Its nice to work at home, but the stay-at-home employees suffer, according to one recent report.  According to two business professors, work-at-home employees receive lower performance evaluations, smaller raises, and fewer promotions.  Stay-at-home employees are observed less.  They receive less "passive face time," say the two researchers.   In white collar jobs, the lack of face time will impact choices for leadership positions. 

"Face time" outside of work can lead to conclusions that employees are dedicated or committed.  The bias against home workers is probably unconscious, say the professors.  Managers of employees who telecommute or utilize flexible hours should revise evaluations to include more objective criteria.  More objective evaluations will help overcome the differences in work locations, say the researchers.  See ABA Bar Journal report. 

Sometimes an employee is just fired just because.  According to the Toledo Blade, Clear Channel Communications, a major corporation headquartered in San Antonio, has been quietly laying off numerous employees.  The layoffs started when Bain Capital, Mitt Romney’s former business, bought a large share of Clear Channel.   A controversial radio talk show host was recently fired in Toledo.  That termination followed other terminations at radio stations in Nashville and elsewhere.  

According to one industry observer, clear Channel is laying folks off to satisfy impending debt obligations.  One observer says they have laid off a handful of employees each week for the past 52 weeks.  See Toledo Blade report.  Yes, sometimes folks are simply laid off because the business has new owners. The interesting part is who is picked for the layoff and why. 

You only think that what you are posting will remain anonymous on the world wide web.  A federal prosecutor in New Orleans learned that painful lesson recently.  First Assistant U.S. Attorney Jan Mann had been posting anonymous comments on a New Orleans Time Picayune website under the online alias of "eweman."  Her comments were directed at a landfill operator, whose business is the subject of a federal investigation.  The comments apparently criticized the landfill.  The operator filed a defamation lawsuit against Ms. Mann.  

The lawsuit cited several clues leading them to Ms. Mann.  Among the clues were "superfluous" spacing before punctuation marks, and the use of obscure terms such as "fender lizard" which she had used in conversations.  And, her posts attacked persons for whom she was known to have strong antipathy.  She based her alias on the initials of Edwin W. Edwards, former Louisiana governor.  Ms. Mann has been demoted from her former position of First Assistant.  See ABA Bar Journal report. 

No, "anonymous" is not always what we think it is. 

Under Title VII, a plaintiff can seek reinstatement if s/he wins the lawsuit.  But, many plaintiffs do not want to return to their old job.  No matter how much they may have loved their job, they fear returning to a discriminatory environment.  With proper protections, the plaintiff’s attitude might change about returning.  Many – actually most employers – would prefer the employtee not return.  Even if the employer can get over the hurt of a lawsuit, they fear a rash of additional alwsuits.  

Title VII of the Civil Rights Act anticipates this problem.  Title VII provides that an employee is entitled to reinstatement.  But, if returning to the job is not feasible, then the court (i.e., the Judge) can award future pay.  Future pay (or front pay) is very rare, but it does happen.

But, what happens when the plaintiff is asked whether she wants to return in her deposition and she answers in an ambiguous way?  Mike Maslanka discusses such a case.  In Dube v. Texas Health and Human Services Commission, the plaintiff said she did not want to return "at this time."  The Western District of Texas found that the employee did not truly want to return and, therefore, reinstatement could be excluded from her lawsuit.  Ms. Dube had moved out of state and was equivocal about returning to Texas for a job, especially one where she felt threatened in some way.  

Later, she tried to say in an affidavit that she would indeed like to be reinstated to her old job.  But, as often happens, the Judge gave more weight to her deposition testimony than to a subsequent affidavit.  So, yes, as Mike notes, if reinstatement is foregone, then so is any chance at future pay.  See Mike’s post here.  So, in this situation, be careful what you don’t want, because you just might not get it….

I met a neighbor at a recent gathering.  He asked a good question.  Can a boss can look at an employee’s Facebook comments?  Apparently, a friend of the neighbor left his computer at work open to Facebook.  "Jim" had posted something unfavorable about his employer, a major retailer.  Well, there is a lot wrapped into that one scenario.  If we discuss major retailers on Facebook and we get it wrong, or even if we simply exaggerate, we could expose ourselves to a suit based on business related defamation.  Its best to just not discuss the quality of an employer’s products in a public forum, such as Facebook. 

If the computer is owned by the company and we publish emails using the company’s server, we know from prior decisions that those emails belong to the employer, not the employee.  So, yes, where the computer is already open to Facebook, the employer could probably view those comments.  I presume those comments could not be published without the company’s server. 

And, if we leave a computer open and unattended and the screen displays critical comments about the boss, then yes, the boss probably can view those comments – much as if we had left notes on our desk critical of the boss.  An open computer will probably not be any different than open notes.  I have not seen any cases that address that specific situation.  But, I expect most judges would view an open computer much like open notes on a desk. 

But, if the employee was discussing "terms and Conditions" of employment on Facebook with co-workers, then that would be different.  Employees are protected when they discuss terms and conditions of employment with other workers – whether that discussion occurs on Facebook or elsewhere.  An employer who sees critical comments shared online with another employee probably could not take action against the employee.  That is, the employer could not take reprisal against the employee because s/he said negative things about the job to other employees.  I have previously discussed the right to discuss terms and conditions of work here. 

Online research has become ubiquitous.  It has reached the point where a judge in one criminal trial issued individual written orders to members of a jury not to conduct any research regarding the defendant.  The defendant was charged with murder.  The judge had already been burned by a prior trial in which jurors discussed the defendant on their breaks before deliberations.  Thiose discussions lead to a mistrial.

So, in a subsequent trial, Florida Judge William Fuente issued the members of a jury pool specific instructions not to conduct any online research about the defendant or to discuss the defendant.  But, one member of the jury pool googled the defendant.  Another member of the pool outed the offending potential jury member, Vishnu Singh.  The researching potential jury member said he did not recall the judge’s instructions, just some "piece of paper."   Angry, the judge told Mr. Singh, to provide a valid address with the bailiff and to expect jail time.  See ABA Bar Journal report. 

A trial is supposed to be all about the evidence.  Jurors are specifically told they cannot bring in their own evidence – they must rely on the evidence authenticated and admitted in court.  "Googling" the defendant or any other key aspect turns centuries of jurisprudence on its head.  But, who has not looked up things online when they had a question?  

This would be a tough case for any lawyer.  Capt. Francesco Schettino, who infamously sunk a ship, the Costa Concordia, is suing to get his job back.  His Italian lawyer, says he is simply doing what any Italian citizen has the right to do.  According to this report, he gave the order to sail too close to the island so as to salute a retired Costa Cruises captain.  See Digital Journal report.  Of course, he was also among the first to abandon the ship, long before most of the passengers.  An Italian Coast Guard officer fussed at him to get *#& back on the ship.  Some 30 passengers died.  I first wrote about the incident here.  

I’m not saying he could not have a case under some law somewhere.  And, sure, I have represented fired employees who were fired all out of proportion to what they did – or employees who were fired for offenses for which other employees would not have been fired.  

But, this is crazy.  What will he say, "other captains who sink their ships do not get fired"?  

The defense lawyer in the Trayvon Martin case has been blogging about his case.  Mark O’Mara has been trying to counter the publicity that George Zimmerman is a racist.  The prosecutor complained to the judge and requested an order prohibiting further use of social media.  The prosecutor claimed Mr. O’Mara’s use of social media would taint the jury pool.  But, the judge disagreed.  An impartial jury could still be seated.  See ABA Bar Journal report. 

So, now social media becomes a way to overcome media bias against a defendant…..

 Earlier this week I had the opportunity to speak with Colin O’Keefe of LXBN regarding two very important issues surrounding the upcoming election and the workplace. In the brief issue I explain whether or not employers can tell their employees how to vote and if they have to give their employees time off to go vote. 

Jon Hyman, a defense lawyer, posts a nice piece about accommodating employees’ religious requirements.  He discusses how not to provide religious accommodations: Disneyland refusing to allow a Muslim worker to wear a hijab, Burger King denying a Pentocostal employee’s request to wear a skirt instead of pants, and a New York University firing a worker who wore an "I love Jeus" lanyard.  Then, he adds a more personal example.  He is Jewish and he married a Catholic woman.  Isn’t that an accommodation also? 

It is not that hard to accommodate religious preferences.  We are a nation of immigrants, after all.  See Jon’s post here.