Monthly Archives: November 2013

November 25, 2013

Montana Supreme Court Stresses Right of Privacy in Employment Records

By Jason Ritchie 

Montana employees have a reasonable expectation of privacy in their personnel files, including identifying information such as job title and department. The Montana Supreme Court emphasized these privacy interests while examining whether the City of Billings was required to release copies of internal personnel investigative documents to the local newspaper following the investigation and discipline of five city employees. Billings Gazette v. City of Billings, 2013 MT 334.  The case serves as a good reminder to employers to properly safeguard employment records. 

City Employees Disciplined for Inappropriate Computer Use 

In early 2012, the City of Billings (City) discovered that five city employees may have been using their work computers to access pornographic websites during work hours.  Separate investigations were conducted, resulting in a five-day suspension for each of the five employees.  The City issued each of these employees a written corrective action determination which summarized information learned through the investigation and setting forth the resulting disciplinary action. 

Some months later, the Billings Gazette requested a list of all City employees who had been disciplined in the prior six months as well as copies of all records of disciplinary actions and other information related to the employees’ access to inappropriate websites.  The City provided some investigative documents but removed the names and other identifying information related to the five suspended employees and uninvolved third persons, citing privacy concerns. The newspaper went to court to obtain the documents with the identifying information included, arguing any privacy interest that the disciplined employees may have in the information did not clearly exceed the public’s right to know.  The district court reviewed the requested documents and ordered the City to turn over the corrective action forms and other documents with removal of only the identifying information related to third parties.  The City appealed the district court’s order to the Montana Supreme Court. 

Balancing Constitutional Right to Privacy with Public’s Right to Know 

The Montana Constitution provides the right of individual privacy but also establishes the public’s right to examine documents and deliberations of all public bodies and agencies.  These competing interests must be balanced to determine whether the individual privacy clearly exceeds the merits of public disclosure under the facts of each case.  

In this case, the Court held “that society would be willing to accept as reasonable a public employee’s expectation of privacy in his or her identity with respect to internal disciplinary matters when that employee is not in a position of public trust, and the misconduct resulting in the discipline was not a violation of a duty requiring a high level of public trust.”  Finding that the five disciplined employees were not elected officials or high level management and their inappropriate computer usage did not relate to the performance of a public trust function, the Court found that their expectation of privacy clearly outweighed the limited merits of public disclosure of their identifying information.  The Court ruled that the City did not have to turn over documents containing the employees’ identifying information. 

All Employers, Public and Private, Should Maintain Privacy of Personnel Records 

Although the Billings Gazette case dealt with a public employer (the City), the Court’s emphasis on employees’ privacy interests in their personnel records and their identifying information is relevant to private sector employers as well.  The Court noted that employment records regularly contain references to family, health or substance abuse problems, employer criticisms, test scores, background checks, military records and other types of information that employees reasonably expect to be confidential.  Employers should take care to safeguard personnel files and employment records at all times.  Access to personnel files should be limited and only those with a “need to know” should be permitted to view individual employment records.  In addition, medical information must be kept separately from the rest of an employee’s personnel file.  Take the time to review your recordkeeping policies and procedures to ensure that your organization does not violate your employees’ privacy interests.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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November 20, 2013

Inclement Weather: Tips for Handling Absences and Pay When Bad Weather Blows In

Snow on roadBy Joanna Vilos 

It’s that time of year.  Winter is coming and Mother Nature is sure to send us freezing temperatures, mounds of snow and icy roadways.  What will you do if inclement weather shuts down your business or makes it impossible for employees to get to work?  How should you handle absences and tardiness when employees are late or can’t get to work at all due to bad weather?  Do you have to pay employees when you send them home early because a blizzard is moving in? Here are some tips for addressing inclement weather situations. 

Bad Weather Absences and Tardiness 

Generally, it’s up to your company to decide how to handle weather-related absences and tardiness.  Private employers may determine whether such absences and tardiness will be considered unexcused or excused, what the proper call-in procedures are and if employees may make up the missed time on another day that week.  Of course, if you have employees who are covered by a collective bargaining agreement or an individual employment agreement that addresses inclement weather situations, you’ll need to abide by the applicable contractual provisions.   

Pay Concerns for Time Missed Due to Inclement Weather 

Pay issues related to inclement weather days are, in many ways, dependent on your company policies as well.  Under the Fair Labor Standards Act (FLSA), you don’t need to pay non-exempt employees for time not worked, meaning you don’t need to pay non-exempt employees for time missed due to weather-related reasons.  This applies whether your business completely shuts down for inclement weather, or if it remains open and individual employees can’t report to work.  Of course, your company may choose to pay non-exempt employees under inclement weather conditions, perhaps when your business sends workers home or closes completely. Alternatively, you may choose to allow or require employees to use vacation or other accrued paid time off to receive pay during inclement weather days.  Such pay policies go above what is legally mandated for non-exempt employees so your company should decide in advance how it will pay employees when weather interferes with your business operations. 

Exempt employees, on the other hand, can’t have their salaries reduced “for absences occasioned by the employer” so if your company closes due to bad weather for less than a full workweek, you must pay exempt employees their full salary for that week.  Even if your business stays open but an exempt employee fails to report to work due to the weather, you need to be cautious about salary deductions.  Under the FLSA, if an exempt employee misses an entire day of work due to adverse weather conditions when the employer is open for business, the employer may lawfully deduct one full-day’s absence from his or her salary.  Employers may not, however, deduct pay for partial-day absences.  In addition, in today’s business environment, many exempt employees may be able work from home on bad weather days thanks to technology such as remote access to computer systems, cell phones and call forwarding, email and other telecommunication devices.  If an exempt employee is able to work remotely, you should not deduct pay even if inclement weather keeps the employee out of the office. 

Adopt an Inclement Weather Policy 

Advance planning will help you avoid the last minute uncertainties of managing absences and pay issues when the weather turns sour. Decide ahead of time how you will address the following: 

  • Who will decide if/when your business closes due to inclement weather?  Is the decision contingent on any specific factors, such as community declaration of a snow emergency, shut down of the public transportation system or accumulation of “x” inches of snow?
  • How will you communicate a business closure/snow day to employees – will you use a call-in hotline?  Text messages?  A phone tree?  Television business closure list? 
  • Are there essential personnel who are expected to report to work even if the rest of your operations are closed?
  • Can employees work remotely and if so, what are your expectations for them to do so when inclement weather prevents employees from working in your facility?
  • What is your call-in procedure if an employee can’t make it to work due to the weather?
  • Will you excuse employees’ absences and/or tardiness that are caused by bad weather?
  • If you shut down or send employees home due to adverse weather, will you pay non-exempt employees for the missed time?
  • May/must non-exempt employees use vacation time or other accrued time off to get paid for time missed due to bad weather?  

Establish an inclement weather policy now, before it is needed, and let your employees know how these issues will be handled.  A good policy communicated to employees will help reduce everyone’s anxiety when the cold and snow start to blow in.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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November 14, 2013

No Age Discrimination Established by “Shelf Life” Comment

By Mark Wiletsky 

MessagingAn HR manager asks about an employee’s “shelf life” in an instant message to another HR manager.  Evidence of age discrimination?  The employee argued it was, but the Tenth Circuit Court of Appeals ruled it was not.  In Roberts v. IBM, the Court recently held that the comment did not amount to direct evidence of age discrimination and “was nothing worse than an inartful reference to [the employee’s] queue of billable work.”  The employee’s alternative argument that the term “Project Blue” somehow constituted evidence of age discrimination similarly failed. 

Employee Terminated For Poor Performance 

George Roberts worked for IBM and was assigned to provide technical assistance to one of IBM’s clients, the Williams Companies (Williams).  Williams’ employees repeatedly complained about Roberts’ work, resulting in a critical performance review.  Although a subsequent review reflected some improvement, he later received more criticism.  IBM offered Roberts the option of resigning with a severance package or committing to a 60-day performance improvement program with the understanding that failure to show sustained improvement would lead to termination.  Roberts chose to complete the program.  Once again, although he showed some improvement, the client continued to complain.  IBM terminated Roberts for his continued negative performance.  

Absence of Direct Evidence of Age Discrimination  

Roberts sued IBM in federal court, alleging that instant messages between two HR managers showed that IBM fired him because of his age.  The HR managers were discussing whether IBM should eliminate Roberts’ position because he did not have enough billable work to do.  One of the HR managers questioned Roberts’ “shelf life,” which he argued referred to his age.  The Court, however, disagreed, finding that the fair reading of the comment within the context of their discussion was that it referred to his workload, not his age.  The Court found that any inference related to the “shelf life” comment would, at most, be circumstantial rather than direct evidence of age discrimination.  

Roberts then asserted that the name “Project Blue,” which was IBM’s program of eliminating positions that were not cost-justified, constituted direct evidence of age discrimination.  Surmising that Roberts believed that “blue” referred to older people who sometimes have blue hair, the Court rejected the argument, stating that the HR department’s use of the color blue cannot reasonably be taken as a reference to anyone’s age, especially in light of the fact that IBM is itself often called “Big Blue.”  Moreover, because Roberts was not terminated as part of that project but through a different process months later, the project name could not lead to the conclusion that IBM fired him because of his age. 

No Evidence of Pretext 

Leaving no stone unturned, the Court then considered whether Roberts’ claim could proceed as a circumstantial case of age discrimination.  Under the McDonnell Douglas burden-shifting analysis, if a terminated employee can establish a prima facie case of discrimination, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for firing the employee.  Upon such showing, the employee can still succeed on his or her claim by establishing that the employer’s reason is a mere pretext for discrimination.  In this case, assuming (without deciding) that Roberts could establish a prima facie case of discrimination, the Court held that Roberts could not show that IBM’s legitimate, non-discriminatory reason for terminating him was pretext.  

Roberts’ poor performance was well-documented and even if there were times where his performance improved, the prior improvements were not sufficient to show that later unsatisfactory evaluations were pretextual.  Roberts also tried to show pretext by pointing to a handful of other employees for whom IBM received customer complaints but who were not disciplined for it.  The Court found that some of the other employees were not similarly situated as they were not supervised by the same HR manager as Roberts.  In addition, none of the other employees had the extensive history of performance issues as Roberts.  Therefore, the Court held that Roberts failed to establish any sign of pretext. 

The Court went on to reject Roberts’ state law claims as well. 

Even Informal Communications Can Land You in Court 

While IBM won this case, it also serves as an important reminder for managers and human resources personnel to be careful when discussing employees via e-mail and instant messaging.  Avoid using words or phrases that can be taken out of context or have multiple meanings.  It is sometimes easy to use shorthand or be informal when communicating via e-mail, or text or instant messaging.  But such communications are discoverable, and when taken out of context or misinterpreted, they can turn an otherwise legitimate termination into a hotly contested case.    To avoid that from happening, train your managers, supervisors and HR personnel to draft all communications carefully and deliberately, even if using more informal communication technology.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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November 11, 2013

Idaho Paper Company Faces $300,000 Whistleblower Retaliation Lawsuit

By Scott Randolph 

Lest you think Idaho is off of OSHA’s radar screen, think again.  An Idaho paper company was recently sued for allegedly retaliating against an employee who reported health concerns in the workplace.  In late October, the U.S. Department of Labor filed a whistleblower complaint against Clearwater Paper Corporation (Clearwater) in federal court in Idaho seeking more than $300,000 in damages.  The facts alleged in the complaint are short and succinct: 

  • Anthony Tenny worked for Clearwater Paper Corporation in its Wood Products Division at the Lewiston facility from February 2004 until his termination in June 2010.
  • Throughout his employment, Clearwater promoted Tenny several times and gave him high performance ratings.
  • Tenny told Clearwater Paper on numerous occasions that employees were being exposed to excessive levels of red cedar dust at the mill.
  • In April and early May 2010, Tenny spoke with his immediate supervisor to express concern that the amount of red cedar dust in the air at the mill presented health hazards to the mill employees.
  • Tenny then contacted the Occupational Safety and Health Administration (OSHA) to report his concerns.
  • On May 28, 2010, OSHA inspected the mill.
  • On June 21, 2010, Clearwater Paper suspended Tenny without pay and required that he take a drug test.
  • On June 25, 2010, Clearwater fired Tenny. 

In its complaint, OSHA is seeking that Tenny be reinstated to his position and that Clearwater be found liable for an excess of $300,000 for back pay, compensatory damages, emotional distress damages and punitive damages. 

Of course, the complaint is only one side of the story and Clearwater is entitled to enter an appearance and respond to the DOL’s allegations.  Clearwater will likely do just that over the coming weeks. 

Retaliation Claims Are Often Avoidable 

In many situations, retaliation lawsuits, whether following a whistleblower’s report, harassment complaint or other protected activity, can be avoided.  Employers should exercise caution when deciding whether to take adverse action against an employee who has complained of potentially unlawful acts in the workplace.  It doesn’t mean that an employer can never discipline or discharge a complaining employee; it simply means that the true reasons behind the adverse employment action must be examined closely in light of company policies and past practices. Companies should train their supervisors and managers not to make statements or take actions against whistleblowers that might be seen as intimidating, threatening or outright retaliatory.   Investigate and resolve the underlying complaint but do not add to your woes by retaliating against the complaining employee.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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November 4, 2013

Will OSHA Whistleblower Protections Be Strengthened?

WhistleblowerBy Cole Wist 

Workers who report health and safety violations under the Occupational Safety and Health Act (OSH Act) have fewer protections than those who blow the whistle in workplaces covered by other federal statutes.  A recent reportby the Center for Effective Government (formerly OMB Watch) addressed some of these perceived deficiencies of the 1970-era OSH Act.  Two bills pending in Congress seek to strengthen the whistleblower protections in the OSH Act. 

Proposed Enhancements to the OSH Act 

The OSH Act’s current whistleblower provision, 29 U.S.C. § 660(c), is limited in both scope and remedy.  Both houses of Congress are considering bills to amend the OSH Act to, among other things, better align the anti-retaliation provision with other federal whistleblower protections.  (H.R. 1648 and S. 665).  Called Protecting America’s Workers Act, the bills propose enhancements to the OSH Act whistleblower protections including:

  • Increasing the time period for whistleblowers to file a retaliation complaint from 30 days to at least 180 days;
  • Providing for the whistleblower to be reinstated to his or her position, with compensatory damages, upon OSHA’s finding of reasonable cause to believe retaliation occurred;
  • Permitting whistleblowers to request a hearing before an administrative law judge within 30 days after a decision denying relief or within 120 days after the filing of the complaint if OSHA fails to issue a decision in the case;
  • Allowing either party to appeal a final decision and order to the U.S. Court of Appeals for the circuit where the violation occurred or where the whistleblower resides;
  • Establishing that the burden of proof for a retaliation claim is that the protected activity was a contributing factor in the adverse employment action;
  • Allowing for an award of reasonable attorneys’ fees and costs, including expert witness fees, to the prevailing whistleblower against the employer; and
  • Prohibiting the waiver of any rights and remedies under this provision by any agreement, policy, form or condition of employment, including pre-dispute arbitration agreements and collective bargaining agreements.

Both bills are being considered in their respective Congressional committees and it is unclear whether either bill will come to a vote.  However, if Congress fails to act, groups such as the Center for Effective Government are urging states to enact stronger worker protections.

Avoiding Retaliation Complaints 

Employers are well-advised to treat reports of unsafe working conditions with care.  Consider the Whistleblower Golden Rules:  

*          Address all complaints in good faith. 

*          Respond in a calm, professional manner. 

*          Protect against hazards immediately. 

*          Clearly and calmly explain conclusions to the complaining employee. 

The attention given by employers to this process directly corresponds to success in avoiding whistleblower complaints.  In the words of Zig Zigler, “The way you see them is the way you treat them, and the way you treat them is the way they often become.”


Disclaimer:This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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