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When Confidentiality Means Stay Off Facebook

Many people may have caught this story from Yahoo headlines, Google News, or even on Twitter.  Every attorney and litigant should learn from the mistakes of Patrick Snay.

Patrick Snay brought discrimination and retaliation claims against Gulliver Schools where he served as headmaster until his contract was not renewed.  Gulliver Schools and Snay reached a confidential settlement agreement.  Pursuant to this agreement, $10,000 went to Snay as back pay, $80,000 went to Snay via 1099 (probably compensatory damages), and $60,000 went to Snay’s attorneys.  The confidentiality provision stated that Snay would not disclose the terms of the settlement to anyone besides his wife, attorneys or other professional advisers.    This common language in the settlement agreement became a major stumbling block for Snay.  Snay has a college-age daughter who also previously attended Gulliver.  Snay and his wife shared with their daughter that the case was settled and they were happy with the result.  One would think this is harmless.  Of course, Snay would tell his wife and his daughter is part of the family.  The daughter who apparently is quite popular with 1200 friends shared her parents’ good fortune on Facebook by typing:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.

It only took Gulliver four days to contact Snay and tell him that he was in breach of the agreement.

Gulliver paid Snay’s attorneys the $60,000 mentioned above.  With respect to the $80,000, Gulliver argued that Snay was in breach and withheld the funds.  Snay sought to enforce the settlement and he prevailed before the trial court.  The trial judge ruled that neither Snay’s comments to his daughter nor his daughter’s Facebook comments constituted a breach of the confidentiality agreement.   Gulliver could have left things alone, written a check and let the Snay family go on vacation.  Instead, Gulliver appealed.

The appellate court ruled in Gulliver’s favor reversing the decision of the trial court.  The appellate court noted that absent evidence that the parties intended any special meaning to the terms of the contract, the unambiguous language is to be given a realistic interpretation based on the plain, everyday meaning conveyed by the words.  The court then noted that neither Snay nor his wife could disclose to anyone, except their lawyers or other professionals, the terms of the agreement.  The court ruled that Snay’s conversation with his daughter stating that “it was settled and we are happy with the results” established a breach of the confidentiality provision.   The court added that Snay violated the agreement by doing exactly what he had promised not to do.

Thus, another example of loose lips sinking ships.  This decision should serve as a warning that attorneys must advise their clients to honor the terms of a confidentiality agreement.  In an ordinary sense, certainly the idea of discussing the matter with other family members would seem harmless.  This case shows that simple words such as “we settled” and “we are happy” are sufficient to lead to a breach of the agreement.   This teachers that close attention needs to be paid to familiar provisions of the settlement agreement.    Even the simple statement, “we are happy” could lead to the forfeiture of thousands of dollars.  Victory laps following the signing of a settlement agreement are never a good idea.

 
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Posted by on March 3, 2014 in Uncategorized

 

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Lessons on Sexual Harassment and Retaliation After Beavis and Butthead Attend a Conference

Though I have not seen Beavis and Butthead in nearly 20 years, I am familiar with their middle school humor.  Over the last week a situation played out that illustrated what would happen if Beavis and Butthead attended a Tech Conference.

Last week a woman by the name of Adria Richards, employed by a company called SendGrid, attended a conference called PyCon.  From the photos, it looked like the conference had a few hundred (if not more than a thousand) attendees.  Beavis and Butthead (not their real names – huh huh) happened to be sitting behind Ms. Richards.  As the speaker started making technical references that I admit I know nothing about, Beavis and Butthead started cracking jokes.

Ms. Richards became annoyed and decided to alert the organizers of their conduct.  Ms. Richards snapped a photo of the two men and attached the photo to a tweet of the jokes with the #pycon hashtag.

Soon thereafter the organizers removed the men from the conference.  Upon returning to work, one of the men learned that he was losing his job.  Right decision by employer? Probably not. But see my other posts on the at-will doctrine.

Now things really started to get weird.  The Tech World did not take too kindly to the employment decision.  Instead of going after Beavis’ employer, they went after Ms. Richards.  She received death threats, rape threats, racial slurs including the N-bomb, and anti-semitic remarks.  A few even publicized her personal information. 

Ms. Richards’ employer was not oblivious to the firestorm, having received their own hate mail.  So in the middle of last week, SendGrid published a message on their blog and Twitter stream announcing the termination of Ms. Richards’ employment. (??!!).  While many in the Tech World celebrated her termination, others are left scratching their heads.

Having read this story from a number of sources, I could not help but think about its legal implications. 

Although Beavis and Butthead’s conduct falls in the realm of harassment, it is doubtful that she would prevail if she pursued a harassment claim.  Not only is an employee required to show unwelcome sexual conduct, he or she must also show that the conduct was so severe or pervasive as to create a hostile environment.   Putting up with Beavis and Buthead jokes 8 hours a day, 5 days a week may create a hostile environment.  However a few jokes here and there – huh huh – or isolated sexual remarks are not enough to get your case before a jury.  It is also worth noting that the conference organizers took prompt, remedial action upon learning of the harassment.

Retaliation law presents a more difficult question.  Retaliation occurs when someone asserts his or her rights under harassment law – i.e. complaining about harassment – and the employer takes adverse action for engaging in the protected activity.  With respect to Ms. Richards’ case reasonable minds or a room full of highly talented employment attorneys could differ.

Notwithstanding the viability of any employment claim, it looks like SendGrid created more problems than expected by firing Ms. Richards. It did not take long for this story to go viral with it getting picked up by USA Today, Forbes, Ebony, and the first page/first story of Yahoo.

For whatever it is worth, the HR and legal teams in the Tech World need to engage in a massive mobilization effort to train employees and management on harassment law.  As for Ms. Richards and Beavis, I am sure both have impressive backgrounds and it should not take them long to secure employment elsewhere.

 
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Posted by on March 23, 2013 in Uncategorized

 

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Wrongful Termination, At-Will Employment and Girl Scout Cookies

A month ago, I was at my mechanic’s garage to have some work done on my car.  He happened to have Girl Scout Cookies on display.  He asked if I wanted to by some.  I told him that I already bought some from a neighbor.  He said, I can get to your car faster if you buy some cookies.  Ha! Ha! Good one Joe.  I should have taken him up on the offer, because in less than a day the two boxes of cookies were gone.  I have a preteen son who eats like a teenager.

This morning I came across this article about a woman who was fired (or as my British friends would say “got the sack”) because she was selling Girl Scout Cookies at work.  It appears that she worked at American University’s Campus for a company called Bon Appétit.  The employee worked on the campus for 28 years and for Bon Appétit for 12 years.  Over the last three years, she displayed the Girl Scout Cookies to help her daughter.  This year, Bon Appétit decided to fire her.  The manager accused her of “gross misconduct by soliciting and operating a personal cash business selling girl scout cookies over the counter which violates company policy.”

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I am not sure about you, but I feel bad for the employee.  She was not doing this for profit.  She was helping the Girl Scout, and her daughter by selling cookies.  Was the sale of Girl Scout Cookies really a conflict of interest?  Would a boxes send Bon Appétit  into bankruptcy court?  To be clear, how many times have you seen parents bring fundraiser items for their children to work – cookies, popcorn, candles, etc.  Too bad there is no avenue by which she could sue.

Unfortunately, the at-will doctrine favors the employer.  Paraphrased the doctrine says, an employer can terminate an employee for a good reason, a bad reason or no reason at all.  I understand there are some that say she should have been fired, and only kids, not their parents should be selling Girl Scout Cookies.  Realistically, in virtually every city across the country there is little doubt that these sales are going on in the workplace.  Perhaps today many will say bad things about Bon Appétit.  Months from now, however, Bon Appetite’s arguably unfair position will be forgotten and the employee will still be out of work.

If you have questions about the at-will doctrine, wrongful termination or other employment law issues, call Rich Bradford at (813) 413-2402.

 
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Posted by on March 21, 2013 in Uncategorized

 

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What Every Employee Should Know About the At-Will Employment Relationship

In Florida, most employees are considered at-will employees.  This means that the employer or employee may terminate the employment relationship for a good reason, a bad reason or no reason at all.  Although I wrote the employer or employee, for all practical purposes this arrangement favors the employer rather than the employee.

The employee, on the other hand, is not under an obligation to remain at the employer’s place of business.  For example, if an employee has a job offer waiting at another company he or she does not have to give two week notice.  An at-will employee could say, “today is my last day of work” and leave.  As noted above, there are little benefits for the employee under the at-will doctrine.

Many employees in Florida make the mistake of saying, I have no rights because we are in a right to work state.  While the employee is correct in noting that Florida is a right to work state, there is a difference between “employment at-will” and “right to work.”  The “right to work” concept applies to the role that labor unions play in the employment relationship.  Unlike some states in the North East or Mid-West, there are very few labor unions in Florida because it is a “right to work” state.   By definition, “right to work” means an employee can work anywhere in the state of Florida without being forced to pay union dues.

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Back to the at-will doctrine, power lies in the hands of the employer.  All is not loss for the employee.  There are a number of laws by statute and court decisions that protect the employee.  The big one is discrimination law.  Generally speaking the question is whether the employer illegally discriminated against the employee or potential employee based on race, color, sex, national origin, religion, age or disability.  Among other things, discrimination law touches on hiring, firing, transfers, promotions, demotions and layoffs.

An employee should also understand that he or she has rights under retaliation law.   Retaliation law protects employees from being fired, demoted, harassed, or otherwise “retaliated” against because they filed a charge of discrimination or because they complained to their employer about a discriminatory practice.

Whistle-blower law is very similar to retaliation law.  There are number of state and federal laws that provide whistle blower protection to employees.    Whistle-blower law may be triggered if you report or refuse to participate in illegal activity.  Generally, an employee will be required to make his or her complaint in writing to be protected under a whistle-blower statute.

Contract law is another option for consideration by the employee.  If you are under a written contract, there is a very good chance that you will have greater rights than an at-will employee.   Many contracts will have language indicating that an employee may be terminated for just cause.   Just cause usually involves some form of misconduct by the employee that would support termination.  If an employer cannot show just cause, an employee who is terminated early may have a claim to recover damages through the end of the contract period.

While employees recognize that Florida is a “right to work”  [sic] “at-will state,” there may be avenues available to recover for wrongful termination.  If an employee believes his or her termination is illegal, the best thing to do is schedule a meeting with a labor and employment attorney to discuss potential claims.  I can be reached at (813) 413-2402.

 

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Posted by on February 21, 2013 in Uncategorized

 

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Retaliation Lawsuit Filed Against Janitorial Company

Cynthia Williams, an African American woman, worked for a company called Paramount Janitorial Services.  Paramount Janitorial Services is a Virginia based “full-service” janitorial company.  Williams complained to the owner of the company stating that her supervisor made racial slurs and threats, including calling her the “N” word and threatening to beat her with his “n***** stick.”

At first blush, it appears that Ms. Williams followed the steps to protect herself from further harassment.  In the response, the owner could have taken prompt remedial action by counseling the supervisor, separating Ms. Williams from her supervisor, and/or firing the supervisor.  At this stage, the actions of the owner are unknown.   If Ms. Williams’ version of the events is true, Paramount Janitorial Services failed to take prompt remedial action.  Two days after complaining to the owner, the supervisor fired Ms. Williams.

After efforts to settle the matter failed, the Equal Employment Opportunity Commission filed a retaliation lawsuit on behalf of Ms. Williams.   To prevail, Ms. Williams must show that she engaged in activity protected by discrimination law, that she suffered an adverse employment action, and that the adverse action was causally related to the protected activity.  The EEOC is seeking to recover back pay, compensatory damages, and punitive damages in this case.

Unfortunately, cases like these occur more often than we are ready to admit.  The actions that the owner should have taken to avoid suit are spelled out above.  If you have questions about retaliation or other employment law issues, call Rich Bradford at (813) 413-2402.

 

 
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Posted by on December 31, 2012 in Uncategorized

 

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Tampa EEOC Settles Retaliation Suit with OfficeMax for $85,000

A Florida OfficeMax recently settled retaliation claims filed by the EEOC on behalf of an employee for $85,000.  In this case, an OfficeMax store manager fired an employee, who later complained that the manager fired him because he is Hispanic.  The company required the manager to rehire the employee.  According to the lawsuit, the manager, however, made life difficult for the employee by creating reasons to terminate him and trying to force him to resign.  The employee went to the EEOC who investigated his claims against OfficeMax.   After the parties failed to reach a pre-suit resolution, the EEOC filed a lawsuit in Tampa federal court on behalf of the employee.

Besides reaching a monetary settlement, the EEOC also obtained injunctive relief.  OfficeMax agreed that over the next four years it will seek to reach more Hispanic and African American applicants in the Sarasota/Bradenton area.  It also agreed to provide training for its managers and human resources personnel on racial harassment and retaliation.

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Although Florida is an at-will employment state – i.e., an employer can fire you for a good reason, a bad reason or no reason at all – both federal and state laws protect employees against discrimination and retaliation.  Because an employee’s economic livelihood depends on his/her employment, the law prohibits employers from disciplining or discharging employees for attempting to enforce their rights under the law.

Rich Bradford at Bradford & Bradford is available to answer any questions that you may have concerning retaliation or employment law in general.   Call us at (813) 413-2402.

 
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Posted by on December 27, 2012 in Uncategorized

 

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County Property Appraiser Settles Sexual Harassment Case for $135,000

Last spring, the office of the Hillsborough County Property Appraiser was rocked by the sexual harassment claims of Carolyn Filippone.  Although the case had been pending for nearly two years, it did not make front page news until Property Appraiser, Rob Turner, fired his paramour, Carolyn Filippone.

Turner made a huge mistake by firing her as her attorneys were contemplating whether to move forward with a lawsuit.  Prior to the termination decision, Filippone’s claims were limited to sexual harassment.  Thus, the question was whether she could advance a meritorious sexual harassment case against her boss although she had an affair with him.  At this stage, this case had strengths and weaknesses for both parties.   After the EEOC dismissed her case, Filippone had 3 months to decide whether to file a lawsuit.  The decision became a lot easier when Turner fired Filippone before the expiration of the 90 days.  Now Filippone was able to add a retaliation claim to her sexual harassment case.  See Tampa Woman Considers Sexual Harassment and Retaliation Claims Against County Official; Retaliation Lawsuit Filed in Federal Court in Property Appraiser Case; Filippone complaint.

After a few short months, the Property Appraiser’s office decided that settlement was the prudent course of action.  According to the Tampa Bay Times, the parties attended a mediation conference and settled for $135,000.

Sexual harassment occurs when one employee makes continued, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee, against his or her wishes.  Retaliation occurs when an employer takes some form of adverse action against an employee for asserting his rights under harassment or discrimination law.

If you have questions about sexual harassment or retaliation, you may call Rich Bradford at (813) 413-2402.

Bradford & Bradford’s practice areas include, Wills, Trusts, Probate, Estate Planning, Civil Litigation, Employment Law, and Family Law.

 

 
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Posted by on December 18, 2012 in Uncategorized

 

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