Foley & Lardner LLP

31 January 2011
Legal News: Employment Law Update

Labor and Employment Law Weekly Update

Fired Fiancé Fuels Retaliation Claim
By Mark J. Neuberger

In an 8-0 decision last week, the U.S. Supreme Court expanded the law on unlawful retaliation when it handed down its decision in Thompson v. North American Stainless, LP (http://tinyurl.com/4p5mu8z).

The facts of this case were straightforward. Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless (NAS). In February 2003, the EEOC notified NAS that Ms. Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired her fiancé, Mr. Thompson, who then filed his own charge with the EEOC claiming that that NAS had fired him in retaliation for Ms. Regalado’s filing with the EEOC. The trial court dismissed Mr. Thompson’s suit.

In deciding the case, the Supreme Court addressed two questions: First, did NAS’s firing of Mr. Thompson constitute unlawful retaliation? Second, if it did, does Title VII grant Mr. Thompson a cause of action? As to the first question, the Court quickly concluded that firing an employee for filing an EEOC charge would tend to dissuade employees from filing such charges if employees knew their employer might react by firing them. The court found the second question required more analysis. In order to have a claim under Title VII, a person must be “aggrieved” to bring a charge or lawsuit. While there is no question Ms. Regalado — who believed she was the victim of sex discrimination — was aggrieved, the tougher issue for the court was to determine if Mr. Thompson — who never alleged to be the direct victim of any discrimination — was aggrieved.

Justice Antonin Scalia (http://tinyurl.com/2flpnec), who authored the majority opinion, wrote, “Thompson was not an accidental victim of retaliation … to the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her.” Thus, the Court recognized that third-party claims of retaliation might be brought against employers.

This decision, handed-down by what is regarded by many as a conservative, pro-employer court, continues the trend of the Supreme Court not hesitating to enforce the anti-retaliation provisions of laws protecting employee rights. In 2009, in another unanimous decision (http://tinyurl.com/4lwo75j), the Court held Title VII’s anti-retaliation provisions protect employees from being fired for cooperating with an employer’s internal sexual harassment investigation.

The Thompson decision leaves many unanswered questions for employers, such as how close to the original aggrieved employee will the anti-retaliation provisions extend? The Court said “firing a close family member will almost always meet the standard” but failed to define the outer boundary. The Court’s decision will likely continue to fuel the recent trend of escalating numbers of retaliation claims being brought against employers. Last year, for the first time ever, the EEOC reported (http://tinyurl.com/46fy49p) that retaliation under all of the statutes it enforces surpassed race as the most frequently filed charge. Employers would be well served to act cautiously when taking adverse action against any employee who has complained of a legal violation or is related in some manner to one who has.

Potential Loss of Attorney-Client Privilege Yet Another Social Media / Blogging Concern for Employers
By Jennifer L. Neumann

Social media and blogging are quickly becoming areas of focus and concern for employers. In the past, we have encouraged employers to create social media and blogging policies and to be watchful of the content employees are submitting through these avenues, given concerns, among others, about protecting the status of confidential and trade secret information. We also have discussed concerns arising from the potential for use of social media as evidence. See Labor and Employment Law Weekly Update (Week of September 7, 2010) (http://tinyurl.com/4d9n8bc).A recent case shows another risk associated with social media and blogging — the potential waiver of the attorney-client privilege.

Confidential, attorney-client privileged information is generally protected from discovery. However, the privilege can be voluntarily waived by the holder of the privilege when the confidential information is disclosed to third parties. A California court (http://tinyurl.com/4nejgy3) recently faced such disclosure in a case in which the employee, via e-mails, a blog, and Internet chat sessions, disclosed information about her attorneys’ litigation strategy. The statements made during the employee’s use of social media included a statement that her attorneys were “pretty well salivating over getting their teeth into UMG [the employer] again.” The court determined that this statement waived the privilege with respect to information about why the employee brought the lawsuit. In addition, the employee said in a Gmail chat conversation that her attorneys hoped that an opinion in the case would clarify a “cloudy” decision. This statement waived the privilege with respect to the attorneys’ specific legal strategies.

The California court’s ruling is harsh, but the lesson is clear. Employers involved in litigation should limit the number of employees with access to attorney-client privileged information to those with a need to participate in attorney-client communications or with a business need to know the privileged information. Explicitly instruct those employees not to reveal the attorney-client privileged information to third parties, including to third parties via social media or blogging. Employers must remind employees that they should use equal caution and care when engaging in social media or blogging as they would when writing a formal letter. The electronic “record” is easily accessible and rarely capable of being completely expunged once written. Explaining exactly what impact disclosure of this information via social media can have will help to highlight the seriousness of this issue for those with knowledge of the company’s attorney-client privileged information.

The simplest solution to avoiding the loss of the attorney-client privilege through social media or blogging is restraint. Just do not discuss, tweet, post to Facebook, and so forth, information regarding company legal issues. Following this rule is especially prudent given that the Web site itself (Facebook, for example) may actually be considered the “owner” of posted information, with access rights to that information. Arguably, this alone could result in a waiver. Further, while companies may want to provide litigation updates on their Web sites, any litigation-related statements on company Web sites also should be limited so as not to risk waiver.


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