By Samantha L. Brooks

Seyfarth Synopsis: In a recent decision, the Eighth Circuit held that Title VII does not require an employer to provide an employee a reason for termination at the time of termination, and that an employer is not strictly bound in litigation to whatever reasons may have been provided at the time of termination. Rooney v. Rock Tenn Converting Company, et. al., No,. 16-3631 (8th Cir. Jan. 9, 2018).

In Rooney v. Rock Tenn Converting Company, et. al., the Eighth Circuit affirmed judgment against a former sales executive who alleged he was terminated for not being Jewish and not being female. Rock-Tenn, which makes packaging and merchandise displays for retailers, hired Rooney in March 2010 to sell its products in the Bentonville, Arkansas market. Rooney was terminated in 2015 after Rock-Tenn received multiple internal complaints, and multiple complaints from the main client whose account he serviced. Rooney was told that the reason for his termination was “difficulties with interacting with coworkers and failure to support” the client.

Rooney filed suit under Title VII, claiming that he was really terminated for not being Jewish, and that his former supervisor was “building a Jewish empire,” that included his most recent supervisor and the employee who allegedly replaced him. He also claimed he was terminated for not being a woman, that he was replaced on other accounts by women, and that his supervisor made statements that she “couldn’t wait until there’s more ladies in the office.”

Rock-Tenn moved for summary judgment and identified a number of reasons why Rooney was terminated. The district court granted Rock-Tenn’s motion for summary judgment, and found that although Rooney had established a prima facie case of discrimination based on religion and sex, Rock-Tenn had articulated legitimate, non-discriminatory reasons for firing him, and that Rooney was unable to show that the reasons for Rooney’s termination proffered by Rock-Tenn were pretext for discrimination.

The Eight Circuit noted that Rooney made two arguments on appeal: that the district court erred by allowing Rock-Tenn to provide new reasons for his termination in court; and that the new reasons were not credible.

Rooney argued that the district court impermissibly permitted Rock-Tenn to expand upon the reasons for his termination in the summary judgment motion. Rooney claimed that the additional legitimate, nondiscriminatory reasons proffered by Rock-Tenn increased his burden of defending against the motion for summary judgment. The Court noted, however, that Rooney’s interpretation of the familiar burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) was not as narrow as Rooney argued. Rather, the Court noted that the employer’s burden under McDonnell Douglas to articulate legitimate, non-discriminatory reasons for an adverse employment action, such as termination, “does not arise when the adverse employment action is taken—rather, it is triggered during litigation, when an employee meets his burden of establishing a prima facie case of discrimination. Title VII does not impose a legal obligation to provide an employee an articulated basis for dismissal at the time of firing, and an employer is certainly not bound as a matter of law to whatever reasons might have been provided.”

Importantly, the Eight Circuit noted that “it is well-established that [an] employer may elaborate on its explanation for an employment decision,” and that such an elaboration–without a “substantial shift” in the employer’s explanation for a termination decision–is not evidence of pretext. The key factor, according to the Court, was that there was no contradiction between the reasons provided to Rooney at the time of termination and the non-discriminatory reasons articulated by Rock-Tenn during litigation. The “additional examples of Rooney’s poor performance” were not evidence of a substantial shift in Rock-Tenn’s reasons for termination, and instead provided “additional justification . . . consistent with [Rock-Tenn’s] proffered belief” that Rooney interacted poorly with his co-workers and failed to adequately support the client’s account. This, the Eight Circuit held, is not evidence of pretext.

Finally, the Court noted that Rooney failed to offer evidence that Rock-Tenn’s reasons for terminating him were pretext. Rock-Tenn provided multiple examples of Rooney’s mistakes and failures, and the Court held that “nothing in Rooney’s argument rebuts, or even mitigates, Rock–Tenn’s evidence of repeated errors and omissions on the [client’s] account, and there is nothing in Rooney’s argument to suggest that Rooney was not responsible for the mismanagement.”

Employer Takeaways

Employers are not required to provide employees with an articulated basis for termination at the time of their termination, nor is the employer bound by the reasons that may have been provided. Nevertheless, to prepare for possible litigation, employers should decide why the employee is being terminated, keep it short, and stick to it. Managers and Human Resources personnel must remain consistent in how they describe and document termination decisions. Although employers will be able to elaborate upon the reasons for an adverse employment action in litigation, inconsistent explanations will strengthen an employee’s claim of discrimination or retaliation.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

 

By Kyla J. Miller

Seyfarth Synopsis: The Sixth Circuit ordered a new trial in a Title VII case where plaintiff presented evidence he was entitled to back pay, the employer presented no evidence to the contrary, and the jury only awarded a small percentage of plaintiff’s ask. In ordering the new trial, the Sixth Circuit noted that the jury cannot “infer” the plaintiff was entitled to less because it is the employer’s burden to show plaintiff did not seek out new employment after termination. Pittington v Great Smoky Mountain, No. 17-5590 (6th Cir. Jan. 24, 2018).

Plaintiff was employed as a theater clerk at Lumberjack, a company that put on Lumberjack dinner shows, for five months before he was terminated for supporting his wife’s sexual harassment lawsuit against the same company. Before he was terminated, plaintiff alleged he was demoted, received reduced hours, and was forced to work in a shack with no heat and no chair, which he required for his medical condition. Plaintiff sued, alleging Lumberjack’s actions were a result of his disability and in retaliation for his support of his wife’s lawsuit against them.

At trial, plaintiff showed evidence of his earnings and subsequent employment history, and requested $40,632.50 in back pay. Generally, back pay in Title VII is determined by subtracting the amount the plaintiff actually earned while being discriminated against from the amount the plaintiff would have earned had no discrimination occurred. The jury found Lumberjack violated Title VII and the Tennessee Human Rights Act, but dismissed the plaintiff’s ADA claim on a directed a verdict for Lumberjack.

The jury only awarded back pay, to the tune of $10,000. The court refused plaintiff’s request for front pay, an increased back pay award, or a new trial on damages, finding that the jury award was reasonable because plaintiff failed to adequately explain periods of his unemployment. Plaintiff appealed. A divided Sixth Circuit panel reversed, finding that plaintiffs who prove they were fired in violation of Title VII are presumptively entitled to back pay for the total they would have received if they had not been terminated. In other words, it’s on the employer, not the employee to show a worker did not mitigate his losses once he was terminated. The court awarded a new trial on damages.

The Sixth Circuit noted that Lumberjack offered no evidence to show that substantially equivalent positions were available and that plaintiff failed to use reasonable care and diligence in seeking out such positions. The plaintiff was not legally obligated to convince the jury that he sought out and secured comparable employment after termination–instead, it was Lumberjack’s job to show that he didn’t. The court denied Lumberjack’s argument that the jury could “infer” that plaintiff did not mitigate his damages. The court found that where, as here, plaintiff offered evidence of his post-termination and pre-termination wages, the jury can take that information into account, but that no reasonable jury could have taken plaintiff’s evidenced of $40,000 back pay and slash it to $10,000.

This is a good reminder for all employers in litigation (and their counsel) that, although plaintiffs must mitigate their losses after they’re terminated, it’s ultimately on the employer disprove any evidence a plaintiff does present and establish that the plaintiff was not diligent in looking for new employment. If employers are not prepared to present evidence that a plaintiff failed to mitigate his damages, they risk the court finding any jury award less than plaintiff’s requested back pay to be unreasonable (and unsupported by evidence!).

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Labor & Employment Group.

By Ariel D. Fenster

Seyfarth Synopsis: A case out of the District of Oregon recently dismissed a Plaintiff’s sexual harassment and retaliation claims where the allegations relied on manufactured text messages that Plaintiff failed to produce.

After a break-up, you can’t just fabricate text messages and then sue your former employer. In Lee v. Trees, Inc., the District of Oregon recently dismissed a former employee’s lawsuit, wherein she alleged sexual harassment, retaliation, and wrongful termination. The court dismissed the case when the former employee failed to produce the text messages on which her claims were predicated upon. In Lee, the employee had a consensual romantic relationship with her supervisor. According to the plaintiff, when she sought to end the relationship, she received numerous threats against her job unless she continued the sexual relationship.

After filing administrative complaints with the EEOC and the Bureau of Labor and Industries (BOLI), Lee told the investigators that she had text messages where she asked her supervisor to stop the relationship. Lee said these text messages could prove that after ending the relationship she was fired. Based on paper copies of these alleged text messages, the BOLI issued Notices of Substantial Evidence Determinations and right to sue letters.

During initial disclosures, the employer requested that she provide the text messages “in electronic form in their native format.” The employer also requested that Lee provide her five cell phones (Yes, Five!) that she had during her employment. Lee again only produced paper copies of the texts and only one of her cell phones.

Knowing something was fishy, the employer hired a forensic examiner to review Lee’s cellphone. The forensic examiner determined most of these texts were fabricated and in the drafts box of her cell phone. They were not actually sent! Further, many of the printed texts that Lee submitted were only fragments of longer conversations.

Based on the evidence of falsification, Defendants moved for dismissal and sanctions. The Court determined that this was a spoliation issue. “The majority of courts have held that pre-litigation destruction can constitute spoliation when litigation was ‘reasonably foreseeable’ but not where it was ‘merely’ possible.”

Before imposing the sanction of dismissal, the district court must weight several factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F. 3d 337, 348 (9th Cir. 1995).

In looking at the five factors and deciding to dismiss the case, the Court determined that Lee deliberately deceived the Court and wasted the time and resources of the Court, of the Defendants, and of her own attorneys. Further, Lee obstructed discovery by her continuing failure to produce the text messages in electronic format (which now it seems she could not do in the first place!).

The Court dismissed Lee’s case with prejudice and held any lesser sanction would suggest to future litigants that they may manufacture evidence with impunity and suffer no meaningful consequence if caught.

The lesson for all potential litigants is you will be caught. There is another important lesson for employers as well — and that is to keep evidence. Simply put (and perhaps too simplistically put), sometimes it is not enough to have the paper copy of a document, particularly when the communications were all done electronically. Keeping electronic copies of items (and preserving ESI if there is a reasonably foreseeable threat of litigation) is always safe- you never know what may happen, or who might want to go poking through electronic files .

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Labor & Employment Team.

By Jeryl L. OlsonPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  In another business-friendly move, the U.S. Department of Justice (USDOJ) recently directed its Attorneys to not use its civil enforcement authority for violations based on agency guidance documents.

On January 25, 2018, Associate Attorney General Rachel Brand released an Department memo “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (“Brand Memo”), directed to the Heads of Civil Litigating Components within the USDOJ directing that the Department no longer prosecute cases based solely on violations of various agencies’ “guidance documents”.

The USDOJ, (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated regulatory requirements, not agency guidance documents or policies. The practice of agencies, such as EPA, pursuing enforcement actions against companies who have failed to comply with “guidance” has long been a concern of the regulated community and their defense counsel; we frequently challenge and object to EPA’s efforts to enforce “guidance” that has not gone through public notice ad comment rulemaking. It is a relief that the USDOJ will no longer be a party to such enforcement cases.

The Brand Memo is a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (“Guidance Policy” or “Sessions Memo”), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

The Brand Memo states that “…consistent with our duty to uphold the rule of law with fair notice and due process, this policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement.” “Although guidance documents can be helpful in educating the public about already existing law, they do not have the binding force or effect of law and should not be used as a substitute for rulemaking.”

Under the USDOJ’s new policy, USDOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.”The Brand Memo also indicates that “the Guidance Policy . . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” Finally, the Brand Memo confirms that the USDOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applies only to future affirmative civil enforcement actions brought by the Department, as well as, “wherever practicable,” those matters pending as of January 25, 2018, we see the Guidance Policy and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Labor & Employment Group, OSHA Compliance, Enforcement & Litigation Team, or the Environmental Compliance, Enforcement & Permitting Team.

By Paul S. Drizner and Michael D. Fleischer

Seyfarth Synopsis: The new Tax Act prohibits employers from deducting payments to individuals alleging sexual harassment or sexual abuse if the settlement or payment requires the Claimant to execute a nondisclosure agreement.

The #MeToo movement continues to have a significant impact on all employers, forcing human resource professionals to review their protocols for preventing, reporting and investigating sexual harassment claims. Now, Congress has passed the Tax Cuts and Jobs Act (the “Tax Act”), which may make sexual harassment settlements more expensive for employers who seek to keep these settlements private.

Under current tax law, an employer may deduct the ordinary and necessary expenses it incurs in carrying on its trade or business. This deduction generally includes legal settlements or payments to a plaintiff (including plaintiff’s attorney fees) and any legal fees the employer has incurred for its defense.

There has been an outcry by high profile victims’ advocates who have characterized confidentiality payments in settlements as “hush money” arguing that they mask inappropriate corporate conduct. In response, Congress included a provision in the Tax Act which is aimed directly at deterring employers from using nondisclosure agreements in sexual harassment settlements. Pursuant to new Internal Revenue Code Section 162(q), the government will no longer permit employers to deduct  “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement” or “attorney’s fees related to such a settlement or payment.”

Implications and Challenges

New Section 162(q) has important implications for employers but there remain a number of questions regarding its application.   We expect the IRS to issue guidance in the future which will clarify some of the current ambiguities, but employers must devise a plan now for new legal settlements since Section 162(q) applies to payments made after December 22, 2017.

First, the price for confidentially just increased. When an employer settling a sexual harassment claim includes a nondisclosure provision in the agreement, it will be unable to deduct any payments related to the matter, including the settlement payment and attorney’s fees. This may backfire on the Plaintiff’s Bar, because there are certainly instances where the plaintiff desires confidentiality for a variety of reasons, including that publication of the agreement may make it more difficult for the plaintiff to find another job. In cases where the plaintiff desires confidentiality more than the employer, the employer may use this leverage to lower its settlement offer, essentially charging the plaintiff for the additional cost of confidentiality.

Second, the broad language of the statute makes it uncertain whether the IRS will consider payments made pursuant to a confidential agreement that does not settle sexual harassment claims but which contains a broad waiver of claims, including for sexual harassment, as “related to sexual harassment” and, thus, preclude the deduction. Unfortunately, we do not know the answer yet. Until this issue is clarified, employers may want to consider adding a provision to their settlement agreements by which the parties acknowledge that even though the claimant is waiving a broad range of potential claims, there was no claim of sexual harassment or sexual abuse and none of the settlement payments are related to such claims.

It is also unclear exactly which deductions the IRS is precluding in connection with the confidential settlement of a sexual harassment claim. The statute is clearly intended to apply to the settlement payment itself, as well as attorney’s fees. But what about other payments? If an employer hires an investigator or expert to assist with its case, are those costs deductible? What if the employer provides outplacement services for the plaintiff or pays the plaintiff’s COBRA premiums, are those costs deductible? Finally, if an employer has Employer Professional Liability Insurance and the insurance carrier makes the settlement and/or attorney’s fees payment, will the insurance company be denied a deduction for those payments? These are questions that will hopefully be answered with future official guidance. Plaintiffs often bring sexual harassment claims along with other discrimination claims like age and race. We will need the IRS to clarify whether a portion of the settlement may be allocated to sex harassment, so that the employer may deduct remaining payments.

Third, the statute explicitly provides that attorney’s fees related to the confidential settlement of a sexual harassment or sexual abuse matter are not deductible. This provision creates separate implications for both plaintiffs and employers.

We read the new statute to prohibit any deduction for an employer’s own attorney’s fees incurred for defense, or the payments made to the plaintiff’s attorneys. The provision would also seem to prohibit a plaintiff from deducting any attorney’s fees the plaintiff pays to his or her attorneys.   A plaintiff has income if the employer pays his or her attorney’s fees. In the past, a plaintiff was generally allowed to deduct the amount of the plaintiff’s attorney’s fees that the employer paid, resulting in no net income to the plaintiff for the attorney’s fees. The broad language of new Section 162(q) appears to change that general rule and prohibit a plaintiff from deducting the attorney’s fees the employer paid.   As such, the plaintiff may now owe tax on income that the plaintiff never received and this will significantly reduce his or her net recovery.

Although it is unlikely that Congress intended to place a tax burden on plaintiffs who raise sexual harassment claims, there is no clear guidance on these issues. As a result, until the IRS issues further clarification, plaintiffs may look to employers to cover their additional tax liability, which will add to the cost of settlement and make negotiations more difficult.

The result of all of this is that employers will have to carefully evaluate the cost/benefit of confidentiality. It will remain important to continue to monitor developments concerning the new tax law and incorporate the issues discussed above into the legal and financial analysis when settling cases involving sexual harassment or sexual abuse.

Seyfarth Shaw will provide further alerts as new developments occur.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s RetailTax, or Labor & Employment Teams.

By Tonya M. Esposito, Esther Slater McDonald, and Dallin Wilson

Seyfarth Synopsis: On January 23, 2018, the Consumer Financial Protection Bureau’s (CFPB) Acting Director, Mick Mulvaney, issued a mission statement to the CFPB redirecting the agency’s mission and focus. Mulvaney emphasized that the law mandates the enforcement of consumer protection laws and that, although things would be different under new leadership, the CFPB will continue to fulfill its mandate.

Mulvaney made clear that he did not see the CFPB as the “good guys” out to fight the “bad guys,” but instead he noted that the agency would treat both consumers and financial services companies fairly and equally. To that end, the CFPB will focus its enforcement efforts on quantifiable and unavoidable harm to the consumer. Where no such harm exists, the agency will not go looking for excuses to bring lawsuits.

With regards to regulation, Mulvaney promised formal rulemaking on which financial institutions and other regulated businesses can rely and less regulation by enforcement. The CFPB will prioritize its efforts on debt collection because of the high number of consumer complaints on that issue. In contrast, Mulvaney noted that only 0.9% of complaints received by the CFPB related to prepaid credit cards and only 2% to payday lending. As such, less focus will be given to those areas.

Mulvaney also promised “a lot more math in our future,” a reference to the Dodd Frank Act’s requirement to consider the potential costs and benefits to consumers and covered persons. Mulvaney indicated that a true consideration of costs and benefits likely requires more quantitative analyses into the impact the agency’s actions have on the public.

Mulvaney’s mission statement suggests that unlike under his predecessor, the CFPB will no longer “push the envelope.” Instead, the CFPB will enforce the law in furtherance of its congressional mandate by regulating more through rulemaking and less through ad hoc enforcement actions. Enforcement through rulemaking should result in a more balanced and fair approach that considers the interests of consumers and businesses alike, while providing certainty and stability with regards to the country’s consumer protection laws. Moreover, focusing enforcement on quantifiable harm to consumers is good for business because businesses can focus more on providing services that comply with existing law without concern for what might be coming down the pike from the agency.

Time will tell what impact Mulvaney’s leadership will have on the future of the CFPB, consumers, and financial services providers.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Consumer Financial Services Litigation Team or the Labor & Employment Team.

By Marjorie Clara Soto, Kay J. Hazelwood, and Mary Kay Klimesh

Seyfarth Synopsis: The U.S. Court of Appeals for the Tenth Circuit’s recent opinion in Yeasin v. Durham, No. 16-3367, 2018 WL 300553 (10th Cir. Jan. 5, 2018), addresses the “tension between some students’ free-speech rights and other students’ Title IX rights to receive an education absent sex discrimination in the form of sexual harassment.” The Court of Appeals did not specify a test to be applied when a student’s alleged First Amendment right to free speech intersects another student’s alleged right to be free from harassment in a university community, but did affirm the district court’s decision that a KU administrator did not violate clearly established law when she expelled Yeasin for misconduct related to an off-campus incident and tweets.

The court specifically refrained from deciding “whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university.” The Court’s analysis in this case is of particular interest to public colleges, universities and schools who grapple with managing and balancing student First Amendment rights and the responsibility to maintain an educational environment free from harassment.

Background and Procedural History

In November, 2013, Dr. Tammara Durham, Vice Provost for Student Affairs, made a decision to expel Navid Yeasin from the University of Kansas (“KU”) after her review of a hearing panel’s findings of fact based on a preponderance of the evidence that Yeasin had violated KU’s sexual harassment policy by engaging in conduct which included posting off-campus social media tweets making derogatory statements about his ex-girlfriend’s body, but not naming her.

Yeasin proceeded to contest the expulsion in Kansas state court which concluded that the findings, adopted by Dr. Durham, “were not supported by substantial evidence” and that “KU and [Dr.] Durham erroneously interpreted the Student Code of Conduct by applying it to off-campus conduct.” KU appealed, arguing that its interpretation of KU’s Code of Conduct was “consistent with the obligations imposed on it under Title IX” and allowed for the University to expel Yeasin since its student code allowed for students to be punished for off-campus conduct that violates federal, state, or local law. In September 2015, that court affirmed the lower state court’s findings and Yeasin subsequently re-enrolled at KU.

Thereafter, Yeasin brought suit in federal court against Dr. Durham under 42 U.S.C. Section 1983 alleging her action to expel him from KU for the content of his on-line, off campus speech violated his First Amendment right to free speech and his Fourteenth Amendment right to substantive due process. He sought monetary damages claiming that KU’s wrongful expulsion delayed completion of his education, cost him lost employment and wages, and caused him emotional distress and mental anguish. Dr. Durham moved to dismiss both of Yeasin’s claims on qualified-immunity grounds. The federal district court granted Dr. Durham’s motion to dismiss, concluding that she did not violate Yeasin’s clearly established rights under the First and Fourteenth Amendments. On January 5, 2018, the Tenth Circuit Court of Appeals affirmed.

The Tenth Circuit Court of Appeals Analysis and Findings

Qualified immunity protects government officials from liability for civil damages if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In order to overcome this defense, a plaintiff must show (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established. The Court of Appeals here found that Yeasin’s claim failed the second prong of this analysis.

In reaching its conclusion, the Court analyzed free speech cases in secondary school and college/university settings including consideration of Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) (finding that, while secondary-school students retained free-speech rights, schools can still prohibit actions that “would materially and substantially disrupt the work and discipline of the school…”); Morse v. Frederick, 551 U.S. 393 (2007) (allowing a K-12 school to discipline a student for flying a banner reading “BONG HiTs 4 JESUS” at an off-campus, school-approved activity because the banner could reasonably be viewed as promoting drug use); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (K-12 schools can restrict lewd, vulgar, or indecent speech even without a forecast of disruption); and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (allowing public officials to restrict K-12 school-sponsored speech).

Yeasin argued that First Amendment cases which allow for the restriction of student speech in the secondary school context cannot be applied in the university context in the same way. Rather, Yeasin argued that cases including Papish v. Bd. of Curators of the Univ. of Missouri, 410 U.S. 667 (1973) (addressing distribution of newspaper in the university setting “containing forms of indecent speech”); Widmar v. Vincent, 454 U.S. 263 (1981) (addressing a university’s refusal to allow a registered religious student group to meet in university buildings); and Healy v. James, 408 U.S. 169 (1972) (addressing a state college’s refusal to officially recognize a student group known because of its potential affiliation with a national organization known for campus disruption) should be applied. The Tenth Circuit Court of Appeals distinguished the cases advanced by Yeasin noting that the cases didn’t concern “university-student conduct that interferes with the rights of other students or risks disrupting campus order.” The Court also countered with language from Widmar, quoting Healy, which “suggests that the Supreme Court believes that the material-and-substantial-disruption test applies in the university setting.” Ultimately, the Tenth Circuit Court of Appeals concluded that Yeasin could not establish that Dr. Durham had violated clearly established law when she took action to expel him, in part, for his off-campus social media tweets.

The Court considered Yeasin’s substantive due process argument, and found that it was flawed. The Court reasoned that Yeasin needed to show that the school’s decision to expel him was arbitrary, lacked a rational basis, or shocked the conscience. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003). The court declined to resolve the question of whether Dr. Durham’s decision to expel Yeasin violated his right to substantive due process, and limited its opinion to a finding that she violated no clearly established law in doing so.

The need for college and university administrators and school officials to navigate their legal obligations when addressing decisions to discipline a student for off-campus speech on social media will no doubt remain a prevailing issue, especially when such conduct implicates the rights of another student to be educated in a harassment-free learning environment. Not surprisingly, KU modified its student code of conduct after this incident to explicitly extend its disciplinary jurisdiction to off-campus incidents.

Seyfarth Shaw continues to monitor the developments in the battle between the First Amendment right to freedom of speech and rights under Title IX to an educational environment free of sexual harassment. We will keep our readers apprised.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Uma Chandrasekaran, Kyle Petersen, and Megan P. Toth

Seyfarth Synopsis: In this February 1, 2018, hot-topic webinar, we will provide a roadmap for conducting legally compliant and effective sexual harassment investigations. There is no cost to attend this program, but registration is required.   

Over the past few months, news headlines have been dominated by sexual harassment allegations involving high profile celebrities. Sexual harassment in the workplace, however, is not limited to Hollywood and cuts across all industries. How an organization responds to allegations of workplace harassment can have significant impact, legally and culturally.

The time is right to revisit your company’s plan for responding to internal complaints. A critical component of that plan is being prepared to conduct effective and defensible investigations. This webinar will provide best practices for responding to and investigating workplace harassment complaints.

Be sure to register if you wish to attend this webinar. It will take place at 12:00 pm CT/1:00 pm ET. If you have any questions, please contact events@seyfarth.com.

By Jaclyn W. Hamlin

Seyfarth Synopsis: Do ambulance drivers working twenty-four hour shifts have to be available all twenty-four hours, even when they’re eating or resting? The Ninth Circuit wants the California Supreme Court’s opinion.

A former ambulance driver in California filed a claim alleging violations of federal and state wage and hour laws. Dylan Stewart worked for San Luis Ambulance, Inc. (SLA) under a written agreement requiring him to work twenty-four hour shifts, during which time he was required to be on duty and ready to respond to emergency calls that could come in at any time, but not to actively perform work for all twenty-four hours. Stewart acknowledged that he was paid for all twenty-four hours of his shifts, “irrespective of whether he was responding to emergencies; engaging in other employment related duties; or eating, sleeping, or enjoying leisure at the ambulance station.” His employment records and activity logs reflected that he was able to take meal and rest breaks on every shift. However, Stewart claimed that he was entitled to “compensation for an additional two hours of work for each day that he worked without proper meal or rest periods,” as well as to penalties for his former employer’s alleged failure to timely or accurately pay him premium wages.

The District Court ruled against Stewart, granting summary judgment to the ambulance service. Stewart appealed, and the Ninth Circuit concluded that it was unable to rule on his case without clarification of the proper interpretation of a state wage order, in light of earlier California State Court precedent. In its order, in Stewart v. San Luis Ambulance, Inc., No. 15-56943 (9th Cir. 2017), the Ninth Circuit referred the case to the California Supreme Court for guidance on three questions under the California Labor Code:

1) Must an ambulance service relieve attendants of the obligation to be available to respond to emergency calls that come in while the attendant is on a rest period during a four hour shift?

2) May an ambulance service require attendants working 24-hour shifts to be available to respond to emergency calls that come in while the attendant is on a meal break, without a written agreement containing an on-duty meal period revocation clause?

3) Does an employee have a claim for violation of the obligation to pay a “premium wage” for meal periods, when the employer does not include the premium wage in the employee’s pay or pay statements?

The Ninth Circuit asked the California Supreme Court to weigh in on the questions in light of conflicting authority between State wage orders and State court precedent. The Ninth Circuit instructed the parties to notify it within fourteen days of the California Supreme Court’s acceptance or rejection of certification, and again within fourteen days if the Court issues an opinion, but no other timeline was given in which court-watchers might expect the California Supreme Court to act.

In other words…. Stay tuned. We will continue to watch this case with interest.

For further discussion of California-specific employment cases and issues, check out Seyfarth’s California Peculiarities Employment Law Blog.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Wage & Hour LitigationTeam or the Labor & Employment Team.

By Uma Chandrasekaran and Kyle Petersen

Seyfarth  Synopsis: In this February 1, 2018, hot-topic webinar, we will provide a roadmap for conducting legally compliant and effective sexual harassment investigations. There is no cost to attend this program, but registration is required.   

Over the past few months, news headlines have been dominated by sexual harassment allegations involving high profile celebrities. Sexual harassment in the workplace, however, is not limited to Hollywood and cuts across all industries. How an organization responds to allegations of workplace harassment can have significant impact, legally and culturally.

The time is right to revisit your company’s plan for responding to internal complaints. A critical component of that plan is being prepared to conduct effective and defensible investigations. This webinar will provide best practices for responding to and investigating workplace harassment complaints.

Be sure to register if you wish to attend this webinar.   It will take place at 12:00 pm CT/1:00 pm ET.  If you have any questions, please contact events@seyfarth.com.