Law Blog

The best part about drinking, other than the opportunity to temporarily forget the incredible number of problems in your life, is the wonderfully politically incorrect/ridiculous conversations that usually accompany imbibing in America’s favorite beverage.  On any given night of boozing, topics normally untouched, such as the merits of shoplifting or the proper way to bludgeon a baby seal, all become as mundane as a 50-year marriage (or so I’m told).  Though sometimes these aimless conversation can lead to some very interesting observations.

Case in point, the other night a drunken buddy of mine was jokingly trying to figure on how best to mess with his co-workers without them actually knowing that he was doing it.  After another beer and careful convincing that leaving live barn animals in their cubicles wouldn’t be very subtle, he came to the conclusion that the best way would be via annoying text messages from a private line.

Now aside from the incredibly unethical and possibly illegal character of my buddy’s self-created predicament, I couldn’t help but notice how effective the tactic he suggested would be in bothering his co-workers.  Despite the fact that he was joking, in reality the nature of my friend’s solution highlights how much workplace harassment has changed due to technology and social evolution.

A recent Newsweek article suggests that the way people are harassed at work now has changed a lot from how they were decades ago.  For instance, in the case of sexual harassment the stereotypical view has always been that of a boss forcing an underling to have sex with him or be fired.  Nowadays this doesn’t happen so often.  The landscape has changed and harassment, whether sexual or otherwise, comes in many different forms and from some unexpected sources.

In many ways, harassment in the workplace is a lot more subtle now and does not necessarily have to happen at work.  Going back to my buddy for example, he just wanted to piss off his co-workers because he didn’t like them all too much.  The full extent of his plan (as he slurred out) was that he was going to bombard them with text messages from a private line all the time, at the office and out.

To some people this might just seem like a jerk being a jerk, but under Title VII of the Civil Rights Act of 1964 such a practice could likely be considered harassment.  Just because the nuisance isn’t sexual in nature doesn’t necessarily preclude it from being harassment.  Furthermore sexual harassment itself has gotten a lot more subdued.  The Newsweek article suggests that more often than not sexual harassment in the modern work environment is more about one person asserting their dominance over a co-worker or subordinate rather than just someone trying to satisfy a sexual urge.

Anyway, the moral of this article, as they say, is that employment-related harassment can take many forms.  Threatening emails, annoying Facebook messages, calls at odd hours of the night from your officemates could all possibly be considered harassment.  Here are some helpful tips that might help you navigate through these tricky waters.  However, the basic rule seems to be that essentially anything you’re uncomfortable with that’s being done to you by an employer or fellow employee could be workplace harassment.

Remember, you don’t have to take it.

With the arrest and recently announced dropped charges against renowned black Harvard professor Henry Louis Gates Jr., the world seems to be once again entrenched in the subject of racial prejudice.  Actually that’s a bit of a stretch.  I seem to recall another semi-important event that may have helped bring the spotlight back on race before this whole Gates debacle.

However, unlike the election of our new black president, the disorderly conduct charge levied by the Cambridge Police Department against the distinguished director of Harvard’s W.E.B. Du Bois Institute for African American Studies probably wouldn’t demonstrate to most people how much our country has evolved since the Civil Rights Movement.  If anything it seems to show how stunted this country can still be in matters of racial tolerance.

The exact details of the case are still subject to debate.  The only fact corroborated by both sides is that Gates was arrested for disorderly conduct outside of his home after Cambridge police responded to a 911 call from a woman stating she saw two black males attempting to break into Gates’ house.  The men were Gates and his driver, and they were attempting to push the front door open because it was stuck in its frame.  Gates eventually got in through the back door when he was confronted by a Cambridge officer.  Gates claims he repeatedly asked for the arresting officer’s name and badge number, and when he followed the officer outside of his home, he was arrested.  The officer claims Gates accused him of racism and refused to calm down after several warnings that his conduct was becoming disorderly.

Well, it’s all moot now because the charge has been dropped.  So we’ll never get to know the juicy details or witness the spectacle of a public trial.

In this humble blogger’s opinion (because I’m sure you’re all waiting with bated breath to hear it), I suspect both sides decided not to pursue the case because it probably would’ve ended up making both parties look pretty bad.  As great as our country’s adversarial court system is, in cases of “he said, she said” it becomes the job of the prosecution and defense to put down the other side.  So in the end, no matter who wins, everyone ends up getting dragged through the mud.

So what’s the point of this post?  Well, aside from giving me yet another chance to hear myself talk, reading this case got me thinking.  Regardless of who was the one actually responsible for escalating the situation, ultimately this case was started because of race and was given the amount of attention it has received because it involved the presumption of wrongdoing due to the race of a prominent scholar.  It really made me wonder, if someone with Gates’ level of achievement can still face such prejudices, how’s the rest of the country faring?  According to the latest statistics from LegalMatch, apparently not so well.

In the last quarter alone, the number of race discrimination cases received by LegalMatch has increased by nearly 50 percent over the previous quarter.  Approximately 30 percent of these cases stem from being fired due to race and over half of them come from employees in the food service and retail industries.  Even more shocking is that the next highest instances of discrimination originate from those employed in the education field.  Stranger still, the statistics regarding gender discrimination almost exactly mirror those regarding race.

It’s a little disconcerting to see these trends.  Perhaps America isn’t exactly the melting pot it’s cracked up to be.  Either that or maybe someone just needs to turn down the burner a little…

LegalMatch just conducted a study looking at age-discrimination issues and found an overall increase in queries over the past 12 months.  Why the sudden increase in people seeking legal help for their age discrimination claim?  And what other trends have recently surfaced in the area of age discrimination law that effect everyday people?

Let’s start with the basis for any age discrimination claim: The Age Discrimination in Employment Act (ADEA).  The ADEA provides that discrimination of individuals over the age of 40 based on their age is illegal and a prosecutable offense.

Currently, the majority of age discrimination cases we see at LegalMatch are employment related: hiring, firing, and forced retirement contexts.  This trend is not limited to one employment sector but rather affects both blue collar and white collar employees alike.

The most obvious culprit affecting these age discrimination numbers is the rising nationwide unemployment rate, currently hovering around 9.1%.  Any time there is an economic downturn, people lose their jobs.  When alternative jobs aren’t immediately available, a layoff that normally would be ignored can turn into an age discrimination lawsuit.

Interestingly enough, the Supreme Court recently made it much harder to win an age discrimination suit by ruling that the employee now bears the full burden of proving that age was the determining factor in his or her layoff, firing or demotion.  This is a significant departure from the previous balancing test the Court employed, and makes this type of lawsuit especially difficult because rarely would an employee be present when their employers are discussing their future- a key piece of evidence.

A recent article in the Wall Street Journal looked at another interesting aspect of age discrimination in the wake of layoffs- reverse age discrimination.  The article examined the rise in younger employees being laid off, often times in numbers equal or greater than their older colleagues.  Employees in their 20s and 30s are finding themselves more at risk of a layoff, as employers look to avoid age-discrimination lawsuits by adopting a last-one-in, first-one-out policy.

The LegalMatch study also confirmed this trend as a number of the age-discrimination inquires were disgruntled employees under the age of 40.  One of the big problems with this trend is that this younger age group does not have the same legal recourse.  There is no similar protection as the ADEA in place provided for the younger generation.  Essentially, by laying-off the younger members of the company, employers are shielding themselves from an age discrimination lawsuit.

Although the standard for age discrimination has been raised, the potential for suits is alarming and laying off younger workers is seen as a solution.

With the U.S. economy spiraling further down the seemingly endless pit of economic ruin, it’s no surprise that unemployment rates are on the rise across the nation.  Almost every industry has been hurting, especially those in the technology sector.

To the lucky few fortunate enough to have dodged the wave of layoffs, as they say, go the spoils.  Only in this case instead of getting those same old boring rewards, this elite group gets the extra special gift of actually keeping their menial soul-draining jobs, but without all that unnecessary stuff, like shorter hours or, you know, more money.  At least they’ll get yolked (it’s slang people, get with it) since they’ll have to do the work of three people just to keep said soul-crushing job.

But with being fired inevitably comes the stages of job loss (which by the way seem suspiciously similar to some other grief process – I think the Kübler-Ross estate might have a lawsuit).  There’s no better feeling than finally getting over being let go, picking yourself up by your bootstraps, and then hiring an attorney to file a wrongful termination suit against your old employer.  Ahhhh, sweet revenge, I’ve missed you…

All joking aside, wrongful termination is a real and serious issue.  Homelessness is on the rise and as this economy continues to tank, more and more people will likely be fired from their jobs.  Unemployment doesn’t only destroy a person’s financial livelihood.  It can also damage a person’s self-worth, not to mention obliterate a marriage.  Finding out whether you’ve been wrongly terminated from your job can be difficult, especially in a bad economy where an unjust firing can easily be passed off as a cost-cutting layoff.  But if there’s one thing that is certain, when people are pushed into a corner, they’ll likely fight back.

In fact, according to our client case database, in the month of June alone LegalMatch.com has seen a nearly 100 percent increase in the total number of wrongful termination cases brought by our clients when compared to the same month in 2008.  Furthermore, the average number of wrongful termination cases handled by LegalMatch.com has consistently increased by approximately 20 percent over the past four fiscal quarters.  Those employed under at-will contracts in the retail, transportation, or manufacturing industries were most likely to bring a claim for wrongful termination, making up nearly one-third of all wrongful termination cases LegalMatch.com received.  These figures increased in portion to the sagging US economy.

So what can you do if you think you’ve been wrongly terminated from your job?  First thing would be to see if you qualify under any of these exceptions:

• Discrimination – The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, age, or in some states, sexual orientation.
• Retaliation – An employer cannot fire an employee because the employee filed a claim of discrimination or is participating in an investigation for discrimination. This “retaliation” is forbidden under civil rights law.
• Contractual Employees – Generally, an employee with an employment contract can only be terminated for the reasons stated in the contract. Employment contracts for specified periods of time or permitting terminations only for specific reasons are rare today.
• Illegal Acts -An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
• Family or Medical Leave – Federal law permits most employees to take a leave of absence for specific family or medical problems. An employer is not permitted to fire an employee who takes family or medical leave for a reason outlined in the Family and Medical Leave Act.
• Not Following Own Termination Procedures – Often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination.

However, the best way to find out whether your termination was wrongful would be to consult with a qualified employment lawyer who can sit down with you and walk you through your options.  Otherwise you might end up like this guy.

First, what is social medial marketing? Essentially, social media is a blend of social outreach and internet technology, achieved principally through blogs, Facebook, MySpace, Twitter, and Linkedin.  While these Internet tools allow people to connect to other people of all age groups, they have also become the new “feeding ground” for employers seeking to learn more about a potential employee than they can discover through a resume. In fact, according to employeescreenIQ, 56% of what is written on a resume is padded.  (Company Unveils List of 2009 Background Screening Checks)

In 2006, CareerBuilder.com reported results of a survey that they conducted of over 1,000 hiring managers.  Results indicated that 12% of these managers used social media websites to verify information about a job candidate, with 63% not hiring a candidate based upon the information that they found. (Background Check News)

Today, as quoted from one blog, almost 40% of employers have used Facebook and other social media sites to obtain information about job candidates, and greater than 80% of employers found negative information about the potential employee that may have lead to the candidate not being extended a job offer.  (Employment Background Checks) 

Clearly, taking control of one’s public persona is critical for anyone in the job market.  However, employers could also subject themselves to litigation for negligent hiring practices through the use of social media when making employment decisions.  So, far, no one has made this challenge but expect this to come.

Social media marketing is not only being used by prospective employers but a new crime is on the rise – social media identity theft.  St. Louis Cardinals MLB team manager Tony La Russa was a recent victim.  An identify thief created a Twitter account using Tony’s name and image, posting defamatory remarks on the account.  La Russa sued Twitter and the case is currently pending in court.  La Russa wasn’t alone; impersonators hacked into President Obama’s Twitter account, as well as the Twitter accounts of Britney Spears and Bill O’Reilly at Fox News.  (Twitter, Social Media Indentity Theft & Personal Background Checks)

Prosecutors are also using social media to their advantage.  A 22-year old woman charged with a fatal DUI, faced a 5 year sentence after photos of her on her MySpace page after the accident depicted her with tequila, shot glasses and a T-shirt labeled, “Jail Bird?” came up at trial despite the warnings of her defense attorney.  (Unrepentant on Facebook? Expect jail time)  And, a YouTube video was elevated to fame in 2008 when Ms. Trisha Walsh Smith made a video about her acrimonious divorce from Phillip Smith, a Broadway giant.  Smith complained about her prenuptial agreement and made disparaging remarks about her then current husband.  The New York County judge granted the husband a divorce on the grounds of cruel and inhuman treatment.  (Inside the YouTube Divorce)

If these stories don’t cause you to rethink what you may have posted on social media sites such as Twitter and Facebook, maybe they should give you pause for thought.  Depending upon what you have posted, you could lose a job opportunity or worse.  Count on LegalMatch to continue to monitor these trends; we expect more litigation to revolve around the use of social media.  But, don’t say we didn’t warn you.  Be careful what you write!