Personal emails at work are sometimes protected from intrusion and sometimes not.  The email system belongs to the employer.  One indicator that work generated emails may be protected occurs when the employer allows some personal use of email.  See the case discussed at one blog post.  But, see another case discussed at a different blog in which the employee’s emails were found not to be protected from review by the employer.  The biggest difference in the two cases is that in the first case, the employer did allow some personal use of the employer’s email system.  That court found that yes, the employee had a reasonable expectation of privacy in such a situation.  

 A school district spends $552,000 to defend a lawsuit it eventually settles for $150,000.  See report at California Labor & Employment Law blog.  Does that make sense?  No, of course not.  Yet, many defendants do just that.  They spend far more than the case is worth.  Most employment cases settle for anywhere from $10,000 to 25,000.  But, I know the defendant is spending about that much or more until they finally settle the case.  if the case goes to trial, they will spend closer to $300,000 defending a discrimination lawsuit.  

To be fair, many employers are offended by a discrimination lawsuit.  They think they know the alleged harasser and cannot believe he/she would do such a thing.  They will go to the mat to defend the lawsuit.  At some point, most employers will become more rational.  But, for a few others, they will go down kicking and screaming…..

 According to a recent study, Spanish speaking plaintiffs received lower awards in civil cases.  Spanish speaking plaintiffs needing translators received lower awards.  Interest was initially sparked when a Dallas, Texas plaintiff lawyer noticed that his clients needing translators seemed to obtain lower verdicts from the jury.  This study apparently supports his initial suspicion. 

 Many employers completely prohibit relationships between management and subordinates.  The military has some complicated rules regulating relationships and it too prohibits relationships between those with very different ranks.  But, studies show, nevertheless, that relationships continue in the workplace.  The workplace remains a prime source of marriage partners.  But, the problems developing in the wake of David Letterman’s revelation about his relationships at CBS show the danger involved.  Even after ending the relationship, they can fester and develop into sexual harassment.  Co-workers can take sides in some perceived conflict and start a hostile work environment.  

Such relationships can become sexual discrimination if the employer takes adverse personnel action against one party but not both.  There are many traps for the uneducated.  That is why most large employers simply prohibit them.  CBS prohibits them, as this story explains.  So, yes, it is fair to say that Mr. Letterman could lose his job over this.  If CBS punishes no one, then it risks that no one will take its policies seriously.  If they punish the female subordinates but not the male manager, then it looks like gender based discrimination.  Looks like a no win situation for CBS, at this point. 

 In a recent study conducted by two Univ. of Phoenix professors, it was found that many workers reported an increase in overbearing supervisors during these lean, recessionary times.  These employees reported that when they would question their employer about the company’s prospects, they were essentially told to suck it up and quit complaining.  So reports the San Antonio Express-News.   The employers were told to simply be thankful they had a job and were threatened.  The researchers were surprised at this result, which they said permeated across the country in a survey of over 1000 workers.  

 This is why employees need lawyers and why employers get sued.  A fellow blogger, Evil HR Lady, reports that some hospital has told its medical staff they must stay away from work when they are ill with the H1N1 flu and such illnesses will count as Unexcused Absences.  Such time will count as an "occurrence."  As HR lady points out, unexcused absences will presumably be used for discipline.  I do not think you can ask for a more clear example of a violation of the Family Medical Leave Act or, possibly, the Americans with Disabilities Act.  You make them stay home and then penalize them for staying home.  Any discipline for a genuine illness very likely violates the FMLA or the ADA.  That is a shame. 

To her credit, HR Lady points out the need for HR personnel to demonstrate leadership on such issues.  If more HR ladies and gentlemen did so, there would be much less need for lawyers like myself.  A tip of the hat to Not So Evil HR Lady for taking the high road…..

 Are pantsuits still verbotten as professional wear?  Recently, the new US Solicitor General (ie, the person who actually argues cases to the US Supreme Court on behalf of the federal government) appeared before the US Supreme Court wearing a pantsuit.  One might shrug and think no big deal.  But her choice became the topic of discussion at one legal blog and with another legal tabloid.  I thought we were past this, but hope the US Supremes, if no one else, was able to focus more on the quality of the Solicitor General’s legal briefing than on the perceived quality of her choice of clothing. 

 The new regulations for the Americans with Disabilities Act have been proposed.  The EEOC promulgates those regs and seeks public comment before making them final.  You can view the new regs at this website.  These regs are based on the ADA Amendments Act which was passed last year.  Among other changes, they list new impairments that will be considered to be a disability.  Many of these new disabilities are impairments that might be in remission or episodic.  They make it clear that working is now a major life activity, which had been in doubt.  And, of course, as required by the amendment, the regs state that an impairment will be looked at in its non-treated form or without mitigation.  See the good folks at Workplace Prof for more discussion.  

 I discuss this with clients so often.  How much is my case worth?  Most clients believe their case is worth millions.  And, it is.  To you.  But, what is it worth to a jury?  I have explained that studies of discrimination lawsuits have found that most often, juries do not award compensatory or emotional suffering damages when an employee wins.  Yes, that’s right.  Even when you win, most juries award nothing for emotional suffering.

And, when a jury does award compensatory damages, they tend to award more or less the equivalent of lost pay.  In a recent case before a federal jury in Austin, a UTHSC professor was awarded $900,000.  That amount will be reduced to $300,000, since Title VII limits compensatory damages to $300,000.

But, even as a $900,000 award, his lost pay was very high.  His pay was cut 25% in 2003.  So, he has lost some $175,000 in pure wage reduction.  Add whatever he would have lost in retirement benefits, because now his pay is at a reduced level.  Add whatever he could prove in lost raises or bonuses.  Add whatever he could show was lost income because UTHSC apparently caused his discoveries to lose value.  Then, add whatever value the jury awarded because he was diagnosed with depression, heart problems and diabetes.  In fact, his first trial was apparently cancelled when he had a stroke at the trial.  

So, yes, those million dollar judgments are out there.  But, to get those high judgments, you have to suffer a heck of a lot and you have to already have a pretty high income anyway.  

 Employers do the craziest things.  One employer in Tennessee, according to this report, tested employees for using *lawful* prescription drugs.  Yes, the employer was testing for prescription drugs. They apparently rook action against employees who refused to stop taking some prescription drugs.  The EEOC filed suit, saying these tests amounted to unlawful medical inquiries.  Unlawful medical inquiries would violate the Americans with Disabilities Act.  Those crazy employers……