Sixth Circuit Case Demonstrates Risks in Monitoring Employee Personal Emails

The Sixth Circuit Court of Appeals recently considered a case in which an employer refused to renew an employee’s contract after learning through email surveillance that she planned to sue for age and gender discrimination. In Fields v. Fairfield County Board of Developmental Disabilities, No. 12-3005, (6th Cir. Dec. 6, 2012), the plaintiff worked as an administrative assistant to the superintendent of the county board. After the board passed her over for a promotion, she sent several emails to a former employee complaining about the board’s discriminatory practices. The plaintiff stated she did not “have the right anatomy” for the new position. She also stated that a coworker received a raise because he was less than 40 years old.

During this time and unbeknownst to the plaintiff, the board superintendent began having all of the plaintiff’s emails forwarded to him. The superintendent claimed he was concerned about the plaintiff’s opinion of him and suspected that she was discussing their work relationship with others. Additionally, the human resources director asked the plaintiff’s supervisor to begin documenting his conversations with the plaintiff because she “heard through the grapevine” that the plaintiff was threatening to sue the board for discrimination. One year later, the board placed the plaintiff on administrative leave because of problems with her job performance. The superintendent stated in the plaintiff’s performance review that he hesitated to give her confidential materials because of her negative attitude and mistrust in him. He specifically mentioned the fact that the plaintiff had indicated to others that she might sue the board. When the board elected not to renew her employment contract, the plaintiff sued the board alleging that it retaliated against her for complaining about discrimination.

The district court granted summary judgment in favor of the board, and the Sixth Circuit affirmed. The court held that the plaintiff had successfully demonstrated a prima facie case of retaliation. The superintendent specifically mentioned the plaintiff’s statements about suing the board, which he learned about through the intercepted emails, as one of the reasons for the mistrust between them. Because lack of trust was a basis for refusing to renew the plaintiff’s contract, a causal connection between the two existed. So what saved the board from litigating a costly trial? The board had documented the plaintiff’s job performance problems over the course of several years. She repeatedly failed to follow the superintendent’s instructions and perform tasks in a timely manner. The plaintiff did not dispute these job performance issues. As a result, she failed to show that the board’s nondiscriminatory reasons for not renewing the contract were pretextual.

The employer in this case dodged a bullet. Terminating an employee who has complained about workplace discrimination is risky business, especially when the employer’s knowledge of the complaints comes from covertly screened personal emails. The employer in Fields v. Fairfield County was saved by the fact that it had maintained a thorough written record of the employee’s job performance problems. What lesson does this case teach employers? Before terminating an employee based on job performance problems, make sure the problems are well documented. Develop written policies and apply those policies in a consistent, neutral manner. These steps are crucial to successfully defending a lawsuit by a discharged employee.

Contact: Nathan Pangrace


Hot Topics in Ohio Workers’ Compensation for 2013

As another year rapidly ends, it is time again for a prospective look at the year ahead. As an Ohio workers’ compensation practitioner, I see three issues that may have significant effects on the workers’ compensation system in the near future:

(1) Healthcare reform (aka Obamacare). With the passage of the Patient Protection and Affordable Care Act (PPACA) in 2009 and its upholding by the Supreme Court earlier this year, most businesses are readying themselves for significant changes regarding employee healthcare in 2013. One potential upside for employers is that more pre-existing conditions may be covered under individual healthcare and thus less of an issue in the workers’ compensation realm. One downside, however, is that increased national regulation will most likely entail additional costs for employers to ensure compliance with healthcare and workers’ compensation laws.

(2) Immigration legislation. The passage of immigration reform would be significant, as it would most likely go to the heart of what defines an employer-employee relationship. Laws that would lessen restrictions on undocumented immigrants may have the unintended consequence of encouraging undocumented workers to file claims against alleged employers.

(3) The expanding oil and gas industry. Here in Ohio, as in other areas of the country, the hydraulic fracturing industry is booming. With this rapid expansion, there comes a greater risk for damage to persons and property, especially those individuals who work in the industry. Medical conditions related to hydraulic fracking are as minor as an abrasion or as significant as developing an occupational disease, such as silicosis. Though Ohio will see a welcomed boom in business with the expansion of oil and gas, there will be related costs, and workers’ compensation may be chief among them.



Ohio Supreme Court Clarifies the Employer Intentional Tort Statute

In the recent decision of Houdek v. ThyssenKrupp Materials, N.A., Inc., Slip Opinion No. 2012-Ohio-5685, the Ohio Supreme Court clarified that in order to recover under Ohio’s employer intentional tort statute, R.C. § 2745.01, a plaintiff must show that the employer acted with deliberate and specific intent to injure him. The Court’s holding is a significant result for employers, after a temporary period of confusion on the state of the law.

Ohio has a no-fault workers' compensation system, which gives employees the security of compensation for workplace injuries, while assuring employers that they will not be forced to defend a lawsuit every time an employee claims to have suffered work-related injuries. The employer intentional tort statute provides an exception to this system in cases where the employer commits a tortious act with intent to injure or with the belief that the injury was substantially certain to occur. (R.C.§2745.01(A)) The statute defines the term “substantially certain” as “acting with deliberate intent to cause an employee to suffer an injury, a disease, a condition or death.” (R.C. §2745.01 (B))

This statute and subsequent Supreme Court cases recognizing its constitutionality (Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010–Ohio–1027, 927 N.E.2d 1066 (2010), and Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010–Ohio–1029, 927 N.E.2d 1092 (2010)) marked a significant departure from the more relaxed common law standard. The common law allowed recovery in circumstances where the employee proved that the employer had knowledge of the existence of a dangerous process or condition, that harm to the employee was a substantial certainty, and the employer required the employee to perform the dangerous task.

While the majority of the courts faithfully interpreted the current version of the statute, requiring evidence of deliberate and specific intent to injure on the part of an employer, the language of the statute was prominently challenged by the Eighth District Court of Appeals in Houdek v.ThyssenKrupp Materials N.A., Inc., 8th Dist. No. 95399, 2011-Ohio-1694.

Plaintiff, Bruce Houdek was assigned to work in a narrow aisle in ThyssenKrupp’s warehouse. His coworker forgot about his presence there and drove a sideloader forklift at speed in the same aisle. He pinned Houdek against a scissor lift he had been using, causing significant injuries. Houdek sued ThyssenKrupp claiming the company had intended to injure him by sending him to work in the warehouse aisle, knowing that injury would be certain or substantially certain to occur. The trial court granted summary judgment to ThyssenKrupp, finding that Houdek had failed to prove that ThyssenKrupp had acted with intent to harm him.

Houdek appealed the decision. The court of appeals reversed the trial court and refused to apply the strict language of the statute. It found that the terms “substantially certain” and “deliberate intent to injure” could not mean the same thing, and attributed this statutory language to “a scrivener’s error.” The court of appeals then returned to the common law standard and held that “intent to injure” can be proven by what a reasonable, prudent employer would believe. Thus, ThyssenKrupp could be held liable for Houdek’s injuries if it “objectively believed the injury to Houdek was substantially certain to occur,” notwithstanding the lack of proof of a deliberate intent to injure.

ThyssenKrupp appealed the decision to the Supreme Court, which initially rejected the appeal, causing a temporary confusion about the state of the employer intentional tort. After a motion for reconsideration, the Supreme Court accepted jurisdiction and the case was fully argued in June 2012. On December 6, 2012, the Supreme Court reversed the Eighth District Court of Appeals, holding that the statutory language is clear: a claimant who brings an employer intentional tort claim is required to prove that the employer acted with deliberate intent to cause injury to him. After analyzing the facts, the Court found that the injury was the result of a tragic accident. While the evidence did show that ThyssenKrupp could have taken steps that might have prevented the accident, the evidence did not rise to the level of deliberate intent to injure.

The court’s opinion settles the temporary confusion caused by the Houdek decision in the Eighth District and clarifies, yet again, that “the General Assembly’s intent in enacting [the employer intentional tort statute], is to permit recovery for employer intentional torts only when an employer acts with specific intent to cause an injury.” While we may continue to see other challenges to the statute’s current construction, this is a significant outcome for Ohio employers.

Contact: Klodiana Tedesco


Employer Required to Give UAW Documentation to Support its Competitive Disadvantage Claim

On December 4, 2012, the United States Court of Appeals for the District of Columbia enforced a National Labor Relations Board (NLRB) order requiring an Ohio manufacturer to give the United Auto Workers (UAW) information about customers, market studies, and pricing to support the company’s claim that competitive pressures required that it seek substantial wage concessions from its employees. (KLB Indus. Inc. v. NLRB, D.C. Cir. Nos. 11-1280, 11-1322). Finding that the union had appropriately tailored its request to documents relevant to the claim of competitive disadvantage asserted by the employer during contract negotiations with the union, the Court determined that the NLRB properly found that the employer’s refusal to comply with this request and its subsequent lockout of employees were unfair labor practices.

The employer, KLB Industries, manufactures aluminum extrusions at its facility in Bellefontaine, Ohio. When it came time to negotiate its collective bargaining agreement with the UAW, the company initially demanded a 20 percent reduction in wages based upon its claim that it was facing increased competition from Asian manufacturers, rising production costs, and decreased productivity. Following negotiations, the company eventually advanced a last and final offer, which included an 8 percent wage reduction in the first year of the contract, followed by 2 percent reductions for the second and third year. In response, the union sent the employer a written request for information, including a list of the company’s current customers and customers it had lost, data on price quotes, outsourcing, market studies, and projected savings from the company’s wage proposals.

The company refused to provide the requested information because its “desire to remain competitive in both global and domestic markets is no different from the desire of any business conducting [similar] operations.” Although the company did provide the union with an estimated annual wage savings (one of the requested items of information), it failed to include its underlying calculations or predictions. The company then locked out its union-represented employees and hired replacements.

The union filed unfair labor practice charges, and an NLRB administrative law judge found that the employer’s failure to provide the requested information violated Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§158(a)(1) & (5). The NLRB upheld the administrative law judge’s rulings, and the company petitioned for Court review.

Enforcing the NLRB’s order requiring that the requested information be produced to the union, the Court stated that where the employer raises a competitiveness claim as its central justification for wage concessions, the union is entitled to information verifying that claim. The Court further concluded that the union’s information request was sufficiently narrow because it was targeted to the competitiveness claim relied upon by the company and did not ask the company to open its books and provide generalized financial data concerning profits and management expenses. Thus, the D.C. Circuit denied the employer’s petition for review and enforced the NLRB’s unfair labor practice order.

Contact: Emily Wilcheck


It’s the Most Wonderful Time of the Year…for a Lawsuit: The Perils of Holiday Parties

Holiday parties offer employees an opportunity to celebrate with co-workers and provide employers an opportunity to show appreciation for a year of hard work. They can also offer many opportunities for employers to be named as defendants in lawsuits.

Consider the scenario where an employee falls and injures himself at the holiday party. Whether or not the injury is compensable under workers’ compensation statutes depends on a number of factors, such as where the party was held and whether attendance was mandatory.

Holiday parties are notorious for spawning sexual harassment lawsuits, so think twice before hanging the mistletoe. A supervisor is still a supervisor and in a position of power, even at a holiday party. Further, unwelcome conduct at a holiday party is not analyzed under a different standard simply because the conduct occurred outside work hours or off the employer’s premises.

Liability does not necessarily end when the party ends. Alcohol is a significant contributing factor in conduct resulting in employee injuries and sexual harassment claims , but it is also a cause for concern when employees leave the party. An employee who causes an automobile accident on the way home from the holiday party may also result in liability for the employer.

Fortunately, there are a few things an employer can do to limit its potential liability:
  • Hold holiday parties away from the employer’s place of business;
  • Use third-party vendors to serve alcohol;
  • Stress that attendance at the party is voluntary, and make sure no subtle suggestions are made that attendance would be beneficial to an employee’s career or continued employment. Additionally, make sure employees are aware that time spent attending a holiday party will not be considered hours worked;
  • Don’t hand out bonuses or service awards at the holiday party because doing so increases the perception the party is a work function rather than social event;
  • Invite employees’ spouses or guests. Not surprisingly, the presence of these guests is likely to limit cases of sexual harassment and will help monitor employees’ consumption of alcohol;
  • If serving alcohol, serve food;
  • Stop serving alcohol a couple of hours before the party ends;
  • Make alternative transportation available or provide hotel rooms to employees who have consumed too much alcohol. Even a simple offer to pay for taxis can limit an employer’s liability;
  • Ensure the venue for the party is accessible for individuals with disabilities;
  • If the party is being held at a private club, make sure it is not one with restricted memberships that may give rise to a discrimination claim; and
  • If an incident does occur at a holiday party, such as an employee injury or a report of sexual harassment, follow your policies and procedures related to investigations.
Holiday parties are supposed to be fun, and they still can be while also limiting the potential for liability.

Contact: Jon Secrest

(This is a reposting of Secrest's original blog post dated November 7, 2011)