EMPLOYMENT LAW UPDATE/ETHICAL ISSUES FOR EMPLOYERS. CLE September 2013

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1 EMPLOYMENT LAW UPDATE/ETHICAL ISSUES FOR EMPLOYERS CLE September 2013

2 T WO MAJOR T YPES OF REPRESENTATIVE ACTIONS Class Actions (opt-out classes) Fed. R. Civ. P. 23(b)(3) Haw. R. Civ. P. 23(b)(3) Title VII of the Civil Rights Act Americans with Disabilities Act Haw. Rev. Stat. ch. 387 (wage and hour) Collective Actions (opt-in classes) 29 U.S.C. 216(b) Fair Labor Standards Act (wage and hour) Age Discrimination in Employment Act

3 HAWAI'I RULES OF PROFESSIONAL ETHICS Rule 4.2 Communication with Person Represented by Counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Comment 1 This rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation.... Also, parties to a matter may communicate directly with each other[.]

4 AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND RESPONSIBILITY Formal Opinion (Apr. 11, 2007) Before a class action has been certified, counsel for plaintiff and defense have interests in contacting members of the putative class. Model Rule of Professional Conduct 4.2 and 7.3 do not generally prohibit counsel for either plaintiff or defendant from communicating with persons who may in the future become members of the class. Both plaintiff's and defense counsel must nevertheless comply with Model Rule 4.3.

5 WHEN IS AN EMPLOYEE REPRESENTED, CONT. Unnamed Members of the Putative Class From the filing of the putative class or collective action suit? Once the potential class member becomes an actual class member?

6 WHEN DOES A POTENTIAL CLASS MEMBER BECOME AN ACTUAL CLASS MEMBER Class Action When the court certifies a class? When the opt-out period has expired after certification? Collective actions When the court grants provisional certification? When the employee opts into the collective action?

7 Seek a court order allowing employers to communicate with potential class member employees? Cease communications about the pending lawsuit as soon as the employer or its attorney knows that an employee has opted into a collective action or a court has certified an optout class in a class action.

8 HOW MAY DEFENSE COMMUNICATIONS WITH POTENTIAL CLASS MEMBER EMPLOYEES BE LIMITED? Plaintiffs may move for a court order limiting future communication. Employer communications with potential class member employees cannot be either (1) false, deceptive, or misleading, or (2) in violation of the Hawaii Rules of Professional Conduct. Rule 4.3 of the Hawaiʻi Rules of Professional Conduct DEALING WITH UNREPRESENTED PERSON. (a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. (b) During the course of [the lawyer's] representation of a client a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such a person are or have a reasonable possibility of being in conflict with the interests of [the lawyer's] client.

9 Examples of Improper Communication Telling potential class members that their mental health records would become public unless they opted out. Urging potential class members not to join the lawsuit. Failing to inform employees solicited to make statements supporting their employer's position that such statements could be against their interest. Mischaracterizing the remedy sought in the lawsuit. Mischaracterizing the alleged unlawful behavior in lawsuit. Undermining potential class plaintiffs' cooperation or confidence in class counsel. Obtaining declarations from potential class member employees who were told that the employer was conducting a survey of pay practices without informing them that a lawsuit was pending about those very pay practices that the employees could join Sending a letter with a check to potential class members advising employees that an audit revealed that they had not been paid properly because a potential class member employee was confused about whether he could join the collective action.

10 Example of Proper Communication Maddock v. KB Homes, Inc., 248 F.R.D. 229, 237 (C.D. Cal. 2007): [P]laintiff submits no evidence to suggest that defendant engaged in any misleading or coercive communications with potential class members. In reply to plaintiff's objection, defendant submits the declaration of Paul R. Lynd, who states that all declarants signed a two-page document entitled "Prefactory Statement to Interviewees Re Purpose of Interview" (hereinafter "the Statement") before they were interviewed by defendant's counsel. Defendant submits a copy of the Statement signed by each of the declarants. The Statement describes the nature of the instant case in a neutral fashion, informs the interviewee that involvement in the case is voluntary, that interviewees have the right to an attorney, and that sales agents' interests may be adverse to defendants interests. The mere fact that defendant communicated with its class members regarding the instant suit and requested that current employees file truthful declarations, absent any evidence that the communications were misleading or coercive, is insufficient to warrant striking the declarations.

11 When communicating with an potential class member employee: Inform the employee that the interview is voluntary; Inform the employee that the interview is not privileged; Inform the employee of the pending lawsuit describing it in a neutral fashion; Inform the employee that you represent the employer and its interests, and not the employee; Inform the employee that he or she will not be retaliated against if he or she joins the lawsuit or does not opt out of the class; Do not offer legal advice beyond informing the employee that it is his or her decision whether to talk with any attorney who might contact them about the matter.

12 ETHICS OF A LAWYER'S GHOSTWRITING, FOR AN EMPLOYER, A LETTER TO A REPRESENTED EMPLOYEE Hawai'i Rules of Professional Ethics Rule 4.2. COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL, Comment 1 Also, parties to a matter may communicate directly with each other[.] Rule 8.4. MISCONDUCT It is professional misconduct for a lawyer to... (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another

13 ETHICS OF GHOSTWRITING, CONT. ABA Standing Comm. on Ethics and Responsibility, Formal Opinion , at 1, 4, 5 (Aug. 4, 2011): Par ties to a legal matter have the right to communicate directly with each other. A lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. The lawyer's assistance need not be prompted by a request from the client. Such assistance may not, however, result in overreaching by the lawyer. This Committee believes that, without violating Rules 4.2 or 8.4(a), a lawyer may give substantial assistance to a client regarding a substantive communication with a represented adversar y. That advice could include, for example, the subjects or topics to be addressed, issues to be raised and strategies to be used. Such advice may be given regardless of who the lawyer or the client conceives of the idea of having the communication. Prime examples of overreaching include assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the oppor tunity to seek the advice of counsel. To prevent such overreaching, a lawyer must, at a minimum, advise her client to encourage the other par ty to consult with counsel before entering into obligations, making admissions or disclosing confidential information. If counsel has draf ted a proposed agreement for the client to deliver to her represented adversar y for execution, counsel should include in such agreement conspicuous language on the signature page that warns the other par ty to consult with his lawyer before signing the agreement.

14 "BUT-FOR" CAUSE IN A TITLE VII RETALIATION CASE Title VII Prohibits Two Types of Conduct Status-based discrimination: See 42 U.S.C. 2000e-2(a) (prohibiting an employer from discriminating against an employee "because of such individual's race, color, religion, sex, and national origin"). Retaliation: See 42 U.S.C. 2000e 3(a) (prohibiting retaliation "because [an employee] has opposed... an unlawful employment practice... or... made a [Title VII] charge").

15 "BUT-FOR" CAUSE IN A TITLE VII RETALIATION CASE, CONT. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality) A plaintiff alleging claim under 42 U.S.C. 2000e- 2(a) need only establish that a race, color, religion, sex, or national origin status was a "substantial" or "motivating" factor in his or her employer's adverse employment decision; Once a plaintiff shows that discrimination was a substantial or motivating factor, the employer can escape liability by proving that it would have taken the same action in the absence of discriminatory animus.

16 "BUT-FOR" CAUSE IN A TITLE VII RETALIATION CASE, CONT. Civil Rights Act of U.S.C. 2000e-2(m) ("Impermissible consideration of race, color, religion, sex, or national origin in employment practices. Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."). 42 U.S.C. 2000e-5(g)(1)(B) (On a claim in which an individual proves a violation under section 2000e- 2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court--(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A)).

17 "BUT-FOR" CAUSE IN A TITLE VII RETALIATION CASE, CONT. University of Texas Southwest Medical Center v. Nassar, 133 S. Ct (2013) Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened "motivating factor" causation test stated in 2000e 2(m).

18 WHAT IS A "SUPERVISOR" FOR THE PURPOSES OF TITLE VII Vance v. Ball State University, 133 S. Ct (2013) Whether an employee is a "supervisor" for the purposes of Title VII if he or she has authority to direct the alleged victim's daily work activities, but not the power to hire, fire, demote, promote, transfer, or discipline that person. Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), are the origins of supervisor liability. Boca Raton and Burlington set up a workable compromise that draws a sharp distinction between supervisors and co - employees. A supervisor must have the authority to take tangible employment actions against the alleged victim.

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