Tuesday, April 29, 2014

What Sterling's Racist Recording Means to Whether You Can Record Your Co-Worker

The media are abuzz with news that the girlfriend of Donald Sterling, the owner of the LA Clippers NBA basketball team, recorded him making shocking racist remarks during a private telephone call. He admitted that it was his voice on the recording, and on April 29, 2014 the NBA Commissioner barred Sterling for life from attending games, practices, team facilities and board of governors meetings, and fined Sterling $2.5 million.

Was the recording legal?  And what does this mean for employees who want to make secret recordings of their co-workers or supervisors?

The first issue is state law, and the second issue is whether the employer has a policy forbidding such secret recordings.  As to state law, some states require “one-party consent.” This means that only one party to the conversation needs to consent.  So an individual may be the “one party” who consents to his or her own recording of a conversation.  But the individual must be a party to the conversation in order to record it.  The person can’t stand behind the drapes and record a conversation to which he or she is not a party.  But in a "one-party consent" jurisdiction, an individual who is not a party to the conversation may still record it as long as one party consents and has full knowledge that the communication will be recorded.

In a “two-party consent” state, everyone in on the conversation must consent. The law doesn't necessarily require the parties to the conversation to say "I agree." Staying on the line after the person knows the conversation is being recorded is generally enough.  Even if the state where the person is doing the recording permits one-party recording, if the state where the other party is located requires multi-party consent, the recording may be illegal.

Federal law and the laws in most states, including Virginia and the District of Columbia, require only one-party consent. Maryland is a two-party consent jurisdiction. You may remember that Linda Tripp, who in the ‘90's recorded Monica Lewinsky discussing her sexual relationship with President Clinton, was prosecuted for making those recordings from her home in Columbia, MD. The case was ultimately dropped because the Independent Counsel investigating the charges that led to the impeachment of President Clinton had given Tripp immunity.

The District of Columbia's wiretapping law is a "one-party consent" law. DC makes it a crime to record a phone call or conversation unless one party to the conversation consents. See D.C. Code § 23-542.  Virginia's wiretapping law is a "one-party consent" law. Virginia makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Virginia Code § 19.2-62.

The Reporters Committee for Freedom of the Press has compiled a useful chart of the rules in all 50 states, available at http://www.rcfp.org/reporters-recording-guide/tape-recording-laws-glance.

What about federal employees?  Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d).

But aside from state or federal laws, private employers and government agencies may have policies that prohibit their employees from surreptitiously recording conversations in the workplace. For some federal agency policies, see e.g.  * * * v. Postmaster General, EEOC Appeal No. 0120122527(October 30, 2013); King v. Commissioner, International Boundary and Water Commission, EEOC Appeal No. 0120114319 (March 8, 2013); Edwards v. Postmaster General, EEOC Appeal No. 0120093370 (July 18, 2012).  Employees may then be disciplined for failing to comply with the policy.  See e.g. Capeless v. Department of Veterans Affairs, 1998 MSPB LEXIS 761 (June 24, 1998); Sternberg v. Department of Defense Dependents Schools, 1989 MSPB LEXIS 456 (June 6, 1989); Geissler v. Runyon, 1996 EEOPUB LEXIS 3852 (Nov. 21, 1996).

Furthermore, in Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (February 14, 2011), the National Labor of Relations Board held that an employee’s secret tape recording of a meeting with his supervisor was protected activity; and, as a result, the employee’s termination was a violation of the National Labor Relations Act. 

While the employer had implemented a rule that generally prohibited employees from making secret recordings in the workplace, the employer had implemented that rule only after it learned that the employee had secretly tape recorded the meeting. Based on these facts, the Board found that the rule was, among other things, overly broad and ordered the employer to rescind the rule and notify all employees in writing that the rule was no longer in effect.

Title VII prohibits retaliation against an employee for "assisting or participating in the investigation of his or her complaints of workplace discrimination. In Heller v. Champion International Corp., the Second Circuit Court of Appeals ruled by a 2-1 vote that tape recording the boss in order to gather evidence of discrimination was protected and that employee could not legally be fired for such activity. According to the court,  “surreptitious tape-recording, to be sure, represents a kind of ‘disloyalty’ to the company, but not necessarily the kind of disloyalty that under these circumstances would warrant dismissal as a matter of law.”

Other courts have taken a contrary approach.  As the Seventh Circuit Court of Appeals observed in a retaliation case brought under Title VII of the Civil Rights Act of 1964, Argyropoulos v. City of Alton, 539 F. 3d 724 (7th Cir. 2008):

Although Title VII indubitably protects an employee who   complains of discrimination, the statute does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination. As we have previously explained, inappropriate workplace activities are not legitimized by an earlier-filed complaint of discrimination.

A decision by the Sixth Circuit Court of Appeals, Jones v. St. Jude Medical S.C.,504 Fed. Appx. 473 (6th Cir. 2012), reached a similar conclusion, holding that employers not only may implement policies that preclude employees from secretly recording conversations in the workplace, but employers may also discipline the employee for doing so, even where the employee claims that the secret recording was “protected activity” under Title VII.


So what about Donald Sterling’s girlfriend?  California, where Sterling’s girlfriend made her recording, has a “two-party consent” law. It’s crime in California to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. According to news stories, the girlfriend alleges that she has more than 100 hours of audio of conversations with Sterling, and she contends that she made the recordings with Sterling’s approval because at age 80, he had trouble remembering things and used the tapes as memory-fresheners. So far there’s no word that she is going to be prosecuted.

- This blog entry was prepared by Elizabeth L. Newman

Monday, April 21, 2014

General Mills drops arbitration clause!

My friend Paul Brand of Public Justice is reporting this morning that General Mills has dropped a controversial plan to use forced arbitration for all its disputes with consumers. The General Mills plan was particularly aggressive. It would have claimed that consumers consented to its forced arbitration plan just by visiting its web page -- whether or not the consumer clicked on any button indicating knowledge of, let alone consent to, its forced arbitration plan.

After just a few days of public protest about the plan, General Mills reversed itself and has abandoned the plan.

This is good news for employment law. Some companies used forced arbitration with their own employees. These plans required that as a condition of employment, the employee gives up the right to go to court about any claim that the employer engaged in illegal discrimination or retaliation. When companies have the same arbitrator conduct two or more arbitrations, then the company wins 86% of the time.

The public uproar and corporate reversal signal the growing concern about forced arbitration clauses. One 2012 study found that 59% of Americans oppose forced arbitration, including majorities of both Democrats and Republicans. The Employee Rights Advocacy Institute For Law & Policy and Public Citizen commissioned the study with funding from the Public Welfare Foundation.

More public attention can help legislators on both sides see that forced arbitration is an issue the public cares about. Our legislators can do something about this right now. They can co-sponsor the Arbitration Fairness Act (AFA), HR 1844 and S 878. Already, 71 Representatives and 23 Senators have co-sponsored the AFA. The AFA would ban forced arbitration from consumer and employment cases. Congress has already banned forced arbitration from the employment contracts of military contractors, the contracts between auto manufacturers and their franchisees, and from all cases under the Sarbanes-Oxley Act. How about the rest of us?

To me, arbitration is fine when both parties agree to it after the dispute has arisen. Also, when companies and unions agree to arbitration, the scales in influence are balanced. The arbitrator will know that the decision to select an arbitrator was a mutual one. But when an arbitrator knows that the company forced the arbitration on the other party, then the arbitrator will also know that future employment will depend keeping the company happy. That is just not fair. Congress should pass the AFA now. Follow this link for more information from the National Employment Lawyers Association (NELA).

By Richard Renner

Tuesday, April 15, 2014

My comments on OSHA’s rules for food safety whistleblowers

Yesterday, I submitted comments to the Occupational Safety and Health Administration (OSHA) about the agency's rules for handling food safety whistleblower cases.  In 2008, nine people died as a result of Salmonella contamination of peanut butter. Another 705 were sickened. This outbreak, together with others affecting spinach and eggs, prompted Congress to pass the FDA Food Safety Modernization Act (FMSA) in 2011. 

Section 402 of FMSA creates a whistleblower protection for employees who raise food safety concerns or participate in safety proceedings. 21 U.S.C. § 399d. Congress wisely understood that the public will be better protected if workers are free to raise safety concerns without fear of reprisals.
On February 13, 2014, OSHA issued interim regulations for handling whistleblower complaints under the FSMA. In its Summary and Discussion of these rules, OSHA recognized “the remedial purposes of FSMA[.]” However, it did so only in the text referencing 29 CFR § 1987.105. My first comment to OSHA was that the remedial purpose of the FMSA should be prominent in any decisions under the FSMA. 

Foodborne illness kills about 3,000 Americans a year, and hospitalizes 128,000 more. Another 48 million Americans are sickened every year by food contamination. Congress passed the FSMA to protect people from getting sick and dying. Decision-makers need to understand the serious consequences of unsafe practices and nurture a culture that encourages safety concerns.

Helpfully, the Summary and Discussion recognizes that the reasonable belief doctrine will apply by saying, “a complainant's whistleblower activity will be protected when it is based on a reasonable belief that any provision of the FD&C, or any order, rule, regulation, standard, or ban under the FD&C, has been violated.” Under the reasonable belief standard, whistleblowers do not have to show that an actual violation was going to occur. They only have to show that they had a reasonable basis for their food safety concern. 

An employee’s “belief must be reasonable for an individual in [the employee’s] circumstances having his [or her] training and experience.” Melendez v. Exxon Chems., ARB No. 96-051, ALJ No. 1993-ERA-006, slip op. at 28 (ARB July 14, 2000); Sylvester v. Parexel Int’l, ARB No. 07-123, 2011 WL 2165854, at 14 (ARB, May 25, 2011). As most employees in the food industry will not have training about the coverage of the Food, Drug and Cosmetic Act, they should be protected for raising any food safety concern.

My second comment to OSHA objected to one sentence of 29 C.F.R. § 1987.110(a). This sentence states, “The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived.” Since a petition for review has to be filed within 14 days of an ALJ decision, whistleblowers and their attorneys are often scrambling to review the entire record for the legal issues they want to appeal. This type of rush is not required in normal federal appeals. An appellant only has to file a notice of appeal on time. Some courts require an information form with a statement of issues, but the parties are not bound by that. Only when a party submits a final brief is the party limited to the issues raised.

I recognize that OSHA wants parties to identify legal issues that show the petition is worthy of full briefing. However, this purpose can be fully served by requiring a petitioner to show that the petition raises sufficient issues without requiring a list of every issue that will be raised. The rule as written creates an unnecessary procedural hurdle that will trip up some whistleblowers and some employers and keep them from getting a decision on the merits.

I asked OSHA to change this sentence to say, “The parties should identify in their petitions for review the legal conclusions or orders to which they object so that the Administrative Review Board may determine that the review presents issues worthy of full briefing.”

One employer, Paramount Farming Company, had its lawyer submit comments. The company grows pistachios and almonds in California. The company wants to have copies of all information OSHA receives during an investigation, and it also wants the right to have a confidentiality clause in a settlement agreement. It appears to me that this company does not yet understand what a truly safety conscious work environment is like. I foresee that it will have to have more experience with whistleblowers before it appreciates how they can make the company and its customers safer.

Congress is giving the Department of Labor the opportunity to demonstrate that it can be a better forum for whistleblowers than the U.S. District Courts.  In a well-managed program, whistleblowers can find adjudications that are fair and in furtherance of the remedial purpose of the law.  They should not have to educate the OSHA investigators or ALJ’s about the applicable laws and their purposes. They should find professional attention that understands the common indicators of unlawful reprisals. They should receive determinations that are comparable to those of federal courts, but through a process that is cheaper, easier and focused on the particular needs of whistleblower cases. While it is preferable to have determinations issue more quickly, having determinations that are correct is more important. If the Department can make its program the better option for whistleblowers, then the remedial purpose will be fulfilled.

By Richard Renner

Wednesday, April 2, 2014

Transgender Law Update

Attorney Elaine Fitch and I attended an excellent seminar last month on representing transgender people. The DC Bar hosted the event with support from Alison Gill of the Trans Legal Advocates of Washington (TransLAW).

I was struck by the statistics from the National Trans Discrimination Survey. Transgender people are four times more likely to live in poverty, and 41% of transgender people have attempted suicide.  78% experienced harassment, mistreatment or discrimination in employment. 

Also, there are international standards for accommodating transgender people. The standards address policies for bathroom use, dress codes (why are they every gender specific?), and school district policies.

How many of us have two or more single-occupancy bathrooms, and designate them as male or female?  Why?

The federal Office of Personnel Management (OPM) has a guidance for federal agencies. This guidance can be a helpful model for other employers.

The District of Columbia Office of Human Rights (OHR) has good regulations against transgender discrimination. See DC Municipal Regulations 4-800 to 4-899. For example, gender designations on single occupancy bathrooms are now illegal in DC. 802.2 "All entities covered under the Act with single-occupancy restroom facilities shall use gender-neutral signage for those facilities (for example, by replacing signs that indicate "Men" and "Women" with signs that say "Restroom")."

Seventeen (17) states, DC and 175 localities have laws prohibiting gender identity discrimination. Federal courts and agencies are now recognizing causes of action for sex discrimination on behalf of transgender people.  See Smith v. City of Salem (6th Cir. 2004) (first Circuit Court decision holding transgender plaintiffs could bring Title VII claims); Schroer v. Billington (D.D.C. 2008) (district court decision holding transgender discrimination is "literally" sex discrimination, in a case against the Library of Congress); Glenn v. Brumby (11th Cir. 2011)(gender stereotyping can apply to transgender people).

Two years ago, the EEOC issued a unanimous decision in Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). EEOC declared that anti-transgender discrimination is by definition sex discrimination.

Transgender people also face obstacles in getting birth certificates and other documents corrected, especially in states that require evidence of surgery.  Most transgender people do not get surgery.  Many cannot afford it. Some do not need it. Medical insurance often tries to deny coverage for surgery, even though such denials may be unlawful, and are always discriminatory. (HHS takes complaints.) DC's DISB enforces an ordinance against such discrimination. District Official Code § 31-2231.11(c), the District's Unfair Insurance Trade Practices Act.

The Prison Rape Elimination Act requires prisons to provide an option for separate showing.  How burdensome is getting a shower curtain? Lisa Mottet of the National Center for Transgender Equality said the Department of Justice's Bureau of Prisons actually has a better rule than the Department of Homeland Security on this point.

Amy Nelson of the Whitman-Walker Health Legal Services announced that 700 out of their 7000 patients are transgender. There is clearly a market for legal services to transgender people. The law is moving in their favor. Lisa Mottet said that transgender cases usually do not have difficultly in showing causation. "Trans discrimination is usually very clear."

The long arc of the Civil Rights Movement strives to assure that each job is filled with the best person, without discrimination. We join that Movement by making clear that we serve transgender people.

By Richard Renner