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College that rejected female job applicant and then hired similarly unqualified male could be liable for discrimination even though female applicant did not have enough qualifications for the position.
A female university labor foreman applied for a job at the school as a locksmith. She had a locksmithing license but not the two years of experience the position required. The university rejected her application in favor of a male with even less experience. She filed a charge with the Equal Employment Opportunity Commission (EEOC), and while it was pending, another position as a locksmith opened up, this one requiring three years of experience. She was again passed over in favor of a male with very little experience.
The woman filed another charge with the EEOC, and the case eventually went to court. The trial court initially rejected her gender discrimination claim, because she was not qualified for the positions.
The appellate court reversed this finding. It explained that the school could not rely on the plaintiff’s lack of qualifications as a reason for not hiring her, because it did not apply the same qualification standard to the men it did hire. It was unfair to find the woman unqualified but give the men the jobs, because the men who were hired did not have the required experience.
This case demonstrates that an employer is not protected from a claim of discrimination merely because the plaintiff is not qualified for the job. If the employer fails to apply the job requirements equally to both males and females, it may violate the law.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Scheidemantle v. Slippery Rock Univ., 470 F.3d 535 (3rd Cir. 2006)].
Employer was able to give lawful consent for search of employee’s computer, which overrode employee’s reasonable expectation of privacy in his computer and office.
Overruling its earlier decision, a federal court decided that an employee may have a reasonable expectation of privacy in his workplace office and computer, but that his employer’s consent to an FBI search of the office and computer was legal and did not violate the Fourth Amendment. An earlier decision had questioned whether the employee even had an expectation of privacy in his workplace computer.
The company notified its employees it would routinely monitor their computers and other electronic communications for inappropriate use. When such monitoring revealed that employee Jeffrey Ziegler had apparently been visiting child pornography Web sites, the company entered Ziegler’s office at night and copied his hard drive, which it delivered to the FBI along with the computer itself.
The court first explained that the Supreme Court had recognized that employees have at least a limited expectation of privacy in their offices. Therefore, any search of the office or computer had to conform to the Fourth Amendment and its prohibition against unreasonable searches and seizures. In this case, the Fourth Amendment was satisfied, because the company gave lawful consent for the search. It had the authority to consent to the search of Ziegler’s computer and office, because it had common authority over them. Further, the plaintiff could not reasonably have believed that the computer was his personal property or that the company could not review its content. The computer was the property of the company and was to be used by Ziegler for work-related business.
This case demonstrates that the Fourth Amendment even protects employees’ workplace offices and computers. More importantly for employers, it shows the importance of having a clearly stated policy that the employer has the right to monitor employees’ computer usage.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see United States v. Ziegler, -- F.3d --, 2007 WL 222167 (9th Cir., January 30, 2007)]
Federal court criticizes employer for requiring employee on jury duty to use vacation time for days at court.
An employer violated both federal and state law when it required an employee called to jury duty to use vacation leave for the days the juror attended court.
In April 2006, the individual began a nine-month term of jury service in the federal district court for the Eastern District of Tennessee. After serving approximately one week, the individual complained to the court’s clerk that his employer was forcing him to use vacation days to attend jury service. The court contacted the employer and informed management that its actions were in potential violation of federal and state law. The employer agreed in writing to change its practice, but because of an error in notifying regional managers, the employer required the individual to again use vacation days to attend six more days of jury service in December 2006.
After the individual again complained to the clerk, the judge issued a notice to the employer stating that it was potentially going to hold the employer in contempt for its actions. The employer apologized, explained its error and restored the individual’s vacation days, so the court did not find it in contempt. However, the court noted that federal law and Tennessee law (and the law of many other states) prohibits interference with an employee’s right and obligation to serve on a jury and that any interference with that right and obligation is disrespectful to the courts and jeopardizes our judicial system.
This case shows that employers may not discriminate or retaliate against an employee because the employee is called to jury service.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see In re Heritage Propane., Case no. 07-01 (E. D. Tenn., February 6, 2007)].
Security company’s employee rules regarding solicitation, complaints and fraternization violate the National Labor Relations Act by discouraging protected labor activity.
A security company violated the National Labor Relations Act (NLRA) by instituting several employment rules that prevented employees from engaging in protected labor activities.
Under the NLRA, employees have the right to discuss the terms and conditions of their employment with each other and with the public, although an employer may limit such activity to times when the employees are off-duty or not wearing their company’s logo. In this case, the court found that each of the rules actually prohibited lawful activity. First, the complaint rule stated that employees should “not register complaints with any representative of the client.” This violated the employees’ right to make complaints about their jobs to members of the public. Next, a rule that prohibited employees from soliciting or distributing literature while off-duty if they were wearing their uniform was unlawful, because it did not clarify that employees could solicit in their uniforms if they covered their company logo. Finally, the fraternization rule informed employees that they could not “fraternize on duty or off duty, date or become overly friendly with the client's employees or with co-employees." Although the employer argued that this rule merely prevented employees from dating each other, the court found that the word “fraternize” could also be interpreted to prohibit employees from getting together or meeting while off-duty to discuss the terms and conditions of their employment.
This case shows the importance of carefully drafting employment rules to avoid violating the NLRA. Of course, an employer may institute rules and policies regarding complaint procedures, solicitation and employee relationships, but the rules cannot interfere with employees’ legitimate right to discuss things like the terms and conditions of employment and unionization.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Guardsmark LLC v. NLRB, -- F.3d --, 2007 WL 283445 (D.C. Cir., February 2, 2007)].
