The investigation headed by the NTSB found evidence that Mr. Sanchez was “texting” – sending text messages – to two teenagers a very short time before the collision with the southbound freight train. The inference drawn from this fact alone is that Mr. Sanchez was paying attention to the keystrokes on his PDA instead of watching for the safety signals placed along the rails that would have alerted him that the Southern Pacific was heading toward it on the same single track.

In a whistleblower suit Kilpatrick was accused of blocking a criminal investigation into his office and firing a police deputy to cover up an extramarital affair. Two cops accused Kilpatrick of retaliating against them because of their roles in an internal affairs investigation of the mayor’s security team — a probe that potentially could have exposed the affair. The city of Detroit paid $8.4 million to settle the lawsuits, but legal fees have pushed that figure to at least $9 million.

During the trial, Kilpatrick and Beatty denied under oath that they had a sexual relationship. But the records, a series of text messages, show them engaged in romantic banter as well as planning and recounting sexual liaisons. SkyTel, the Mississippi-based company that provided text devices to the city, confirmed the existence of messages. On September 4, 2008 the mayor pleaded guilty to two obstruction of justice charges for lying in the whistle-blower trial. Under his plea deal, Kilpatrick agreed to 4 months in jail, 5 years of probation, $1 million in restitution and a 5-year ban on seeking political office. He also agreed to resign effective September 18, and is to be sentenced Oct. 28. 2008.

The fallout from the sordid affair extends to yet another lawsuit filed by newspaper organizations trying to find out the details of the $8.4 million settlement of the whistle-blower case and whether any corruption was involved. The Free Press filed the lawsuit in early January, a few weeks before it published the text messages — some of them blatantly sexual — that Kilpatrick and Beatty exchanged on her city-issued paging device in 2002-2003. The paper reviewed about 14,000 messages covering four months. The messages showed the mayor and Beatty lied under oath at last year’s police whistle-blower trial when they denied having a sexual relationship and provided misleading testimony about firing Deputy Chief Gary Brown.

During a deposition in the freedom-of-information case, Kilpatrick invoked his 5th Amendment right against self-incrimination 82 times. There are additional possible charges from Wayne County Prosecutor Kym Worthy in her ongoing probe of the text message scandal and a federal grand jury investigation into allegations of corruption in the city.

The improper use of technology devices such as cell phones, pagers, PDAs, and Blackberries are causing major problems for employers throughout the country. For example, the City of Ontario Police Department in California issued two-way pagers to its SWAT team members and paid for the text message service provided by Arch Wireless Operating Company. The City’s written policy prohibited personal use of City-owned computers, e-mail, Internet and other systems, and allowed the City to search the content of messages. The policy warned that employees “should have no expectation of privacy or confidentiality”; that all communications using the network were the City’s property; that the devices should not be used for personal reasons. The City also banned communications containing “inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language.” Officers on the SWAT team used their devices to exchange personal messages, sports information and steamy sexual banter. In the ensuing litigation whether the City had the right to discover the content of the text messages, the appellate court ruled that the City did not use proper procedures to monitor texting. This case is a warning to employers about the dangers of allowing informal customs to trump established policies and the consequences of lax enforcement of existing policies. To ensure enforceability, the electronic resources usage policy should be crafted broadly enough to include all technology being used by company employees

To be eligible for FMLA leave, an employee must work for a employer covered by the federal statute and: (1) have worked for that employer for at least 12 months; (2) have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and (3) work at a location where at least 50 employees are employed at that location or within 75 miles of the location. (“50/75 rule”)

In this case the company’s employee handbook provisions recited that employees are provided all the entitlements mentioned in the federal law, but went on to state under the heading “FAMILY AND MEDICAL LEAVE” and the subheading, ”ELIGIBILITY”: “A request for family and medical care leave will be granted for all employees employed by the company for at least twelve months and who have worked 1,250 hours during the twelve months preceding the commencement of leave.” As apparent, the provision made no mention of the 50/75 rule.

After suffering work-related injury the employee took what he believed to be protected leave under the FMLA. When he returned to work under medical restrictions he took a second leave of absence and his employer sent him a letter outlining the terms and conditions of the leave stating that he would need to return to work by a certain date to be guaranteed reinstatement to his position.

When he did not return, the company decided to replace him with another employee but offered him another position which he declined, whereupon the company terminated his employment.
In the lawsuit the employer argued that the employee was ineligible for FMLA leave because he did not satisfy the 50/75 rule. The employee pointed out that he satisfied all conditions for leave specified in the employee handbook. The U.S. Court of Appeals agreed that the employee may be entitled to leave as a matter of contract law based on the employee handbook.

The court reasoned that the employee has the right to sue under state law for either breach of contract or promissory estoppel. Promissory estoppel is applicable to a situation where the promise may lack some of the elements of a binding contract, but it would be inequitable to deny relief because the other party detrimentally relied on the representations. The court pointed out that the employee filed a state-law claim based upon his own reliance on the employer’s representations in the handbook.

Many employers incorrectly believe that the employee handbooks are not binding legal contracts but companies may rely on them to enforce policy. Under basic principles of contract law and equity the employees are entitled to rely on company representations in those handbooks without fear that doing so may cost them their jobs.

If a handbook term gives employees specific rights, it is probably an enforceable employment contract. The lesson is that employers should make sure that their handbooks only make promises that the company is willing to keep.

When an employer adopts an anti-harassment policy with complaint procedures and disseminates it to employees, the workers are on notice that the company will respond by conducting a prompt, thorough and unbiased investigation of the complaint, impose appropriate discipline if a violation is found, and provide a meaningful remedy for the victim.

The proper implementation of the policy requires the employer to take no “tangible employment action” against the complaining person. A “tangible employment action” includes retaliation or a significant change in employment status such as “hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits”.

Where an employee who was the target of the harassment failed to make a complaint or made a complaint, but later failed to cooperate in the investigation, declined to provide evidence to the employer, or specifically asked the company not to investigate, the employer can successfully assert an affirmative defense to the claim that will prevent the plaintiff from establishing liability or recover damages.

This rule, known as the “doctrine of avoidable consequences”, holds that the plaintiff’s own conduct may limit the amount of damages recoverable or bar recovery entirely. For example, in a recent case¹, an employee claiming to be a victim of sexual harassment by his female supervisor, first complained approximate a half year after the activities occurred. In addition to waiting half a year to make a complaint, when he finally made it, he specifically asked the company not to investigate it. The court said that by specifically requesting the company not to make use of its remedial and preventative procedures, the alleged victim unreasonably failed to make use of the employer’s anti-harassment policies and procedures and was not entitle to any remedy or relief and his claim was rejected by the court.

In another case², the court explained that under the avoidable consequences doctrine³ “[O]ne injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure.” Thus, in a lawsuit based on hostile environment sexual harassment by a supervisor, the employer may plead and prove a defense that “(1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.”

The public policy behind federal and state laws wants employers to establish effective policies and complaint procedures to stop workplace sexual harassment, wants employees victimized to utilize the employer’s complaint procedures to the extent practicable, and wants courts to compensate the victims with damages generally available in non-contractual actions.

Employers should be aware that the avoidable consequences defense affects damages, not liability. An employer that exercised reasonable care remains liable for harm a sexually harassed employee could not have avoided through reasonable care. The doctrine is part of the law of damages; thus it affects only the remedy available.

Sexual harassment in the workplace is the source of significant liability for employers. An employer may be found liable for discrimination if it is notified of sexual harassment in the workplace and fails to take adequate remedial action. However, a firm company policy against harassment coupled with a prompt, thorough and unbiased investigation process brings important benefits for the employer.

In a recent appellate decision in Massachusetts¹, the employee did not complain to the officials identified in the sexual harassment policy. Nevertheless when, the director of human resources and one of the officials responsible for investigating sexual harassment, became aware of the complaints, she immediately started the process and interviewed witnesses. The accusing employee was kept informed of the investigation and given several opportunities to participate, which she declined.

The jury found liability against both the perpetrator and the employer and awarded compensatory damages in a modest sum against the perpetrator and the employer, plus an additional $1,000,000 in punitive damages against the employer. After the conclusion of case, the trial judge eliminated the punitive damage award against the employer. The Court’s analysis focused on several factors, including the promptness of the employer’s response upon learning of the harassment, the thoroughness of the investigation, and the fact that the complaining employee did not participate fully in the investigative process. The appellate court upheld the trial judge’s decision and affirmed the elimination of the $1M punitive damages.

Employers should be clear that inquiry into the complaining plaintiff’s workplace behavior is always relevant to the investigation. The employer has the right to determine, for example, whether the conduct at issue was unwanted or unwelcome, which is a key component of a claim under both federal and state sexual harassment statutes. The key to success is that the investigation be handled by competent and properly trained in-house personnel, outside counsel with expertise in employment law, or a human resources consultant who specializes in such matters.

The Court’s ruling confirms that an employer can avoid direct liability and perhaps punitive damages, even when the sexual harassment involves a supervisor or manager, by implementing an appropriate anti-harassment policy and conducting prompt investigations following any complaints.

¹ Trinh v. Gentle Communications (2008) 71 Mass. App. Ct. 368

The lower court dismissed her action and the appellate court upheld the dismissal. The rationale was that she was merely answering questions by the investigators in an already pending internal investigation initiated by someone else, and was not engaged in protected activity under the Civil Rights Act of 1964. The appeals court added that the internal investigation was conducted by the employer and not by the EEOC.

The U.S. Supreme Court reversed and sided with Ms. Crawford. It held that the protections of the Civil Right Act of 1964 did apply to employees who simply cooperate in an internal investigation rather than file a formal complaint with the employer or a charge with the EEOC. More particularly, the Court said that the anti-retaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.

In the opinion, Mr. Justice Souter explained that the term “oppose” as used in Title VII’s retaliation provision should be given its common dictionary definition, “to resist or antagonize…to contend against; to confront, resist; withstand.” Indeed, the court observed that an employee’s reported belief that an employer has engaged in unlawful discrimination virtually always constitutes “opposition” to the activity. The Court concluded that disclosing a supervisor’s inappropriate sexual conduct in response to the employer’s questions during an internal investigation was protected from retaliation. To hold otherwise would encourage employees to keep quiet about illegal activity during internal investigations for fear of reprisals, such as termination and thereby defeat public policy which promotes a sexual harassment-free work environment.

Now employees are protected from retaliation for activities other than filing a charge of discrimination or launching an internal complaint. Simply answering questions about discrimination in an investigation can be protected activities.

Because any subsequent adverse employment actions against employees may lead to retaliation claims, employers should ensure that the adverse actions are supported by legitimate business reasons and appropriate documentation and that similarly situated employees who have not engaged in conduct protected by Title VII have been treated in similar fashion so there is no disparity.

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), is an employment discrimination decision of the Supreme Court of the United States.

In 1979 Lilly Ledbetter, the plaintiff, began work at the Goodyear Tire and Rubber Company in its Gadsden, Alabama location, a union plant. During her years at the factory as a salaried worker, raises were given and denied based on performance assesstments. All merit increases had to be substantiated by a formal evaluation. In March 1998, Ledbetter inquired into the possible sexual discrimination of the Goodyear Tire Company. In July she filed formal charges with the Equal Employment Opportunity Commission. In November 1998, after early retirement, Ledbetter sued claiming pay discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. She started with the same pay but by retirement, she was earning $3,727 per month compared to 15 men who earned from $4,286 per month (lowest paid man) to $5,236 per month (highest paid man).

In the trial the jury found for Ledbetter and awarded back pay and damages. Goodyear appealed, arguing that all claims to damages before September 26, 1997 were void due to the statute of limitations placed on discrimination claims. The Supreme Court agreed and Justice Alito wrote for the five-justice majority that employers are protected from lawsuits over race or gender pay discrimination if the claims are based on decisions made by the employer more than 180 days ago.The Supreme Court did not rule on whether this was discrimination, just that the statute of limitations to sue barred the majority of her claims for being too old.

The Ledbetter Act overturned the decision. Specifically, Congress said “For puposes of this section, an unlawful employment practice occurs, with repsect to discimination in compensation in violation of this [Act], when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such decision or other practice.”

The new law potentially expands the scope of liability and damages for employers in discrimination cases. Arguably, it permits employees to file claims years after a decision
is made based on its ongoing effect on the employee’s compensation. Further, the “other practice” language will allow plaintiffs’ attorneys to argue that the Act encompasses all types of employment decisions that affect compensation, including employee training and development, promotions, demotions, job classification, and job assignment decisions.

The likely consequence of the Ledbetter Act will be to increase the number of discrimination suits filed. Employers would be wise to review their employment policies and procedures, including their document retention policies as well as the compensation levels and pay scales.

• institute a clear and comprehensive anti-harassment policy
• disseminate the anti-discrimination and anti-harassment policy to employees
• establish a complaint procedure
• conduct a prompt, thorough and unbiased investigation
• provide remedial action and protection for the victim
• impose meaningful and appropriate discipline on the violator

In the recently decided case (D.M. v. Walgreen Pharmacy, Inc.) the court examined these allegations and affirmed the dismissal of a sexual harassment and hostile work environment claim where the employer took prompt action to investigate the situation and the employer had established and had in place a well-publicized, comprehensive anti-harassment policy. The employer took affirmative steps to disseminate the policy through an orientation program.

Significantly, the plaintiff’s claim that she never received the orientation or policy, which is frequently alleged by sexual-harassment plaintiffs, was insufficient to salvage her claim, in light of testimony by other employees that the policy was disseminate at orientation.

This case reemphasizes the extreme importance for employers to adopt, disseminate a non-harassment policy and responding to complaints received from employees.

It is a poor risk management strategy to rely on the testimony of witnesses to prove that notwithstanding the fervent denials of the claimant, the ant-harassment policy and the process for handling claims was explained to the employee. A far better and simpler way to establish the defense is for the employer to establish a mandatory new-employee orientation which can be handled by someone from the human resources department or in small companies that do not have a full fledged human resources department, by the manager of the department to which the new employee was assigned.

It is beneficial to institute an orientation program which has a checklist of items to be covered and to create a packet to be handed to the employee that includes the employee handbook, list of prohibited conduct, policies and procedures for addressing complaints, and a separate acknowledgment of receipt by the employee of these important company documents. If the personnel files maintained by the employer contain the report to management that the orientation was held and attended by the employee and the acknowledgment of receipt signed by the employee that the important company rules, policies and protocols were provided to the employee, then defense counsel won’t have to prepare and call to the witness stand other employees to controvert the assertion of the plaintiff that he / she was unaware of the company policies because they were never distributed.

Well managed companies conduct at least once a year and group meeting with employees. This presents an opportunity for the employer to present the “state of the company” and explain any new policies or programs that relate to operations, company-sponsored health insurance benefits, accident and illness prevention program, health and wellness programs and key provisions of behavior and performance expectations which need emphasis. A one-page handout that sets forth the agenda for the meeting and contains excerpts from the employee handbook (e.g. alcohol and substance abuse prevention, sexual harassment prevention will demonstrate the company’s focus on workplace behavior and the policies implemented to prevent any and all forms of unlawful discrimination, harassment or retaliation in the workplace.

It is very important that the newly advanced Family and Medical Leave Act regulations and notice provisions be included in the employee handbook.

Here are some of the key provisions and revisions:

1. Notice of FMLA Rights: The DOL created new posters and a new Form Notice to ensure that employees are receiving the complete information about their rights and obligations under FMLA.. An employer that willfully violates this posting requirement may be subject to a fine of up to $110 for each separate offense. Additionally, employers must either include this general notice in employee handbooks or other written guidance to employees concerning benefits, or must distribute a copy of the notice to each new employee upon hiring.

2. Calculation of Leave Time: The new regulations provide guidance regarding how to calculate an employee’s 12 weeks of leave time when national holidays, employer closings, and mandatory overtime intercede during the leave. (Section 825.200)

3. Light Duty: Employees may accept light duty assignments that accommodate their serious healthy condition without losing their right to job reinstatement, but time spent on light duty assignments does not count against an employee’s 12 weeks of FMLA leave.

4. Bonuses: FMLA leave, if treated like all other types of leave, may disqualify employees from bonuses, even perfect attendance bonuses.

5. Continuing Treatment Definition: Employees will be required to see, in person, a health care provider within seven cays of the “incapacity” and obtain further treatment within 30 days of the first visit, or follow a treatment prescription.

6. Pregnancy Clarification: Spouses, and only spouses (but not boyfriends, fiancés, significant others, or fathers) may take FMLA to care for expectant mothers who are incapacitated by and during pregnancy. (California employers should beware that California requires that Registered Domestic Partners be treated as spouses for all purposes).

7. Caring for Family Members: The employee need not be the only person available to care for the family member to be eligible to take FMLA leave.

8. Timing of Employee Notice: Employees must give notice of decision to take FMLA leave as soon as practicable.

9. Employer’s Notice Requirement: Employees must comply with the employer’s notice and procedural requirements for requesting leave.

10. Denial of Leave: Failing to comply with employer’s leave procedures may be grounds for denying leave.

11. Health Care Provider Contact by Employers: Employers (such as staff in human resources) but not direct supervisors, may contact health care providers to verify or clarify information provided on the medical certification form. If an employee does not authorize direct contact, employers may deny leave. (In California, employers should proceed with caution before contacting health care providers because unlike the U.S. Constitution, the California Constitution (Article I, Sec. 1) expressly provides for protection of privacy rights)

12. Other Employer Notices and Forms: The DOL has new forms and is providing more time, up to five business days, for employers to provide Notice of Eligibility and Designation Notices to employees. Employers should update their form files because unless a notice is properly given, the employee cannot be required to submit to a fitness-for-duty examination prior to reinstatement.

13. Releases: Employees may settle or release claims (in severance of employment agreements or settlement agreements) with their employer without DOL or court approval.

A brand new area of the regulations addresses a new type of leave, created by the Injured Servicemember Leave Act which became effective on January 28, 2008. Here are the relevant provisions (Section 825.127 et seq.) that pertain to the military:

1. Employees may take a leave of up to 26 weeks in a single 12-month period to care for a servicemember who is the employee’s spouse, parent, child and next of kin with a serious injury or illness. The injured servicemember must be a blood relative or spouse;

2. The 12-month period is not flexible and starts on the firs day the employee must take the leave (thus, employers may not define how the 12-month period is calculated as they can under the previous FMLA-type leave);

3. If the leave qualifies as servicemember leave, employers must so designate it (i.e. employers cannot try to claim that the employee is only eligible for 12 weeks of leave under the “original” FMLA leave to care for inured or ill family members merely because the leave qualifies as protected leave under more than one section of the FMLA);

4. The DOL has created new certification forms through which employers may obtain information about the injured servicemember and the relationship to the employee which should be used in servicemember situations.

5. The regulations also cover “Exigency Leave” (Section 825.309) arising from an employee’s spouse, child or parent being called to active duty. Such leave only applies if the family member is a non-regular military member (e.g. National Guard, Reserves etc.) and the employee may take up to 12 weeks of leave under certain “qualifying exigencies” per year such as “short notice deployment, ” call to active duty etc.).)

Under certain circumstances employers can avoid vicarious liability or even certain damages for a supervisor’s sexual harassment of a subordinate worker. This happens when (1) the employer had a meaningful anti-harassment policy, (2) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (3) the victim unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or avoid harm.

When an employer adopts an anti-harassment policy with complaint procedures and disseminates it to employees, the workers are on notice that the company will respond by conducting a prompt, thorough and unbiased investigation of the complaint, impose appropriate discipline if a violation is found, and provide a meaningful remedy for the victim.

The proper implementation of the policy requires the employer to take no “tangible employment action” against the complaining person. A “tangible employment action” includes retaliation or a significant change in employment status such as “hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits”.

Where an employee who was the target of the harassment failed to make a complaint or made a complaint, but later failed to cooperate in the investigation, declined to provide evidence to the employer, or specifically asked the company not to investigate, the employer can successfully assert an affirmative defense to the claim that will prevent the plaintiff from establishing liability or recover damages.

This rule, known as the “doctrine of avoidable consequences”, holds that the plaintiff’s own conduct may limit the amount of damages recoverable or bar recovery entirely. For example, in a recent case[1], an employee claiming to be a victim of sexual harassment by his female supervisor, first complained approximate a half year after the activities occurred. In addition to waiting half a year to make a complaint, when he finally made it, he specifically asked the company not to investigate it. The court said that by specifically requesting the company not to make use of its remedial and preventative procedures, the alleged victim unreasonably failed to make use of the employer’s anti-harassment policies and procedures and was not entitle to any remedy or relief and his claim was rejected by the court.

In another case[2], the court explained that under the avoidable consequences doctrine[3] “[O]ne injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure.” Thus, in a lawsuit based on hostile environment sexual harassment by a supervisor, the employer may plead and prove a defense that “(1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.”

The public policy behind federal and state laws wants employers to establish effective policies and complaint procedures to stop workplace sexual harassment, wants employees victimized to utilize the employer’s complaint procedures to the extent practicable, and wants courts to compensate the victims with damages generally available in non-contractual actions.

Employers should be aware that the avoidable consequences defense affects damages, not liability. An employer that exercised reasonable care remains liable for harm a sexually harassed employee could not have avoided through reasonable care. The doctrine is part of the law of damages; thus it affects only the re