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A roundtable discussion
Immigration, Unions, Technology and Much More:
The State of Labor & Employment Law in Texas
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With thousands across the country protesting for immigration reform, labor and employment lawyers are sure to have their hands full in upcoming months. Add to that the debate over English-only policies. Add to that the possibility of unions trying to organize employees of Texas companies. Add to that the privacy issues that come with ever-changing technology in the work place. Add to that the ongoing issue of what policies should be in employee handbooks. Add to that, well, you get the picture. So a panel of lawyers, brought together by the Texas Lawyer business department on March 30, tackled those issues at a recent roundtable discussion in Dallas. What follows is that discussion, edited for style and length.
Mike Androvett, Mike Androvett, Moderator, Founder of Androvett Legal Media & Marketing: . . . Talk a little bit not only about who you are and where you work but, on a daily basis, what is your work.
Kevin Oliver, senior shareholder in Cooper & Scully, Dallas: . . . [M]y practice is primarily a defense practice. . . . I do look at plaintiffs' cases in the labor and employment area. . . . My practice is a sort of varied practice with a lot of health-care, commercial litigation, and employment litigation and employment litigation-avoidance type work, but that's what I do.
Carrie Hoffman, partner in Gardere's Wynne Sewell, Dallas: . . . I spend most of my time advising and counseling clients on a variety of employment law issues, all on the defense side. I spend a lot of my time doing and handling [U.S.] Department of Labor wage and hour audits, handling collective actions under the FLSA [Fair Labor Standards Act] and those types of matters.
Michael Abcarian, managing partner in Fisher & Phillips, Dallas: . . . I'd say my practice is probably broken up into thirds. In a typical day, about a third of it I spend at dealing with what we call traditional labor relations, union, NLRB [National Labor Relations Board], collective bargaining, labor arbitration-type matters. The other third of it would be in the employment law area, defense of employment discrimination lawsuits, administrative matters before the Department of Labor, Equal Employment Opportunity Commission, Occupational Safety and Health Administration. And the other third of my day is probably spent counseling with clients in preventive areas, which, you know, really is how to keep from having to talk to me about the other two-thirds of my day.
Jaime Ramón, partner in Kirkpatrick & Lockhart, Nicholson, Graham, Dallas: On a day-to-day basis, what we do is about . . . what Mike described, you know. It's a third, third, third. A third would be advising counsel on a daily basis to our clients. A third would be involving employment litigation matters. And then a third is we do a lot of government contract compliance work, so we advise clients on affirmative action issues, developing affirmative action plans, and conducting compliance reviews for clients that are covered by the affirmative action obligations if you're a federal contractor or a subcontractor. . . .
Randy White, associate general counsel of the employment group American Airlines, Dallas: . . . [W]e have a group of nine lawyers and support folks who manage all of our relationships with our employees from the legal perspective . . . from their hiring through the end of their employment, however that might take place. And occasionally when that results in litigation, our group is managing folks like this in handling that litigation.
Mike Maslanka, managing partner in Ford and Harrison, Dallas: . . . [T]rust me, the title is a lot more impressive than the . . . job content. And I write the Texas Employment Law Letter, and . . . the Work Matters column for Texas Lawyer. . . .
Immigration law reform
Androvett: . . . [I]mmigration and immigration law reform has been in the news. And it occurs to me that this is probably an issue where for many years those of you in the crowd and those of you on the panel have sort of been in the trenches seeing these issues on what I would consider more of a retail basis, one to one, as opposed to what you see in the news, which are sort of the high-minded concepts. I'm curious . . . what impact is immigration, illegal or legal, having on the typical employer in Texas and in what ways? . . .
Ramón: I think really immigration . . . reform is long overdue. For those of you who recall 1986 and the Immigration Reform Act . . . that was a big issue back then. It's 20 years later, and it continues to be a problem. Certain industries especially, I think, are . . . very likely to have . . . legal or illegal immigrants in the workforce. . . . [T]he service industry, construction industry, the high-tech industry are all industries that depend largely on immigrant labor. I think . . . it's inevitable that we will get some sort of immigration reform with this Congress. . . . [C]omponents of that bill . . . are still being very hotly debated. There is a, I think, a split in the . . . party lines on whether it will contain amnesty provisions. . . . Implication for employers are huge . . . because as happened in 1986 we . . . have to acknowledge that we did have a huge illegal immigration workforce, especially in the service industries and construction industries. What's gonna happen? What are the implications now that the bills inevitably will include very stiff penalties? What happens . . . if you have an illegal workforce and they all come forward and say, ‘OK, we're gonna come out of the shadows with the . . . new bill that allows us to be guest workers.' Employers need to be prepared to deal with that. . . . [A]lso employers have a clause now in their applications that says if you make any misrepresentations, it will be subject for us to terminate you. . . . [I]llegals, when they apply for a job . . . they'll present a document . . . to verify eligibility for employment. When they come out of the shadows, you've gotta be prepared and deal with that. . . . I think it's gonna be Hobson's choice to say, ‘OK, we're out of the shadows now, and we're gonna reapply for employment with legal documentation.' I think . . . the immigration bill that will be passed by Congress needs to take that into consideration as well. There's a litany of other issues, and I'll let the other panelists talk about the H1B visas, I think they can be highly impacted by the inevitable immigration reform bill.
Androvett: . . . Randy, on a daily basis . . . what are the issues that . . . an employer faces under this rubric of immigration?
White: . . . [T]he nature of our business . . . is such [that] a large percentage of our employees go through TSA [Transportation Security Administration] background checks, go through a fairly rigorous background check process to be able to do their job. We don't have . . . really the opportunity for a significant illegal . . . workforce issue. . . . We're doing visas for folks in different work groups on a fairly regular basis. That really is about the extent, though, of . . . how immigration issues impact us, and we'll be looking to see what . . . comes out in the H1B [visa] process.
Maslanka: . . . One of the interesting things, I think, about immigration is . . . that a lot of defense lawyers and a lot of companies now are questioning Title 7 plaintiffs about their immigration status. And it's never when the plaintiff is named Charlie Smith. It's always when the plaintiff's name is Juanita Hernandez. And there are a lot of courts that are saying you can't do that. If you suspect that they're not legally here in this country, you hired them in the first place, and we're not gonna allow companies in defending Title 7 cases to inquire into immigration status because that's gonna shield the rights of these individuals to assert . . . their claims. . . .
Oliver: . . . [W]hen we see junior high school kids parading around government offices, waving the flag of another nation, it's . . . a little shocking to see in the news. And the people that are watching this news media are also people that are ending up on our jury panels, and they come into those jury panels with the kinds of attitudes. . . . And that's something that we'll have to deal with in trying a lawsuit that has a national origin component to it even if it's not an immigration issue, per se. It's gonna affect the attitudes and . . . what the decision-makers bring to the issue.
Hable inglés sólo
Androvett: Are there immigration issues that are particularly vexing to [your clients]?
Hoffman: . . . [W]ith respect to national origin issues, I think those are significant issues for people. I think we talked a little bit . . . about English-only rules in the workplace, and I have clients who have significant safety issues that they want to impose English-only rules in the workplace and whether they can enforce those rules and whether they're validly drafted are issues that I think as our workforce becomes more and more and our state becomes more heavily Hispanic are gonna be more prevalent as the years go by.
Androvett: Are any of you seeing instances where employers are attempting to impose, say, English-only policies in the workforce? Is that an issue to take note of?
Abcarian: . . . [T]hat was one of the earliest issues in the area of employment discrimination. It continues to vex employers in the workplace, because on the one hand arguments are made that . . . we have communication issues. English is the principal language through which our business is conducted, and so someone not proficient or able as a first or second language to use English can't really function as well, so this somehow is intended to translate into ability to do the job or the case of an applicant predictor for success in employment. And with very few exceptions . . . that just doesn't fly as far as the courts are concerned. . . . I think the basic issue does and will continue to vex the employers. It's a mass for discrimination in some contexts. It's a bonified occupational qualification in others. . . . An example that I got into recently was a situation where English clearly was a required language to communicate the business of the employer. But amongst themselves employees spoke another language, and there was resistance by supervisors because they thought there's this subterfuge going on because the supervisors don't understand this other language being spoken that is the first language of some of the employees. That's a significant problem when that's brought to the level of a supervisor having a problem with the workers that they supervise because they don't think they understand the language that's spoken, and they're worried about what's being said that they don't understand.
Maslanka: And a lot of times what an employer does . . . is they promulgate an English-only policy when all they have to do is just to tell those employees the supervisor doesn't speak Spanish. If you're dealing with the supervisor on an operational matter, discuss things in front of the supervisor in English – period. That's all you have to do. But unfortunately, sometimes the mentality takes over, ‘Well, we need a policy on it.' When all you really need is just to address the issues with those particular employees who may be saying to one another in front of the supervisor, ‘Let's get to work,' or they may be saying, ‘This guy's really a jerk. Let's goof off today.' . . . So I think as long as employers don't overreact on these English-only policies, they can . . . have it both ways.
Abcarian: Sort of practical Tip [No.] 1 from that . . . is don't do surgery with an ax. . . .
Ramón: I think EEOC has taken a really keen interest, too, in . . . the imposition of English-only rules. It's clear that you can't impose English-only rules at all times for the employees. . . . That, I think, is gonna get you in trouble. . . .
White: I think for an employer trying to . . . manage this issue not from really a compliance perspective but how . . . do you get your . . . workforce to be . . . more accepting of this. It really becomes a cultural and a diversity issue. It's not usually the work-related conversations that people have a problem with. . . . It's the break room conversations and the hallway conversations that people are wondering, ‘Is he . . . talking about me? What's he saying about me?' And that really is . . . an issue about how accepting your . . . workforce is overall of diversity in the workplace and of different cultures.
Look for the union label
Androvett: . . . Aside from the NFL collective bargaining negotiations, you know, here in Texas, you hardly ever hear about union labor talks. There's a general layperson's consensus that if unions are not dead, they're unearthed. But you seem to think that may change.
Abcarian: Assuredly. And let me give just a very quick background for those of you who . . . may not spend your days thinking about or being worried about what's happening with labor unions in this country. There was very recently a split in the AFLCIO, and several of the more active unions disaffiliated and formed a new organization that's called the Change to Win Coalition. It's a group of unions that decided the AFLCIO has become a dinosaur, because it is no longer interested in organizing the American workforce and is engaging in other kinds of pressure to achieve their agenda, but it doesn't include organizing new workers and conscripting new members. And this Change to Win Coalition spearheaded by the Service Employees' International Union, which is one of the most successful over the last decade in organizing new workers, philosophically is committed to organizing new employees, markets and industries. Now, this group just had its kick-off conference in Las Vegas, . . . and they have targeted 35 cities in which there is going to be intense union organizing selectively targeted at certain industries, health care chief among them. And Texas is considered the gem in the crown of places to organize new workers, because historically Texas has been one of the most resistant or, as a practical matter, unions have been least successful in the state in organizing before. There was a push in the 1980s by AFLCIO. It was another flop. The millions of dollars spent were deemed misspent. And AFLCIO abandoned efforts to organize in Texas. What we will see, I believe, in Texas is an enormous resurgence of union-organizing activity over the next several years. It's only a small percentage of employers in the state and only in certain portions of the state that unions have been prevalent and very strong. I believe that landscape is about to change forever in Texas. . . . This is something to keep in mind because we've been complacent in Texas for too long about the effects of unionization. And if you don't know what's going on and you're not prepared to deal with these things early in the process, you may find yourself an organized employer under circumstances that you wish had not taken place.
Androvett: . . . Clearly American Airlines has worked with unions forever. But is there any practical advice that we can give these folks in the context of, ‘Don't be asleep at the switch here regarding the rise of unions?'
White: . . . You know, you're right that the airline unions have been very much hurt in the airline industry for . . . a long period of time. . . . [W]e work to have a good working relationship with all of our unions. We have one large work group that is not organized, and from time to time we have had some . . . organizing activity. And I think . . . if you think about it in terms of a campaign to defeat that organizing activity, then you're talking really about . . . how you communicate with your workforce. You want to be the entity that provides information . . . to the employees . . . that they might otherwise be looking to . . . an outside organization to provide to them. . . .
Maslanka: And I think what . . . Texas employers need to do is they need to really look at their employee handbooks. Speaking as an old [National Labor Relations Board] NLRB attorney, there are a lot of provisions in employee handbooks which violate the National Labor Relations Act that employees are totally unaware of. For instance, a lot of employee handbooks have language in there about you cannot discuss your salary with somebody else because that's a private affair. Violation 8(a)(1) . . . of the NLRA [National Labor Relations Act]. And I think unions very often when they try to organize a place will . . . look at the employee handbook. Are there technical violations in there? Can one of . . . the employees who advocates the union fall into unfair labor practice charge? So I think this will happen. I think, too, the employers need to look at their employee handbooks. And the second thing is they need to look at their salting policies. Salting is when the union actually sends somebody to your place of employment to sign up to get a job . . . with an intention of organizing. . . . [Y]ou need to think about that. Do you have policies on that? What are you . . . gonna do if you think there's gonna be an assault? So I think there's a little proactive . . . stuff that Texas employers can do to deal with the rising tide.
Abcarian: There is one other development on the horizon that I think is good to be aware of, and we don't yet know legislatively where this will end up. . . . [T]he process of becoming unionized typically involves the National Labor Relations Board conducting an election among the bargaining unit employees to determine whether a majority wish to be represented by the labor organization. And that is a . . . time-honored and time-tested procedure that has worked very well, and it's certainly consistent with principles of democracy and majority rule. The twist on it that has been under foot lately is legislation called the Employee Free Choice Act. . . . But what it involves is an effort to essentially do away with National Labor Relations Board's supervised elections as the mechanism by which unions are certified to be collective bargaining representatives. And, in place, it would allow unions to simply go out almost unsupervised and get cards from employees to show that they support interest in being represented by this labor organization. And upon presentation of a sufficient number of these cards that an employer would be required to recognize the union as the collective bargaining representative.
Now, there are . . . different schools of thought on the wisdom of doing that. Interestingly, this proposal for the Employee Free Choice Law does not include a similar procedure for employers to get cards to allow unions to be thrown out of a workplace, which is . . . under the National Labor Relations Board procedures . . . the decertification aspect within a majority of employees who no longer favor being represented by a labor organization. But again, we don't know where it'll end up. Efforts at this kind of legislation have not heretofore been successful, but with the new climate and landscape that we find ourselves in, particularly with this schism with the AFLCIO and the new changed coalition, it is certainly likely there will be a serious run at this kind of legislation in Washington, [D.C.]. We'll wait to see what the result is. It would dramatically shift the balance of power in ability of unions to organize employers. It would make it immensely easier than it is, and it would do away with at least those of us who do what I do think were important safeguards with respect to how unions should be selected and certified to represent employees in the American workplace.
The definitive handbook
Androvett: . . . I'd like for all of you on the panel to help me with a little exercise here. Will you help me develop a table of contents right now for the definitive employee handbook? I want to know the essentials. But then also in your work, if they're not part of employee handbooks now, what's gonna be the next new page that you see it? . . .
Hoffman: Well, you have to have . . . an anti-harassment policy first and foremost, and you have to have your employees sign off on that policy . . . on a yearly basis. You have to have an FMLA policy in your employee handbook, if you're gonna designate a calendar year and the like and inform them of their rights. . . . [A]nd then the rest of your table of contents . . . is just your corporate culture. . . . [T]here are a lot of other things that are in employee handbooks, but those are the two top dogs in my mind. . . .
Oliver: . . . I think it's pretty basic, but there should also be discussion of the nature of the employment relationship. We've talked a lot about at-will employment. And to the extent to which at-will employment is under assault by a number of different theories and has been for some time, and it's faired fairly well in our [Texas] Supreme Court. But I still think there is a general misunderstanding and lack of understanding among the general public about at-will employment and the extent to which provisions in your policy manual are used in litigation to try to limit or challenge the at-will status. I mean, that needs to be dealt with fairly clearly in the policy manual . . . because it's something that employees frequently do not understand.
Androvett: Let's put some flesh on the bone there. No. 1, I think what I hear you saying is that there should be a statement in there that says employee you are an at-will employee. You can be terminated for . . . any cause.
Oliver: That's right. . . . I mean, there's nothing about this policy manual that's intended to create a contract of employment.
Androvett: What are you seeing if that's not in there? What happens if these cases, for example, get in front of a jury?
Oliver: Well, if you get in front of a jury is a tough thing, because I think juries do not understand at-will employment. That's the challenge.
Androvett: Is it fair to say they often think you've got a right to employment?
Oliver: They're looking for cause. A jury is looking for some reason, some good reason for termination. And . . . it's very difficult to make them understand that that's not required. And so we end up still trying the case based on what are the reasons for termination, even though you don't really have to have one. I mean, frequently, it's because there's a pretext sort of issue in the case and you're . . . articulating legitimate, nondiscriminatory reasons for the action is part of the process of carrying proof on the retaliation issue. But those policy and procedure manuals . . . good plaintiffs lawyers will parse through those looking for statements that challenge that at-will status. . . .
Hoffman: I think another problem that employers have with their handbook is it's that dusty book on the shelf, and they never actually go through the handbook with their employees. I mean, every time I take a plaintiff's deposition and I ask them if they got a copy of the handbook, you always have the acknowledgment; they always admit they got a copy of it, but they may say they never read it. No one ever went through it with them. No one ever walked them through the important policies to the employer from a defense standpoint, which is you're an at-will employee. If you have a Family Medical Leave Act problem, here's how you go through it; here's how you report harassment and discrimination. So they're left to their own to read that policy which, of course, they're never going to admit to having done in their deposition.
Androvett: And Carrie, that's not enough? I mean, the employer has got the obligation to say, ‘OK, here's your handbook. Let's go through it.'
Hoffman: I think with the policies that you need in court to defend yourself in front of a jury, you are a lot better off to have said, ‘Yes, . . . I walked them through. Here's my complaint procedure. Here's acknowledgment of at-will employment.' Here's those types of things so that you know that they can't just come back and say, ‘Sure, I signed the acknowledgment, but they actually know what those policies and procedures are. . . .
Ramón: . . . I think the more specific the employers have orientation sessions at the inception of employment where all of these things are introduced and you have your employees sign off on each of those policies. And then Carrie mentioned . . . the really very key components of . . . employee handbooks, but most employers also have . . . technology at the workplace, and it's very important to have a policy that clearly states . . . what the use of technology is, and that the employer reserves the right to monitor the technology. Because if you don't, I think it raises issues of privacy or breach of privacy if, you know, you're going into e-mail and monitoring e-mail without the employees knowing it. . . .
Maslanka: . . . I see employers . . . that they review on a yearly basis one-on-ones with their employees the policies and procedures that are important to that employer. I call it like . . . renewing your marriage vows. . . . I just think that makes all the difference in the world. . . .
White: Mike, how do you do that when you've got 80,000 employees spread all over the country, sometimes all over the world?
Maslanka: I tell you, United Parcel Service has an interesting idea. They have at the start of the shift five minutes, and they spend five minutes talking about what's on the company's mind. We want to let you know about financial performance, we want to reemphasize a policy to you. And that's baked into the UPS culture, and they're so efficient, and they find it works very well, and employees actually look forward to those five minutes. . . .
Abcarian: Let me add one other point here maybe to round out this handbook, at-will employment thing. You know, we all generally know what at-will employment is. You terminate for good, bad or no reasons. You can't breach a contract. You can't violate a statute. You can't contravene a public policy that the courts in the state of Texas or elsewhere have recognized. Sounds well and good, reads easily, [but] very difficult to implement and practice. But whatever you say in your handbook about at-will employment, and this is not a contract and nobody can try to enforce it, you have to have that in there. But understand when we're . . . taking and defending depositions, because there's litigation over a claimed breach of some obligation that is described in the handbook, plaintiff's counsel is not interested in whether the handbook's a contract. They're interested in whether you did what you said you would do in the handbook, because if you didn't, that's all a jury cares about, that you prescribe to some practice, policy or procedure and you didn't follow. Now, the other concept, and I preach this over and over and over because it took awhile for me to get it through my head, is any time I see something that says cause or just cause – does anybody in this room know what cause for discharge is? No hands? I don't. And the reason I don't is because cause for termination or just cause for termination or disciplinary action is a contractual concept. It is derived from labor contracts that began being negotiated in the late '30s and 1940s. And so in every labor contract virtually in this country you'll have a clause that says the employer may only terminate or discipline for just cause; these include but are not limited to, and there's a laundry list of exemplars on what you get fired or disciplined for. The point outside the arena of organized labor is that you don't want references to just cause or cause as a reason for discipline in a handbook or in an orientation or in a discussion with employees unless you are prepared at that same time to define the meaning of cause in a contractually enforceable way. I don't have any clients that are willing to do that. . . .
Maslanka: I'll just say this about employee handbooks. I agree with Mike as in a sense I think the shorter, the better. . . . OK. I have this dream that we do what Nordstrom's did when they first started as a company. When Nordstrom's opened their first store, they didn't have a policy handbook. What they had was a business card, . . . and this is pretty much what it said: Our customers are the most valuable asset at Nordstrom's. Your job as an employee is to service them to the highest standards and to use your good judgment at all times. If you have any questions, ask your manager. Now get to work. . . . I think less rules, less regulations, more broad concepts and investing managers with judgment and authority really makes more sense than having handbooks that are as big as a doorstop.
Hoffman: Well, my pet peeve about handbooks that are as big as a doorstop is they usually have mostly HR policies and their procedures in there but have nothing to do with what the employees need to know about, and [they] create a whole problem for you when you're in litigation about processes and procedures you didn't follow.
Less is more
Androvett: I guess looking at it from the employer's point of view, they're trying to cover any reasonable contingency, and . . . it would seem to me that's how an employee handbook goes from being two pages to four pages to eight pages to 40 pages. But what I'm hearing you say is less is more, shorter is better?
Maslanka: Yes, in most handbooks.
Androvett: Because why, it doesn't tie you down to any specific provisions that you may ignore or violate yourself?
Maslanka: Less . . . is more. [M]ost employee handbooks need to go on a Jenny Craig diet, really. I mean, they just need to be winnowed down. And I think they're more user-friendly. The point of an employment handbook is not to trap the employee. The point of an employee handbook is to let people know clearly and concisely what's expected of them. And you can do that much more effectively with a shorter handbook than somebody that tries to cover every contingency, because you can't plan for every contingency.
Hoffman: And it's much easier for the employee. It's a lot harder when it's a 20-page handbook than a hundred-page handbook to say they didn't have time to go through it. It was too confusing and it was too long and the print was too small and whatever else we hear when we take depositions.
Maslanka: And here's the thing, to go back to Kevin's point, people on a jury, they're all employees. And I know they get back in that jury room and they go, ‘What a joke. Yeah, they give me that 80-page handbook, and I didn't read it, either. How can you expect this poor guy to read it?' If . . . it's short, if it's user-friendly, it's much more effective in litigation.
Abcarian: . . . User-friendly, it's not really a question of whether you're throwing a phone book or a three-card foldout at people. It's how you say what you say and how understandable it is to them. . . .
Oliver: And if that handbook comes into the courtroom, it's a lot easier in my experience to explain the absence of a policy than it is to explain the presence of a policy that you didn't follow. I mean, so the lesson from that is if you're gonna have these provisions in your policy and procedure manual, follow them.
Ramón: . . . [W]e talked earlier about the change in demographics of the workforce, too. [W]e've seen this several times . . . where you have to be able to communicate with your employees. If you have non-English speaking employees, you need to be able to communicate your policies as well . . . in a language that they understand. Otherwise . . . that thing is totally meaningless to them.
Oliver: Make sure your English-only policy is also in Spanish?
Ramón: Exactly. . . .
White: . . . [F]rom the perspective of a . . . defense lawyer, . . . you're thinking about how do I get summary judgment? . . . [H]ow do I resolve litigation favorably? So you end up having a 90-page manual that has everything in it that talks about what the employees' obligations were and what the employer's obligations were. You know, to me, if you think . . . about it from the sense of, ‘How do I make sure that the things that happened in my workplace are the things that I want to have happen?' . . . [Y]ou've got to . . . try to get your supervisors to the point where they understand your culture, where they understand your goals, and you have to make everybody in that workplace from . . . the janitor to . . . the CEO responsible for what you want to accomplish in that workplace. . . .
Androvett: . . . Can you help me define a good technology policy for a company?
Hoffman: Well, first and foremost, you have to say that the employee has no expectation of privacy in any use of technology that you provide them. You want to be able to monitor their Internet use, monitor their e-mail use at all times for any purpose whatsoever, especially if they leave and have stolen confidential information. You don't want to have a situation where they claim that you violated their privacy rights by going back and looking at their Internet use or their e-mail, same thing if you've got a complaint of sex harassment. . . .
Oliver: Yeah. And not only the right to monitor but actually communicating that you do monitor. I had one client that came up with a very low-tech but effective way of communicating that they were, in fact, monitoring Internet usage . . . ; they had their IS person go in at random and print browsing history from different users' browsing accounts, which they could do centrally on their system, and posted it . . . in the break room. . . . They picked a supervisor who hadn't been to any place inappropriate. But . . . once they saw that that was technologically possible, that someone could remotely look and see where they're going on their Web sites and print that out, their problem was reduced dramatically. . . .
Ramón: The average employer really isn't sitting at the office . . . monitoring use by their employees, but at least it gives you the authority to do so when you have to. . . .
Androvett: . . . What are the real issues here? What is happening as it relates to technology? . . .
Hoffman: I think a . . . problem with e-mail . . . is just how informal an e-mail communication is. Very rarely does anyone proofread an e-mail before they send it. Very rarely is anyone concerned about the tone of the e-mail or how it might be interpreted. But when it has an exhibit sticker on it or when you're dealing with it in an internal investigation, it often takes on a different life than what was probably intended by the person and probably a different tone than what they would have done if they'd had a face-to-face meeting. And when supervisors are dealing with their subordinates via e-mail as opposed to face to face, it's nice to have a documentary record of the communication, if it's a helpful one. But oftentimes, there's a lot of . . . bad tone and . . . a huge pet peeve of lots of misspelled words or things that aren't said in the right context that don't come across the way you want them to when they have an exhibit sticker on them. And I think that's a huge problem in the employer/employee relationship. It's just the informal nature of they way people communicate now versus how they used to. Most people proofread letters before they send them out.
Maslanka: . . . Two points. . . . Supervisors now are managing by e-mail even though the employee they're dealing with is 10 feet away down the hall. I love the . . . ones where the supervisor really gets frustrated and . . . rather than go down to the employee and raise his or her voice, they like do everything in caps in the e-mail. . . . I think supervisors need to be told, ‘You've got to go manage.' That's the first thing. . . . [W]hat I tell clients, if you're gonna send a letter of reprimand to an employee, if you're going to do something, write a letter and then . . . proof that, and then you can PDF the letter to somebody. So you can have the best of both worlds. But at least you stop and you think before you write or before you speak. Just PDF it, and that's got the quickness of e-mail, but it also has the gravity . . . of a formal letter when that's necessary.
You've got mail
Androvett: Randy, when you've got 80,000 employees, is it practical to not manage by e-mail?
White: Well, certainly . . . there is a part of our workforce that doesn't see a supervisor for months, literally almost months at a time – the flight attendant workforce, that sort of thing. So no, I mean, e-mail is here, and it's here to stay. . . . I think the problem gets worse instead of getting better in terms of the evidence bombs that are found out there in discovery. You just have to try to educate people as best you can. . . .
Androvett: That does raise an interesting question. . . . There's two sort of lines of thinking when it comes to e-mail. Some employers want to retain everything, every e-mail ever sent. They've got folders galore that have every conceivable form of communication and every different kind of person they've communicated with. Then there's the other line of thought, which is, ‘I save nothing. I get it off . . . try to get it off my hard drive. I delete them.' Any advice generally about how to handle huge volumes of e-mail, much of it acute and personal?
White: I think you have to have a well thought-through and well-enforced document-retention policy. . . . I think you want to make sure that documents or e-mails that you delete, documents that you destroy, are done strictly in . . . compliance with that policy. I think anything you do outside of that policy you're looking at exfoliation claim.
Androvett: Should that be part of the employee handbook, too?
Ramón: I'm not sure. . . . I don't think document-retention policies need to be in an employee handbook. I do agree with Randy, though, that every prudent employer needs to have a very clearly defined document-retention policy. There are some documents actually that you are obligated to keep regardless, so you need to be able to . . . tell those people responsible for document retention what it is that they need to keep, absolutely. Because there's an inference now in most actions that if you didn't keep the documents, it's an adverse inference against you.
Abcarian: . . . [N]ot everybody knows the characteristics of an electronic document and what happens to it. . . . I encounter this every day. People think when you hit the delete button, something's gone. It's not gone from your computer. It is still there. It is fully intact. I can go down to Comp USA and buy a recovery program to get anything off anybody's hard drive that they just hit the delete button on. Anybody can do it. All that happens when you hit the delete button is that one letter from the header of the electronic identification is stripped off so the computer doesn't know where to find it. But if you know where to find it, it's still there. Now, on the question of . . . what do you retain . . . I agree with . . . the other panelists here that each employer needs to know what the law requires to be retained. . . .
Androvett: . . . Just to close the circle . . . generally technology policies should have what elements?
Ramón: Clearly defined expectations that the employer reserves to monitor its use. I think also a clear statement that the employer is providing the technology for the employer's use. And they reserve the right to monitor those e-mails and Internet use.
Hoffman: And I think it should say, although I don't think very many employers ever enforce it, that they're only supposed to use e-mail and Internet for business purposes, which is that you shouldn't be getting personal e-mail at work and you shouldn't be using the Internet for personal Internet-surfing. It should be business-related. Because, again, sometimes . . . I've had cases where we've had to fire somebody because all they did all day long was surf the Internet. . . . But you want to have the expectation that you're gonna have the ability to tell them this is not why we gave you this technology. It's for business and business only.
Maslanka: And I would just . . . say that I think there has to be a rule of reason to this. I mean, if . . . checking Amazon.com and ordering stuff is a termination offense, I'm gone. . . . I'm fired. . . . [W]hat we tell clients is, either say you can use e-mail for personal matters when appropriate, don't abuse it, or we have an Internet connection if you want to have an AOL account or . . . whatever account. You can access the Internet connection and do that, because everybody's gonna use it one way or another. And if you try to have a rule, there's going to be a lot of disparate treatment starting with bosses.
Somebody's watching me
Androvett: Last question about privacy. I understand that you reserve the right to go in. You have the right as an employer to look at e-mail, to print out the traffic report from the Internet-surfing. Can the employer go too far? Have any courts said, ‘Employer, this is a step you cannot take?'
Abcarian: Well, if you . . . do not put those guideposts up and notices to the employee that . . . destroy the expectation of privacy then even though . . . you may provide the equipment and you may provide the . . . electronic channel and apparatus, you're still then subject to being criticized for invasion of privacy, if there was a reasonable expectation that there's . . . some part of the hard drive or other component of the electronic system that they're allowed to store personal things and you crack into it without permission. . . . You do everything that you can and must to ensure employees understand there is no expectation of privacy anywhere in this electronic system for you. And if you do that, I can't think of a court that has said that's a problem for the employer to exercise the right to do so.
Androvett: Carrie, in the . . . employee handbook that you were helping us craft the table of contents, you mentioned sexual harassment. . . . I'm fascinated that it seems like the more . . . effective claim really is not the initial harassment or discrimination claim, but it might actually be a claim for retaliation. It seems like those claims are rising. Why is that?
Hoffman: They're much harder to dismiss on summary judgment. So if you're a plaintiffs lawyer who's looking at the 5th [U.S.] Circuit [Court of Appeals] with having a hard time getting past summary judgment on almost every kind of plain vanilla discrimination case, I'd be focusing on retaliation claims, too. I mean, they're much harder to dismiss. They're almost always based on timing and intent, and so you're almost always gonna have a fact question that has to go to a jury.
Androvett: . . . [H]ow do you prevent these sorts of retaliation claims? . . .
Ramón: Retaliation claims, in my opinion, are very subjective beliefs by the plaintiff . . . that something adverse happened to them as a result of either complaining about discrimination or participating in the investigation of a complaint. It's hard to craft policies that say . . . ‘[D]on't do X, Y or Z,' because it is a very subjective claim. . . .
Hoffman: And a lot of times they're just timing-based if nothing else. A lot of times it's I raise a complaint and three weeks later they started documenting my file, and four weeks later I got fired. I mean, it's very difficult to prove what someone's intent was in the process of writing someone up after a complaint comes in.
Abcarian: Well, Practical Tip 102. . . . [Y]ou would start with a very solid policy somewhere in your manual or your other policy documents that says, ‘Thou shall not retaliate.' That's a start. . . . Now, when somebody complains that there has been any kind of retaliatory conduct in an area protected by law – you know, not all forms of retaliation are legally regulated. . . . [T]he next problem is maybe the supervisor sort of pooh-poohs it. . . . Exactly the wrong approach. You take complaints of retaliation very seriously, because they carry punitive damage potential if it ultimately ends up in court. And you'll have an unsympathetic jury in all likelihood staring you in the face. So you investigate. You take them seriously. You make a determination. Do we have a problem here that we have to deal with? Do we have somebody engaging in retaliatory conduct? And if you find it is, you very effectively deal with it. And you better make sure you communicate with the person who brought the retaliation claim that you have done so and find out whether there is really anything further that that person thinks . . . should be done. They may or may not have realistic expectations about how you should deal with it. You should always take the time to find out. If you follow that basic recipe for dealing with a retaliation area, it doesn't mean you won't be sued for it. It does mean you will probably be in a much better position than you would have been had you not done that.
Hoffman: Well, and I also think along those lines in preventing them, when you have a person who raises oftentimes what's a meritless discrimination complaint and then everybody moves on and HR doesn't follow up with that person. I think a lot of times monitoring the situation and checking in with the employee who's raised that meritless complaint, six weeks later or 12 weeks later, 18 weeks later, making sure there's no allegation of retaliation going on will go a long way in serving you to prevent the claim from happening. . . .
White: I think the best place to build your defense to the retaliation claim is in your response to the underlying claim of whatever it was: discrimination, harassment, financial improprieties. If the way you respond to that in terms of your investigation . . . you can demonstrate up front that you want your employees to bring those sorts of complaints to you because that helps you improve the workplace, then you have a much easier time on the back end trying to . . . deflect the claim. . . .
Putting on SOX
Androvett: Just real quick, has Sarbanes-Oxley [Corporate Fraud and Accountability Act of 2002] raised the stakes where all of a sudden a retaliation claim morphs into a whistle-blower claim and under Sarbanes-Oxley whistle-blower is sort of protected class?
Oliver: I think so. I mean, one of the things that is different about Sarbanes-Oxley than many other anti-retaliation provisions and statutes is that it's not just reports that are made to some outside agency, law enforcement, regulatory agency. Internal reports that are material to the matters that Sarbanes-Oxley is dealing with, which are generally publicly traded companies and corporate governance and shareholder matters. These internal reports and retaliation based on . . . an up-the-chain report in-house can form the basis of a violation or alleged violation of the anti-retaliation provisions of Sarbanes-Oxley. So I think . . . it puts it on a little different playing field, and I . . . think we're gonna see more of that. . . .
Ramón: It is actually the No. 1 type of complaint being filed at the Department of Labor now, in addition to wage and hour issues. . . . I think SOX . . . actually raised the stakes in the workplace, because you have to be very careful and need to conduct a very thorough investigation . . . with document retention issues, too, that come into play. . . .
Maslanka: . . . What's interesting about Sarbanes-Oxley is it's still not clear what protected activity is. . . .
Issues on the horizon
Androvett: . . . [W]hat are you looking out on the landscape, what do you see? . . .
Abcarian: The 2 cents I'd offer on things to be concerned about on the horizon are Fair Labor Standards Act litigation and the latest tool in the . . . plaintiffs arsenal – the collective action. . . . I mentioned earlier the . . . historical cycle about litigating class actions in the employment discrimination context. And you know, the courts are now very comfortable with how that all works, and lawyers on both sides of the bar pretty much know what the rules are and . . . what's a good case and what's not so good a case. The collective action, however, is an older animal, but it was largely not used by plaintiffs lawyers. It is essentially a class action to attack misclassifications of workers under the Fair Labor Standards Act as to whether they're exempt or not exempt. Principally the issue is you're paying salaries and treating people as exempt who are not exempt under the Department of Labor wage-and-hour regulations. And then instead of litigating each individual case or allowing people to go to the Department of Labor with an administrative complaint pursuant to which the Department of Labor conducts an investigation and may present you with a bill, you are all of a sudden given this enormous lawsuit that's . . . gonna start out with $150,000 worth of discovery that's got to take place, and there's a small group of lawyers who are specializing in this cottage industry of litigation, and they are very, very good at it. And they do not just get a few facts and file a lawsuit. They build a whole case that they're ready to try before they even tell you you are under scrutiny. If you fall prey to not looking into your Fair Labor Standards Act classification scheme and you're an employer of any size and you may have misclassification issues, that is a lawsuit that there's a high probability you will face at some time, and they are difficult lawsuits to get rid of. So, you know, information is your best defense. Make sure you're auditing your Fair Labor Standards Act practices. . . .
Hoffman: I think training is something that employers don't spend enough time on and not just from a sex harassment standpoint. But I think one of the things we've talked about a lot today is the importance of having a good supervisory workforce, and I think we don't spend very much time as employers training people on how to be good supervisors. A lot of people end up as a supervisor because they were a good line employee, but that doesn't make them a good supervisor. And I think as employers if they would spend more money on making people better supervisors and how to manage people, they would have less employment litigation to deal with. . . .
Oliver: I think one thing that those of us that defend these kind of cases are gonna see and those of whom . . . we represent are going to see is you're gonna see lawyers filing employment claims that you've never seen before. In other words, you've never seen those lawyers before. Because there have been some changes in other areas of law that have made some other areas of law less lucrative, and you see a lot of people that have traditionally handled other kinds of cases that are coming over into labor and employment law. So that's going to lead to new faces. It's going to lead to new theories. But it's going to make the old approaches even more important, and that is fairness. I mean, that's what these people that have been traditionally trying tort cases are gonna be looking for. How does my plaintiff stack up against that defendant? Am I gonna . . . be able to make these people look bad or unfair? And . . . if I can get this case through the pretrial procedures to a jury, how am I gonna put the fire in the jury's belly about this employer? We can't control what they file. The lawyers can influence what gets to the jury. But ultimately, the facts that the jury has to consider and . . . the filter that they run that through of their common experience – that's gonna be something that's in control of the corporate culture of the employers, and that's something you have to keep in mind. We mentioned drafting those e-mails and writing those documents. Just picture those with an exhibit sticker on them when they're created. Is it gonna have a plaintiff's exhibit sticker or is it gonna have a defendant's exhibit sticker on it? And that's a cultural thing that unfortunately is gonna be a reality even more in coming years than it has been in the past.
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