Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

When an employer faces litigation following an unfavorable cause determination by the EEOC, it may seek to depose the EEOC investigator who made the finding. However, the scope of discovery obtainable from the EEOC is somewhat different from that available from a non-governmental third party. The EEOC may seek to quash a subpoena by asserting that the information sought is protected by the deliberative process privilege, which is available to the agency in addition to the more common protections of attorney-client privilege and work product protection.

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It is not uncommon in discrimination and harassment suits for employers to battle against the admission of so called “me too” evidence.  Plaintiffs often employ the tactic of parading up other employees who claim they were discriminated against and/or harassed in the same manner as the plaintiff.  The results vary based on jurisdiction and fact pattern, and the standards can differ by jurisdiction and court.  The United States Supreme Court may soon add some clarity to this area.  The Court is considering whether to review a case involving the appeal of Billy Ray Tratree, an African-American employee who was discharged three months before he turned age 50 and was to become eligible for retirement benefits.  Tratree alleges that his employer discharged him on the basis of his race and age.  The Supreme Court soon will decide whether to review the Fifth Circuit’s opinion upholding the district court’s decision to exclude some of Tratree’s “me too” evidence.

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On October 15, 2010, the Eleventh Circuit reversed course on a controversial decision interpreting the jurisdictional requirements of the Class Action Fairness Act of 2005 (“CAFA”).  Vacating its earlier decision that was at odds with every other circuit to consider the issue, the Court held that CAFA plaintiffs are not required to allege that at least one of the plaintiffs suffered damages in excess of $75,000.  In line with traditional CAFA interpretation, the Court held that plaintiffs need only satisfy the aggregate $5,000,000 amount in controversy requirement.

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A recent New York state trial court decision, Romano v. Steelcase Inc., et al., is representative of a recent trend of parties seeking, and courts permitting, discovery of information on social networking sites such as Facebook and MySpace.  Rejecting the plaintiff’s privacy concerns, the Romano court held that such information is discoverable because the plaintiff’s damages are at issue.  The court ordered the release of the plaintiff’s postings, pictures, and other information on the social networking sites.

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For an employer preparing to defend against a legal action by a disgruntled employee, few moments are as intoxicating as digging into the employee's electronic files on the company-owned computer.  The golden dirt often emerges in the form of a gossipy e-mail or an internet search for something racier than the sports scores.

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A recent decision out of the Pennsylvania courts is a caution to employers who are required to produce employee personnel information in responding to court or agency proceedings.  Jane Doe v. Wyoming Valley Health Care System, Inc., (PA Super., December 18, 2009) raised the issue of how much privacy employees can expect in the information provided to their employers and kept in their company personnel files.

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In Mohawk Industries, Inc. v. Carpenter, the Supreme Court resolved a circuit split and held that an order requiring the disclosure of documents arguably protected by the attorney-client privilege does not qualify for immediate appeal under the “collateral order doctrine.”  The collateral order doctrine allows litigants to appeal a small class of orders that (1) conclusively determine a disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) are effectively unreviewable on appeal from a final judgment.  Orders that do not fit within these parameters can be challenged only after a final judgment is rendered in the case or by other procedural means.

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