9/4/2009In Prowel v. Wise Business Forms, Inc., PICS Case No. 09-1428 (3d Cir. Aug. 28, 2009), opinion available here, the Third Circuit reversed summary judgment in favor of defendant employer on plaintiff's Title VII claims. The Third Circuit held, in an opinion by J. Hardiman, that even though discrimination on the basis of sexual orientation is not protected by Title VII, plaintiff, an avowed homosexual, had established sufficient evidence of gender stereotyping to survive summary judgment (Title VII gender stereotyping claims were recognized by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). The Circuit Court affirmed summary judgment on plaintiff's religious discrimination claims, ruling that plaintiff failed to establish any religious discrimination, other than discrimination on the basis of sexual orientation. 6/30/2009
After several days of deliberation, a New Jersey jury returned a verdict in favor of the Plaintiff in the case Brian Pietrylo, et al., v. Hillstone Restaurant Group d/b/a Houston’s. I Blawged about the facts of this case on May 24. An essential element of that case was whether the Defendant was authorized to review the Plaintiff’s private Myspace Web site. The Defendant obtained access to that Web site by using the password and login information of an authorized user to the site. Base on those facts, the Defendant moved for summary judgment, which was denied. The Court held that a material issue of fact existed as to whether the Defendant coerced that information from the authorized user. From the Jury’s verdict, it appears that they believed that the defendant had coerced the authorized user. The case caught national attention and stands as a warning to employers of the risk they expose themselves to under Federal law for improperly reviewing their employee's electronic communication. At present no appeal has been filed. Some sources indicate that the Defendant does not plan to appeal. If no appeal is filed, the Defendant will be liable to the Plaintiff for all his attorney fees, which are no doubt significant.
6/18/2009In a 5-4 decision authored by Justice Thomas, the Supreme Court has ruled in Gross v. FBL Financial Services, Inc. that plaintiffs bringing disparate treatment claims under ADEA must prove that age was the but-for cause of the unfavorable employment action taken. The Court expressly rejected the application of the "mixed motive" framework used in Title VII cases, in which, once a plaintiff proves that plaintiff's membership in a disfavored class was a motivating factor for the employment action, the burden shifts to the employer to prove that it would have taken the adverse action regardless of plaintiff's membership in a disfavored class.
Justices Stevens and Breyer wrote dissenting opinions.
The full opinion is available at http://www.supremecourtus.gov/opinions/08pdf/08-441.pdf.
6/11/2009
The case of Pietrylo v. Hillstone Restaurant Group, Docket No. 2:06-cv-05754 (D.N.J. 2008) enters its third day of testimony today. The case centers on allegations that Hillstone, the owner of a restaurant chain where Pietrylo was a server, violated the Electronic Communications Privacy Act (“ECPA”) when it accessed and monitored his Myspace.com account. I Blawged about the facts of this case on May 24.
Generally, under the ECPA, it is illegal to access and review stored communication on a computer facility that provides electronic communication services. 18 USCS § 2701. “Electronic communication service” is defined as the ability to send or receive electronic or wire communication. 18 USCS § 2510(15). At least one court has held that a home computer does not provide electronic communication services. In re Doubleclick Privacy Litig., 154 F. Supp. 2d 497, 511 (S.D.N.Y. 2001). Rather, the court in Doubleclick reasoned that the statute applies to only companies like AOL, or Juno, or perhaps even the telecommunication companies over whose wires electronic communication is transmitted. Other courts have applied the statute to cover companies that provide online email accounts, i.e. hotmail.com. Fischer v. Mt. Olive Lutheran Church, Inc., 207 F. Supp. 2d 914 (W.D. Wis. 2002). Mysapce.com is no different then hotmail; therefore, it is not surprising that Hillstone did not argue, and the court did not hold in the preliminary stages of the case, that the ECPA does not apply to information stored on a Myspace.com account.
Pietrylo’s has alleged in his complaint that his employer was not authorized to access his Myspace Web site and review material he has posted to that site. As I Blawged on May 24, one argument which could untimely win the day for Hillstone is that it was granted permission to review Pietrylo’s Myspace.com account by a person who did have authorization to review the account. This case may answer a previously undecided question: does the ECPA permit a person who is authorized to review stored electronic communication to provide access to such information to a unauthorized person. If Hillstone prevails at trail it is because the court believes the answer is yes. Next week, I will discus why I believe the answer should be yes.
Click here for a recent article I wrote on the ECPA that provides a more in depth discussion of the ECPA in the context of private employee email accounts viewed at work. 6/4/2009
The United States District Court for the Eastern District of Pennsylvania recently held in Rowland v. Certainteed Corp. that the Ledbetter Act does not extend the three-hundred day statue of limitations period for a Title VII claim for failure to promote. The Plaintiff in Rowland alleged her employer violated Title VII of the Civil Rights Act of 1964 when it promoted a male employee instead of her. She also alleged a violation of the Equal Pay Act because she received less pay then similarly situated male employees and because those similarly situated male employees became eligible for pay increases before her.
In Pennsylvania, a plaintiff has three-hundred days to file a complaint of employment discrimination with the Equal Employment Opportunity Commission (“EEOC”) and with the Pennsylvania Human Relations Commission (“PHRC”). If the Plaintiff fails to file within that period, she cannot file a claim under Title VII. In Rowland, some of the events the plaintiff claimed supported a claim for failure to promote occurred more then three-hundred days before she filed her discrimination claim with the EEOC and PHRC. To avoid the dismal of those events from her complaint, she argued that the Ledbetter Act permitted her to file a failure to promote claim more then three-hundred days after the occurrence of the alleged discrimination.
The Ledbetter Act was passed in response to the Supreme Court’s Decision in Ledbetter v. Goodyear Tire and Rubber Co., which held that the time to complain about a discriminatory practice under Title VII begins upon the date of the discrete unlawful act of discrimination and does not renew each time a subsequent adverse nondiscriminatory act results from that past discrete act of discrimination.
As an example, if a person, because of discrimination, was not promoted on day one, she could not raise a claim on day three-hundred-and-one for the adverse result of that discriminatory act, e.g, a smaller paycheck. Sure, a smaller paycheck is adverse to that person’s bottom line. However, the act of receiving a smaller paycheck is not discriminatory by itself; rather it results from a discriminatory act—the failure to promote. If the person in our example did not file a claim for failure to promote within three-hundred days of the day she was not promoted because of discrimination, she is out of court.
Because Congress did not like that result with respect to claims for discriminatory compensation, it passed the Ledbetter Act. The Act provides that a discrete act of employment discrimination occurs with respect to discrimination in compensation when:
a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
Therefore, when a female employee is paid less then a similarly situated male employee, she can bring a claim for discrimination in compensation within three-hundred days of receiving a paycheck.
The Court in Rowland held that the Ledbetter Act only applied to discrimination in compensation claims and not any other claim one could file under Title VII. Therefore, a claim for failure to promote must relate to discrimination that occurs within three-hundred days of filing a complaint with the EEOC and the PHRC. 5/29/2009
The Supreme Court recently held in AT&T Corp. v. Hulteen, that a pension plan which relied on years of service, minus unaccredited time off for pregnancy, does not violate the Pregnancy Discrimination Act. In 1978 Congress passed the Pregnancy Discrimination Act (“PDA”) in reaction to the holding of the Supreme Court in General Elec. Co. v. Gilbert, 429 U.S. 125, which held that it was not sex-based discrimination prohibited by Title VII of the Civil Rights Act of 1964.
The Court held that plans that plans which deduct time off for pregnancy before the passage of the PDA do no violate the PDA, because until the passage of the PDA such plans were not unlawful under the reasoning of Gilbert. The Court reasoned that Congress did not intend the PDA to apply retroactively. Of course, nothing prevents an employer from voluntarily crediting time off for pregnancy leave which occurred before the passage of the PDA. The decision was 7-2, with Ginsburg and Breyer dissenting. 5/24/2009
A jury will soon decide if a New Jersey employer is liable for electronic snooping in the case of Pietrylo et al. v. Hillstone Restaurant Group. The lawsuit, which was filed in 2006, alleges, amongst other things, that Hillstone illegally accessed and reviewed a Myspace.com account owned and operated by Pietrylo in violation of the Electronic Communication’s Act (“ECPA”).
Hillstone, owns and operates a number of restaurant chains across the country. One such chain, named Houston’s, employed Pietrylo as a server. The complaint alleges that on Pietrylo’s free time he and a friend created a private group on Pietrylo’s Myspace.com account. That group was called the “Spectator” and served as a platform to discuss and often criticize their employers. Access to the Spectator required an invitation from Pietrylo.
Pietrylo alleges in his Complaint that a member of Houston’s upper management became aware of the Spectator. The complaint then alleges that such member “strong-armed” an authorized member of the Spectator, who was also an employee and co-worker of Pietrylo, into providing access to the Spectator. Once that member of upper management gained access to the Spectator, it secretly monitored and reviewed postings to it.
Finally, the complaint claims that upper management fired Pietrylo solely because of his role in establishing and maintaining the Spectator. The complaint claims that Houston’s access and review of the Spectator—thorough upper management—leaves it liable for amongst other things: violating the ECPA; New Jersey’s version of the ECPA; violating Pietrylo’s common law right to privacy; and his state and federal constitutional right to free speech.
In the mid 1980s and in the wake of the proliferation of new electronic technologies, i.e. the internet and email, Congress amended the Wiretap Act through passage of the ECPA. The ECPA is divided into three titles. Houston was sued under Title I and Title II. Titles I prohibits the interception of electronic communications. Title II prohibits the illegal access of Stored Communication, e.g. email or in Pietrylo’s case, postings to the Spectator.
Pietrylo’s voluntarily dismissed his claims under Title I after he discovered that the members of upper management had not “intercepted” any of the postings to the Spectator. Interception of electronic communication requires that the communication is accessed during transit and before it arrives to its intended recipient.
Houston’s tried to have the complaint dismissed on Pietrylo’s claims that it violated Title II of the ECPA. The court denied that request on the ground that a jury should decide whether a member of upper management coerced access to the Spectator. Houston’s would not be liable under the ECPA if they were willingly provided access to the Spectator by an authorized user. The court suggests that the ECPA is violated if Houston’s gained access to the Spectator by coercion. The trial is set for June 9, 2009.
Over the next few weeks I will blawg about the ECPA in more depth. It is a statute of tremendous importance for both employers and employees. Employers have legitimate concerns over what their employees are sending or receiving over the internet, either while on the clock or at home. An employee could give away trade secrets, or subject his employer via vicarious liability, to liability for tortious acts committed over the internet. These concerns have caused employers to monitor what their employees do while on the internet. If an employer is not careful, such monitoring can leave it liable under the ECPA.
If an employer is found liable under the ECPA it can be made to pay attorney fees, statutory damages of no less then $1,000.00, and any actual damages suffered by the employee, in Pietrylo’s case any lost income he suffered because his employment was terminated.
5/18/2009
On April 1, 2009, the United States Supreme Court in a 5-4 decision, held in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (U.S. 2009) that a clause in a collective bargaining agreement which requires union members to arbitrate discrimination claims raised under the Age Discrimination in Employment Act (“ADEA”) was enforceable. The opinion authored by Justice Thomas, held that because the ADEA did not expressly prohibit arbitration of claims made under the ADEA, that Congress had not prohibited a collective bargaining agreement from requiring arbitration in lieu of a court proceeding.
The Court relied on Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), which held that an individual employment agreement that required its employee to arbitrate discrimination claims was valid. The Court reasoned that the holding of Gilmer also applied in the context of collective bargaining agreements. The lawyer for the employees in 14 Penn argued that the Supreme Court’s decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) prohibited collective bargaining agreements from requiring their members to arbitrate discrimination lawsuits. The 14 Penn Court disagreed and held that Gardner-Denver resolved the issue of whether the waiver of the right to file a lawsuit for contract based discrimination claims also precluded the right to file a lawsuit in federal court for statutory discrimination claims, such as claims under the ADEA.
The collective bargaining agreement in Gardner-Denver required mandatory arbitration of all disputes between a union member and management. The collective bargaining agreement prohibited all discrimination against a union member on the basis of race, creed, national origin or age. The collective bargaining agreement, however, was silent as to arbitration for statutory discrimination claims. Because of this omission, the 14 Penn court held Gardner-Denver did not stand for the rule that a collective bargaining agreement can never waive a union member’s right to file a lawsuit in court for a statutory discrimination claim. The dissent stressed that the majority’s decision ignored and misconstrued the clear precedent set in Gardner-Denver.
The 14 Penn Court stressed that where a union member believes that the waiver of his right to raise discrimination cases in court was negotiated away in bad faith, he may maintain a lawsuit against his/her union under the National Labor Relations Act.
After 14 Penn, it is clear that lawyers representing union members must carefully examine their client’s collective bargaining agreements to ensure that they have raised a claim for discrimination in the proper forum. |
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