According to the Des Moines Register, three civil rights investigators at the Iowa Civil Rights Commission were  fired recently after an unrelated investigation uncovered thousands of offensive and gossip-filled e-mails between the three women. The e-mails frequently gossiped about co-workers and supervisors and included “nicknames” like “Roid Rage”, “Psycho”, “Homeless McGee”, “Stoned Intern” and “Rainman.”  Two supervisors were referred to as “Teen Wolf” and “Night Ranger.”

The three employees were denied unemployment. Administrative Law Judge James Timberland wrote that the emails, “made fun of and/or ridiculed obese people, gay, transgendered and/or transvestite people, elderly people, Wal-Mart customers, African-American men, white high school students, white men and white people generally.”

The Commission’s Executive Director, Beth Townsend (“Night Ranger”), testified at the unemployment hearing that the emails were so frequent she thought they may have taken up the majority of the workday, according to the Des Moines Register.

To read more and read some excerpts of the emails published go to this article.

E-mailing in the workplace is not a new problem, but it is a persistent one. So how do employers keep employees on their toes when it comes to personal e-mail and internet use, without invading privacy? Try,

pr,ti(internet e-mail electronic-communication /5 policy)

In Westlaw:

Labor & Employment – Law Reviews, Texts & Bar Journals (LB-TP), or

Employment Law FormFinder (FORMFINDER-EMPL)

        In WestlawNext:

From the Topics tab, choose Labor & Employment.  You can run a search in any content that is related to Labor & Employment now by searching in the search box at the top, or narrow further by clicking on All Labor & Employment Secondary Sources or Labor & Employment Form Finder.

On June 20th, 2011, the United States Supreme Court threw out the class-action lawsuit against Wal-Mart brought by 1.5 million female employees alleging sex discrimination in violation of Title VII.  Wal-Mart Stores, Inc. v. Dukes et al. is a landmark decision for federal class-action employment discrimination lawsuits.  In a 5-4 decision, Justice Scalia wrote the majority opinion for the Court holding that the women of the putative class did not provide sufficient evidence to demonstrate Wal-Mart operated under a general policy of discrimination in order to satisfy the commonality prong to permit class certification. 

The ruling from the United States Supreme Court has many believing it will make it more difficult for plaintiffs to bring employment discrimination class actions in federal court.  Nina Totenberg for National Public Radio reports that the president of the National Women’s Law Center Marsha Greenberger refers to the decision as having “a triple whammy of a disaster effect for those who are trying to fight discrimination in the workplace.”  The NPR Morning Edition, “High Court Limits Wal-Mart Discrimination Case” is available on Westlaw at 2011 WLNR 12367309.

Although the decision may make it more difficult to maintain these types of class actions in federal courts, many states have more liberalized views on these types of suits.  Additionally, the United States Supreme Court clearly stated in a unanimous decision, Smith v. Bayer, that class actions in state law can proceed even though they could not be maintained in federal court.   

Westlaw.com and WestlawNext have several employment law treatises which give a state by state analysis of employment discrimination laws with annotations.  For example, Part II of the Employment Discrimination Coordinator (EDC) lists employment discrimination law in the fifty states and other jurisdictions.  Other helpful treatises include Employment Law:  A State-by-State Compendium (DRI-EMPSTATE) and Employment Coordinator (EMPC). 

Since the Wal-Mart decision, many companies and corporations may be thinking of filing summary judgment motions, motions to dismiss, or for de-certification of a class based on the court’s ruling.  Try the following search to track any decisions, briefs, or filings on Westlaw.com:

Databases:  FED-FILING-ALL,FED-BRIEF-ALL,ALLFEDS

wal-mart /5 dukes & summary-judgment (motion /3 dismiss!) de-certif! & DA(AFT 06/19/2011)

To view the petition for certiorari for Wal-Mart v. Dukes, any filed briefs, and transcripts of oral arguments, simply go to the case on Westlaw.com at 2011 WL 2437013 and scroll all of the way to the bottom to access these documents.  On WestlawNext, simply click on the Filings tab once on the document.

In a recent order United States Magistrate Judge James L. Cott (Southern District of New York), denied Gucci’s application for a protective order against the disclosure of the privileged communications of Gucci’s Vice-President, Director of Legal and Real Estate Jonathan Moss, on attorney-client grounds.  See entry 125 at 1:09CV04373.  The Court recognized that for the duration of his employment with Gucci, Jonathan Moss was an inactive member of the California State Bar.

The court claims that an essential element of the attorney-client privilege is that an attorney participates in the communication.  The court reasoned that an attorney is one who is “admitted to the bar of a state or federal court.”  In re Rivastigmine Patent Litigat., 237 F.R.D. 428.  Cott cites Wright and Miller’s Federal Practice and Procedure sec. 5480 : “[I]nactive or retired membership that does not permit the member to practice law will not suffice.”  The Order stated that “Moss did not possess the type of bar membership that authorized him to engage in the practice  of law.  California explicitly limits the practice of law to active members.”  Cal. Bus. & Prof. Code Sec. 6125.  Since Moss had no bar membership authorizing him to practice law in any jurisdiction, Gucci’s communications would not satisfy any standard of the attorney-client privilege.

The court’s order continues to look at the federal common law that a client can avail itself of the privilege if the client can demonstrate that it reasonably believes the person (Moss) was authorized to practice law.  In this case, however, Gucci cannot make this claim.  Once Gucci promoted Moss to a legal position, it was obligated to conduct some due diligence to confirm Moss’s professional status as an attorney.  Minimal due diligence includes that Gucci confirm Moss was licensed in some jurisdiction, that the license authorized him to practice law, and that he was not suspended from practicing or faced disciplinary sanctions.

This Memorandum and Order appears to place a burden on corporations, and potentially outside counsel, to check in-house counsel’s bar status before discussing privileged corporate information with that counsel and most certainly before placing any documents involving that counsel on a privilege log in front of opposing counsel.  Corporations can easily confirme in-house attorney licensure by using the appropriate Individual State  ATTYLICENSE-XX  database on Westlaw.

Hewlett Packard is seeking an injunction to prevent it’s recently terminated CEO, Mark Hurd, from joining the ranks at Oracle.  Finding cases where one party is seeking an injunction to prevent the disclosure of trade secrets is not difficult.  However, we regularly take questions regarding how to find cases where the court approves of an injunction preventing the hire of an employee.  One solution for this challenge is to run searches for inevitable disclosure or threatened missappropriation:

Database: allcases

Query: di,sy(inevitable threatened +4 disclosure missappropriation and trade-secret)

First result from query run today:

Granting preliminary injunction to enjoin former senior executive from working for direct competitor to protect former employer’s trade secrets from being disclosed in violation of Pennsylvania Uniform Trade Secrets Act (PUTSA) was consistent with generalized public interest in upholding inviolability of trade secrets and enforceability of confidentiality agreements, although there was public interest in employers being free to hire whom they pleased and in employees being free to work for whom they pleased. 12 Pa.C.S.A. §§ 5302, 5303(a).

Bimbo Bakeries USA, Inc. v. Botticella  2010 WL 2902729 (C.A.3 (Pa. (C.A.3 (Pa.),2010)

Retail giant Abercrombie & Fitch has found itself a recipient of a second lawsuit filed against it by the E.E.O.C. within the past 12 months for refusing to hire a Muslim job applicant because she wore a hijab (religious head scarf).  The most recent case is entitled U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch, Co. et. al.   The case was filed in the U.S. District Court for the Northern District of California on September 2nd, Case number 5:10-CV-03911, and assigned to Judge Howard Lloyd.  According to the E.E.O.C. press release (2010 WLNR 17415315), in March 2008, an 18-year-old female applied for a job stocking merchandise at the “Abercrombie Kids” store at the Great Mall in Milpitas, Calif. In accordance with her religious beliefs, she wore a colorful headscarf to her interview. According to the EEOC, the Abercrombie & Fitch manager asked if she was Muslim and required to wear a head scarf, then marked “not Abercrombie look” on the young woman’s interview form. The EEOC’s suit alleges that Abercrombie & Fitch refused to accommodate the applicant’s religious beliefs by granting an exception to its “Look Policy,” an internal dress code that includes a prohibition against head coverings.

The first case, EEOC v. Abercrombie & Fitch d.b.a. Abercrombie Kids (Case No. 4:09cv602 in the U.S. District Court for the Northern District of Oklahoma) was filed by the St. Louis District Office of the E.E.O.C. in September 2009. Both cases are premised on Title VII of the Civil Rights Act of 1964 that prohibits discrimination based on religion (42 U.S.C.A. § 2000e-2) , and requires employers to accommodate the sincerely held religious beliefs or practices of employees, unless doing so would impose an undue hardship on the business.

The EEOC press release notes that, “This is not the first wake-up call for Abercrombie & Fitch. In 2005, the company agreed to a six-year consent decree and paid $40 million to a class of African Americans, Asian Americans, Latinos, and women. Why? They were sued by EEOC and private litigants for refusing to recruit, hire, promote, and retain minorities because they did not fit Abercrombie’s ‘All-American look.’

This latest case was filed just days after another Muslim woman from California received national attention for filing a complaint with the U.S. Equal Employment Opportunity Commission against the Walt Disney Company’s Grand Californian Hotel & Spa for not responding to her request to wear a hijab at work.

The EEOC press releases can be found in the EEOCDOCS database.  Try

Query: hijab

Results: 3

EEOC decisions are in FLB-EEOC.

Credit: Reuters/Carlos Barria

In a study published on Monday, researchers from the University of Michigan and the University of Pennsylvania found that an association with alcohol caused observers to “expect cognitive impairment” in a job seeker.  This research study was presented to the Academy of Management, an annual meeting of business and management researchers.

The study consisted of 610 managers who evaluated video recordings of an interview between actors playing a managers and a propsective hire.  All the scripts were the same but the actors ordered either a Coke or a Merlot.  Regardless of the choice of beverage for the manager, when the job seeker ordered Merlot he was perceived as less worthy of being hired and less “intelligent, scholarly and intellectual.”  You can imagine the study showed an extreme negative reaction when the manager ordered a Coke and the job seeker ordered a glass of wine. Tsk tsk tsk.

One thing to note, however, is that these were not attorneys.  The attorney culture is a little different, but this study is something to keep in mind.  My law school had an ettiquete seminar available for 1L’s.  They always stressed the importance of image at casual dinner or lunch interviews.  You want to be on your A-game and make the best impression.  With or without alcohol, that is your choice, but be mindfull of the possible impression you are making. 

All of this being said, I was  once chastised at a dinner interview by the hiring manager for not ordering a beer (or any other alcohol for that matter).  I’m not sure there is a clear answer one way or the other, but it’s something to think about.  What do you think? I’d love to hear any comments on this below. Also, feel free to check out our attorney jobs website at AttorneyJobs.com. It has been awhile since I have been on the job market but it seems like a decent place to start.

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There have been a recent spate of news stories about the working conditions in the Foxconn factory that,  as part of its workload , has been producing Apple products such as the Iphone and Ipad.

Foxconn has been in the news recently regarding the working conditions at the factory, and a series of suicides of their workers that are said by some to be partly a result of those conditions.  At interest to more than one Summer Associate was the labor laws currently in effect in China.  If you are a subscriber to Westlaw China you can access our English translation of the Labor Contract Law of 2008 by clicking “Laws and Regulations” and searching “Labor Contract Law of the People’s Republic of China” in the title field.

Among other things, this law prevents an employer from forcing employees to work overtime and requires the employer to pay overtime wages in accordance with the state regulations (Article 31); prevents the employer from holding the identity card of employees (Article 9); and limits non-compete provisions to senior managerial personnel, senior technical personnel and other personnel who are “obliged to maintain confidentiality of the employer” (Article 24).

Of course the enforcement of the Labor Contract Law is an open question as has been widely reported.  There are many stories of it being frequently ignored.  More recently, there have been some stories regarding a more populist trend regarding Chinese workers.  The recent apparent increased bargaining power of the Chinese laborer will have a bigger impact in the end then legislation alone.

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There is a case pending in front of the United Supreme Court that might revolutionize your Blackberry usage in years to come.  We all know that our employers can read emails sent using the company account and monitor computer usage, but what about the company-provided Blackberry and the text messages you send your friends, family, or significant other? Can your employer read those?

A California police officer used his department-supplied alpha-numeric pager to send racy text messages to his wife.  The police department eventually got hold of the text messages and, upon determining “someone was wasting…City time not doing work when they should be,” the police officer was terminated.  Quon v. Arch Wireless Operating Company, Inc., 529 F.3d 892, 898 (9th Cir. 2008).

In my view, the most interesting part of the case is whether the employee had a reasonable expectation of privacy in his text messages.  The United States Court of Appeals for the Ninth Circuit found that he did.  The case was appealed to the United States Supreme Court and a decision is imminent.

To receive an email when the case is decided, run the following search on Westlaw.com:

Search: ti(Quon) Database: SCT

When your results load, click on “Add Search to WestClip” at the top of the screen, just under the Edit Search box.   In the screen that comes up, you can name your clip and edit the delivery settings on the left side of the screen.

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I received a couple of calls from employment attorneys looking for a recent sex discrimination case in the Eighth Circuit.  In January the United States Court of Appeals for the Eighth Circuit issued an opinion reversing and remanding an Iowa district court’s grant of summary judgment in  a sex discrimination and retaliation case.  The employer, a hotel chain, terminated its front desk employee for not being pretty enough or possessing a “Midwestern girl look.”  The court found that the employer “enforced a de facto requirement that a female employee conform to gender stereotypes in order to work.”  Lewis v. Heartland Inns of America, 591 F.3d 1033, 1037 (8th Cir. 2010).  The court went on to say, “We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”  Id. at 1042, citing Price Waterhouse, 490 U.S.  228, 251 (1989).

Read the entire opinion on Westlaw here: Lewis v. Heartland Inns of America, L.L.C.

On WestlawNext:  Lewis v. Heartland Inns of America, L.L.C.