May 21, 2015

New York Court Approves the Use of Class Action Notification Via Social Media

More than one judge has approved the use of social media for service of process. Now a judge has approved a bid to use websites like Facebook for informing potential participants of a class action lawsuit.

Social%20Media%20Compass%2054107999-001.jpgThe New York Federal Court has decided to allow plaintiffs in the case Mark v. Gawker Media LLC to notify other potential plaintiffs of the lawsuit via social media. Gawker, which is an online media company, is being sued by a class of individuals who were once hired as unpaid interns. The interns assert that Gawker violated the Fair Labor Standards Act along with portions of New York labor law.

Plaintiffs already involved in the case felt that there were many other potential class members, yet they were uncertain how to reach them through traditional means, such as U.S. mail. They knew that many former Gawker interns were devoted to social media, and this gave them the idea that these services could be used to spread the word about the lawsuit.

Their initial proposal to the court was rejected as being far too broad and more likely to simply advertise the lawsuit than to actually target likely potential class members. Plaintiffs originally wanted to use a "GawkerInterns" Twitter account with assorted hashtags along with a LinkedIn profile. Their plan also involved Tumblr, Reddit and Facebook.

The court suggested a more personalized and targeted approach, citing that the plaintiffs' original suggestion seemed more like an attempt to punish Gawker than to provide notice to potential class members. Plaintiffs may still use Twitter, Facebook and LinkedIn, but their approach must be more specific and less public. Moreover, the notices that will be provided to other former interns will include much of the approved language that is traditionally utilized in such notices.

The New York federal court seems to be taking a prudent approach to the use of social media in legal matters. They understand that there is a fine line between appropriately advising potential class members and merely contributing to a negative online media campaign. This case may set an important precedent for future class actions.

May 8, 2015

Family Fights for Daughter to Take Marijuana Prescription at School

Teenager Genny Barbour is in an unusual situation. Diagnosed with autism and epilepsy, Genny has experienced ongoing emotional and mental difficulties as well as debilitating seizures. Her parents, Roger and Lora, spent years trying every known medical treatment. Genny had been prescribed a startling number of different drugs and even undergone brain surgery, but all those treatments were to no avail.

Medical%20Marijuana%20%2079796786-001.jpgAs a last resort Genny's doctor prescribed cannabis oil. To the surprise of the family, the treatment worked. Genny is now permitted to use medical marijuana with her mother designated as the caregiver who provides the dosages. Lora Barbour uses an eyedropper to put a small amount of cannabis oil in a glass of soda three times a day. However, the family noticed that while Genny left for school in a positive frame of mind she returned in the afternoon in a considerably different state. It was clear that her medicine was wearing off while she was at school.

Genny's doctor decided that a fourth dose of medicinal marijuana should be administered during her lunch hour. When her parents informed the school administrators immediately balked. Medical marijuana might be legal in New Jersey, but the schools are still a federally mandated drug free zone and marijuana remains illegal under federal law.

The Barbours filed a lawsuit to protest the Maple Shade School District's decision to ban the use of the cannabis oil on school property. An administrative judge agreed with the district, citing federal law to support his opinion. The family has since appealed that decision, though it appears they have an uphill battle.

In an attempt to reach a compromise, Maple Shade officials offered to allow Genny's mother to remove her from the school each day to administer the dose. Her father flatly refused the offer, noting that it would be enormously disruptive to his daughter's day and might cause terrible behavioral difficulties.

Both sides in this fight seem determined to carry the day. Regardless of which party ultimately triumphs, this case is likely to set precedents for students and school districts facing similar situations across the country.

May 1, 2015

NLRB Decision May Cause Companies to Amend Email Policies

The National Labor Relations Board made a landmark decision recently, when it ruled that employees have the right to use their employer's email system to send communications regarding union organizing.

Email%20%2081091615-001.jpgThe decision came in response to a matter involving Purple Communications of Rocklin, California. Company policy forbade employees from using the email system for "activities on behalf of organizations or persons with no professional or business affiliation" with Purple Communications.

A union was attempting to organize certain employees within Purple Communications. They filed a protest over election results at a couple of the company's worksites because the restrictive email policy prevented employees from freely conversing about the election. Union organizers also filed a complaint of unfair labor practices because employees were being restricted from engaging in a legally protected activity. An administrative law judge initially found in favor of Purple Communications, but the union organizers decided to appeal that decision.

The board reversed its decision, finding that employees who have already been granted access to a workplace email system do have the right to use that system for protected communications relating to matters about working conditions and union organizing as long as such communications were made during non-working hours. Nonetheless, companies may still have the right to restrict such emails if they can show that such a ban is necessary for disciplinary reasons or to maintain production activities.

Holding that communication is a basic building block of legal organization efforts, the board effectively reversed earlier decisions. Members of the board agreed that email is ubiquitous in the modern workplace and that it is essentially a "gathering place" for employees to discuss their rights and working conditions.

The board notes that employers still maintain the right to monitor emails to meet management objectives. Moreover, the ruling does not apply to employees who do not ordinarily have access to the company's email system or to third parties, like union organizers, who request such access. This new decision may make it necessary for employers to make amendments to existing email policies so as not to run afoul of this new precedent.

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April 24, 2015

Teacher Prevails in Freedom of Speech Lawsuit

The ACLU and PETA have settled a lawsuit with an Ohio school district that fired an employee over a Facebook post. Keith Allison, a Title I tutor in the Green Local School District of Smithville, was terminated from his position in August of 2014. Now he has been reinstated and granted all back pay from the months he spent without a job.

Freedom%20of%20Speech%2045907452-001.jpgThe trouble began in August of 2014 when Allison complained about the treatment of cows on dairy farms. He did so on his Facebook page, using his home computer and working on his own time. The post included a photo of a dairy farm, but did not identify the farm or the landowner.

The school district felt that the post would offend the farmer. They acted quickly, terminating Allison. He complained to PETA, and the organization passed the issue along to the ACLU. After agreeing to represent Allison, the ACLU filed a lawsuit on his behalf. In the complaint the ACLU points out that teachers do not sacrifice their right to free speech simply because they work for a public school district. There was nothing illegal in Allison's posting. Moreover, he had not used school equipment to create the post and he was not on school district time.

The parties have now settled the matter without going to trial. It took several months, but eventually the school district agreed to pay the salary owed to Allison as well as outstanding pension contributions. The district will also pay for the legal expenses of the ACLU and PETA.

In addition, the school district has issued a statement affirming the right of teachers to express their opinions on matters of public concern, demonstrating to the children they educate that voicing a protest is a necessary component of a free nation.

April 17, 2015

New York Court Allows "Service of Process" by Facebook

The Internet is becoming increasingly ubiquitous. Take the divorce matter that was recently ruled on by a judge in New York. The ruling is one of the first times that service of process by Facebook has been allowed.

Social%20Media%20Magnified%2044298834-001.jpgNormally, service of process is performed in person. A process server or law enforcement officer delivers the legal papers to the party to the lawsuit at their home or place of business. It may also be possible to mail the papers to that party's last known address. These are effective means of notifying parties that a lawsuit has been filed or of the commencement of some other type of legal action.

However, the courts are occasionally stymied when it comes to tracking down people for process service. That's what happened in the unusual divorce of Ellanora Baidoo and her estranged husband Victor Blood-Dzraku. The two married in 2009, but never cohabitated. Baidoo began divorce proceedings in New York. However, she was finding it difficult to track down her spouse. He is unemployed and his last known address was vacated in 2011. The U.S. Post Office had no forwarding address information for Blood-Dzraku.

It seemed like Baidoo would have to resort to notice by publication to inform her husband about the divorce. Publishing divorce notices in newspapers is a practice that's been used for centuries. Supreme Court Justice Matthew Cooper notes that this type of service can be time consuming and expensive. When Baidoo showed that she regularly communicates with Blood-Dzraku via Facebook, Cooper decided that service by Facebook would suffice in this instance.

Baidoo's attorney must now send Blood-Dzraku proper notice via a private message on Facebook. For three consecutive weeks he is required to send the same notice, unless the erstwhile husband confirms receipt.

Cooper's decision is rather groundbreaking. He calls social media process service the "next frontier in the developing law of the service of process." While some attorneys agree with the court's assessment of the situation, others remain dubious. Cooper's solution seems a logical one in circumstances where a party is dodging service or is otherwise difficult to locate.

April 3, 2015

Supreme Court Decision Sends UPS Pregnancy Discrimination Lawsuit Back to Lower Court

A Supreme Court ruling may have implications for employers who have not given particular consideration to their policies regarding pregnant workers. In the Peggy Young v. United Parcel Service Inc. case, the highest court in the U.S. ruled in favor of the plaintiff and sent the case back to a lower court. Young was a part time UPS driver stationed in a Maryland facility in 2006 when she became pregnant. On advice from her midwife, Young informed her employer that she was no longer able to lift packages that weighed more than 20 pounds. UPS requires that its drivers be able to lift a minimum of 70 pounds. Nonetheless, the employer has made accommodations for injured employees in the past who could no longer meet that requirement.

Young asserts that she was asking for a similar accommodation. However, UPS informed the driver that the lifting restriction would render her unable to work. For most of her pregnancy, Young stayed at home without pay. Eventually, she lost the health insurance that her employer had been providing.

She filed a lawsuit, arguing that UPS had failed to accommodate her when they had a history of accommodating other employees working under similar restrictions. UPS countered with the argument that those workers had been injured or disabled on the job. Moreover, many of those who received accommodations were part of a class protected by the Americans with Disabilities Act.

UPS was initially successful in fighting Young's claims, but the plaintiff kept appealing until the case reached the Supreme Court. In a six to three decision, the highest court noted that "there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young's."

The decision sends the case back to the 4th Circuit Court where Young will have another chance to make her argument. It's clear that UPS intends to fight this case to the end. The company has even introduced temporary light-duty positions for pregnant employees who are under physical restrictions in an effort to bolster their anti-discrimination stance.

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March 27, 2015

Twitter Defends Newest Gender Discrimination Lawsuit

Allegations of gender discrimination in Silicon Valley are nothing new. High profile lawsuits have already been filed against several tech companies. Now a former Twitter employee has filed a gender discrimination lawsuit against her former employer.

Social%20Media%2037877338-001.jpgTina Huang began working for Twitter in 2009. It appears that she was an exemplary employee up until her 2014 resignation. Huang received sterling performance evaluations and received no disciplinary actions, yet she was not able to get a promotion to a senior management position.

Huang had an opportunity for promotion in 2013, but felt she had been passed over for the job for no discernible reason. She penned an email to Twitter CEO Dick Costolo outlining what she felt were discriminatory practices in the promotion process. In fact, as Huang alleges in her complaint, Twitter's absence of any written policies regarding promotions makes it easy for discrimination to flourish. Twitter's top three executives are male, and Huang came to believe that this male dominated hierarchy was creating a glass ceiling effect for female employees.

In the summer of 2014 Twitter released a diversity report stating that the overall makeup of its employees skewed heavily toward males at a ratio of 70:30. Their tech division, where Huang was employed, featured an even more unbalanced ratio at 90:10.

Huang's complaint alleges that there is a "company-wide, pervasive problem of discrimination." After she complained in an email to Costolo, projects were removed from her purview and she was put on leave. After three months of leave with no end in sight, Huang resigned her position.

Twitter executives note in statements to the media that Huang voluntarily resigned her position and was not terminated. They go on to state that they attempted to convince her to stay, but to no avail. Diversity studies aimed at dissolving barriers to the promotion of women in the company have already been conducted, suggesting that Twitter may be aware that it has an issue and is taking steps to correct it.

March 13, 2015

David Copperfield Prepares to Settle Wage Dispute

Illusionist David Copperfield is poised to settle a wage dispute with employees. For the last several years, Copperfield has performed a magic show at the MGM Grand Hotel and Casino. The Las Vegas show is a major tourist attraction and requires services from support employees. However, some of those employees have alleged that Copperfield and four of the companies he controls did not adequately compensate them for overtime for a period extending from January 1, 2012 to December 31, 2013.

Magician%2052964406-001.jpgThe employees, who were mainly stagehands and employees of Copperfield's magic lab, joined together in February 2014 to bring the suit. The complaint alleged "a system of coercion and deception aimed at denying employees their rights to overtime pay."

Copperfield's camp seems determined to bring a swift end to the action as his legal team has proposed a $552,282 settlement. According to a spokesperson for Copperfield, the illusionist made the decision to settle so that the employees might have an opportunity to benefit from the settlement. Otherwise, the case might have been mired in a several years' long legal battle that would have cost both sides a great deal more money.

Under the agreement Copperfield and his companies admit no wrongdoing. The $552,282 will be broken down into several parts with $268,089 going to plaintiffs in the action, another $140,600 for other potential plaintiffs who may opt in and about $143,600 in lawyer's fees. The breakdown means that each of the employees will receive a little more than $6,000, a fairly significant amount when compared with the settlements of other class action suits.

The settlement must still be approved by the U.S. District Court. Judge Gloria Navarro has already approved a motion that defines who is included in the settlement. An additional hearing in May of 2015 will decide the fairness of the proposed settlement.

Copperfield's decision to settle the matter early seems like a prudent one that is likely to be satisfactory to all involved. Such a strategy not only minimizes legal costs, but also allows plaintiffs and defendants to move forward.

February 27, 2015

37 California School Districts Agree to Settle Lawsuit Regarding Elementary School Physical Education Requirements

In a post in August, 2014 (HERE), the California Business Litigation blog wrote about a lawsuit filed by Cal200. That suit alleged that many school districts in California were failing to meet the elementary school standard for PE of 200 minutes for every 10 school days. Among the districts named in the suit were Los Angeles Unified, Riverside Unified, San Francisco Unified and Palm Springs Unified.

school%20bus%20%26%20child%2044980077-001.jpgThe update is that 37 school districts have agreed to a settlement. The settlement requires all elementary schools in the districts to prove they are providing at least the minimum amount of physical education required by California law.

Elementary school teachers for grades 1 through 6 will be required to document how many minutes of physical education students receive. Further, that documentation must be made available to the public.

The lawsuit was filed because PE teachers, the California State Legislature and public health advocates have had little success in getting school districts to comply with the state requirements. The requirements were rarely enforced and essentially “had no teeth”.

The attorney for Cal200 stated “We think it’s a huge accomplishment and it’s going to benefit public health in California”.

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February 20, 2015

Los Angeles Unified School District Attorneys to Help Students Facing Deportation

Immigration issues are nothing new in the U.S. In the Los Angeles Unified School District, officials and teachers have long dealt with students who may not have been in the country legally. The LAUSD is the second largest school district in the nation. This fact, coupled with California's high immigrant population, means that there are thousands of students in the city who are at risk for being deported.

Many of these youths are no longer under the care of their families. The parents may have already been deported or some tragedy has befallen that casts the child adrift. With limited resources, these children face immigration courts without the benefit of adult guidance and certainly without legal counsel.

A new resolution passed by the LAUSD is aimed at addressing this. The general counsel's office for the school district proposed offering students free legal help with deportation issues. Interested lawyers are permitted to represent one student at a time. They are limited to providing between one and three hours each week to the student. Thus far, 10 attorneys employed by the district have expressed interest in joining this strictly volunteer endeavor. The school district would require the lawyers to make up any work time that they devote to providing free legal services.

The resolution passed, but not without dissent. Some board members expressed concern that so much focus was being given to one legal issue when families within the school district could easily be facing many other troubling legal situations without benefit of counsel. Moreover, there are so many students in the LAUSD who are facing deportation, that it seems certain that the 10 involved attorneys can't possibly address all of their needs.

Nonetheless, the need for these minors to have legal representation is clear. Statistics suggest that nearly three quarters of students who have legal counsel and are facing deportation are allowed to remain in the country. Only 15% of children who do not have a lawyer receive permission to stay in America. This new program is an important step in protecting the legal rights of students attending L.A.'s public schools.

February 13, 2015

Florida Court of Appeals Makes Social Media Discoverable

In January of 2015, the Florida State Court of Appeals delivered a ruling that may prove to be a landmark. Within the context of a personal injury case, the court ruled that social media posts made by the plaintiff were discoverable even though maximum privacy settings were used.

Social%20Media%20Magnified%2044298834-001.jpgThe plaintiff was shopping at a Florida Target store when she allegedly suffered a serious slip and fall. She claimed that her ability to enjoy life was forever diminished. Moreover, she was asking the corporation to compensate her for lost earnings. In the course of the lawsuit, lawyers for Target attempted to review the plaintiff's Facebook account. She had set her privacy settings at the highest standard. Nonetheless, attorneys could see that she had posted more than 1,000 photographs since the time of her injury.

Attorneys for Target filed discovery demands with the plaintiff's attorney, seeking an opportunity to view the photographs. The plaintiff objected, believing that such discovery violated her rights to privacy. The court of appeals did not agree.

Judges at the court released an 11 page opinion regarding their decision to allow discovery of the social media photographs. They argued that the images might be "powerfully relevant to the damage issues in the lawsuit." Moreover, they argued that, "there is no better portrayal of what an individual's life was like than those photographs the individual has chosen to share through social media." In the court's decision, it was also pointed out that even the owners of Facebook make no guarantees regarding the privacy of its users. In fact, it is possible for friends on the social media website to copy images and redistribute them however they wish. Accordingly, the plaintiff cannot expect to keep those pictures private in the face of a discovery demand.

This particular personal injury matter is still pending in the Florida court system. However, this ruling by the appeals court sets a powerful precedent for all civil and criminal matters in Florida going forward. It will likely become easier than ever for attorneys to gain access to social media accounts as they conduct legal research.

January 30, 2015

Owners of Executive Las Vegas Limo Service Fined $232K by U.S. Department of Labor

A Las Vegas limousine company is learning a lesson about how to calculate employee wages and tips. After conducting a lengthy investigation, the U.S. Department of Labor is fining Executive Las Vegas, which operates a limo and shuttle bus service, $232,000.

Limo%20Driver%2059486776-001.jpgThe fine is the result of an investigation that uncovered improper payroll deductions made by Executive Las Vegas prior to the end of 2014. Records showed that the company deducted certain expenses from employee paychecks for items like badges, drug tests, fuel and uniforms that should have been the responsibility of the employer. Moreover, officials from the Las Vegas division of the U.S. Department of Labor concluded that Executive relied on improper calculations to figure their minimum wage obligations. These errors meant that nearly 500 employees did not receive at least federal minimum wage for their work over the course of several weeks in 2014.

Federal law stipulates a minimum wage of $7.25 per hour. Because employees of Executive routinely receive tips as a result of the services they provide, the law permits the company to pay a minimum wage of $2.13 per hour as long as tips given are sufficient to add up to an hourly minimum of $7.25. The Department of Labor believes that Executive failed on numerous occasions to correctly calculate these numbers.

Jim Jimmerson, who is partial owner of Executive and an attorney, insists that the accounting errors were not intentional, but rather simple mistakes. He also points out evidence uncovered in the investigation which showed that employees tend to have "deliberately underreported their tips in order to create a false claim of entitlement to minimum wage."

Situations such as this one and others like it demonstrate how important it is for employers to have dependable legal counsel working for them. With the advice and guidance of an attorney, it's possible for employers to avoid costly mistakes like the ones committed by Executive.