Tag: Labor Law

The Legal Implications of Employers Providing Employees Smartphones

Whether employees want  phone and mobile access to email and  the internet  or employers want their employees to have access, smartphones seem to be the ‘must have’ business accessory these days.   As with many technologies, the lawsuits come in quicker than companies can draft and enforce policies related to the technology. 

Lately we’ve been seeing a whole wave of Employment / Privacy Right Smartphone articles at the National Law Review.

For a General Overview of the Human Resource / Risk Management Issues Related to Smartphones:

You’ve Got Mail (and a Lawsuit): Mobile Communication Devices and the Wage and Hour Pitfalls they Present by Thomas S. Kleeh of Steptoe & Johnson PLLC.

Are You Calling, E-mailing or Texting Employees While They Drive? You May Want to Reconsider by David J. Carr of Ice Miller LLP

For Department of Transportation / State Law Guidelines Related to Texting While Driving or Distracted Driving:

Department of Transportation Prohibits Drivers of Commercial Vehicles From Texting While Driving by David L. Woodard and Louis B. Meyer III of Poyner Spruill LLP.

Distracted Driving Policies: Improve Safety and Limit Exposure by Anne B. Ellison of Dinsmore & Shohl LLP

New Kentucky Law Bans Texting While Driving by Michael J. Henry of Dinsmore & Shohl LLP

For Overtime Pay Issues and the Fair Labor Standards Act (FSLA) Issues Related to Smartphones:

Company-Issued Smartphones and the FLSA: Keeping Employees Connected May Have Its Price by James R. Carroll and Shawn M. Staples of Much Shelist Denenberg Ament & Rubenstein P.C

Curtailing the After-Hours Use of Blackberries by Non-Exempt Employees by Trent S. Dickey and David H. Ganz of Sills Cummis & Gross P.C.

Overtime Lawsuit for Use of PDA’s Hi-Lights Potential Liability for Off-Duty Electronic Communications by David J. Lampe of Dinsmore & Shohl LLP

For the Use of Smartphones and Employer  Liability Related to Eavesdropping:

Beware the Allure of Smartphone Technology: Recording Others without Consent May Get You in Serious Trouble by Anne E. Larson of  Much Shelist Denenberg Ament & Rubenstein P.C

Georgia Voters Approve Dramatic Changes to Employment Restrictive Covenant Laws

This week’s featured blogger at the National Law Review is Jon M. Gumbel of Ogletree Deakins.  Jon writes about how this month’s elections in Georgia approved a measure which would amend the Georgia constitution to dramatically alter the law as it pertains to employee non-compete, customer non-solicitation, confidential information and similar contractual provisions between Georgia employers and their employees. 

The long-awaited and often debated results are in! On Tuesday, November 2, 2010, Georgia voters decided (quite convincingly) to amend the Georgia Constitution, which allowed for the previously passed House Bill 173 to become law (now O.C.G.A. §13-8-50, et seq.). This new statute dramatically alters the law as it pertains to employee non-compete, customer non-solicitation, confidential information and similar contractual provisions between Georgia employers and their employees. The new law became effective on November 3, 2010 and as such, is deserving of prompt attention by Georgia employers.

Until November 2, Georgia’s restrictive covenant laws were governed by published court decisions issued by a wide variety of Georgia judges and based on an even wider variety of specific factual situations, creating a somewhat muddled, very complex and highly unpredictable area of the law. Furthermore, as this case law developed over the past 60 plus years, Georgia courts applied an increased level of scrutiny to employee restrictive covenants, making Georgia one of the most difficult states in which to enforce such covenants. For example, Georgia courts previously required employers to undertake the extremely challenging task of tailoring restrictive covenants executed at the onset of the employment relationship to the employee’s post-employment competition restrictions. In addition, Georgia courts would automatically invalidate a customer non-solicitation provision upon the finding of one technical problem within a noncompete covenant and vice versa. Finally, Georgia courts would not, under any circumstances, modify an otherwise unenforceable covenant so as make it reasonable in the court’s eyes and therefore, enforceable (the “blue penciling” process).

The new statute specifically states Georgia’s new public policy favoring enforcement of these agreements and provides specific guidelines for drafting enforceable agreements. For example, the new statute expressly authorizes a more general description of prohibited, post-employment activities, thus mitigating the requirement that such covenants be narrowly tailored at the onset. The new statute eliminates the prior rules invalidating one covenant based on the unacceptable language of another separate covenant within the same contract. Perhaps, most significant is the new statute’s specific approval of blue penciling, the practice by which Georgia courts are allowed to modify and enforce an otherwise unenforceable covenant.

It is important to note that this new statute only applies to restrictive covenants executed on or after the date the statute was passed – November 2, 2010. The previous, more rigorous legal standards will still apply to agreements entered into before that date. Re-drafting restrictive covenants in line with Georgia’s new statute may be the best option for many Georgia employers. However, Georgia employers should consult with counsel to determine whether they can benefit from this new law. This is especially true when it comes to covenants contained in more complex management and executive agreements that are tied to more generous severance or other compensation plans or those associated with the sale of a business.

Update! For more recently posted information about this topic, please see:  Important Notification Regarding the Effective Date of The New Georgia Restrictive Covenant Statute

© 2010, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

About the Author:

Jon M. Gumbel has concentrated his practice in the field of management labor and employment law since 1987.  He has represented employers with respect to litigation and other employment law disputes involving race, gender, age, religious, and disability discrimination claims under Title VII, the ADEA, the ADA, the FMLA, and comparable state laws.  Jon has also represented employers with respect to their employment litigation matters involving pregnancy discrimination, breach of compensation agreements, breach of non-compete agreements, breach of fiduciary duty, joint employment, wage and hour matters, OSHA citations, and wrongful discharge laws.  Finally, Jon has represented numerous employers with respect to ERISA claims/litigation including those involving health, disability and pension claims.  404-881-1300 /www.ogletreedeakins.com

 

Testing the Limits of Applicant Testing

The potential legal pitfalls of job applicant testing are illuminated by the National Law Review’s featured blogger Sarah L. Hinkle of Steptoe & Johnson PLLC.  Read on:  

Many employers believe that applicant testing – skills, personality, or honesty testing, for instance – is an easy way to screen out undesirable job candidates. Besides, all employers want highly skilled, easy to work with, honest, and sober employees … and what better way to rate a candidate than to subject him or her to a test, right? Not so fast! Applicant testing is fraught with potential legal pitfalls, and caution must always be exercised before engaging in any kind of applicant testing.Anchor

For example, while tests can be very effective tools for finding qualified applicants, employers must be aware that some tests or selection procedures can violate state and federal anti-discrimination laws. Worse, this can occur even if the employer does not intend to do so, such as when a “neutral” test or other selection procedure disproportionately excludes people in a particular group by race, gender, national origin, religion, disability, age, or any other protected classification, unless the employer can justify the test or procedure by showing that it is “job-related and consistent with business necessity.”

The seminal case examining the unintentional “disparate impact” discrimination found in some testing techniques is Griggs v. Duke Power Co., 401 U.S. 424 (1971). In Griggs, the employer instituted a requirement that applicants at a power plant must either have a high school diploma or pass a general intelligence test in order to be hired. The Court found that the requirement was discriminatory because the employer could not show that the requirement bore a “demonstrable relationship to successful performance of the jobs for which it was used.” The full text of Griggs, by the way, can be found at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0401_0424_ZO.html

Keep in mind that pre-employment screening which merely has a discriminatory impact isn’t the only type of applicant testing employers need to be careful with. Certain other pre-employment testing may be found unlawful regardless of intent, such as requiring medical examinations of applicants before providing them a conditional offer of employment.

With due caution in mind, consider the following when deciding whether to begin using or continue using pre-employment testing procedures:

  1. Most obviously, but also most importantly, never use testing or any other selection procedure for the purpose of “weeding out” members of a protected class.
  2. Do not casually adopt testing procedures, and make sure decisions regarding testing are made at high levels of your company after consulting with counsel.
  3. Make sure that any tests or selection procedures that you use are valid and reliable. That is, make sure that the test actually measures components or characteristics that are necessary for the job position, that the test is truly useful in predicting success on the job, and that it yields consistent results. Do not assume that a test-maker vendor’s supporting documentation is entirely accurate – do your own investigation as well.
  4. Be vigilant as to changes in job requirements so that you know when you need to update test specifications or selection procedures.
  5. Accommodate people with disabilities by modifying the test or testing conditions or eliminating the testing requirement if necessary.
  6. Do not rely solely on tests for making decisions about candidates; use them as one component of your overall selection procedure.

If an employer remembers the above tips when evaluating current testing practices or when considering implementing new selection procedures, it will go a long way towards making sure the company gets a passing grade of its own.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

About the Author – Sarah L. Hinkle:

Sarah Hinkle focuses her practice in the areas of labor and employment law.

304-262-3542 / www.steptoe-johnson.com

The Ten Commandments of Drafting a Social Networking Policy

The National Law Review’s featured Guest Bloggers this week are from Steptoe & Johnson PLLC. Vanessa L. Goddard provides some concrete do’s and don’ts for drafting a company Social Media policy.  Read on:

You’ve probably heard this “fact”: if Facebook was a country, it would be the fourth largest country in the world! Web 2.0 has infiltrated every aspect of our lives, including the workplace. As a result, most lawsuits in which employers become mired are fraught with electronic data issues. To guard against a wide range of legal claims, as well as reap the benefits of a global marketplace, many employers are instituting social networking policies. But, as with any policy, a social networking policy must be carefully drafted to meet your business needs. With that, I introduce to you the 10 Commandments of drafting a social networking policy:

NUMBER ONE: Thou shalt NOT use a sample policy pulled willy-nilly from the Internet.

While your search results will pull up dozens of fine looking policies, you won’t know who wrote them, the legal jurisdiction from which they hale, or the business interests the policy seeks to promote. Many times, a bad policy is worse than no policy at all.

NUMBER TWO: Thou SHALT work in harmony to craft a policy appropriate for your business.

If you decide that a social networking policy is appropriate for your business (and it may not be), the combined cooperation of your IT department, human resources, legal, and company decision-makers is necessary to formulate an effective policy.

NUMBER THREE: Thou SHALT know the risks and guard against them.

Employee use of social networking media can have wide-ranging legal ramifications for employers. Possible claims include: harassment, discrimination, defamation, invasion of privacy, and a variety of statutory violations.

NUMBER FOUR: Thou SHALT proclaim that the eye of the employer sees all.

Notify employees that they have no expectation of privacy in their use of company technology, that their activities should be work related only, and that their communications may be accessed at any time.

NUMBER FIVE: Thou shalt NOT take the name of the employer in vain.

The policy should require disclaimers be used indicating that the opinions stated therein are those of the employee and not the employer.

NUMBER SIX: Thou SHALT respect thy co-workers, customers, competitors, and employer.

Require employees to act respectfully in their social networking/blogging activities. Provide guidance on what is and what is not appropriate behavior.

NUMBER SEVEN: Thou shalt NOT steal or do other really bad things with your employer’s computer.

The policy should prohibit disclosure of confidential information, the use of legally-protected/copyrighted information, and the dissemination of personal information of co-workers.

NUMBER EIGHT: Thou SHALT know the consequences of thy actions.

Inform your employees that their social networking activities on the job are subject to all company policies and explain the consequences of violating your social networking policy.

NUMBER NINE: Thou SHALT spread the word throughout the masses.

Distribute the policy. Have your employees sign off on their receipt and understanding of the policy. Provide training on the policy.

NUMBER TEN: Thou shalt NOT commit random acts of destruction.

You MUST ensure that your litigation hold policy incorporates procedures and methodologies to capture and preserve social networking data in the event of litigation.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

About the Author:

Vanessa Goddard’s primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment, deliberate intent, age, race, and disability discrimination, wrongful discharge, and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.  304-598-8158 /www.steptoe-johnson.com

Wal-Mart Class Action Defense Cases–Dukes v. Wal-Mart : Ninth Circuit Court Affirms Class Action Certification Of Largest Labor Law Class Action In U.S. History

The National Law Review’s Featured Guest Blogger Michael J. Hassen of Jeffer, Mangels, Butler & Mitchell LLP discusses the recent California Employment Class Action cases involving WalMart’s female employees.  

Labor Law Class Action Alleging Wal-Mart Discriminates Against Female Employees in Violation of Title VII of the Civil Rights Act of 1964 Properly Certified As Nationwide Class Action by District Court Ninth Circuit Holds

Plaintiffs filed a class action against Wal-Mart alleging violations of Title VII of the Civil Rights Act of 1964; specifically, the class action complaint alleged that Wal-Mart discriminates against its female employees. Dukes v. Wal-Mart Stores, Inc., ___ F.3d ___ (9th Cir. April 26, 2010) [Slip Opn., at 6137, 6146]. According to the allegations underlying the class action complaint (originally filed in 2004), Wal-Mart discriminated against women employees in violation of Title VII of the 1964 Civil Rights Act because “women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer—and wait longer for—promotions to in-store management positions than men.” Id., at 6147. The class action complaint sought to represent a nationwide class on the grounds “that Wal-Mart’s strong, centralized structure fosters or facilitates gender stereotyping and discrimination, that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.” Id. The proposed class included “women employed in a range of Wal-Mart positions, from part-time entry-level hourly employees to salaried managers.” Id. Plaintiffs’ counsel moved the district court to certify the litigation as a class action, defined as “All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” Id., at 6148. Defense attorneys opposed class certification and stressed that the proposed class would consist of as many as 1.5 million current and former employees who worked at 3,400 stores in 41 regions. Id., at 6148 and n.3. The district court granted the motion and certified the litigation as a class action, id., at 6146-47. The Ninth Circuit affirmed. The Circuit Court opinion is quite lengthy, so we simply “hit the highlights” in this article. Defense attorneys may contact the author of the Blog for a more detailed discussion of the case.

The Ninth Circuit spent a considerable amount of time discussing the standard governing district court consideration of class certification under Rule 23 and clarified the “proper standard of Rule 23 adjudication.” See Dukes, at 6149-83. This analysis includes a discussion, and rejection, of the dissent’s “significant proof” standard. See id., at 6177-83. The Circuit Court then turned to the merits of the Rule 23 analysis, beginning with Rule 23(a)(1)’s numerosity requirement, which was not contested given the enormous size of the class. Id., at 6185. The Court also found that Wal-Mart had not waived its right to object to Rule 23(a)(3)’s typicality requirement, see id., at 6209-10, but concluded that the district court did not err in finding that the named-plaintiffs’ claims were sufficiently typical of those of the class: “Even though individual employees in different stores with different managers may have received different levels of pay or may have been denied promotion or promoted at different rates, because the discrimination they claim to have suffered occurred through alleged common practices—e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping—the district court did not abuse its discretion by finding that their claims are sufficiently typical to satisfy Rule 23(a)(3).” Id., at 6210. Moreover, “because all female employees faced the same alleged discrimination, the lack of a class representative for each management category does not undermine Plaintiffs’ certification goal.” Id., at 6211. And the Ninth Circuit found no difficulty in finding that the adequacy of representation test in Rule 23(a)(4) had been met. Id., at 6212.

The Circuit Court spent the vast majority of its time discussing Rule 23(a)(2)’s commonality test. See Dukes, at 6186-6209. The district court found that this test had been met: “Plaintiffs have exceeded the permissive and minimal burden of establishing commonality by providing: (1) significant evidence of company-wide corporate practices and policies, which include (a) excessive subjectivity in personnel decisions, (b) gender stereotyping, and (c) maintenance of a strong corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias. Together, this evidence raises an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.” Id., at 6186-87 (citation omitted). The Ninth Circuit agreed, id., at 6287. Despite the wide-ranging nature of the class, the Court held that there was sufficient evidence of a common policy of discrimination, see id., at 6187-6207. The Circuit Court also found that the district court did not err in finding “substantial evidence suggesting common pay and promotion policies among Wal-Mart’s many stores” and that “Wal-Mart’s decision to permit its managers to utilize subjectivity in interpreting those policies offers additional support for a commonality finding.” Id., at 6207. Thus, the Court concluded at page 6209:

Plaintiffs’ factual evidence, expert opinions, statistical evidence, and anecdotal evidence provide sufficient support to raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII. Evidence of Wal-Mart’s subjective decision-making policies suggests a common legal or factual question regarding whether Wal-Mart’s policies or practices are discriminatory.

Finally, “Plaintiffs moved to certify the class under Rule 23(b)(2), which requires showing that ‘the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole.’” Dukes, at 6214. The Circuit Court recognized that a (b)(2) class was inappropriate if the primary relief sought by the class action complaint is monetary. Id., at 6214-15. The Ninth Circuit previously had adopted “a test that focuses on the plaintiffs’ subjective intent in bringing a lawsuit.” Id., at 6215. But the Court now reversed that position and adopted an entirely new standard, set forth at page 6217 as follows:

Rule 23(b)(2) certification is not appropriate where monetary relief is “predominant” over injunctive relief or declaratory relief. To determine whether monetary relief predominates, a district court should consider, on a case-by-case basis, the objective “effect of the relief sought” on the litigation. [Citation.] Factors such as whether the monetary relief sought determines the key procedures that will be used, whether it introduces new and significant legal and factual issues, whether it requires individualized hearings, and whether its size and nature—as measured by recovery per class member—raise particular due process and manageability concerns would all be relevant, though no single factor would be determinative.

The Court then concluded: “Under this standard…, the district court’s decision to include claims for back pay in a class certified under Rule 23(b)(2) was not an abuse of its discretion. On the other hand, the district court did abuse its discretion by failing to analyze whether certifying Plaintiffs’ punitive damages claims under Rule 23(b)(2) caused monetary damages to predominate, notwithstanding its decision to require notice and an opportunity for Plaintiffs to opt-out of the punitive damages claims.” Dukes, at 6217. Thus, the Ninth Circuit reversed and remanded the matter to the district court for further consideration of the punitive damage relief claim. Additionally, the Circuit Court agreed with Wal-Mart that (b)(2) class may not be proper as to employees who no longer worked for Wal-Mart at the time the class action was filed because those individuals “do not have standing to pursue injunctive or declaratory relief.” Id., at 6228. Wal-Mart argued that since former employees lacked standing to seek injunctive relief, monetary relief would predominate for those class members. Id. But while the Court reversed the district court order to the extent it included former employees in the (b)(2) class, it remanded the matter for further consideration as to whether a (b)(3) class could be certified for such individuals noting, “The district court may, in its discretion, certify a separate Rule 23(b)(3) class of former employees for back pay and punitive damages.” Id., at 6229. Accordingly, the Court affirmed in part and reversed in part. Id., at 6236-37.

Judge Graber filed a brief concurring opinion to stress the “unremarkable” nature of the Court’s holding: “The majority and the dissent have written scholarly and complete explanations of their positions. What the length of their opinions may mask is the simplicity of the majority’s unremarkable holding: [¶] Current female employees may maintain a Rule 23(b)(2) class action against their employer, seeking injunctive and declaratory relief and back pay on behalf of all the current female employees, when they challenge as discriminatory the effects of their employer’s company-wide policies. [¶] If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members.” See Dukes, at 6237-38.

NOTE: Judge Ikuta dissented, joined by Chief Judge Kozinski and Judges Rymer, Silverman and Bea. See Dukes, at 6238-6279. The dissent argued that “the district court abused its discretion in two ways. First, it failed to follow the Supreme Court’s direction to ‘evaluate carefully the legitimacy of the named plaintiff’s plea that he is a proper class representative under Rule 23(a),’ [citation], and to ensure ‘after a rigorous analysis’ that the prerequisites of Rule 23(a) have been met, [citation]. Second, the district court erred in ignoring Wal-Mart’s statutory right to raise defenses to liability for back pay and punitive damages under Title VII, see 42 U.S.C. § 2000e- 5(g)(2); Rules Enabling Act, 28 U.S.C. § 2072(b), and therefore abused its discretion in holding that the proposed class could be certified under Rule 23(b)(2).” Dukes, at 6243.

Chief Judge Kozinski joined the dissent and added the following concise explanation: “Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority’s approved class held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member’s job, location and period of employment. Some thrived while others did poorly. They have little in common but their sex and this lawsuit. [¶] I therefore join fully Judge Ikuta’s dissent.” Dukes, at 6279.

© 2010 Jeffer Mangels Butler & Mitchell LLP. All rights reserved.

About the Author:

Michael J. Hassen is a Litigation Partner at Jeffer Mangels Butler & Mitchell LLP with more than 23 years experience in general business and commercial litigation, including class action defense and matters involving intellectual property, securities and unfair competition.  415-984-9666 / www.jmbm.com


Are You Calling, E-mailing or Texting Employees While They Drive? You May Want to Reconsider.

National Law Review Guest Blogger David Carr discusses the every day issue of communicating with employees while they’re driving with a colorful fact pattern.  

A recent court decision involving particularly bizarre circumstances may signal a warning of importance to employers about not so bizarre business practices.  Prudent employers will take heed. 

At first blush, the case of Buchanan v. Vowell appears to have no bearing on any significant employment law issue.  Jerry Buchanan, the plaintiff, brought suit as a pedestrian who was hit by a car operated by the defendant, Candice Vowell.  However, Buchanan also sued Candice Vowell’s mother, Shannon Vowell.  (Other facts involve the Vowells’ consumption of alcohol and Shannon Vowell’s employment with Brad’s Gold Club.)  The key facts generated the question of whether Shannon Vowell possessed liability for the unfortunate accident that occurred when Candice Vowell struck Buchanan with her vehicle after leaving Brad’s Gold Club.  Brad’s Gold Club also found itself a defendant in the resulting lawsuit.  However, the importance of this case arises not from the potential liability of Brad’s Gold Club.  Presumably, most employers know about the dangers of serving alcohol to an employee and the attendant liability that arises if an intoxicated employee leaves an employer party or event and injures someone.  If this proposition constituted all the case stood for, no novel issue exists. 

Instead, what makes this case important and novel is the question of the liability of Shannon Vowell.  The issue in question revolves around whether Shannon Vowell possessed liability for the injuries suffered by virtue of Candice Vowell’s striking Buchanan with her car.  How could liability exist? 

It turns out Shannon and Candice Vowell consumed alcohol together at Brad’s Gold Club and Shannon Vowell determined that, upon leaving, rather than call a cab or have Candice Vowell ride as a passenger in Shannon Vowell’s car, the two would traverse the streets of Indianapolis in two vehicles with Candice Vowell leading and Shannon Vowell following.  At the time of the accident, Shannon Vowell was following Candice Vowell in a separate vehicle, and was engaging Candice Vowell in a conversation on a cell phone.  Under these facts, could Shannon Vowell be found liable?   

Buchanan alleged that, at the time of the accident, Shannon Vowell knew Candice Vowell was operating her vehicle while intoxicated and knew, or should have known, that talking on her cell phone would further impair or distract Candice Vowell, making her even more dangerous to other persons using the streets.  Buchanan further alleged that Shannon Vowell “negligently made the affirmative, conscious effort to call Candice Vowell, distracting her from maintaining a proper lookout.” 

In determining Shannon Vowell’s liability, the court looked at the Restatement (Second) of Torts § 324(a) which provides “one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third party or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise a reasonable care to protect his undertaking, if (a) his failure to exercise  reasonable care increases the risk of such harm or (b) he has undertaken a duty to perform a duty owed by the other to the third person or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” 

The trial court chose to dismiss Shannon Vowell as a defendant.  The Court of Appeals reversed and found that Shannon Vowell had acted in a negligent fashion by communicating with Candice Vowell on her cell phone when she knew that Candice Vowell was driving a car.  The Court concluded that Shannon Vowell, as an individual, may have breached her duty of reasonable care “by calling and distracting a person she knew was operating a vehicle . . . .” 

Perhaps you now see the potential significance of this case.  One suspects that every day supervisors call, e-mail or even text “mobile” employees in the act of driving.  It certainly appears an avenue now opens for employers to be liable for any action that occurs while the employee attempts to drive and text or talk via cell phone with the employer.  While such a ruling would require an extension of the precise holding of Buchanan v. Vowell due to the added element of consumption of alcohol, it does not appear to be a difficult stretch.  Wise employers will consider this case and set specific standards and protocols for when employees should and should not use their cell phones and text in the course of operating a company vehicle or carrying out company duties.

© 2003-2010, Ice Miller LLP

About the Author:

David J. Carr is a partner in the Labor and Employment Law practice group of Ice Miller LLP, focusing his practice in the areas of litigation of employment contracts involving trade secrets, confidential information and covenants against competition, complex wage and hour law issues, employment discrimination, and personnel policies. Mr. Carr is a veteran labor negotiator and has handled numerous labor arbitrations, union avoidance and other collective bargaining matters in both the public and private sectors. He also has substantial experience representing employers in wrongful discharge lawsuits and employment discrimination investigations, including sexual harassment situations.

  • 317-236-5840
  • david.carr@icemiller.com
  • www.icemiller.com

    • Diversity: a Core Value and a Strategic Investment

    This Week’s National Law Review  Business of Law Guest Blogger is Vera Djordjevich, Senior Law Editor of Vault.com.  Vera explains why diversity in the legal profession benefits everyone.

    As the latest “Jobs & JDs” report from NALP makes clear, today’s lawyers face a challenging job market. Widespread layoffs, reduced summer programs and other recruitment-related cutbacks raise particular concern for those tracking diversity in the legal profession. Even before the recession, progress in this area, particularly at the law firm partnership level, had been slow; now, many worry that the economic fallout will have a disproportionate impact on attorneys of color and other under-represented minority groups.

    It may be commonplace for employers to voice their support of a diverse workplace, but making diversity a reality rather than simply a refrain requires work, planning and, to some extent, money. When there’s less cash to go around, budgets for programs that ostensibly represent only a company’s conscience rather than its fiscal responsibility may be the first to shrink. However, diversity is not simply an ethical imperative, it is also a strategic endeavor. A company or law firm with a long-term strategy needs a well-rounded and able workforce to preserve and grow its business. The cultivation of talent, diverse in experience, culture and outlook, represents an investment in a firm’s future. It is not a distraction from, but a contribution to, a law firm’s fiscal health.

    Moreover, if you look at both the tools that promote diversity and the effects that a diverse staff has on a work environment, it’s clear that they provide broad benefits to the business as a whole.

    1.       Retention and development tools benefit all associates

    Naturally, law firms need to be strategic and focused in their spending. But some of the most successful measures when it comes to diversity require little, if any, extra spending — mentoring, monitoring the progress of attorneys, and ensuring they have equal access to significant opportunities and clients in order to move forward in their careers.

    The real hurdles may be less financial than philosophical. The legal profession is famously slow to institute significant structural change and law firms in particular hew to traditional systems of hiring, advancement and compensation. But the inherent limitations in the up-or-out pyramid model, lockstep salary system and trial-by-fire training are coming to the surface as more legal professionals consider alternative frameworks for compensation, assignment, advancement and development — frameworks that are merit-based, but focused more on evaluating than judging, developing than criticizing.

    While many of these new models are discussed specifically in the context of improving retention among minority and women attorneys, the truth is these approaches should help all lawyers succeed. Consider these examples:

    • Effective frameworks based on core competencies
    • Solid, practical training programs
    • High-quality mentoring, in which mentoring is treated as a valuable contribution to the firm rather than a pro-forma obligation
    • Regular and substantive feedback regarding performance and expectations, rather than cursory annual reviews that take associates by surprise and offer little guidance
    • Recognition that there can be more than one effective approach to a given task

    These are tools that benefit all associates and, by extension, the firm itself. Having a cadre of confident, well-trained and high-performing lawyers should be every law firm’s goal.

     2.       Everyone shares the benefits of an inclusive culture

    This Friday, Vault and MCCA will be holding their fifth annual Legal Diversity Career Fair, giving diverse law student and lateral candidates and legal employers an opportunity to meet. As a prelude to the fair, Vault will be hosting a special breakfast to announce its 2011 Law Firm Diversity Rankings and honor the law firms who were the most highly rated by their own associates for their commitment to hiring, retaining and promoting diverse attorneys.

    It seems no coincidence that the law firms that receive high marks for their commitment to diversity in our annual Law Firm Associate Survey include many of the same firms that are rated highest for firm culture and professional development. Of the top 20 firms in overall diversity this year, more than half were also ranked among the best in firm culture and for formal training and/or informal training and mentoring.

    As an associate at one of the top-ranking firms noted in response to our survey: “The firm makes a conscious effort to recruit attorneys from diverse backgrounds and experiences, and it makes for noticeably better, more well-rounded case teams. I am continually amazed and impressed by the experiences my colleagues bring to the table.”

    A law firm that keeps minority and women lawyers challenged, engaged and optimistic about their careers likely offers a welcoming environment and professional development opportunities to all of its attorneys. Having a wide range of backgrounds, perspectives and insights represented among employees not only makes for a livelier, more interesting workplace, but it also produces better results.

    © 2010 Vault.com Inc.

    Vera Djordjevich Senior Law Editor, Vault.com

    Vera Djordjevich is senior law editor at Vault.com, where one of her areas of focus is diversity in the legal profession. She oversees the research and publication of information about law firm diversity initiatives and metrics for the Vault/MCCA Law Firm Diversity Database. She also edits Vault.com’s content related to law practice in the UK and co-authors Vault’s law blog, which provides career news, advice and intelligence to the legal community. Prior to joining Vault, Ms. Djordjevich was an editor at American Lawyer Media and practiced law in a small litigation firm in New York. She has a law degree from New York University School of Law and a bachelor’s degree from Stanford University.

    Surviving the Economy: Dancing in the Economic Storm

    “Life isn’t about waiting for the storm to pass… It’s about learning to dance in the rain.”
    Vivian Greene

    Americans remain apprehensive about the economy, their job prospects and their incomes, even as a recovery is taking shape. We as a country are going through a financial crisis, which is testing us in many ways. Although, individually, we are being and will be affected to different degrees and in various ways, as a country, we are learning how to deal with these challenging times.

    It is natural for us to be concerned about our future when we see the economy struggling and people getting laid off and lacking basic necessities. Anger is building in many sectors of society. Like many others, you may be feeling pain, fear, anxiety, betrayal, anger and even hate towards those you believe are responsible for what has happened. However, these emotions will not help you deal with the situation effectively.

    Each of us desires the kind of comfort that will keep us steady in times of crisis, regardless of the circumstances. The process of remaining steady in challenging times begins with our outlook. It is important to remember that during difficult moments, we are not powerless. Rather, the contrary is true. We have the power to overcome many of the challenges we face. All too often, we feel so overwhelmed by negative possibilities that we fail to see opportunities before us.

    Linkedin Logo Neon It is imperative to maintain an optimistic attitude and arm yourself with practical tools for survival. Since the job market is harder to penetrate now, making it even more competitive, you must be flexible regarding such issues as the type of employer, industry and compensation. Experience and education are more vital than ever. Professional networking sites such as LinkedIn have become an excellent venue for reaching a vast pool of potential employers and should be considered an important resource when looking for jobs. Statistically, over 75% of jobs are found as a result of networking.

    It also is essential to know what is going on in the job market and, specifically, the legal industry. This year, small and midsize law firms have been busier than larger ones. Some of these firms are litigation boutiques whose business has increased as a result of litigation related to failed companies and financial institutions or disgruntled investors. Securities and white-collar litigation also has begun to improve. Labor and employment litigation has increased since more companies have implemented layoffs. IP litigation also has remained a strong practice area in most markets. Bankruptcy and reorganization practices have thrived as a result of the economic impact on companies. Additionally, many smaller firms are busier because corporate clients have sought (or demanded) lower fees. Undoubtedly, this trend is likely to continue in the foreseeable future.

    Employers of all sizes are taking longer to make hiring decisions. Consequently, finding a job has become a much slower process. It is an employers’ market because they can afford to be more particular about which candidates they interview and hire given that they have a much larger pool of applicants to consider. Therefore, do not assume you have been rejected simply because you have not heard from a prospective employer in a few weeks.

    It is a tough job market out there – probably one you never thought you would encounter in your lifetime. Opportunities are scarce in this economic climate and this is the new reality. Multiple job offers are likely a thing of the past, at least for the time being. If you already have a job, remember that anyone in this economy could be the next person let go. Even if you are a star who has great training, experience and skills, and has formed alliances at work, you could be one step away from a job search.

    With that said… now is the time to outdress, outspeak and outsmart your competition. And most importantly… it’s time to learn to dance!

    Contributed by Guest Blogger Rodney L. Abstone II of  Chicago Legal Search, Ltd.

    ©2010 Chicago Legal Search, Ltd. All Rights Reserved.

    Hope for a Silver Lining in the Legal Employment World

    From Guest Blogger Kate Neville of Neville Career Consulting, LLC – thoughts on the Legal Employment Outlook:

    Attorneys who have been laid off or who cannot find a job after graduation have plenty of reasons to be disappointed and resentful–they have invested a great deal of money, time and effort to get where they are professionally. It is important to remember, though, that these feelings are not uncommon to lawyers who are actually in the sought-after big-firm jobs. Indeed, stories of unhappy attorneys at large firms are nothing new; they continue to drive traffic to numerous blogs and websites, such as Above The Law, which has covered in detail the panic attacks, ulcers, and other stress-related issues of which large firm attorneys often complain.

    When economic times are booming, attorneys typically have gotten jobs at large firms almost exclusively based on their law school, their first year grades, and their ability to play well with others over the course of a summer. Rather than the result of thoughtful consideration whether they are a good fit for a big firm, many new attorneys accept these jobs as the path of least resistance. And while some love their experience at large firms, the hiring decisions often result in a mismatch as a significant percentage of these lawyers routinely become miserable after they begin to work there on a full-time basis.

    Among those considered the lucky ones — both new and experienced attorneys who have large firm jobs — a not uncommon thread continues to be, “The idea that I might still be doing what I’m doing now for another ten years is frightening to me…I’m so bored, and when I look at the life more senior people lead, I do not want that in my future.”

    A considerable number of large firm attorneys who feel this way nevertheless spend several years mulling over their situation before taking any action to address it. This inertia is often based in part because many seasoned lawyers have never looked for a job before — they went from college to law school and then were recruited by firms — and are not sure what else to do. And, of course, the firm salary has made it easier to defer making a move.

    The current economy has changed that calculus. For many attorneys at large firms, the current market is accelerating the timeline of their departure, albeit to a time they would rarely choose independently. Rather than lament the loss of the pre-recession system, however, it would be nice if some constructive changes could come from the current pain. As businesses, large firms might adjust their hiring practices to become more effective. As institutions, law schools could help students learn the skills necessary to succeed at a firm, such as interacting with clients, working as part of a team, and business development. As individuals, attorneys who have been laid off or are unable to secure a law firm job can hopefully take advantage of an opportunity to investigate the range of their professional options and determine which might prove to be a good fit, now and in the longer-term.

    The pain unemployed lawyers are feeling should of course not be minimized. It is difficult to consider being laid off a “blessing in disguise” under any circumstances, and particularly not when recent graduates bear significant debt and questions about how those loans can be paid off by people without jobs remain unresolved. Similarly, as fewer options are available at the moment for more senior attorneys who have been laid off, they have to focus on how to pay mortgages and college tuitions, and often on how long their savings can support them.

    For a substantial number of lawyers, the real challenge to getting out of their current situation and moving ahead remains taking charge of their careers to learn about their options and make knowledgeable career decisions. For better or worse, this is rarely something attorneys at large firms do. Many lawyers who always wanted to practice law get frustrated with large firm life and take the first offer they get to leave, sometimes becoming dissatisfied all over again. Other attorneys who went to law school to “keep their options open” remain unsure after years of practice what those options are or how to pursue them.

    Now is the time to find out.

    For attorneys having difficulty finding a job, it pays to keep in mind the following as they move forward with their searches:

    IT’S NOT YOU, IT’S THE ECONOMY

    Because of the recession, being laid off or graduating without a job is no longer the black mark that it may have once been. It is fairly obvious that law firms — even those who continue to claim that their layoffs are performance-based — would never have fired these attorneys in a better economy. Similarly, a decision to rescind offers to new graduates has nothing to do with the performance of those individuals.

    CAST A BROAD NET

    It is in a lawyer’s interest to cast a broad net when looking at potential options. Whether expanding the search to include non-legal and quasi-legal positions or different geographic areas, being flexible increases the chances of landing a job. One job does not have to dictate the rest of a career. Further, many people report that some of their best work experiences proved to be in jobs that they never thought they would take when they first heard about them. For example, an attorney who initially scoffed at compliance as “checking off boxes” eventually accepted a job as a compliance officer only to discover that the management and policy issues inherent in ensuring compliance within the company were quite compelling. She ultimately found her work there much more satisfying than her large firm position litigating multi-million dollar cases.

    IMPROVE INTERVIEWING SKILLS

    In bullish markets, many lawyers have gotten good jobs without ever needing strong interviewing skills, but in the current market, those skills have become critical. Since many talented professionals are now in the market for jobs they otherwise would not have pursued, lawyers cannot assume they are attractive candidates by virtue of their credentials or intelligence. They need to make the case for themselves — why they are genuinely interested in a position and how their skills and experience make them a good fit.

    NETWORK EFFECTIVELY

    Another important difference from flusher times is that headhunters no longer routinely call with a range of opportunities. Instead, sitting behind a computer and applying for postings has become the most common method of job searching — and that is where many attorneys are most comfortable. It turns out that this strategy rarely works, however, because most jobs are never posted. The vast majority — most statistics cited say over 80 percent–of jobs are gotten through networking, which is not necessarily a skill most lawyers have. While it is possible to do quite well in law school without interacting with other people, much less having to make a good impression on them, learning to network is key to success in a job search and as a professional.

    AVOID VENTING

    The importance of networking in a job search complicates things for many attorneys who have been laid off or searching for some time. Being upset at your current situation can cloud your judgment, and it is critical to remember that pouring out your heart or taking out your frustration on people who are in a position to help you professionally is a self-defeating strategy if ever there was one.

    DEVELOP A ROUTINE

    It can be helpful to treat a job search as a job in and of itself — ideally, a job with good hours: 9 to 5 with a break for lunch. Even if those hours are not feasible given the need to bring in some income, developing a routine is important. While something can fall into a strong networker’s lap at any time, six months proves to be a good case scenario, and many searches take significantly longer. Use this window of time productively rather than procrastinate and get stuck.

    Posted by:

    Kate Neville, Esq., a Harvard Law graduate, is founder of Neville Career Consulting, LLC, which provides guidance to attorneys considering a job change or career transition, whether within the practice of law or to another field.She began her career practicing law at Simpson Thacher & Bartlett and as an in-house attorney for New York City government before shifting to positions in management consulting and policy analysis. After serving as an advisor in Georgetown Law’s Office of Career Services, Kate decided to use her experience to help practicing attorneys identify the full…

    202-997-9854

    Labor Law and the First Amendment: An Argument Against Faith-Based Schooling

    I went to Catholic School and I survived
    I went to Catholic School and I survived

    This post from NLR’s weekly guest blogger Huma Rashid is sure to give some folks a wedgie – Huma is addressing the interplay between religious schools and organized labor:

    As of 2009, a little over six million American students (or 11% of all students in this country) attended a private school. The majority of private schools in the United States are operated by a religious institution. Religiously affiliated and denominational schools form a large subcategory of private schools, and instruct pupils in religious subjects and practices as well as secular subjects. These religious schools are privately financed, and as a result are usually able to skirt certain state regulations. Their costs are funded largely through tuition and donations. Out-of-pocket costs to the student attending these religious schools are usually much greater than a comparable private school, though the actual cost on a per-student basis is, on average, nearly double for public schools. Teachers, at these schools, despite the relatively high cost of attendance, were shown to be paid 45% less, on average, than public school teachers.

    But salary isn’t the only area in which teachers at private, religiously oriented institutions miss out. Aside from making considerably less than their counterparts at public schools, private school teachers lack the statutory protections of the National Labor Relations Act, a vulnerability that can completely change the nature of employment at such an institution and has caused many to wonder if faith-based schooling is a worthwhile alternative for American students.

    The full text can be read at:  http://www.natlawreview.com/article/labor-law-and-first-amendment-argument-against-faith-based-schooling