was added to the case recently, claiming that Lewis once removed his towel in an "excited state."
Lewis vehemently all denies the accusations, saying:

Those allegations would have received the ridicule that they deserved' if they had come from a heterosexual employee… I was dismissed from the firm for reasons and beliefs which were not based on facts or evidences but for `preferences' which resulted from innuendo, assumption, false stereotype and homophobia.

The true story, rather, Lewis argues, is that he was a victim of sexual orientation discrimination and harassment from Day 1. He argues that some members of the financial community felt uncomfortable having a gay executive. He claims he was a victim of homophobic comments (both directly and indirectly), “threatening and abusive” phone calls, and being called a “faggot.” Furthermore, Lewis states that he complained to the bank’s human resources department about the calls but no action was taken to stop them.

He is suing the bank for $8.8 million.

Questions:

1. If you were the judge hearing this case, how would you rule?
2. Do you agree with Lewis' argument that had he been straight, or perceived straight, the locker room incidents wouldn't have been taken so seriously?
3. Suppose this case happened in the U.S., in a state that does not recognize sexual orientation discrimination. Thus, technically Lewis' firing would be fair under the "employment at-will" doctrine. Does this change your opinion/attitude towards at-will?
4. If you believe sexual orientation should be protected, how so and to what extent? In other words, should Title Vii be amended to include sexual orientation or should it be the individual states' responsibility (as is the case now)? Furthermore, what should be protected (i.e. wrongful termination, pension, "spousal" and children coverage, etc.)? Who should be protected (i.e. gays, lesbians, bisexuals, and/or transsexuals)?
5. If you do not feel there needs to be any changes, how would you suggest the GLBT community seek compensation or justice (i.e. possible claims of harassment, battery, etc.)? Does granting protection impede on people's religious freedoms?
6. In lieu of today's class discussion, and slightly off topic, where do we draw the line on protection? Should we allow for social status discrimination, left-handed discrimination (I'm being facetious here, but you get the point)? When is "enough is enough"?

Personal Opinion:

*NOTE*: Because the trial has only just started, I am taking things at face value. Thus, I am going to assume the alleged locker room incidents did occur as well as the phone calls, name-calling, etc.

If I were to be the judge, I think I'd have a very hard time deciding the case. I think in some ways, both parties have valid points. Ultimately though, while I do think Lewis was harassed because he was gay, I do NOT think he was fired because he was gay.

I think that HSBC truly fired Lewis based on his questionable locker room decorum. Despite what Lewis may say, I would be extremely uncomfortable is a woman flashed me her breasts (the female equivalent of showing your "excited state") or was masturbating in the shower next to me (regardless of whether or not she was looking at me), and sexual orientation would not even be a factor. As a top executive, 1) I don't think this is acceptable behavior for leading an example or motivating your employees; and 2) I would see how workers would feel uncomfortable working with him and/or not be able to take direction.

This is not to say that Lewis' claims were entirely wrong. I believe that he was a victim of harassment, and thus, if he were in the US, should consider seeking compensation through some other means, like company negligence. I suppose I would award Lewis some monetary compensation, just not the full $8.8 million.

If sexual orientation were not to be protected, it would severely impact my opinion of employment at will. I believe you cannot change your sexual orientation any more than you can change your skin color. Furthermore, I do not see how it can severely affect you work performance (except for extraordinary cases). Thus, you should not be punished for your sexual orientation.

Considering the times, I think we should move to include sexual orientation discrimination under Title VII. There needs to be national unity on the issue—letting the States decide will pretty much not result in a uniform consensus. Furthermore, companies should offer the same rights and privileges that their straight employees get—pension, protection from harassment/wrongful termination, spousal/children support, etc.

Articles of interest:

Sacking of gay banker 'inevitable' - A link to the article directly related to this post; *NOTE: The article uses the slang term "nonce". According to an online slang dictionary, this is a popular term the British use to refer to pedophiles.

Ex-HSBC Executive Denies `Ludicrous' Harassment Claim--Another related article that discusses the alleged sexual harassment incidents in more detail

Sexual Orientation in the Workplace - A quick overview of the states that have laws regarding sexual orientation discrimination

The Employment Equality (Sexual Orientation) Regulations 2003 - A copy of the law adopted in UK to prohibit sexual orientation discrimination. The law has be amended to address the issues of pension and civil partnerships

Free speech and work

Well folks, apparently posts regarding municipal workers and language are the hot new thing on this blog. After you check out Ginger's post below on English-only rules in the workplace, you can read this noteworthy story from the Denver Post, which I found in this post by GMU law prof. David Bernstein on the Volokh Conspiracy, a blog that has lots of law professors and lawyers and deals with a variety of issues. Here's a selection from the Post's story to give you the gist:

Arapahoe County is threatening to fire a veteran Public Works employee for promoting the fact that he is an English speaking American."They claim it's offensive and I've been accused of discrimination and harassment, believe it or not, because of this," said Mike Gray, a heavy equipment operator with the Arapahoe County Road and Bridge Department for 16 years. The problems began last spring. Gray, 50, owns a lawn service business on the side. He was routinely driving to work in his pickup truck towing a trailer that he uses to carry lawn mowing equipment for his business. On the side of his trailer, the married father of two affixed a sign that reads "Lawn Services Done With Pride!! By An English Speaking American."The sign also gives Gray's phone number and the lettering is over a background of an American flag."There are a lot of people in the lawn service that are non-English speaking," Gray said. "Customers and different people were telling me that they have a hard time trying to communicate with them about the work they want done on their yards. I just want to let people know they at least can communicate with me when I do work on their property." Gray also wore a hat to work that says "U.S. Border Patrol," which he says was a gift from his son.

Arapahoe County officials told Gray the sign and hat must go or else. In a Nov. 10, 2005, letter, his supervisor Monty Sedlak wrote the following: "Some of your conduct ... is reprehensible and discriminatory to our non-English speaking and/or Hispanic workforce. You are in violation of ... guidelines which ensure a workplace free from harassment and sensitive to the diversity of employees." "You are required to permanently remove your cap from the workplace. It is offensive and harassing. Your business sign, if on work premises, must be completely covered at all times. This behavior is inappropriate and any further incidents of this nature may result in further disciplinary action up to and including termination of employment."

In class we have discussed the steps private employers may take in restricting employees' speech, both at work and outside of it. Obviously, employers have the right to fire an individual if they feel he is being insensitive or offensive towards others.

But this case is interesting because Gray's employer is the county government, not a private company. Bernstein doesn't think that Gray, who is suing on first amendment grounds, has much of an argument, but he is "troubled by the fact that the government, acting as employer, has such censorious powers." In this case, since Gray is only being censored while on the job, I don't think the county's decision is wrong or unconstitutional.

However, this brings up an important question of government censoring speech. While I couldn't find statistics on the total number of people who are employed by some form of federal, state, or local government in the United States, there is no doubt that it is a fairly huge number.

How far should the government be able to go in regulating its employees' speech?
Would it be ok for Arapahoe County to ask Mike Gray to completely remove his sign, or be fired?

Post your comments, I'll continue to add further info/questions to consider.

English-Only Policies--Disparate Action/Treatment?

A recent article by the National Public Employment Reporter, entitled "English-only policy may violate civil rights of Hispanic employees," reports on the recent finding by the Tenth Circuit Court of Appeals regarding the case of Maldonado v. City of Altus, No. 04-6062. The link to the full article can be found here (It's a Lexis-Nexis article, so if you are off campus you'll have to sign in).

Summary:

In 2002, the street commissioner of Altus, OK, received a complaint that street department employees were speaking exclusively in Spanish. As a result, other employees could not understand their (the Spanish-speaking workers)communication via the city radio. Soon after, the city voted for an official policy stating that:

all work-related and business communications [by city employees] during the work
day shall be conducted in the English language" with certain exceptions. The
policy was intended to insure effective communication between employees and to
promote safe work practices.

A group of Hispanic employees then sued, arguing that the English-only policy discriminated against on the basis of their race and national origin. Furthermore, they raised claims for denial of equal protection and free speech. A federal district Court dismissed all of their claims.

Recently, However, a 10th Circuit majority reversed the dismissal. They decided that "a reasonable jury infer hostility towards Hispanic workers as a result of the English-only rule." Furthermore, the city created a hostile work environment for Hispanic employees.The court majority rejected the Hispanic employees' First Amendment claim. Accordingly, the court majority remanded the case for further proceedings on the employees' disparate impact and disparate treatment claims as well as their intentional discrimination and equal protection claims.

Questions:

1. In your opinion, which court was right? The District Court or the Appeals Court? Did Disparate Impact and discrimination really occur?
2. Does the fact that non-Spanish-speaking workers couldn't understand what their Hispanic peers were saying over the radio not constitute enough reason for work necessity?
3. Should the fact that the Spanish-speaking workers who filed the suit were bilingual, able to speak and understand English, matter?
4. If someone is to work in America and seek protection under our laws, should they be required to know and speak English, our country's primary and official dialect?
5. Do you think that if the facts were reversed, and it was an English-speaking Caucasian working in a primarily Spanish-speaking environment (i.e. a Mexican restaurant), the court would have ruled the same?

My Personal Opinion:

Personally, I do not really agree with the Appeals Court. I think the fact that the workers were blingual (which is noted in other related articles, not the one I gave you) matters. It caused no extra burden on them to speak Enlgish or understand it. On the other hand, their non-Spanish speaking coworkers could not understand what was being said on the radio.

Furthermore, just to play devil's advocate, could we not say that as English-speaking citizens we are showing our national pride by speaking the language of our Four Fathers? Is it not somewhat reasonable to expect U.S. citizens to know English, our primary language?

Lastly, I think that if I were to complain about working in an evironment that spoke only a foreign language, the courts would not rule in favor of me.

Workplace Religious Freedom Act

U.S. Congressman Mark Souder of the 3rd District of Indiana recently introduced the Workplace Religious Freedom Act. This Act expands on Title VII of the Civil Rights Act of 1964. Previously, the act was expanded to require employers to accommodate the religious observations of their employees unless there was "undue hardship" on employers. This expansion was limited by the Supreme Court to to define "undue hardship" as anything which would produce employers minimal cost or inconvenience.

Excerpted from a fascinating article written by Mark Schoeff, Jr:

Souder wishes . . . businesses would make . . . efforts to accommodate the spiritual beliefs of their workers. Instead, he's concerned that the Supreme Court interpretation of an existing workplace religious freedom law enables companies to, for example, deny a Jewish worker the right to take off a holy day and force a pharmacist to dispense morning-after pills even when doing so conflicts with her religion.

• Do you think that this additional protection is necessary for employees?
• Argued also in the Schoeff article is the opinion that because workplaces already lose legal battles regarding discrimination against employees exercising their religions that further protection beyond Title VII is needed. What do you all think?
• How should "undue hardship" in regards to religious accomodations be defined?

A hat tip to George at George's Employment Blawg for previously writing on this very relevant topic.

Ex-Ohio State Coach Wins Lawsuit

Background:

Ex-Ohio State basketball coach Jim O’Brien recently won a lawsuit against Ohio State University (OSU) for improper termination. I feel this high profile case relates directly to employment at-will discussions that took place in class.

Coach O’Brien was under contract and in my opinion the facts of this case indicate why so many employers prefer employment at will. A detailed article on the O’Brien case can be found here: “O'Brien wins lawsuit against Ohio State.”

Summary:

Judge Joseph T. Clark found that the claims against Jim O’Brien were not a material breach of his contract. Coach O’Brien had loaned a potential recruit’s mother $6,000 in 1998 to cover the cost of a funeral for the father of the potential basketball player. This payment was a clear violation of NCAA rules and thus brought about O’Brien’s termination by OSU.

The judge’s interpretation of the situation was that O’Brien had breached his contract by making the loan but that a “single, isolated failure of performance” was not serious enough to fire O’Brien.

The finding of improper termination of this case will result in Ohio State University paying somewhere between $3.5 million in lost wages and could increase to $9.5 million including interest and damages depending on future court rulings.

In this case O’Brien’s employment contract required cause for termination. Ohio State claimed that violating NCAA rules was the cause for his termination. In my opinion this is a suitable reason for terminating a coach in a high profile basketball program. The courts finding and interpretations were different and found that “While plaintiff's conduct prior to disclosing the loan was not completely consistent with good faith and fair dealing, plaintiff did make a good faith effort to resolve the dispute.”

Opinion:

In my opinion this case clearly depicts why employers prefer employment at-will and to some extent explains why employment at-will is better suited for complex employment situations.

Questions:

• Does this case which evaluates an employment contract affect your opinions about employment at-will?
• Do you agree with the judge’s decision in this case?
• If is fair that OSU will have to pay between $3.5 and $9.5 for firing a coach who clearly broke their contract?

Blogging and Facebook: Privacy Concerns v.3.0

To pile on the recurring topic of privacy concerns raised by blogging and social networking sites like Facebook.com, I offer a story from yesterday's Business Week Online, "Big Brother is Reading Your Blog." Here is an interesting excerpt:

Corporate bloggers are also coping with increased vigilance by bosses. Getting fired for blog entries is so common now that it's come to be characterized by the term "dooced." Dooce.com, a blog kept by one of the dooced, has seen its traffic more than double over the past year, according to Web site ranker Alexa. One networker who asked not to be identified says she regularly peppers her entries with fiction so she can avoid being identified by her employer.

The less-rebellious users are simply stepping up use of privacy controls, long supplied by sites such as Facebook.com. While users had the ability to implement online features to block school administrators and staff from viewing entries for months, "people are starting to get them more aggressively recently," says Chris Kelly, Facebook.com's chief privacy officer. Kelly was hired for this newly created position last fall.

It appears from comments in class and comments on this site that Mr. Kelly has a big job ahead of him, educating people on the issues of privacy (or lack thereof) on Facebook.

Although it's note directly related to the employment law angle, I thought some of you might also find the following excerpt of interest:

Usage patterns are changing swiftly. A couple of examples of the newest users: A college professor in North Carolina has scanned Facebook.com profiles to determine which students to accept into his class. Penn State University campus police used The Facebook, which only grants entry to people with .edu addresses, to identify students who rushed the field during the October Penn State vs. Ohio State University game, during which two police officers were injured.

The participants had formed a special "I rushed the field" group, complete with names and pictures, says Tyrone Parham, assistant director of campus police. Parham and his team ended up issuing warnings to more than 50 people in that group. "They were surprised -- they thought it was a private Web site," he says. "But we just did a couple of clicks, and here was everybody's picture."

Fighting fire with fire, some students search sites for evidence of lurking undercover campus cops or resort to subterfuge. At George Washington University, political-communications senior Kyle Stoneman and his buddies baited campus police by billing an innocent get-together a "Death Party" on the Facebook.com posting. After the police came calling, the group had switched the name to a "Love Party," promising guests hugs and kisses for showing up, Stoneman says.