Law Blog

For anyone who likes reading the many interesting and insightful postings of Andrew Dat, you might start to notice that I can’t get enough of crazy lawsuits.

This latest one comes courtesy of a (former) receptionist (and if she gets her way, soon to be millionaire) by the name of Rebecca Landrith.  Landrith alleges that she pee-peed in her pants on multiple occasions because her former employer, Littler Mendelson, in her words “had no consistent policy or procedure as to when or how [she] could take a restroom break.”

Seriously, is this really a lawsuit?  Call me crazy, but I think the vast, vast majority of us all learned how to go potty before we learned to read.  And the first rule of going number one and/or number two is that you never hold it in.  The second is to try and not miss the pot.

I was going to put a link in that last sentence to highlight my point, but according to my editor and the company’s lawyers that apparently would not have been a good idea and would’ve probably required me to write an additional apology posting.  So since I’m too lazy to write more than I have to, I decided to let that battle go.  But to all you suits-and-ties in the legal department don’t think I’ll always be that easy!

Anyway, I went off on a tangent again, which apparently I also must have to curb.  Back to the subject at hand.

Now some of you might think I’m being harsh here, especially those who were or currently are on an administrative staff for a law firm.  Having been a former assistant at a big corporate law firm I know the difficulties of working behind the scenes, so to speak.  The hours are long, the work is mindlessly boring, and worst of all your efforts often go unnoticed and un-thanked.  And when the work gets really busy, you can sometimes feel like you don’t have a moment to spare.  Furthermore, the double-edge of that last unnoticed/un-thanked sword is that usually as soon as you slow down or stop working, you’ll usually find yourself on the receiving end of a supervisor and/or partner’s verbal tirade.

However, as true as all of what I said is, in the end, regardless of how stressful your work is or how little time you have to do it, there is no reason why anyone, especially an adult, should not know that when they have to go, they have to go.  Would you really sit there and wet your pants if you knew there was a bathroom somewhere on your floor and that you had access to it?  Chances are that unless you’re working in some sweatshop you probably know that you can use the bathroom without the fear that your manager is going to fire or beat you.

One last note about Landrith: if I pissed my pants in front of all my colleagues I’d be pretty embarrassed, too.  But I don’t know if I’d have the guts to demand someone pay me $1.59 million for doing it.

This may be old news to some, but I recently stumbled across this little gem. Yes, you read that correctly: a recent graduate of a college in New York has sued her alma mater because she can’t find a job…after a grueling 3 month job hunt.

The economy is in the tank, but it has been particularly stressful for recent college and professional school graduates looking for their first “real” job. Combine this with the stress of being unceremoniously thrust into the real world (a stressful period in one’s life in the best of times), and you can understand the anxiety and frustration that many people are feeling, especially when they have massive student loan debt hanging over their heads.

But it should go without saying that this is not the way to go about improving your lot in life. First of all, most people assume (correctly) that school career services are supposed to be tools for students to use in their own job hunt – they don’t exist to hand recent graduates a job on a silver platter.

According to the story, this student graduated with a GPA of 2.7, and her crowning academic achievement is a “solid attendance record”. Oh, but it gets better. According to the recent grad, “They’re supposed to say, ‘I got this student, her attendance is good, her GPA is all right — can you interview this person?’” On what planet? Once again, career services offices exist to help you in your job hunt, not to find jobs for you.

In a recent post I talked about the importance of managing one’s online presence, and about the fact that filing a lawsuit, even if it has merit (which this one definitely does not), is not always the best way to accomplish one’s ultimate objectives. In my earlier post, I noted how the mere fact that the apartment manager filed a lawsuit over a single Tweet did far more damage to its reputation that the Tweet ever could have.

Here, it is clear that the unfortunate alumna, by filing this lawsuit (and agreeing to be interviewed by CNN), has done irreparable damage to her future employment prospects, regardless of the state of the job market. A quick Google search for her name returns nothing but news articles and discussions related to this story on the first page.

It is now common practice for employers to run internet searches on prospective employees. In this case, do you think an employer would like what he or she is bound to find?

It’s probably been said before, by people more eloquent than me, but it bears repeating: Think before you sue.

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.

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!

According to LegalMatch.com consumers looking for employment legal help, the following jobs account for the most racial discrimination claims in the past two years, in order of frequency:

1. Professional (law, accounting, architecture, etc.)
2. Education
3. Construction
4. High Technology
5. Retail
6. Transportation
7. Manufacturing
8. Government

Only “retail” and “professional” place in the top 14 jobs by number of employed, according to the Bureau of Labor Statistics. Retail actually tops the BLS’s list. Why the discrepancy?

In 2007 there were over 30,000 racial discrimination claims filed at the US Equal Employment Opportunity Commission. People on the human resources side of the equation were startled at the massive increase-in most cases plus 10%-of new cases compared to the previous year.

Instead of looking at jobs sorting people by how many are employed, the place to look is how many are unemployed. Most discrimination claims, after all, begin after someone has been let go. The 8 jobs listed above are a veritable who’s who of the hardest hit jobs in the economy since 2007. Almost every job on the list, other than government, has lost near or above half a million workers in the past year according to the BLS.

No surprise, then, that these jobs will have a large amount of disgruntled former employees claiming discrimination. Their cases may be warranted too, but all signs point to the massive layoffs of late as the key culprit for rising employment discrimination claims.