This document summarizes recent developments and cases related to state employment law. It discusses a new Domestic Workers Bill of Rights in New York, a proposed anti-workplace bullying statute, a case finding that calling one's boss a "slimebag" did not breach a non-disparagement clause, and a case preventing the recovery of damages for humiliation or injury to feelings in a non-disparagement breach of contract case. It also summarizes cases related to forum selection clauses, social media background checks under the FCRA, discovery of social media content, and more.

1. State Employment Law
Update
by
Robert B. Fitzpatrick, Esq.
Robert B. Fitzpatrick, PLLC
Universal Building South
1825 Connecticut Avenue, N.W.
Suite 640
Washington, D.C. 20009-5728
(202) 588-5300
(202) 588-5023 (fax)

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AND RESPONSIBILITY
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FROM AND/OR RELATED TO THE USE OF THIS MATERIAL.

3. Domestic Worker Bill of Rights
• The New York “Domestic Workers Bill of Rights” went
into effect on November 29, 2010.
• The Law grants certain employment protections to
household domestic workers such as
housekeepers, domestic caregivers, and nannies.
• During the 1930‟s, southern members of congress
were willing to provide crucial votes in favor of the
FLSA and NLRA only if these laws did not protect the
most widespread categories of black
employment, farmworkers and maids.
– Katznelson, Ira When Affirmative Action Was White: An
Untold History of Racial Inequality in Twentieth-Century
America (New York: W.W. Norton, 2005), pp. 53-56.

4. Proposed Anti-Workplace
Bullying Statute
• “Conduct, with malice, taken against an employee by an
employer or another employee in the workplace that a
reasonable person would find to be hostile, offensive and
unrelated to the employer‟s legitimate business interests. In
considering whether such conduct is occurring, the trier of
fact should weigh the severity, nature and frequency of the
conduct. Abusive conduct shall include, but not be limited
to, repeated infliction of verbal abuse, such as the use of
derogatory remarks, insults and epithets; verbal or physical
conduct that a reasonable person would find
threatening, intimidating or humiliating; or the gratuitous
sabotage or undermining of an employee‟s work
performance. A single act shall not constitute abusive
conduct, unless the trier of fact finds such act to be
especially severe or egregious.”

5. Sample Anti-Workplace Bullying
Policy

6. Choice of Forum Clauses
• Simonoff v. Expedia, Inc., 2011 U.S. App. LEXIS
10374 (9th Cir. May 24, 2011) (Court discusses the
semantic significance of the use of the word “in” rather
than “of.” A forum selection clause that provides for
exclusive jurisdiction in the courts of a particular
jurisdiction limits jurisdiction to that state‟s courts;
whereas the phrase “courts in” a state only imposes a
geographic limitation, not one of sovereignty)
(emphasis added).
• Ruifrok v. White Glove Rest. Servs., LLC, No. DKC
10-2111, 2010 U.S. Dist. LEXIS 110369 (D.Md. Oct.
18, 2010) (Court found that the forum-selection clause
constituted a waiver of the right to remove to federal
court).

7. Calling Boss a Slimebag is not
Disparagement in Ohio
• Ohio Educ. Ass’n v. Lopez, 2010 Ohio 5079 (Ohio Ct.
App. Oct. 19, 2010) (the Court finds that a voicemail
message from former General Counsel of the Ohio
Education Association to outside counsel for the
Association, referring to the Executive Director of the
Association as a slimebag, did not constitute a
material breach of a nondisparagement clause in the
former General Counsel‟s severance agreement. The
Court found that the term “slimebag” is a “trifling figure
of speech… of so little consequence [that] it cannot be
said to be material…” The Court explained that it was
a “slang expression [that] is such a part of modern
casual speech as to be almost meaningless” and that
the Association “could not demonstrate that the
message caused any damage…”)

8. Non-Disparagement: No Recovery of
Damages Based on Humiliation or Injury to
Feelings
• Isle of Wight Cnty. v. Nogiec, 704 S.E.2d 83 (Va.
2011) (Virginia Supreme Court reverses an award
of $45,000.00 in compensatory damages on a
breach of contract claim where defendant, after
agreeing to a non-disparagement clause in a
severance agreement, stated at a televised board
meeting that plaintiff “suppressed” information and
that his conduct bordered on “negligence.” The
Court held that damages for humiliation or injury to
feelings are not recoverable in an action for
breach of contract.)

9. Definition of “Disparage”
• Sohal v. Mich. State Univ. Bd. of Trs., No.
295557, 2011 Mich. App. LEXIS 915 (Mich. Ct. App.
May 17, 2011) (the Court held that the term
“disparage” is not ambiguous, and looked to the
definition in the American Heritage Dictionary as well
as Webster‟s New World Dictionary, rejecting the
definition in Black‟s Law Dictionary. See also Halco v.
Davey, 919 Atl. 2d. 626, 630 (Me. 2007); Eichelkraut
v. Camp, 513 S.E.2d 267 (Ga. 1999))
• Disparage(2): To depreciate by indirect means (as
invidious comparison) : speak slightingly about.
(Merriam-Webster Online, accessed 7/26/2011).
• Disparage(1): To speak of or treat slightingly;
depreciate; belittle: Do not disparage good manners.
(American Heritage Dictionary of the English
Language, Fourth Edition, 2006).

10. Defamation Predicated on U5:
Absolute or Qualified Immunity?
• Rosenberg v. Metlife, Inc., 866 N.E.2d 439, 8 N.Y.3d
359 (2007) (Court finds absolute immunity)
• Wietecha v. Ameritas Life Ins. Corp., 2006 U.S. Dist.
LEXIS 70320, 2006 WL 2772838 (D. Ariz. 2006)
(Court finds qualified immunity).
– accord Dickinson v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 431 F. Supp. 2d 247, 261-62 (D. Conn. 2006);
Smith-Johnson v. Thrivent Fin. For Lutherans, 2005 U.S.
Dist. LEXIS 36715, 2005 WL 1705471 (M.D. Fla. 2005);
Dawson v. New York Life Ins. Co., 135 F.3d 1158 (7th Cir.
1998); Andrews v. Prudential Sec., Inc., 160 F.3d 304, 307
(6th Cir. 1998); Prudential Sec. Inc. v. Dalton, 929 F. Supp.
1411 (N.D. Okla. 1996)

11. Connecticut: First State to
Mandate Paid Sick Leave
• In Connecticut, service workers will accrue one hour
of paid sick time for every 40 hours worked that can
be used after having been employed a certain
amount of time. They must work, on average, at
least 10 hours a week and can accrue up to five
days of sick leave.
• Some estimates show the cost to employers that
currently provide no sick days would be a small
fraction of sales. Proponents note that studies show
typical workers will use far fewer than their allotted
sick days.
– Keiper, Lauren “Connecticut Becomes First State to
Mandate Paid Sick Time”, Reuters, Sunday Jul. 10, 2011.

12. Local Government Tort Claims
Act: Notice Provision
• Hansen v. City of Laurel, Md., 193 Md. App. 80, 996
A.2d 882 (2010); aff’d by Hansen v. City of
Laurel, 2011 Md. LEXIS 445 (Md. 2011) (In a suit
under for age and disability discrimination under 2-
222 of the Prince George‟s County Code, failure to
affirmatively plead fulfillment of the notice provision of
the Local Government Tort Claims Act in the complaint
resulted in the dismissal, with prejudice, of plaintiff‟s
case).
• Owens v. District of Columbia, No. 08-CV-1647 (D.C.
Apr. 29, 2010) (Dismissing an action under the D.C.
Human Rights Act for failure to comply with the notice
provision of the Local Government Tort Claims
Act, the Court held that notice is satisfied by a police
report, but not by an EEOC or DCOHR complaint).

13. Excessive Review of Privileged
Materials
• Clark v. Superior Court, 196 Cal. App. 4th
37, 2011 Cal. App. LEXIS 680 (Cal. Ct. App.
2011) (employee‟s counsel was disqualified
for excessively reviewing privileged
documents when the employee did not return
the documents upon demand and conceded
that he was relying upon one of them to
support a claim. The receiving attorney was
obligated not to review the documents more
than reasonably necessary to make the
determination that they were privileged.)

14. Ratio of Compensatory to
Punitive Damages
• Howard Univ. v. Wilkins, 2011 D.C. App.
LEXIS 367 (D.C. Ct. App. June 30, 2011)
(the ratio between punitive and
compensatory damages is only one factor
in an excessiveness analysis. Here, the
Court found that a compensatory damages
award of $1 and a punitive damages
award in excess of $42,000 was justified
by D.C.‟s strong interest in deterring
DCHRA violations.)

15. Social Media Background Checks:
Fair Credit Reporting Act
• Federal Trade Commission investigates
Social Intelligence, a social media
background check company, for compliance
with the FCRA.
• While the FTC determined that Social
Intelligence Corp. was in compliance with the
Fair Credit Reporting Act, the investigation
serves as a warning to employers and similar
companies that the FCRA applies to social
media checks.
• http://www.ftc.gov/os/closings/110509socialin
telligenceletter.pdf.

16. Mackelprang v. Fid. Nat’l Title
Agency of Nev., Inc.
• 2007 U.S. Dist. LEXIS 2379 at *25 (D.Nev.
Jan. 9, 2007) (the Court found that
seeking a release for all private e-mails on
plaintiff‟s two Myspace accounts “cast too
wide a net” absent some indication that
relevant information existed. The Court did
allow “properly limited requests for
production of relevant email
communications” related to plaintiff‟s
sexual harassment allegations.)

17. EEOC v. Simply Storage
Mgmt., LLC
• 270 F.R.D. 430 (S.D. Ind. 2010)
• The Defendants sought discovery of information from
plaintiffs‟ internet social networking sites in context of a
workplace sexual harassment claim which included
allegations of severe emotional distress.
• The Court allowed discovery of “any profiles, postings, or
messages (including status updates, wall comments, causes
joined, groups joined, activity streams, blog entries)” and
social networking site applications related to “any
emotion, feeling, or mental state” or “events that could
reasonably be expected to produce a significant
emotion, feeling, or mental state.” 270 F.R.D. at 436.
• A person‟s expectation that communications would remain
private is not a legitimate basis for shielding them from
discovery – any privacy concerns can be addressed with a
protective order.
• Plaintiff‟s privacy interest is further compromised in this case
because the claimant had already shared the information with
another person.

18. Bass v. Miss Porter’s Sch.
• 2009 U.S. Dist. LEXIS 99916 (D.Conn. 2009)
• “Facebook usage depicts a snapshot of the user‟s
relationships and state of mind at the time of the
content‟s posting. Therefore, relevance of the
content of Plaintiff‟s Facebook usage as to both
liability and damages in this case is more in the
eye of the beholder than subject to strict legal
demarcations, and production should not be
limited to Plaintiff‟s own determination of what may
be “reasonably calculated to lead to the discovery
of admissible evidence.” 2009 U.S. Dist. LEXIS
99916 at *3.

19. Crispin v. Christian
Audigier, Inc.
• 717 F.Supp.2d 965 (C.D.Cal. 2010)
• District Court quashed subpoena duces tecum for
plaintiff‟s private messages on Myspace and
Facebook accounts and ordered additional factual
development to determine whether access “wall”
postings and comments was sufficiently restricted
to bring them under the protections of the Stored
Communications Act.
• The number of users who can view a stored
message is of no legal significance under the
Stored Communications Act so long as it is not
public.

20. Romano v. Steelcase Inc.
• 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010)
• Because public portions of the social networking sites
contained material contrary to plaintiff‟s claimed
injuries, the court held that defendant must be allowed
to access plaintiff‟s private postings.
• Court found that users of social media do not have a
reasonable expectation of privacy about the
information they post or share.
• Court ordered plaintiff to provide “properly executed
consent and authorization as may be required by the
operators of Facebook and MySpace to gain access”
to Plaintiff‟s records.

21. McMillen v. Hummingbird
Speedway, Inc.
• No. 113-2010 CD, 2010 Pa. Dist. & Cnty. Dec. LEXIS
270 (Sept. 9, 2010)
• Defendant reviewed the public portion of plaintiff‟s
Facebook account and discovered statements
inconsistent with his claimed injuries.
• “Complete access” provided to Facebook and
Myspace operators defeated plaintiff‟s claim that the
communications were confidential.
• Court held that “[w]here there is an indication that a
person‟s social network sites contain information
relevant to…a lawsuit…access to those sites should
be freely granted.” 2010 Pa. Dist. & Cnty. Dec. LEXIS
270 at *12.
• Court ordered plaintiff to produce user names and
passwords to his social network accounts.

22. Social Media - Facebook and Myspace: Court
Orders Plaintiff to Provide All Passwords and not
Alter Information
• Zimmerman v. Weis Mkts., Inc., 2011 WL 2065410
(Pa. Com. Pl. May 19, 2011) (upon discovery of
posts on plaintiff‟s public Facebook and MySpace
pages which contradicted his claimed injuries, the
Court ordered plaintiff to provide defendant with all
passwords, user names, and log-in names for any
and all MySpace and Facebook accounts. The
Court further ordered that plaintiff was to take no
steps to delete or alter those pages. The Court
held that no privilege from disclosure exists in
Pennsylvania for information posted on non-public
portions of social websites.)

23. Causation: The Meaning of
“Because Of” in Iowa
• DeBoom v. Raining Rose, Inc., 772
N.W.2d 1 (Iowa 2009) (Although the Iowa
Civil Rights Act uses phrase “because
of”, just like the ADEA, the Iowa Supreme
Court holds that a “motivating factor”
instruction is appropriate)

24. Texas Non-Compete Upheld Where
Consideration is Stock Options
• Marsh U.S.A., Inc. v. Cook, 2011 Tex.
LEXIS 465 (Tex. June 24, 2011) (Court
held that stock options, as consideration
for a noncompete agreement, were
reasonably related to the company‟s
interest in protecting its goodwill, a
business interest the Act recognizes as
worthy of protection.)

25. Lost Wages Recoverable Even Though
No Finding of Constructive Discharge
• Donelson v. DuPont Chambers
Works, 2011 N.J. LEXIS 638 (June
9, 2011) (the Court awarded lost wages to
an employee who brought suit under New
Jersey‟s Conscientious Employee
Protection Act (CEPA) when he evidence
showed that he was mentally disabled by
the retaliation, but was not constructively
discharged. The Court found that
constructive discharge was only one
ground for recovery of lost wages under
CEPA.)

26. The Limits of Golden
Parachutes
• Martinez v. Regions Fin. Corp., 2009 Del.
Ch. LEXIS 162 (Del. Ch. August 6, 2009)
(where executive was discharged without
cause after refusing to enter into a new
employment agreement, the chancery
court found she was entitled to her “golden
parachute” severance payment, but not
entitled to salary and benefits for the
remainder of her employment agreement)

27. Due Process: Termination of
Police Chief
• Sullivan v. Mayor of Elsmere, 2011 Del.
LEXIS 307 (Del., June 17, 2011) (en banc)
(Appellee, a town‟s panel, held a public
hearing to determine whether it should
terminate appellant. Appellant showed by
unrebutted testimony that one member of the
seven-member panel was biased against
him. The Supreme Court of Delaware held
that the single biased panel member tainted
the entire tribunal‟s decision and deprived
Appellant of due process, irrespective of
whether that member‟s vote was necessary
to the judgment.)

28. Agreements to Maintain
Confidential Information
• News American Mktg. In-Store, LLC v. Emmel, 2011 U.S.
App. LEXIS 11810 (11th Cir. June 8, 2011) (The Court, based
on the verb tense used in the non-disclosure agreement
[NDA] which provided that Emmel “will not disparage…”, held
that the NDA did not cover any of Emmel‟s conduct which
predated his signing of the NDA.)
• On August 17, 2011, The Guardian printed a story describing
the personal and financial consequences that Mr. Emmel has
suffered in connection with his legal disputes with his former
employer. Ed Pilkington, A Life Unravelled, The
Guardian, Aug. 17, 2011, at 14-15, cite online at
http://www.guardian.co.uk/media/2011/aug/17/whistleblower-
murdoch-empire, accessed 8/8/2011.

29. Overly Broad Non-Compete
• Lampman v. DeWolff, Boberg &
Associates, Inc., 319 Fed. Appx. 293 (4th
Cir. 2009) (the Court found a South
Carolina covenant not to compete to be
unreasonable when it lacked geographic
restrictions, thus prohibiting plaintiff from
working for a “competitor” in Zimbabwe;
the non-compete‟s use of the terms
“indirect” and “similar” could lead to absurd
results.)

30. Has Your Representation Agreement
Anticipated Counterclaims?
• If not, and if the existing representation
agreement is silent on the subject, you
may be required to defend counterclaims
under the terms of the existing agreement.
– Woodbury v. Andrew Jergens, Co., 61 F.2d
736, 739-40 (2d Cir 1932).
– See “Anticipating Counterclaims in
Representation Agreements” by Robert B.
Fitzpatrick.

31. Sufficient Likelihood That Defendant
Will Disclose Trade Secret
• Bimbo Bakeries U.S.A., Inc. v. Botticella
613 F.3d 102, 116 (3d Cir. 2010) (the
Court of Appeals explained that “the
„proper inquiry‟…is not whether a
defendant inevitably will disclose a trade
secret in the absence of injunctive
relief, but instead whether there „is
sufficient likelihood, or substantial
threat, of defendant doing so in the
future.‟”)

32. Tortious Interference and
Improper Means
• Dunn, McCormack & MacPherson v.
Connolly, 708 S.E.2d 867 (Va. 2011);
Lewis-Gale Medical Center, LLC v.
Alldredge, 2011 Va. LEXIS 121 (Va. 2011)
(declining to expand the parameters of
“improper methods” to include “„actions
solely motivated by spite, ill-will, and
malice‟” toward the plaintiff.) (quoting
Connolly, 708 S.E.2d at 871)

33. Tortious Interference
• Faucette v. Chantos, 322 S.W.3d 901
(Tex. Ct. App. Sept. 23, 2010) (holding
that it is not unlawful for a person to
induce an entity to exercise its legal rights.
However, Texas law still allows recovery
for tortious interference with prospective
business relationships if plaintiff can show
that the defendant engaged in
independently tortious conduct).

34. Settlement Agreement: Breach
of Reference Request Clause
• Matthews v. Wis. Energy Corp., 2011 U.S.
App. LEXIS 10927 (7th Cir June 1, 2011)
(the court awarded over $563,000 in fees
to the defense in a breach action where
plaintiff argued that the reference request
clause of the underlying settlement
agreement had been breached.)

35. Repudiation of an Employment
Contract Not Found
• DiFolco v. MSNBC Cable L.L.C., 622 F.3d
104 (2d Cir. 2010) (the Court found that the
defendant had failed to establish that plaintiff
had repudiated her employment contract
finding that “although DiFolco wrote in her e-
mail…that she wished to „discuss [her] exit
from the shows‟ and to give MSNBC „ample
time to replace [her],‟ these statements can
be taken as indicative of her desire to get out
from under the direction of the people with
whom she had problems rather than leaving
MSNBC altogether.”)

36. Chutzpa Award for 2011!
• Cantor, Fitzgerald & Co. v. Am.
Airlines, Inc., 2011 U.S. Dist. LEXIS 5291
(S.D.N.Y. Jan 19, 2011) (employer whose
employees were killed in the Twin Tower
9/11 attack is not entitled to damages for
American Airlines‟ alleged negligence)