Labor & Employment Law – Page 42 – Marquette University Law School Faculty Blog

Firing by Facebook

Post author:Paul M. Secunda
Post published:January 6, 2009
Post category:Computer Law Labor & Employment Law

Although just bad practice in the United States, Minna Kotkin (Brooklyn) brings to my attention a case in Canada where the cavalier nature of a firing may lead to bad faith damages being awarded against the offending employer.

Carolyn Elefant of Legal Blog Watch Blog reports:

These days, Facebook isn’t just a go-to social media application. The Web site’s ubiquitous role in everyday life is also transforming it into a conduit for lawsuits. A few weeks back, I posed about the Australian court that allowed lawyers to serve a couple with lawsuit papers via Facebook. Now, the Calgary Herald reports that a Canadian spa used Facebook to fire an an employee, esthetician Crystal Bell.

Is it illlegal for an employer to fire a worker via Facebook, or just imprudent? Here in the United States where employment is entirely at will, there aren’t any laws, at least as far as I’m aware, that would protect an employee from being fired on Facebook. However, the Supreme Court of Canada, in a 1997 ruling known as the Wallace decision, set out how a firing, if done in a cavalier way, can result in “bad faith”damages in addition to normal severance pay. However, the ruling does not address the issue of whether being fired electronically equates with bad faith. Moreover, at least one lawyer whom Bell contacted advised that she didn’t have much of a case — she’d only been at the spa for two weeks.

Putting aside the merits of this specific case, the cause of action that comes to mind for me is the tort of intentional infliction of emotional distress, since the focus is the manner in which the employee has been fired. Yet, I am not convinced that Facebook firings, which are certainly in bad taste and demonstrate a lack of tact, would probably not meet the standard of extreme outrageousness, which would require the action taken be: “utterly intolerable in a civilized society.”

Indeed, the ubiquity of Facebook and the amount of communications taking place over it might make such electronic terminations seem more conventional than outrageous.

Can High Medical Bills Cost You Your Job?

Post author:Michael M. O'Hear
Post published:January 5, 2009
Post category:Health Care Labor & Employment Law

In an article in today’s Chicago Tribune, our colleague Paul Secunda suggests that the risks of this happening are higher in the current economic climate. The article concerns a federal lawsuit in which the plaintiff alleges she was fired because of her husband’s medical bills, which were covered through her employer’s medical plan. The Seventh Circuit recently reversed the trial court’s dismissal of her claim. Federal law, of course, generally prohibits employment actions that discriminate on the basis of disability, which may provide a legal foundation for some claims like those of the plaintiff in the Seventh Circuit case.

Ruan on the Accommodation of Religious Speech in the Workplace

Post author:Richard M. Esenberg
Post published:January 5, 2009
Post category:Labor & Employment Law Legal Scholarship Religion & Law U.S. Supreme Court

In the fall issue of the Marquette Law Review, Professor Nantiya Ruan of the University of Denver Sturm College of Law has written an interesting article entitled “Accommodating Respectful Religious Expression in the Workplace.” It is always hard to summarize a serious piece of scholarship in the few sentences that a blog post will permit and I am, of course, likely to emphasize those aspects of the piece that I found intriguing. It is also true, since I have decided to post a response and not a blurb, that I will emphasize those things that I see differently. So, with advance apologies to Professor Ruan, here is how I read the article.

Ruan posits an inconsistency between the emerging willingness of the Supreme Court to protect religious expression in public spaces (as illustrated by the Ten Commandments cases of 2005) and its rather narrow reading of the requirements to accommodate religious expression in the workplace under Title VII, where employers need incur no more than a de minimis burden to accommodate religious expression and practice.

I am sympathetic to Ruan’s arguments for greater accommodation of religious expression in the workplace. She does a nice job of advancing the notion that religion is fundamental to individual identity, although I would have added, as I have in recent papers, the notion that mandated secular spaces harm religion.

But I want to comment on her claim of an inconsistency between the recent trend toward toleration of religion in the public square and the treatment of religion in the workplace.