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

Fact Sheet #77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA) provides information concerning the FLSA’s prohibition of retaliation against any employee who has “filed any complaint” or cooperated in an investigation under the FLSA.  Fact Sheet #77A explains that employees are protected from retaliation under the FLSA when making a complaint orally or in writing.  It also recognizes that not only are complaints made to the DOL Wage and Hour Division protected, but that most courts have ruled that internal complaints to an employer are protected as well.  Additionally, Fact Sheet #77A explains that the FLSA’s prohibition against retaliation applies to all employees of an employer, even in those instances in which the employee’s work and the employer are not covered by the FLSA. Further, the fact sheet provides that the FLSA’s retaliation prohibition applies even where there is no current employment relationship between the parties. For example, it protects an employee from retaliation by a former employer.

Fact Sheet #77B: Protection for Individuals under the FMLA outlines the FMLA’s prohibition of retaliation against an individual for exercising his or her rights or participating in matters protected under the FMLA.  The new fact sheet also gives the following examples of prohibited conduct: refusing to authorize FMLA leave for an eligible employee, discouraging an employee from using FMLA leave, manipulating an employee’s work hours to avoid FMLA responsibilities, using an employee’s FMLA request as a negative factor in employment actions, and counting FMLA leave under “no fault” attendance policies.

Fact Sheet #77C: Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) provides information concerning the protections and enforcement procedures under the MSPA.  The MSPA protects migrant and seasonal agricultural workers and establishes employment standards related to wages, housing, transportation, disclosures, and recordkeeping. It also requires farm labor contractors to register with the U.S. DOL. The MSPA prohibits discrimination or retaliation against a migrant or seasonal agricultural worker who has filed a complaint or participated in any proceeding under the MSPA.

Full versions of the new Fact Sheets may be found at the following links:
Fact Sheet #77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA)
Fact Sheet #77B: Protection for Individuals under the FMLA
Fact Sheet #77C: Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

The plaintiff, Natalie Dellinger, alleged that she was offered a job with the defendant, Science Applications International Corp. ("SAIC"), in August 2009.  The offer was contingent on Dellinger passing a drug test, completing a number of forms, and transferring a security clearance from her former employer, CACI, Inc.  Dellinger disclosed on one of the forms that she had filed a FLSA lawsuit pending against CACI.  SAIC subsequently rescinded its job offer, and Dellinger sued SAIC for retaliation.  She claimed that SAIC withdrew its offer based on her revelation that she had engaged in FLSA protected activity, and that such action violated the FLSA's prohibition against retaliation by an employer against any "employee."
 
The U.S. District Court for the Eastern District of Virginia granted SAIC's motion to dismiss, and Dellinger appealed.  In a two-to-one decision, the Fourth Circuit affirmed, noting that the FLSA's anti-retaliation provision was governed by the FLSA's definition of "employee."  The Court declined to extend the FLSA's reach to prospective employees, noting that the statutory term "does not exist in a vacuum" but is in fact defined elsewhere in the statute as "any individual employed by an employer."  By defining "employee" in this way, the Court observed, "Congress was referring to the employer-employee relationship, the regulation of which underlies the act as a whole, and was therefore providing protection to those in an employment relationship with their employer."  Given this limited construction of the statutory text, the Court concluded that it was "not free to broaden the scope of a statute whose scope is defined in plain terms, even when 'morally unacceptable retaliatory conduct' may be involved."
 
Circuit Judge Robert King dissented, arguing that the majority failed to apply the logic of the U.S. Supreme Court's opinion in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), in which the Supreme Court unanimously ruled that the term "employee" in Title VII of the Civil Rights Act of 1964 included former employees.  The majority responded that Robinson involved a claim by a former employee against his former employer, not by an applicant (like Dellinger) who had never worked for the defendant employer.
 
While the Dellinger decision is precedent setting, it is not clear what, if anything, employers (especially those outside of the Fourth Circuit) can take from it.  It goes without saying that an employer takes a sizable risk if it denies employment, or rescinds an employment offer, based on an applicant's prior assertion of federally protected rights.  We will be watching closely whether other Circuit Courts address this issue and, if so, how they rule.

In Millea, an employee who took intermittent FMLA leave for anxiety attacks related to post traumatic stress disorder, brought suit alleging FMLA claims of interference and retaliation and a claim of intentional infliction of emotional distress.  The employee’s FMLA retaliation claim was based on his allegations that his employer retaliated against him for taking FMLA leave by; 1) placing a notice of discipline in his employment file for a year; 2) requiring him to update his FMLA certification; 3) creating a work environment that motivated him to transfer to a lower paying job; 4) delaying approval of his bid for the lead custodian position; and 5) subjecting him to heightened managerial surveillance.

On appeal, the employee disputed the lower court’s jury instruction, arguing that the jury should have been given a broad definition of the term materially adverse employment action in regards to his FMLA retaliation claim.  The lower court had instructed the jury that an “‘adverse employment action’ is a materially adverse change in the terms and conditions of employment’’ and explained that examples include termination, demotion, loss of benefits and significantly diminished responsibilities, but not an alteration of job responsibilities or a mere inconvenience.   The lower court explicitly refused to apply the employee’s proposed definition which was based on the standard articulated in Burlington Northern & Santa Fe Railway Co. v. White, a Title VII case.  548 U.S. 53 (2006).  The Burlington Northern standard established by the Supreme Court, explains that an adverse employment action occurs when a reasonable employee would have found the alleged retaliatory action materially adverse and that a retaliatory action is materially adverse when the action would have been likely to dissuade or deter a reasonable employee from exercising his legal rights. 

The Second Circuit found that the district court’s definition was “impermissibly narrow and therefore erroneous” and agreed that the definition established in Burlington Northern should be applied to the FMLA.  The Second Circuit explained that Burlington Northern’s treatment of its anti-retaliation provision is applicable to the FMLA because the FMLA’s anti-retaliation provision has the same underlying purpose as Title VII and also has wording that is almost identical to Title VII.  Based on these similarities, the Court concluded that a materially adverse action within the FMLA “is any action by the employer that is likely to dissuade a reasonable worker in the plaintiff’s position from exercising its legal rights.”

The Second Circuit is not alone in treating the FMLA anti-retaliation provision broadly; the Fourth, Fifth, Seventh and Tenth Circuits have also applied Title VII’s definition of a materially adverse action to the FMLA.  Notably, the definition of a materially adverse action in Burlington Northern includes actions that involve a change in employment life outside of the terms and conditions of employment.  This broad treatment of a materially adverse action means that employees bringing FMLA retaliation claims have a much lower threshold to meet.  As a result, due to this expansion of the universe of adverse actions, there is potential for a greater number of claims alleging FMLA retaliation.  Employers should be aware of this FMLA standard and be conscious of strictly enforcing and promoting FMLA anti-retaliation policies and procedures.

In McDonald-Cuba, the Tenth Circuit continued down the road paved by the court in its prior decision in Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003).  In Martinez, the court held that conduct occurring after the filing of an employee’s Title VII complaint in federal court involving “discrete and independent actions” requires the filing of a new EEOC charge.  347 F.3d at 1210-1211.  Martinez had been fired after he filed his Title VII lawsuit.  Subsequently, without filing a new EEOC claim, Martinez attempted to add the claim in his summary judgment brief.  The court found that Martinez’s discharge was a “discrete and independent action” that should have been exhausted, even though it “occurred after the filing of the judicial complaint.”  Id. at 1211.  The difference in McDonald-Cuba was that the alleged retaliatory act involved the federal proceeding itself.

The plaintiff in McDonald-Cuba filed post-termination discrimination and retaliation charges with the EEOC against her employer.  After receiving a right-to-sue letter, she filed suit.  The defendant’s answer included three counterclaims: (i) breach of contract, (ii) intentional interference with prospective economic advantage, and (iii) breach of the duty of loyalty.  The plaintiff then filed an amended and supplemental complaint alleging that the defendant’s counterclaims constituted a bad faith effort to retaliate against her for engaging in protected activity.  The defendant later voluntarily dismissed the counterclaims.  The district court granted summary judgment for the defendant.  Upon review, the court, relying on Martinez, held that plaintiffs “must exhaust administrative remedies as to discrete acts of alleged retaliation that involve the filing of a counterclaim in federal court.”  Accordingly, the court vacated the district court’s entry of judgment on the added retaliation claim and ordered the district court to dismiss the claim without prejudice.

The Tenth Circuit’s decision is potentially at odds with a decision from the Fourth Circuit.  The Fourth Circuit found the exhaustion requirement satisfied where the EEOC charge alleged a “pattern of [retaliatory] conduct.”  Jones v. Calvert Group, Ltd., 551 F.3d 297, 304 (4th Cir. 2009) (finding that court could hear retaliatory discharge claim where plaintiff alleged retaliatory discharge in lawsuit but had alleged only retaliatory actions during her employment in EEOC charge).  As discussed above, the Tenth Circuit considered the defendant’s filing of counterclaims a “discrete act,” rather than an act that was part of a pattern of retaliation.  The court did not mention whether the plaintiff had alleged that the retaliation was continuing in nature in her EEOC charge.

The decision serves as a good reminder that employers cannot be “surprised” in litigation by allegations that a particular act was discriminatory, harassing, or retaliatory.  Employers should carefully review each of the plaintiff’s claims and ensure that every discrete act alleged to be discriminatory, harassing, or retaliatory has been included in a charge before the EEOC.  Where situations like that in Martinez and McDonald-Cuba arise in other jurisdictions, employers have an opportunity to argue for a similar hard-and-fast adherence to the exhaustion requirement. 

The most prominent of these emerging types of claims is retaliation.  Retaliation claims have been filed with the EEOC at a steadily increasing rate in recent years. In 2010, for the first time in history, retaliation claims became the most frequently filed type of claim, even outnumbering claims of race and sex discrimination.  Retaliation claims can be problematic for employers. An EEOC spokeswoman was quoted by the Wall Street Journal as saying, retaliation “is easier [for an employee] to prove.” Adding to employers’ concerns, the Supreme Court recently expanded the rights of third parties to file retaliation claims. See Thompson v. North American Stainless, LP, 562 US __, 131 S. Ct. 863 (U.S. 2011). As retaliation claims continue to gain notoriety, and as employees become more aware of their rights to file this type of claim, the number of retaliation claims filed with the EEOC will assuredly continue to grow in the foreseeable future.

Another emerging type of claim about which employers should be concerned is disability discrimination. In 2010, the number of disability discrimination claims filed with the EEOC increased by nearly 20%. Due in large part to the enactment of the ADA Amendments Act of 2008 (ADAAA), this surge will continue as the EEOC publishes its final regulations concerning the ADAAA. These final regulations are expected to establish a broad definition of “disability,” thereby expanding the pool of qualified individuals who can file claims of disability discrimination. In fact, the final regulations reportedly will include a list of per se disabilities that cannot be challenged by employers. Official publication of the EEOC’s final ADAAA regulations is expected by April 2011. If these regulations prove to be as pro-employee as is anticipated, employers undoubtedly will face an increased number of disability discrimination claims.

Employers also should take note that the number of claims under the Genetic Information Nondiscrimination Act (GINA) may rise significantly in 2011. GINA is relatively new law and provides a new type of claim to individuals who believe they have been discriminated against because of their genetic information. In fact, the EEOC handled its first GINA claims in 2010. Although the number of GINA claims filed last year was relatively small (just 201 in total), employers should not overlook the expected emergence of this claim type. Since the end of the 2010 fiscal year, the EEOC has issued its final GINA regulations, which took effect on January 10, 2011. See EEOC Issues Final Regulations On The Genetic Information Nondiscrimination Act. Without question, employees will become more informed about their rights under GINA and more ambitious to test their rights under this new law.

It is critical that employers take appropriate steps to protect themselves against these emerging claims. Employers should update policies to correspond with the recent changes in law. Taking proactive steps now can contribute significantly in avoiding potential claims and in defending against claims filed with the EEOC and related local agencies.

The Secretary of Labor is charged with enforcing the FSMA’s whistleblower protections, including awarding the appropriate relief.  If after receiving a retaliation or whistleblower complaint the Secretary concludes that there is reasonable cause to believe that a violation of Section 402 has occurred, the Secretary may issue among other relief an order reinstating the employee and providing for back pay. If the Secretary has not issued a final decision within 210 days after filing of the complaint, the employee may file a complaint in federal district court seeking reinstatement, back pay, and “compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorneys’ fees.”  Food Safety Modernization Act, Pub. L. No. 111-353, § 402(b)(4)(B)(iii.), 124 Stat 3885, 3970.

While the majority of the FSMA does not become effective until 2012, the whistleblower provisions of the FSMA became effective immediately upon the law being signed by President Obama. Given its sweeping nature and broad protections, any entity potentially covered by the FSMA—which includes essentially any entity in the food industry—should consider  adopting strong anti-retaliation policies (including the provision of alternative avenues for an employee to complain), advising its managers and supervisors of the company’s anti-retaliation prohibitions, and providing training to all managers and supervisors educating them on the policy and on ways to avoid even the appearance of retaliation. 

Section 402 is the latest expansion of strong anti-retaliation whistleblower protection for employees in an increasing number of industries. Its passing illustrates again the need for employers to be mindful of the potential exposure and reputational harm from whistleblower lawsuits, and to adopt strong anti-retaliation policies and implement appropriate training programs.

This comes as the EEOC has hired more employees to handle the growth in volume and clear the backlog of unprocessed charges and actions. Despite the sharp increase in new charges filed during FY 2010, the EEOC was apparently able to slow the growth of charge inventory and ended the year with 86,338 pending charges -- an increase of only 570 charges, or less than one percent.  This is significant because during FY 2008 and 2009, the EEOC’s pending inventory increased 15.9 percent.

The EEOC found no reasonable cause in 64.3% percent of the FY 2010 charges, and found reasonable cause in only 4.7% of charges. Of the 99,922 new charges, 35.9% were based on race, 29.1% based on sex, 11.3% based on national origin, 3.8% based on religion, 23.3% were based on age, 25.2% were based on disability, 1.% were based on the Equal Pay Act, 0.2% were based on the Genetic Information Nondiscrimination Act, and 36.3% were retaliation charges (in FY 2009, retaliation claims surpassed race as the most frequently filed charge).

The EEOC’s mediation program also set a record during FY 2010. Of the 99,922 new charges received, 9,370 or 9.3% were settled at the administrative stage, which was ten percent more than FY 2009 and resulted in $319.4 million in monetary benefits for claimants, not including monetary benefits obtained through litigation.

The EEOC also filed 250 lawsuits during FY 2010, resolved 285 lawsuits, and resolved a total of 104,999 private sector charges resulting in a total of $404 million in monetary benefits from employers, which the EEOC reported is “the highest level of monetary relief ever obtained by the Commission through the administrative process.”

The record level of charges and recoveries -- more than at any time in the EEOC’s 45 year history -- comes during the worst job market since the Great Depression, suggesting that the increase stems, in large measure, from an increase in adverse actions caused by the bad economy, and displaced employees who refuse to go without a fight.

The Supreme Court’s Decision in Gross
In Gross, the Supreme Court ruled that plaintiffs must prove that their age was the “but for” cause of the adverse employment action to establish an age discrimination claim under the ADEA.  By doing so, the Court eliminated the use of the mixed motive theory to prove discrimination in ADEA actions.  As a result, plaintiffs cannot satisfy their burdens of proof by merely showing that age was a motivating factor in the adverse employment action.  Critics of Gross believe that the decision makes it nearly impossible for plaintiffs to win age discrimination claims unless they have the equivalent of a smoking gun. 

Responding to Gross
Currently H.R. 3721 has 32 co-sponsors and S. 1756 has 23 co-sponsors.  The bills are identical and their proponents hope that they will return age discrimination law to pre-Gross standards.  Specifically, the legislation establishes that the standard of proof for claims under the ADEA is “no different” from the mixed motive theory used in Title VII claims.  Additionally, the legislation states that the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973) applies to ADEA claims. 

Not Just Age Discrimination
Although the title of the legislation refers to age do not be fooled - the Protecting Older Workers Against Discrimination Act involves much more than the protected class of age.  In fact, the Act explicitly states that “the standard for proving unlawful disparate treatment under the [ADEA] and other anti-discrimination and anti-retaliation laws is no different than the standard for making such proof under [T]itle VII.”  With this language, the Act sweeps all other claims of discrimination or retaliation into its scope and as a result it has the potential to significantly impact numerous federal discrimination and retaliation laws.  Based on this, it seems apparent that the Act does more than just return age discrimination claims to the pre-Gross standard of proof. 

Clarification or Confusion?
The Act was created to clarify the standard of proof in age ADEA claims and to correct the perceived “misconceptions” relied on by the Supreme Court in Gross.  Yet, if this legislation is passed in its current form, it is likely that instead of simply bringing clarity to age discrimination claims, it will instead muddy the water in all other discrimination and retaliation claims.  The Act’s reference to “other anti-discrimination and anti-retaliation law” is not only broad but also ambiguous.  It will be necessary to turn to the courts for guidance on this ambiguity.  The Act will need to be further explained and this will likely be done through litigation where plaintiffs will rely on the Act’s broad scope to test the water with their various discrimination and retaliation claims.  Because the reach of this Act is beyond just age discrimination, it is important to track its progress and be alert to its potential affect on all “other anti-discrimination and anti-retaliation laws.”

This Ninth Circuit ruling on remedies for an ADA retaliation claim is significant for several reasons.  The Ninth Circuit is generally one of the most pro-employee jurisdictions.  It is, therefore, noteworthy that the Alvarado Court declined an opportunity to expand the kinds of relief awarded for an ADA retaliation claim.  The court had a relatively easy opportunity to read into the ADA statute the remedy of punitive and compensatory damages for a retaliation claim, but instead used the tools of statutory construction and avoided reading language into the statute that is not already there.  In doing so, the Ninth Circuit overruled several district court decisions that previously found punitive and compensatory damages for ADA retaliation claims when it could easily have opted to uphold those pro-employee decisions.  This holding suggests that at least one panel of the court is receptive to arguments for strict statutory interpretation.  Here, the court properly followed the tenets of statutory construction -- where a statute is unambiguous, the court must interpret it as written.  The decision is an encouraging sign that strict construction arguments remain a robust defense to expansive damages claims, even in traditionally plaintiff-friendly jurisdictions.

Employee’s Administrative Claim and District Court Claim Dismissed
David Stone filed a retaliation claim against his former employer, Instrumentation Laboratory Company, with the Occupational Safety and Health Administration pursuant to the Sarbanes-Oxley Act.  After OSHA issued its preliminary findings, Stone timely objected to them and requested a hearing before an ALJ.  ILC filed a motion for summary decision before the ALJ, which the ALJ granted.  The Administrative Review Board thereafter granted Stone’s petition for review of the ALJ’s order.  Before his initial brief to the Administrative Review Board was due, Stone notified the Board that he was going to bring a de novo action in federal district court, and the Board thereafter dismissed the appeal.

ILC filed a motion to dismiss in the district court pursuant to Federal Rule of Civil Procedure 12(b)(6), which the court granted, finding that the ALJ’s ruling was a “final judgment on the merits” for the purposes of collateral estoppel.  The court found that permitting Stone to pursue relief in district court would be “wasteful,” required the Administrative Review Board to rule on Stone’s appeal, and stayed Stone’s federal court proceedings.  When Stone refused to further prosecute his appeal before the Administrative Review Board, the Board entered a final order of dismissal and the district court entered a final judgment also dismissing his claim.

Court of Appeals Restores Employee’s Claim
Stone appealed the district court’s dismissal of his claim arguing “that as a Sarbanes-Oxley whistleblower complainant, he is entitled to a de novo review in federal district court because the Secretary of Labor did not reach a ‘final decision’ within 180 days, as required by the Sarbanes-Oxley Act.  ILC argued the Act does not “abrogate the district court’s long-recognized power to apply principles of preclusion to avoid duplicative litigation.”

The court first looked to the plain language of the statute and concluded that it unambiguously permits a whistleblower complainant to bring an action for de novo review in district court if the Secretary of Labor has not issued a final decision within 180 days of the complainant filing an administrative complaint.  The court held that “[i]n applying preclusion principles, the district court strayed from the plain and unambiguous meaning of [the Sarbanes-Oxley Act]” which does not merely give the federal district court jurisdiction over a complainant’s action, but rather gives a complainant a “statutory right” to a federal district court’s de novo review.  The court explained that the district court should not have looked to any Department of Labor interpretive regulations or the Secretary’s comments to such regulations to come to a different conclusion because the statute itself is clear.  Citing Astoria Federal Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991), the court noted that courts do not have free rein to impose preclusion if it was not intended by the legislature.

The court next considered whether the plain language of the statute would lead to an “absurd result” because of the likely duplication of efforts by the ALJ and district court.  The Secretary of Labor had previously commented that it “anticipates that Federal courts will apply [preclusion] principles if a complainant brings a new action in Federal court following extensive litigation before the Department that has resulted in a decision by an administrative law judge or the Secretary.”  However, the court ruled that the Secretary’s comments “cannot be squared with the statutory language chosen by Congress,” nor does the Secretary or ILC “present a compelling argument as to why such duplication is ‘absurd.’”  The Court explained that Congress purposely chose an “aggressive timetable for resolving whistleblower claims,” a “natural result” of which is duplication if the Department does not resolve the claim within the prescribed timeframe.  If the timetable does not work in practice, it must be resolved by Congress, not the courts.

Given the unambiguous language of the Sarbanes-Oxley Act and the absence of the potential for an “absurd result,” the court held that Stone was entitled to de novo review of his whistleblower claim in the district court and, accordingly, vacated the dismissal and remanded to the district court.  The result for employers is the proverbial “second bite at the apple” for Sarbanes-Oxley plaintiffs.

The EEOC’s fiscal year data, which ended September 30, 2009, reflects increases in certain types of discrimination and retaliation complaints.  Notably, disability complaints increased by 10 percent, from 19,453 to 21,451; national origin complaints increased 5 percent, from 10,601 to 11,134; and religious discrimination claims increased 3 percent, from 3,273 to 3,386.  Also, retaliation charges reached a record high of 2009, going from 32,690 to 33,613 over the span of a year.  Meanwhile, although the number of age bias claims decreased from 24,582 in 2008 to 22,778 in 2009, it was still the second-highest total ever. The EEOC also reported that it recovered a record high of $294 million through administrative enforcement and mediation. 

According to Stuart J. Ishimaru, acting chairman of the EEOC, “[t]he latest data tell us that, as the first decade of the 21st century comes to a close, the commission’s work is far from finished….Employers must step up their efforts to foster discrimination-free and inclusive workplaces, or risk enforcement and litigation by the EEOC.” 

Employers will likely see similar rises in liability risks and activity in the area of discrimination and retaliation in year 2010, particularly in light of the ADA Amendments Act of 2008, which went into effect on January 1, 2009, and expands the scope of the Americans with Disabilities Act by reversing or nullifying several Supreme Court rulings that significantly narrowed the scope of protection under the ADA. Similarly, the EEOC’s Fiscal Year 2010 Congressional Budget Justification includes, as the EEOC’s objectives for Year 2010, an increased focus on combating systemic discrimination (unlawful patterns or practices of discrimination which have a broad impact on an industry, profession, company, or geographic location) as well as charges raising priority, novel or emerging legal issues in the context of race discrimination.

To help manage exposure, employers should revisit their handbooks, policies, and day-to-day practices, and should take steps to make certain that their supervisors and human resources staff are trained to both identify and properly address potential discrimination and retaliation issues.
 

In Convertino, the plaintiff, Assistant U. S. Attorney Richard Convertino, filed suit against his employer, the U. S. Department of Justice (“DOJ”), and against Eastern District of Michigan First Assistant U. S. Attorney Jonathan Tukel.  The complaint alleged that Convertino was retaliated against for certain testimony before Congress and that, in violation of the Privacy Act, the DOJ improperly leaked information regarding an investigation into Convertino’s potential prosecutorial misconduct.  The retaliation claim (the only claim alleged against Tukel) ultimately was dismissed for lack of subject matter jurisdiction; however, the parties conducted discovery related to the Privacy Act claim. 

Although the claim against Tukel was dismissed, a discovery dispute resulted in the Court’s review of 36 emails between Tukel and his personal counsel, sent and received using Tukel’s DOJ email account, to determine whether they were protected by the attorney-client privilege.  Tukel intervened in the discovery dispute to assert privilege over the email communications.  Plaintiff Convertino took the position that Tukel waived his right to assert the attorney-client privilege because the communications were made using the DOJ’s email account. 

Judge Lamberth upheld the privilege.  In so doing, he articulated that application of the privilege requires a case by case analysis to determine whether there is a subjective expectation of confidentiality that is objectively reasonable, based on the following:  (1) whether the employer maintains a policy banning personal or other objectionable use; (2) whether the employer monitors the use of the employee’s computer or email; (3) whether third parties have a right of access to the computer or email; and (4) whether the employer notified the employee, or whether the employee was aware, of the employer’s use and monitoring policies.  The Court found that Tukel’s expectation of privacy was reasonable because, according to the opinion, the DOJ does not ban personal use of its email system, Tukel attempted to delete the email, and Tukel was unaware the DOJ “would be regularly accessing and saving e-mails sent from his account.” 

This opinion highlights why employers should develop, maintain, disseminate, and periodically update clear policies regarding acceptable practices for company information technology.  Such policies should include, among other things, guidelines governing personal and prohibited uses and statements related to privacy and confidentiality.  Taking such steps can reduce any arguable expectation of privacy and prevent employees from shielding their personal use of company resources from discovery in litigation against the company.