Sixth Circuit Boots Joe the Plumber In A Retrograde Opinion That Gives Advantage To Management

Remember Joe the Plumber from the 2008 presidential campaign? His real name is Samuel Joseph Wurzelbacher. As you may recall, Joe rose to prominence after asking several questions of then presidential candidate Obama, related to the impact that Omama’s tax plan would have on Joe’s ability to purchase a small business.

Since then, Joe has been engaged in litigation involving officials in the Ohio Department of Job and Family Services (ODJFS), the agency which administers Ohio state programs such as child support enforcement, a “Temporary Aid to Needy Families” cash assistance program, and unemployment compensation.  ODJFS also maintains confidential databases in connection with the programs it administers. Within days after Joe rose to prominence in the media, three high level ODJFS officials authorized searches of those databases for records related to Joe. The agency officials got caught red handed, and were disciplined. No confidential information was disclosed to the public.

Joe sued the three officials under § 1983, alleging First Amendment retaliation and violation of his informational right to privacy. In Wurzelbacher v. Jones-Kelley, No. 10-4009, U.S. App. LEXIS 6177 (6th Cir. March 27, 2012), a panel of the Sixth Circuit, Judge Griffin writing, affirmed a district court order granting judgment on the pleadings in the defendants’ favor. The Sixth Circuit held that the first question was whether there was an alleged adverse action “sufficient to deter a person of ordinary firmness,” and went on to find that “a person of ordinary firmness” would not be deterred or chilled by high level officials of a state government agency searching confidential databases for information about that person. Interestingly, the Court recognized that this is “generally a question of fact,” but went on to reject arguments that a jury ought resolve this question, holding that the searches were “inconsequential”; that the searches resulted in nothing more than a “de minimis injury”; and that it “trivializes the First Amendment to allow plaintiffs to bring such a claim.”

The Court went on to affirm judgment on the informational right to privacy claim, recognizing that the Sixth Circuit has followed a minority view regarding the contours of such a claim. The panel stated that the Sixth Circuit has limited the right of informational privacy “only to interests that implicate a fundamental liberty interest.” Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008). The Court went on to state, relying on Lambert: “Given this demanding standard, we have recognized a constitutionally-protected informational-privacy interest in only two circumstances: (1) where the release of personal information may lead to bodily harm, and (2) where the released information relates to matters ‘of a sexual, personal, and humiliating nature.”’ Lambert, 517 at 440. As stated, the Sixth Circuit is in a decided minority on the breadth of the informational right to privacy. See Stathros v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322–23 (2d Cir. 1999) (citing Whalen v. Roe, 429 U.S. 589 (1977) for an analysis of whether financial disclosure requirements violated Stathros’ right to privacy); see also Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 109 (3d Cir. 1987); Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir. 1990); Plante v. Gonzalez, 575 F.2d 1119, 1132–33 (5th Cir. 1978); Denius v. Dunlap, 209 F.3d 944, 955 (7th Cir. 2000); Eagle v. Morgan, 88 F. 3d 620, 625 (8th Cir. 1996); Tuscon Woman’s Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004); Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986); Hester v. City of Milledgeville, 777 F.2d 1492, 1497 (11th Cir. 1985). But see Borucki v. Ryan, 827 F.2d 836, 841–42 (1st Cir. 1987) (expressing concern regarding the existence of such a right, but declining to address the issue); Am. Fed’n of Gov’t Emps. v. HUD, 118 F.3d 786, 791 (D.C. Cir. 1997) (expressing “grave doubts” as to the existence of such a right, but proceeding to analyze and reject the claim anyway).

Please be sure to visit our website at http://RobertBFitzpatrick.com

Differentials In Severance Packages May Give Rise To Discrimination Claims

In a game changer, the Fourth Circuit in Gerner v. County of Chesterfield, Va., No. 11-1218, 2012 U.S. App. LEXIS 5559 (4th Cir. March 16, 2012), Judge Diana Gribbon Motz, writing for a panel consisting of two district judges, held that, where the employer did not offer the female plaintiff the same “sweetheart” severance package that it had offered to four similarly situated male counterparts, the differential in treatment gives rise to a claim of gender discrimination. The district court (Hon. Henry E. Hudson) had granted the defendant’s motion to dismiss on the ground that the terms and conditions of the severance package did not constitute an actionable adverse employment action. The Fourth Circuit found that the lower court had ignored the teaching of Hishon v. King & Spalding, 467 U.S. 69 (1984), where the Supreme Court clearly stated that “benefits that [an employer] is under no obligation to furnish by an express or implied contract… may qualify as a ‘privileg[e]’ of employment under Title VII”. The Fourth Circuit went on to state that “courts have consistently recognized that the discriminatory denial of a non-contractual employment benefit constitutes an adverse employment action.” (citations omitted).

The Fourth Circuit went on to reject the contention that plaintiff’s claim failed to allege the required adverse employment action because the differential in severance only affected a former employee. Judge Motz, in rejecting that argument, stated: “To limit actionable adverse employment actions to those taken while an employee is currently employed would be inconsistent with the statutory text and Title VII’s ‘principal goal’ of ‘eliminat[ing] discrimination in employment.’” (citations omitted).
I suggest that this decision is a game changer because it now allows counsel for departing employees to demand in settlement negotiations that the employer either provide evidence of the severance paid to comparables, or to make a material representation in the severance agreement that the amount or the formula used to compute the amount paid to the departing employee is the same as that paid or used in the case of comparables. Quite obviously, the issue of comparability is of significance, and, in Gerner, the district court specifically did not address the issue of comparability raised by the defense. In the past several months, the circuits have written extensively on comparability, and those decisions should be parsed by both sides in determining whether the departing employee is comparing apples and apples or apples and oranges. See, e.g. Luna v. Corrections Corp. of Am., No. 11-10483, 2012 U.S. App. LEXIS 5516 (5th Cir. March 16, 2012); Bobo v. United Parcel Service, Inc., 665 F.3d 741 (6th Cir. 2012); Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012); Horn v. United Parcel Services, Inc., 433 Fed. Appx. 788 (11th Cir. 2011); Lee Kraftchick, Recent Developments in the Use of Summary Judgment to Resolve Employment Discrimination Cases, The Florida Bar Journal, Volume LXXVIII, No. 3.

Please be sure to visit our website at http://RobertBFitzpatrick.com.

Public Official Held To Be Individually Liable In FMLA Case

In Ainsworth v. Loudon County School Board, 2012 U.S. Dist. LEXIS 36114 (E.D.Va. March 16, 2012) Judge Cacheris of the Eastern District of Virginia, sitting in Alexandria, recently held that “public employees who act directly or indirectly in the interests of their employer may themselves be considered ‘employers’ subject to suit in their individual capacities under the FMLA.” In doing so, Judge Cacheris noted that the circuits have split on this issue, with the Fifth and Eighth Circuits finding individual liability (Modica v. Taylor, 465 F.3d 174, 184-87 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002)) and the Sixth and Eleventh Circuits reaching the opposite conclusion (Mitchell v. Chapman, 343 F.3d 811, 825-33 (6th Cir. 2003); Wascura v. Carver, 169 F.3d 683, 685-87 (11th Cir. 1999)). Further, Judge Cacheris notes that the Fourth Circuit, while recognizing that the issue is an open question, expressed no opinion on the issue in Jones v. Sternheimer, 387 F. Appx. 366, 369 (4th Cir. 2010). Finally, while recognizing that district courts within the Fourth Circuit are also split, Judge Cacheris ultimately adopts the reasoning of cases like Weth v. O’Leary, 796 F. Supp. 2d 766, 776-77 (E.D.Va. 2011) (Brinkema, J.).  

Please be sure to visit our website at http://RobertBFitzpatrick.com.

The Spotlight is On Practice of Employers Requesting Access to the Social Media Accounts of Employees and Job Applicants

As we discussed earlier this week, both houses of the Maryland General Assembly have passed legislation that would prohibit employers in Maryland from asking current employees and job applicants for their usernames and passwords to social media sites, for example, Facebook and Twitter.  The legislation passed unanimously in the Maryland Senate and by a substantial margin in the House, and has now been sent to the Governor for his signature.  If the Governor should sign, the legislation will be the first of its kind in the country. 

The Maryland legislation was birthed as a result of a controversy that ensued between the Maryland Department of Public Safety and Correctional Services and the ACLU of Maryland when, back in 2010, the Department required job applicants to submit usernames and password information related to their social media sites, purportedly to check for gang affiliations.  The Department suspended and then dropped the requirement after protests by the ACLU.  In this correspondence, the ACLU asserted that the Department’s conduct violated the Stored Communications Act, 18 U.S.C. § 2701-11 and its Maryland analog, Md. Courts & Jud. Proc. Art., § 10-4A-01, et seq.  The ACLU also noted that the Department’s conduct may give rise to violations of the common law tort of invasion of privacy and arguably chilled the First Amendment rights of employees.  The ACLU argued that “there can be little question but that forced ‘authorization,’ such as that demanded of [the applicant], is not proper authorization under the SCA, given the disparate bargaining power of the employer and employee or applicant.”  In the wake of the ACLU’s allegations, some commentators, such as Orin Kerr of the George Washington University School of Law, have likened surrendering social media passwords to handing over the keys to one’s home. 

While the Maryland legislation attempts to resolve these concerns, as passed it does not explicitly provide for a private cause of action, complaint procedures, or criminal sanctions.  This appears to relegate enforcement of the Maryland legislation to the realm of tort suits for wrongful termination in violation of public policy under Adler v. Am. Standard Corp., 291 Md. 31 (1981) and its progeny.  Similar legislation has been introduced  in Illinois, Michigan, Minnesota, Massachusetts, and California.  More information on the Michigan bill is available in a recent blog post by Jason Shinn of the Michigan Employment Law Advisor. John Holmquist of the Michigan Employment Law Connection, Emil Protalinski of ZD Net, and Mitchell H. Rubinstein of the Adjunct Law Prof Blog recently published blogs about a Michigan teacher’s aide was fired for refusing to hand over his Facebook. New Jersey Assemblyman John Burzichelli has announced that he will introduce a bill on the subject.

Two United States Senators have requested that the Department of Justice and EEOC review the matter, citing an uptick in requests by employers for job applicants’ username and password for social media sites.  The letter to DOJ notes that this practice appears to violate Facebook’s terms of service and cites cases which, according to the authors, may subject employers who request usernames and passwords from applicants to liability.  See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); Pietrylo v. Hillstone Rest. Group, Civ. No. 06-5754, 2009 U.S. Dist. LEXIS 88702 (D.N.J. Sept. 25, 2009).  The letter follows with a request that the DOJ issue a legal opinion regarding whether requesting and using job applicants’ social media passwords violates current federal law, including the Stored Communications Act and the Computer Fraud and Abuse Act.

The letter to EEOC asks it to investigate whether such requests violate the anti-discrimination laws, expressing a concern that access to such sites would give employers access to personal information about the job applicants’ religious views, national origin, family history, gender, marital status, and age.  The letter states that the two Senators “are concerned that collecting this sensitive information under the guise of a background check may simply be a pretext for discrimination.”  As with the letter to the DOJ, the letter to the EEOC asks the Commission to issue a legal opinion as to whether this practice violates current federal law. 

The two Senators, Richard Blumenthal (D-Ct) and Charles E. Schumer (D-NY) have indicated that they intend to introduce federal legislation.  It is unclear, however, whether federal legislation on this topic is necessary.  In Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc., 962 N.E.2d 29 (Ill. App. 2012), the court found that an employer had violated the Stored Communications Act by looking at an employee’s personal e-mail.  The court reached this holding even though the employee accessed the e-mail account from her work computer, and the account could be accessed without entering a username or password.  Similarly, in Shefts v. Petrakis, No. 10-cv-1104, 2011 U.S. Dist. LEXIS 136538 (C.D. Ill. Nov. 29, 2011), the court found that employee e-mails stored on the employer’s servers were in “electronic storage” under the Stored Communications Act and it was a violation for the employer to access them without authorization. 

On another front, Facebook recently threatened to sue employers who request that job applicants provide access to their Facebook profiles.  Facebook’s Chief Privacy Officer, Mr. Erin Egan, in a statement issued March 23, 2012, stated: “We’ll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action.”  Mr. Egan indicated that asking for someone else’s Facebook password violates Facebook’s user agreement. 

Employer requests for the username and passwords needed to access the social media accounts of employees and job applicants has kicked up a great deal of discussion throughout the legal community.  Phil Miles at Lawffice Space has made several posts on this issue, and concludes that, while the question is not yet settled, “[the] consensus amongst employment law bloggers [is] that it’s not cool and potentially not legal[.]” As a practical matter, Dave Copeland of Read Write Web, quoting career coach Ms. Sandra Lamb, believes that “[i]f your FaceBook or other social media password is requested (or required) [by an employer or potential employer] that goes beyond a red flag – it’s a deal breaker.” Jon Hyman of the Ohio Employer’s Law Blog notes that the law will affect a small number of owners because a “small percentage of employers [] engage in this practice”. Justin Keith of GreenbergTraurig’s L&E Blog points out that “[t]he law also makes it unlawful for an employer to refuse to hire an applicant who refused to disclose the same information.”

Ms. Kara Mignanelli reports that only approximately 18 percent of companies use social media to screen job applicants, 89% use it for recruiting.  Companies seeking to employ this less intrusive method of screening would, accordingly, be well advised to ensure that they employ reputable agencies that comply with all applicable laws.  In particular, if an employer outsources review of social media sites, it would appear that the requirements of the Fair Credit Reporting Act apply which would, among other things, require that the written consent of the employee or job applicant be obtained. See Fair Credit Reporting Act, 15 U.S.C. § 1681; Letter from Federal Trade Comm’n to Nixon Peabody, LLP on May 9, 2011.  Should companies decide to conduct social media screening in-house, they must be careful about how such screening is structured.  While any company considering such a program would be well advised to seek in-depth legal advice, Ms. Dawn Lomer explains that – at a minimum – the person making the hiring decision should not participate in the screening. 

Furthermore, it is as yet unclear what effect, if any, legislation such as that passed by Maryland will have on the ongoing debate in the courts regarding discovery of Facebook material. Compare Zimmerman v. Weis Mkts., Inc., No. CV-09-1535, 2011 Pa. Dist. & Cnty. Dec. LEXIS 187, 2011 WL 2065410 (Pa. C.P. Northumberland May 19, 2011); McMillen v. Hummingbird Speedway, Inc., No. 113-2010, 2010 Pa. Dist. & Cnty. Dec. LEIS 270, 2010 WL 4403285 (Pa. C.P. Jefferson Sept. 9, 2010) (both allowing discovery of Facebook materials); with Piccolo v. Paterson, No. 2009-4979, 2011 Pa. Dist. & Cnty. Dec. LEXIS 45 (Pa. C.P. Bucks May 6, 2011); Kennedy v. Norfolk S. Corp., No. 100201437 (Pa. C.P. Phila. Jan. 15, 2011) (both denying discovery of Facebook materials). 

Courts are also divided as to the discovery of social media passwords in particular.  As reported by Ethan Wall on the Richman Greer Blog, some courts have ordered individuals to supply passwords to Facebook and other websites.  See Gallion v. Gallion, FA 114116955S (Ct. Super. Ct. Sept. 30, 2011).  However, as noted by Daniel E. Cummins at the Tort Talk blog,  the court in Kalinowski v. Kirschenheiter & Nat’l Indemn. Co., No 6779 of 2010 (C.P. Luz. Co. 2011), other courts have refused to order the production of social media passwords.  Note that the court in Zimmerman, which ordered discovery of Facebook materials, emphasized that its decision should not be read to open the door to unlimited discovery of a party’s private social media accounts.  Zimmerman, 2011 Pa. Dist. & Cnty. Dec. LEXIS 187.  Having reported the foregoing, the advice of the Employment Law Bits blog is well taken: individuals should think twice about the information and pictures posted on any social media site. 

Please be sure to visit our website at http://RobertBFitzpatrick.com

Maryland About to Become First State to Ban Employer Requests for Social Media Passwords

Both houses of the Maryland General Assembly have passed legislation that would prohibit employers in Maryland from asking current employees and job applicants for their usernames and passwords to social media sites, for example, Facebook and Twitter.  The legislation passed unanimously in the Maryland Senate and by a substantial margin in the House, and has now been sent to the Governor for his signature.  If the Governor should sign, the legislation will be the first of its kind in the country.  

The Maryland legislation was birthed as a result of a controversy that ensued between the Maryland Department of Public Safety and Correctional Services and the ACLU of Maryland when, back in 2010, the Department required job applicants to submit usernames and password information related to their social media sites, purportedly to check for gang affiliations.  The Department dropped the requirement after protests by the ACLU.  While the Maryland legislation attempts to resolve these concerns, as passed it does not explicitly provide for a private cause of action, complaint procedures, or criminal sanctions.  This appears to relegate enforcement of the Maryland legislation to the realm of tort suits for wrongful termination in violation of public policy under Adler v. Am. Standard Corp., 291 Md. 31 (1981) and its progeny. 

Similar legislation has been introduced in Illinois, Michigan, Minnesota, Massachusetts, and California.  New Jersey Assemblyman John Burzichelli has announced that he will introduce a bill on the subject, and two United States Senators, Richard Blumenthal (D-Ct) and Charles E. Schumer (D-NY) have indicated that they will introduce federal legislation.

A more detailed analysis of these developments, will appear in this space tomorrow.

Please be sure to visit our website at http://RobertBFitzpatrick.com