Defamation and Privilege in the Workplace

Last month, the Ohio Court of Appeals affirmed the dismissal of most of the claims of defamation and tortious interference brought by a discharged supervisor against the employees’ and union officials whose allegations had led to his termination. Gintert v. WCI Steel, Inc., 2007-Ohio-6737 (12/14/07). In that case, the supervisor had been accused over the course of a couple of years of, among other things, sexually harassing two male co-workers, making racial slurs and leaving work early without permission to begin his vacation. He then brought suit against the employees who made the allegations and the union stewards who brought the allegations to the attention of management, which terminated. (The lawsuit against the employer was stayed when the employer filed for bankruptcy).

The Court dismissed all but one of the claims because the challenged statements were reasonably connected with the union grievance procedure and, therefore, were protected by a qualified privilege. “Under the doctrine of qualified privilege, statements made in good faith on a matter of common interest between an employer and an employee, or between two employees, concerning a third employee are protected in an action for defamation. . . . If the requirements for the qualified privilege are established, then the burden falls on the plaintiff to show by clear and convincing evidence that the statements were made with actual malice, i.e., that the statements were made with knowledge or reckless disregard for their truth or falsity.” In addition, Ohio recognizes “that "union officers and employees are immune from personal liability for acts undertaken as union representatives, on behalf of the union."

However, the court found that one of the sexual harassment accusations could have been made with actual malice because the plaintiff supervisor denied categorically to having made any of the alleged sexually harassing statements and this raised a question of fact as to whether the defendant made the accusation with knowledge or reckless disregard for the truth. Nonetheless, the court dismissed the tortious interference claims because of the same privilege and held that the accusations were not outrageous enough to sustain an emotional distress claim.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/11/2007/2007-ohio-6737.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Ohio Court of Appeals: Whistleblower Statute Requires More Notice of Product Flaws Than in Regular Quality Control Report.

Near the end of last year, the Ohio Court of Appeals affirmed the dismissal of statutory and common-law whistleblower/wrongful discharge claims on the ground that the plaintiff quality control manager failed to sufficiently specify the danger in writing of a defect in the production of components used in childcare products. Behm v. Progress Plastic Prods., Inc., 2007-Ohio-6357. The plaintiff claimed that he had been laid off for bringing serious concerns to management about the safety of its product. The parties agreed that the employer had manufactured parts which did not comply with its customers specifications, that the parts were supposed to support the weight of infants, that plaintiff tested the parts and found them to be too brittle for their intended purpose and that he advised his employer to recall the already shipped product:

"Attached are Melt Flow Analysis [sic] we've collected on the pad ring samples we have in Bellevue. As the higher the melt flow the more brittle the product I have serious concerns about product that has probably shipped to Evenflo. * * * The attached data does not bode well for this material having been used. We know Evenflo has product in house from 3/2 date codes, I've requested specific samples from that date be sent to Bellevue from Tiffin along with the dates of all product in stock at Tiffin. As you can see from the attached data some dates are missing and I fear they have shipped to Evenflo. We need to decide what to do as speed is of the essence in getting bad product possibly shipped to the customer from reaching consumers."

“Protection as a whistleblower requires an employee's strict compliance with the dictates of R.C. 4113.52. The statute's threshold requirements demand that both: (1) an employee reasonably believed that a statute, work rule, or company policy was violated; and (2) an employee reasonably believed the violation was (a) a misdemeanor which created imminent danger of physical harm, (b) a hazard to public health or safety, or (c) a felony. . . . R.C. 4113.52 also requires two types of notification from a person claiming protections under the statute: oral and written. Focusing on the latter, the statute demands that a person submit a written report with "sufficient detail to identify and describe the violation" to the same supervisor or officer that he orally notified. R.C. § 4113.52(A)(1)(a), (A)(3).”

The court rejected the employer’s argument that the plaintiff did not sufficiently specify the source of law which it purportedly violated. The plaintiff had testified that he knew there were criminal laws governing the production of child car seats, that he assumed similar laws existed for other child care products, and he was concerned that someone would get hurt from the defective products. As the court correctly noted, “sensible minds could differ as to whether appellant reasonably believed the violation constituted a hazard to public health or safety. Both appellant's deposition and his affidavit indicate that he in fact believed that a safety hazard existed.”

Nonetheless, the court found the plaintiff’s written notice to be insufficient under the statute. “Noticeably absent from . . . appellant's the message[] to [his boss] was any mention of a violation or even a safety concern. In fact, in appellant's deposition he stated that he did not recall ever expressing in written form a safety concern to anyone [in management]. The abovementioned messages lacked what the statute demands: sufficient detail to identify and describe a specific safety violation. . . . Nothing in appellant's messages distinguishes them from a regular quality control concern characteristic of his quality management position . . . . Thus, . . . appellant failed to comply with the statute. . . . Appellant's failure to strictly adhere to the dictates of R.C. 4113.52 by not filing a report in the manner required, prohibits him from claiming the protections of the statute.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/6/2007/2007-ohio-6357.pdf.

By way of comparison and contrast, in May 2007, the Cuyahoga Court of Appeals had reversed summary judgment in favor of an employer in a lawsuit brought by a whistleblowing former quality control employee who allegedly had been similarly fired in violation of public policy for refusing to certify airplane parts as meeting the customer’s quality specifications. Zajc v. Hycomb, 172, Ohio App. 3d. 117, 2007-Ohio-2637. The Court of Appeals believed that the plaintiff had identified sufficiently clear statutory and regulatory sources of authority for this public policy claim: the Uniform Commercial Code (giving the buyer the right to reject non-conforming goods), the Products Liability Statutes (creating strict liability where the risks exceed the benefits of a design) and Federal Aviation Administration regulations which require that a production inspection system must be in place to determine, inter alia, that subcontracted parts must be as specified in the design data, that parts are be inspected, and that inspection records are maintained. The court rejected arguments that the products liability laws sufficiently protect consumers by permitting injured consumers to sue the manufacturer without permitting the manufacturer’s employees sue for wrongful discharge. http://www.sconet.state.oh.us/rod/newpdf/8/2007/2007-ohio-2637.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Ohio Appeals Court Affirms OCRC Finding that One Week of Sexual Comments is Enough To Constitute Harassment

• Last year, the Fayette County Court of Appeals affirmed a decision by the Ohio Civil Rights Commission that a Washington Court House dentist had sexually harassed a chair-side dental assistant for about a week and then constructively discharged her about a month later when he retaliated against her for complaining. Jordan v. Ohio Civ. Rights Comm., 173 Ohio App.3d 87, 2007-Ohio-3830. The court found sufficient evidence in the record to support the OCRC conclusions that one week of comments could create a severe and/or pervasively hostile work environment based on the following testimony:
  
  · The assistant began keeping a diary of the dentist’s comments after he stated to her on her first day that he assured her that her mistakes were minor and then “stated, ‘eventually you'll know what I'm thinking * * * but then you'll probably want to slap me.’”
  · On her second day of work, he followed her around and then “grabbed her from behind and pulled her against him.”
  · He told her that his “wife was going on vacation and suggested that [she] should meet him at a restaurant called The Dock in Chillicothe.
  · He “frequently invited her over to his home to show her his horses and described to her in detail the horses' breeding habits.”
  · He “repeatedly suggested that she ‘needed a sugar daddy’ and that he had several friends that would ‘drop money’ on her if she had sex with them.
  · He “talked to her about taking Viagra and that the ‘prostitutes in Vegas hated when men took Viagra because it wore them out.’”
  · He said that" he couldn't tell anything about [her] body type because he hadn't seen me undressed."
  · He offered “to show her nude photos from the internet and told patients that she used to work in a strip club.”
  · After a patient commented that she was left-handed, he “responded to the patient that "left-handed women make better lovers."
  
  Following this last incident, the assistant testified that she finally confronted appellant for embarrassing her in front of the patient and informed him that she did not appreciate his sexually-oriented comments and asked him to stop making those types of comments. According to the testimony, the dentist stopped being friendly to her, ignored her and criticized her frequently. About six weeks after she was hired, she quit without notice when the dentist objected to her making long-distance telephone calls to her boyfriend from the office telephone.
  
  The OCRC awarded her both front and back pay, but the Court remanded the case to the OCRC to explain the basis for its financial calculations. The Court determined that the dentist’s sexually harassing conduct was sufficiently severe and pervasive even though it only lasted about a week because it affected her work performance and involved one incident of inappropriate touching (i.e., the hug). It also concluded that there was no abuse of discretion in finding that the dentist had constructively discharged the assistance because "[t]he evidence in the record supports the finding that Respondent singled Complainant out for treatment that became unbearable and intolerable and unreasonably altered the terms and conditions of her employment which forced Complainant to resign."
  
  Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/12/2007/2007-ohio-3830.pdf.
  
  NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

NLRB Dismisses Discriminatory Discharge Charges Because Discharged Employees Signed Releases of Claims in Severance Agreements.

Last Fall, the NLRB issued a surprising decision dismissing the Unfair Labor Practice Charges filed on behalf of 37 employees who purportedly had been laid off on account of their union activities because they had signed releases of claims in their severance agreements before any ULP Charge had been filed or even contemplated. BP Amoco Chemical–Chocolate Bayou, 351 NLRB No. 39 (Sept. 29, 2007). In doing so, the Board applied the same four-factor standard it applies to releases negotiated by the Board’s General Counsel following the filing of ULP Charges:

(1) “Whether the parties to the Board case have agreed to be bound, and the position taken by the General Counsel regarding settlement.” “Tere is no dispute that the alleged discriminatees voluntarily agreed to be bound [to the severance agreements]. Not only did each of them sign the agreement, but, as the parties stipulated, they were aware of the content, advised of the meaning [by their individual attorneys and/or the union], and knew that they were waiving and releasing claims against the Respondent.

(2) “Whether the settlement is reasonable in light of the violations alleged, the risks inherent in litigation, and the stage of litigation.” “At the time the agreements were signed, no charges had been filed, and the prospect of litigation was not obvious. Moreover, there was significant risk that a charge alleging discriminatory selection would not be meritorious. Little or no union activity was occurring at the time of the downsizing, and the record does not show that all of the alleged discriminatees had engaged in protected activity or that the Respondent was aware of it. . . . Indeed, the General Counsel acknowledged weaknesses in the case, conceding that “[w]e do not have a smoking gun” and that many of the alleged discriminatees had work histories which were “less than pristine.”

(3) “Whether there has been any fraud, coercion, or duress by any party in reaching the settlement.” “Respondent encouraged the alleged discriminatees to consult attorneys, provided them sufficient time [of 45 days] to carefully review and assess the agreements, and provided them with the opportunity to revoke the agreements within a reasonable period after execution.”

And (4) “Whether the respondent has a history of violating the Act or has previously breached settlement agreements.”

Insomniacs may read the full decision at: http://www.nlrb.gov/research/decisions/board_decisions/template_html.aspx?file=http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35139.htm&size=294.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

NLRB: Employers Can Support Charities and Ban Use of Employer’s Email System Without Violating the NLRA

[Editor's Note: The Court of Appeals for the District of Columbia reversed the Board's holding that the employer did not violate the NLRA by disciplining the union president on the grounds that the employer permitted other personal email solicitations.Guard Publishing Co. d/b/a The Register-Guard v. NLRB, No. 07-1528, U.S. Court of Appeals for the District of Columbia Circuit (July 7, 2009). ]

Just in time to stuff the Xmas stockings of good charities (like the Salvation Army, Red Cross and United Way) and employers, a divided NLRB in a 3-2 decision recently announced a new rule regarding the use of employer email systems to support union activities in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (12/16/07). The NLRB’s majority concluded that that a newspaper publisher employer did not violate Section 8(a)(1) of the National Labor Relations Act by maintaining a broad policy which prohibited employees from using its e-mail system for any “non-job-related solicitations.” Further, the Board’s majority rejected allegations of discriminatory enforcement of the policy when the employer permitted incidental personal use of the email system (and to periodically solicit funds for the United Way) as long as the employees were not permitted to use the email system to elicit support for groups and organizations, including union. Indeed, the Board explicitly endorsed, “[f]or example, a rule that permitted charitable solicitations but not noncharitable solicitations [even though it] would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.”

In particular, the employer’s written policy prohibited the use of e-mail for “non-job-related solicitations”: "Company communication systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations."

In practice, the employer allowed a number of nonwork-related employee e-mails (such as such as baby announcements, party invitations, jokes and the occasional offer of sports tickets or request for services such as dog walking), but there was no evidence that it regularly permitted e-mails urging support for groups or organizations, other than the United Way. The employer issued two written warnings to an employee (who was also the local union president) for sending three union-related e-mails to the workforce during non-working time. One email was sent from her workstation computer and two were sent from the union offices to the employees’ work email addresses. The unfair labor practice complaint alleged that the employer’s maintenance of the policy and its enforcement against the union president violated the NLRA.

Addressing the maintenance of the policy, the Board majority reasoned that employees have no statutory right to use an employer’s equipment for Section 7 purposes. “An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB, 714 F.2d 657, 663–664 (6th Cir. 1983). The Respondent’s communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.”

Moreover, the majority found that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in which the Court held that a ban on solicitation during nonworking time was unlawful absent special circumstances, applied only to face-to-face solicitations was inapplicable to the use of an employer’s e-mail system. Consequently, the Board majority found no basis to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.” "As with oral solicitations, however, if an employer has no rule in place that limits nonwork-related e-mails to nonworking time, the employer must show an actual interference with production or discipline in order to discipline employees for e-mails sent on working time."

With respect to the alleged discriminatory application of the policy to the union president’s e-mails, the majority “clarified” that “discrimination under the Act means drawing a distinction along Section 7 lines.” “In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.” The majority adopted the reasoning of the Seventh Circuit Court of Appeals, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and “group” or “organizational” postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003). The Board majority found that the court’s analysis, “rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.” Therefore, the majority overruled the Board’s prior decisions to the extent they are inconsistent.

Applying the new standard, the majority found that the employer had permitted a variety of personal, nonwork-related e-mails, but had never permitted e-mails to solicit support for a group or organization. Because two of the union president’s e-mails were solicitations to support the union, the employer did not discriminate in violation of the NLRA by applying its e-mail policy to those e-mails. However, the majority found that a third e-mail by the union president was not a solicitation, but was simply a clarification of facts surrounding a recent union event. Accordingly, the enforcement of the policy with respect to that e-mail was unlawful (even though it was sent from her work station) because the employer had discriminated against the employee on the basis of her union activities.

As the Board explained the future application of its new rule, “an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees” because “[i]n either case, the employer has drawn a line between permitted and prohibited activities on Section 7 grounds. However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates” in violation of the NLRA. For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.

The Board also unanimously affirmed the judge’s finding that the employer violated Section 8(a)(1) by maintaining an overly broad rule, in the absence of special circumstances, prohibiting employees from wearing or displaying union insignia while working with the public.

Insomniacs can read the full decision at http://www.nlrb.gov/about_us/news_room/template_html.aspx?file=http://www.nlrb.gov/shared_files/Press%20Releases/2007/R-2652.htm.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.