Last week, President Trump made headlines when he tweeted that “‘progressive’ Democrat Congresswomen … originally came from countries” that were “totally broken and crime infested,” and that they should “go back” to the “places from which they came.” (Three of the Members he was referencing were born in the U.S., and one is a naturalized U.S. citizen. All are women of color.)

This is an employment law blog, so naturally, President Trump’s tweet raised our antenna on an employment law issue: can telling someone to go back to the country they came from constitute prohibited discrimination or harassment?

• Harassment

Even employers who are devoted to higher callings can find themselves in worldly disputes with former employees over access to emails and computer files.

For example, the National Institute for Newman Studies is devoted to researching Cardinal John Henry Newman, who will be canonized later this year. While awaiting Newman’s ascent to sainthood, however, the Institute has been dealing with a mundane problem: a lawsuit brought by its former executive director, Robert Christie.

• Data Security
• Summary Judgment

A class action allows a plaintiff to sue not only on his own behalf, but also on behalf of others similarly affected by a defendant’s misconduct. In the employment context, for example, plaintiffs can bring class actions against employers for violations of labor codes, wage and hour laws, and discrimination laws.

• Arbitration
• Class Actions
• Supreme Court

Under the Family Medical Leave Act (“FMLA”), employers are required to provide 12 weeks of unpaid leave to employees with certain family or medical issues. These issues include attending to serious health conditions that make the employee unable to work, or caring for newborns or family members. 

A frequent dilemma that employers often face is what to do when an employee has exhausted all available FMLA leave and still cannot return to work. One employer, Gold Medal Bakery, currently finds itself in litigation surrounding this issue.

• Age Discrimination
• Civil Litigation
• Discovery
• Discrimination
• Family Medical Leave
• Termination With or Without Cause
• Wrongful Termination

Companies zealously guard their trade secrets and other information that gives them a competitive edge. And as we’ve covered in prior posts, companies often resort to the courts to protect this kind of information.

Recently, a media company filed a lawsuit seeking to use trade secret protections to recover something very public—a reporter’s Twitter account.

• Civil Litigation
• Intellectual Property
• Social Media
• Trade Secrets

This post deals with two related protections that state laws and companies provide for directors and officers—indemnification and advancement. Corporations usually commit to indemnify officers and directors (and sometimes employees) when, because of their connection to the company, they are pulled into legal proceedings. Corporation also usually agree to advancement - paying legal fees and costs in advance of a final determination about the individual’s right to indemnification - so that officers and directors don’t have to foot the legal bills themselves while such a matter is going on. 

• Civil Litigation
• Indemnification and Advancement

On May 29, Roseanne Barr posted a tweet comparing former Obama adviser Valerie Jarrett to an ape. ABC’s reaction was swift and decisive: it fired Barr and cancelled her show.

ABC’s decision led to pontification from various pundits and Twitter personalities arguing that Barr’s “humor” was somehow “free speech” protected by the First Amendment. 

But even if Barr was exercising free speech when she posted her tweets, that has no bearing on ABC’s lawful right to fire her. ABC is a private employer, not the government, so the First Amendment did not prevent it from taking action based on employee speech.

• Civil Litigation
• First Amendment
• Social Media
• Title VII
• Termination With or Without Cause
• Wrongful Termination

Companies and individuals frequently enter into arbitration agreements requiring that claims be brought before a private arbitrator, rather than a judge and jury. Arbitration has various benefits: it can provide quicker resolutions, reduced costs, the right to participate in the selection of the arbitrator, and arbitral expertise. In addition, some parties prefer arbitration because it offers a cloak of confidentiality that does not exist in the state and federal courts.

• Arbitration
• Class Actions
• Civil Litigation
• Supreme Court
• Title VII

Phishing. Spoofing.

These words may sound silly, but for employers, they are anything but.

Phishing is the attempt to obtain sensitive electronic information—such as usernames, passwords, or financial information—under false pretenses. Often, when bad actors engage in phishing, they use email spoofing—sending emails that appear legitimate but are anything but. These emails can dupe users into disclosing confidential personal or company information.
 

• Data Security
• Fiduciary Duties
• Civil Litigation

When an employer changes its contract with an employee, the change should be communicated clearly—and preferably, in writing. Otherwise, the employer may be at risk of finding that the old terms still control.

For example, last week in Balding v. Sunbelt Steel Texas, Inc., No. 16-4095 (10th Cir. Mar. 13, 2018), a federal court of appeals ruled that an employer had to go to trial over a salesman’s claim for unpaid commissions. 

• Breach of Contract
• Civil Litigation
• Summary Judgment
• Termination With or Without Cause
• Wrongful Termination