California Business Litigation Blog

Sometimes, social media, employers and workers just shouldn’t mix. At least, that’s the logical conclusion in the case of a lawsuit filed by former employees of Coyote Ugly Saloon.

The trouble began when several current and former employees of the corporation filed a lawsuit against Coyote Ugly. The complaint alleged that employees had not received compensation for hours they were forced to work off the clock. Moreover, the suit pursued damages for illegal tip practices. Plaintiffs alleged that bar security workers were allowed to share in the tip pool although the practice should have been prohibited.

Most corporations accept the occasional lawsuit as part of the cost of doing business. Under the advice of attorneys, most employers refrain from commenting publicly with regard to ongoing legal matters. However, this practice seems to be changing as social media applications become increasingly prevalent. The problems associated with this phenomenon are highlighted by this case.

Coyote Ugly CEO Liliana Lovell, who writes a regular blog on the company website, made comments on her blog that were related to the recently filed lawsuit. In the post, Lovell noted that the plaintiff, Misty Blu Stewart, had been terminated for theft. The post also went on to refer to Stewart in a derogatory fashion, although Stewart’s name never actually appeared in the post.

Concurrently, another plaintiff in the case, Sarah Stone, discovered a Facebook post by a company manager that referred to a desire to kill a bartender who was suing him. The post was made while the manager was being served by Sarah Stone, whom he knew was involved in the suit.

As a result of both online postings, Stewart and Stone filed a further lawsuit, this time claiming retaliation on the part of their former employer. The court recently dismissed a motion by the defendants that would have put an end to the suit, meaning that a judge is likely to hear the case in the coming months. In the meantime, it seems prudent for employers to refrain from commenting in social media on legal matters in even the vaguest terms.

A legal quagmire in Georgia over a teacher, her Facebook profile and student access to that profile is deepening. The tale starts at the beginning of the 2009 school year when Ashley Payne, a high school English teacher, befriended a student on Facebook. It’s unclear which party sent the friend request, but the resultant connection opened Payne’s profile to the student. In it, Payne made use of the term “bitch” in a playful manner and also posted a picture of herself with a glass of wine in one hand and a beer in the other.

Upon discovering this content, the student’s parent anonymously forwarded an email to Superintendent Dr. Ron Saunders who forwarded the message to Apalachee High principal David McGee. McGee, along with the vice principal, held a meeting with Payne in which the teacher admitted her use of Facebook and the use of a photograph depicting alcohol usage. However, Payne alleged that she was unsure whether or not any of her students were among her Facebook friends. Principal McGee then showed Payne the email complaint and notified her that the concerns of the parent were being passed along to the school board. Allegedly, McGee expressed doubts about the board finding in Payne’s favor.

Payne says she felt that she was being given two options: resign or be suspended. She sent in a resignation letter, then reconsidered the decision. With the help of an attorney, Payne addressed a letter to the school board in which she advocated for getting her job back. When that failed to elicit a response, her attorney filed a writ of mandamus alleging that the Georgia Fair Dismissal Act entitled Payne to a hearing and appropriate compensation.

In response, the school district filed a motion for summary judgment. The court ruled in favor of the school district, stating that Payne’s resignation meant she was disqualified for protection under the act. Still, Payne isn’t ready to give up the fight. A recently filed appeal means that her case will get a second look under the jurisdiction of a higher court.

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Clashes between employer rights and the social media activities of employees seem to be on the rise. Decisions recently handed down by the National Labor Relations Board, or NLRB, sanctioned employers who disciplined employees for their social media activities. The NLRB contends that employers in each instance violated provisions of the National Labor Relations Act.

In one case, employees of a domestic abuse shelter were fired in the wake of a series of Facebook posts. The posts were made in response to the news that another coworker intended to take complaints about the substandard performance of employees to a supervisor. The NLRB found that the posts constituted a concerted activity that is protected under the NLRA. Essentially, board members felt that the employees were engaging in an act of mutual aid with regard to the conditions of their employment. The Facebook posts were an attempt to mount a defense against the allegations of the employee who intended to make a complaint.

In another matter, retail store employees experienced ongoing safety concerns that their employer failed to address. The store’s location was in a questionable neighborhood. Employees had expressed concerns about the late closing hour and the unsafe neighborhood. They asked the owner to institute earlier closing times, a request that was denied. Employees took to Facebook where they aired their grievances and criticisms of their manager. In response, the employees were fired for insubordination. However, the NLRB found that this situation also constituted a protected concerted activity. The board cited employee posts stating that they intended to consult an employee rights book to determine whether or not their employer was violating California labor laws. Accordingly, the board determined that the Facebook posts were a concerted activity aimed at protecting employees and not a conspiracy to goad the employer into firing them as the store owner had alleged.

As social media permeates more of the interactions between employees, it seems clear that new legal territory will continue to be covered. When confronted with social media posts by employees, it seems advisable for employers to tread carefully and/or seek legal counsel before taking disciplinary action.

The welfare of a second grade student is at the heart of a retaliation lawsuit that was recently revived by a federal appeals court in Tennessee. In the initial complaint, the parents of a Shelby County, Tennessee school district student allege that their daughter’s school principal retaliated against them in response to their accommodation requests made in connection with the girl’s medical condition.

The student, who is identified in the lawsuit only as A.C., suffers from Type I diabetes. In her three years at the Bon Lin Elementary School, A.C.’s parents made numerous requests for accommodation of their daughter’s condition. They asked that the student’s blood sugar be tested in the classroom by the school nurse rather than having their daughter go to the nurse’s office where she would regularly encounter sick children. This request was not granted, but others were. Among them were adding a full time nurse to the school staff and training teachers how to respond to a diabetic emergency.

Despite most of their accommodations being granted by the school, A.C.’s parents continued to agitate for further changes. The principal and other staff members became increasingly bewildered regarding how to respond to the numerous requests. When A.C.’s teacher observed her eating candy and cookies at school, alarm bells sounded for administrators. They came to the conclusion that A.C.’s parents were not appropriately attending to their daughter's medical needs. This belief led to the principal contacting the Tennessee child services agency. The agency investigated the maltreatment claims, but ultimately declared them unfounded.

Nonetheless, the action prompted A.C.’s parents to initiate a lawsuit against the school district which asserted retaliation on the part of the principal in response to their accommodation requests. A summary judgment found in favor of the school district, but a three judge panel at the federal appeals court (view the opinion HERE) recently overturned that decision. The panel found that a jury could reasonably construe the report to the child services agency as a retaliatory act. Accordingly, this newly reopened case is likely to be tried in a court of law before a jury.

Bullying has become a hot media topic, but it’s a subject that’s gone beyond the schoolyard bully demanding lunch money. Today, cyberbullying is being put in the spotlight, and the prevalence of this phenomenon is leading to legislation.

In Nevada, public outcry over videotaped bullying that gets posted to the Internet has caused politicians to pass a new law. Essentially, the legislation prevents the transmission and distribution of violent images involving a child. Minors who knowingly and willfully distribute images of a violent offense against another minor may find themselves facing a juvenile court after the first offense. The court may impose supervision for the minor, though it is not empowered to detain them.

A second offense carries stiffer penalties. A juvenile detention center would be the minor offender’s next stop. Under the law, the detention would be similar to that imposed upon an adult who had committed a misdemeanor.

Parents of children who have been the victims of cyberbullying feel that the new law comes not a moment too soon. Cherie Anderson, a mother whose 17 year-old daughter was herself the victim of a bullying attack, expressed her hope in the days before passage of the bill that it would pass in its entirety without major amendments.

In response to the bullying, Anderson has already begun homeschooling her daughter and has also enacted two house rules that prohibit cell phones and the use of social media. Anderson also said that she finds it “appalling that parents give” children the tools necessary to perpetrate a cyberbullying attack.

Though Nevada’s new law (HERE) is certainly among the first such legislation in the country, it is unlikely to be the last. It seems reasonable to assume that other states and municipalities will soon be considering passage of similar laws.

Lawsuits alleging racial discrimination in the workplace are not particularly unusual, but one such suit in Columbus, Ohio is drawing attention because of its emphasis on reverse discrimination. In the lawsuit (available HERE), two Caucasian Columbus City Schools employees are suing the school board in addition to several individual employees who are nearly all African American. Among the details in the complaint are allegations of a hostile work environment, emotional distress and the loss of opportunities for promotion.

The two plaintiffs are Elizabeth Gasior and Juli Knecht. Each has been employed by the school district for several years, mainly within the Gifted and Talented Department. Gasior alleges that after more than 20 years of employment and overall positive employee reviews, things began to change under the directorship of Toia Robinson. After Robinson was made supervisor of the Gifted and Talented Department in the 2008-2009 school year, Gasior says that alterations within the department began to make it difficult for her to perform her responsibilities effectively. Further, she says Robinson showed a tendency to make false performance statements and began to remove her from certain department activities.

As for Knecht, the long time district employee alleges that after interviewing for a regional coordinator position and ranking well before the hiring panel, her name was simply removed from contention in favor of an African American woman who did not possess her professional qualifications. Later, Robinson, in collusion with other officials, is alleged to have falsified interview board documentation to make it look as though the African American candidate had been the preferred interviewee all along.

Both women believe that their careers as educators have been adversely affected through a pervasive pattern of reverse discrimination to which other district employees have also alluded in conversations. Repeated complaints made by both women to the board of education went unresolved for months before the decision was made to file a civil complaint. A resolution to the situation will likely not be reached for some time, which is likely to prompt the concern of many parents whose children are enrolled as students in the Gifted and Talented Department.

The question of whether or not a teacher’s work email address should be a matter of public record is stirring debate in Nevada. Specifically, the Nevada Policy Research Institute is suing the Clark County School District after officials refused to release the email addresses of its 18,000 teachers. Also named in the suit are the Nevada Public Education Foundation and the county’s Public Education Foundation. Earlier correspondence from the foundations to the institute indicated that the foundations owned the licenses for the requested records, making it within their purview to make the decision about releasing the information.

The trouble began when the institute wanted to notify teachers about the limited opportunity to cancel their membership in the Clark County Education Association. Members of the association pay almost $800 in dues each year, and they are only able to drop their membership between July 1 and 15. The association is a union, and the conservative policy institute felt that more union members should be aware of their options.

District officials didn’t agree. Melinda Malone, a spokesperson for the district, contends that making email addresses a part of the public record would create abuse of a system that’s meant to be used only for official business. If email addresses were publicly available, Malone fears that it would cause “countless businesses and organizations to continuously solicit district teachers through their work email.”

Over district objections, the institute was able to obtain a few thousand of the pertinent addresses and sent out the union notifications to those teachers. Response to the effort was mixed, with some teachers being appreciative and others asking not to be contacted. An institute representative noted that the reaction of some teachers was so strong that they “cussed” at institute employees.

This is a situation that isn’t likely to be resolved any time soon. Nevada already provides the institute with the name, salary and title of all government employees, and the institute feels that no distinction should be made for work email address. For now, it remains a question for the court to decide.

Continue reading "Clark County Nevada School District Sued Over Teacher Emails" »

A recent policy change is raising the eyebrows of more than a few CVS Pharmacy employees. The policy change relates to the employee health insurance program. About 200,000 CVS employees receive health benefits through their employer. The new policy requires each of those employees to submit to a wellness screening or face a $50 per month penalty on their insurance premium.

Before May 14, CVS employees are required to keep an appointment with a physician who can perform a WebMD Wellness Review. The check up will include tests for common health concerns like cholesterol, blood sugar, body mass, body weight and blood pressure. Test results must then be submitted to the employer, though CVS insists that the company will not be reviewing the test results, nor will there be any penalties for unfavorable results.

Instead, CVS states that they are motivated by increasing the wellness factor among its employees. As Dr. Richard Besser, the chief health and medical editor for ABC News, notes: “If your employees are healthy they’re going to work better and they’re going to cost the employer a lot less money.”

Such programs are not new. Many health plans require regular screenings. However, this new CVS policy does have some distinctive differences. While CVS officials declare that participation is “voluntary,” the stiff penalties for not participating suggest otherwise. Many employer sponsored health plans that ask for screenings do so on an incentive basis in which an employee is rewarded for participation. This new CVS policy is much more penalty based and carries a negative connotation.

The spokesperson for Patient Privacy Rights calls the policy a “coercive and blunt” tactic that is based on the notion that workers “need to be penalized in order to make themselves healthy.” Peel worries that the plan is actually “technology-enhanced discrimination” that will lead to the firing of ailing employees.

Though it is controversial, CVS appears to be moving forward with the policy. Time alone will tell if the policy leads to a healthier workforce and whether or not CVS intends to make personnel decisions based on worker health.

A Lynchburg, Virginia teacher is in hot water after subjecting her third grade students to a lie detector test. The incident happened on Valentine’s Day. Students were celebrating the holiday, and candy had been brought into the classroom. However, things went sour when some candy went missing.

The teacher, who has not been named to media sources, apparently pulled out her smartphone and looked for a lie detecting app. Then, each student was asked to participate by placing their thumbs on the phone’s screen while they were asked whether or not they had taken the missing candy. Allegedly, one student did not pass the test, although it has not been revealed whether or not that student was the actual candy culprit.

A parent whose child attends the third grade class at Dearington Elementary School spoke with the teacher after the incident. The teacher insisted that the lie detector test was administered in the spirit of fun and that some of the students had actually suggested the use of the app when the missing candy was discovered.

The fun quickly evaporated, with many kids being afraid to tell their parents about the incident and some even admitting to being nervous about the accuracy of the test itself.

“I was scared because what if it came back and said I did it when I really didn’t,” third grader Zimeyia Alexander is quoted as saying by media outlets.

Parents and guardians are more angry than scared. One parent noted that a lie detector is something “that belongs at a jail,” while another argued that the teacher should have notified parents before administering the test.

Disciplinary action against the teacher has not yet been decided upon, but some parents, including the PTO president, insist that the teacher should be terminated.

A brief review of several lie detector apps suggest that they are intended only for entertainment and do not actually perform the function of detecting lies. It seems advisable to take such caveats at face value and to not place too much faith in a smartphone as a lie detecting gadget.

When fourth grade teacher Jane Youn handed out a new set of math problems to her students in Manhattan’s Public School 59, the otherwise routine event sparked outrage among parents.

That’s because the assignment consisted of a number of math word problems, some of which contained references to slavery. Youn had asked her students to create word problems that combined math with their social studies lessons. Youn later collected the problems and presented them to students for homework.

All might have been well except for two questions. The first asserted that a ship had been loaded with 3,799 slaves and continued by stating that, “One day, the slaves took over the ship. 1,897 are dead. How many slaves are alive?” The other problematic question concerned a slave who was whipped multiple times everyday. Students were asked to determine how many times the slave was whipped in a one month period.

The assignment raised a few eyebrows when Youn’s students took it home that night. Almost immediately, parents were raising concerns about the appropriateness of the questions. When school officials were alerted to the matter, they expressed that they were appalled. At this time, disciplinary action against Youn is still being considered. Another teacher at the school, Jacqueline Vitucci, had copied the assignment but ultimately decided not to use it. Vitucci may also be facing disciplinary action by the administration.

The public school, which shows a demographic that is 60% white and only 5% black, is still reeling from the aftereffects of the assignment. Parents call the use of the slavery questions “unnerving” and “unsettling.” Another parent referred to the questions as “sending the wrong message.” A student teacher at Public School 59 refused to hand out the assignment in a later class, declaring that it contained issues with “desensitized” violence.

Though the fact remains that it was students who initially composed the questions, the ultimate use of those word problems was left up to the teacher’s discretion. Clearly, where racially charged subjects are concerned, it’s better to exercise caution in an educational atmosphere.

Beginning in 2016, Chicago students may be receiving sex education classes as early as kindergarten. Currently, students begin sex education in the fifth grade, a common practice throughout the U.S. However, experts point out that America has one of the highest teen birth rates in the world. Additionally, Cook County has an unusually high rate of sexually transmitted diseases, and several studies have indicated that children as young as 13 and 14 years of age are having sex, especially in large urban areas.

The new sex ed program emphasizes age appropriate subject matter. Prior to the fifth grade, students would be introduced to subjects like basic anatomy, inappropriate touching and about various species that reproduce. As students progress through successive school years, the sex ed focus will continue to be on feelings and the family, with puberty being added in the fourth grade.

Contraception and human reproduction would not be addressed until the fifth grade. New components of the sex ed program would include information about sexual identity, homosexuality and bullying.

These changes are aimed at giving children the information they need to make healthy, responsible life choices. However, many parents are made uncomfortable at the thought of their young children receiving sex education at as early as five or six years of age. Some say that children are not yet ready to be presented with such information.

Parents who would rather not have their children participate in the program can choose to opt out. To these parents, it simply makes sense to discuss sexuality and human reproduction in the home. Nonetheless, the information presented in the classroom can be especially helpful, and public school officials suggest that any education provided at home can be augmented by instruction at school.

The changes to Chicago’s sex education program are in line with President Obama’s HIV/AIDS agenda, and were designed by the Chicago Public School's Office of Student Health and Wellness. A final decision has not yet been reached on the issue, but a presentation to the Chicago Board of Education may result in imminent implementation of the strategy.

Anyone who has ever held a job appreciates the importance of venting frustrations, and discussing such issues with friends and colleagues in private is healthy and natural.

However, the increasing prevalence of social media is making what once would have been momentary statements a permanent part of the ethos. At least, that’s what New Jersey first grade teacher Jennifer O’Brien recently learned when she posted some comments to her Facebook page.

O’Brien’s comments about being a warden and wondering why she couldn’t bring her first grade students to a school’s scared straight program ignited a firestorm of controversy in the school district where she had been employed for more than a decade. Initially, O’Brien was suspended without pay, but eventual findings by an Administrative Law Judge, the commissioner and an appeals court had O’Brien removed from her tenured position.

O’Brien’s arguments that her posts were protected under the First Amendment fell on deaf ears. The decision to remove O’Brien from her job was supported by citations from the Pickering v. Board of Education case. The court weighed the question of O’Brien’s right to express her viewpoint in social media against the public school district’s interest in providing efficient services. O’Brien’s comments were deemed to not be a matter of “public concern.” As a result, the disruption caused to the school district’s ability to teach was determined to outweigh O’Brien’s First Amendment rights.

Ultimate questions of whether or not a public employee’s private posts on social media websites are protected by the First Amendment will not be answered soon. In the interim, it seems wise for public employees to be judicious, remaining aware at all times that in an increasingly interconnected society, few things said in social media remain private for long. Although O’Brien’s punishment seems unnecessarily harsh, her experience serves as a reminder that a communication from a public employee may not be considered protected speech if it interferes with the operation of the agency that employs them.

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