Moderator: Welcome to today's Law Week Viewpoint discussion with Doug Towns. Doug, thank you for joining us. Let's begin with this question: How have email and the Internet changed sexual harassment litigation?

Doug Towns: Although email and the Internet have arguably made work "easier" or more efficient, these tools have also increased the risk for employers. Some studies suggest that one out of every eight workers spends more than two hours each day writing and reading personal emails, shopping on the Internet, or using the Internet for outside interests. Unfortunately, nearly 10 percent of employees admit to recreational Internet surfing on company time at pornographic sites. Likewise, 50 percent of employees report receiving racist, sexist, pornographic or otherwise inappropriate email at work. The prevalence of sexist or racist site or email has resulted in an increase in the number of claims against employers under Title VII or other anti-discrimination statutes.

Moderator: What are some of the common scenarios in which the Internet can give rise to employer liability?

Doug Towns: Some employees view the Internet as their personal "viewing room" and that anything that they view, even at work, is private. Nothing could be further from the truth. Unlike a private letter (or even a private conversation), images on the Internet often can be viewed by other employees. For example, an employee on lunch may be viewing a site that contains sexist or racist information that could be seen by any employee that passes by. Also some images may be stored on the hard drive of the computer -- in that case, the images or text could be inadvertently retrieved and viewed by someone after the fact.

Burtonsville, Md.: What are two or three of the most difficult (for you or your clients) labor and employment issues you have faced recently in your practice?

Doug Towns: Although employers continue to see a number of race and sex discrimination claims, the most problematic claims arise from proposed class or collective actions. Rather than one or two plaintiffs, these cases can involve hundreds, if not thousands, of potential plaintiffs as well as millions of documents. One recent case against Coca-Cola resulted in a $192.5 million settlement, which was the largest in the history of employment law settlements.

New York, N.Y.: Are you concerned that the evolving climate around employment law in the U.S. will create the kind of unfavorable employment environment seen today in Germany? And given today's climate, how can we as a company minimize legal exposure when terminating employees, especially "protected classes?"

Doug Towns: Some jurisdictions are definitely becoming more "pro-employee" and it is increasing difficult (and expensive) for employers to operate. Although I have not seen any statistics, I know of some employers that have voluntarily elected to move out of certain states because of the employment law risks. Unfortunately for employers, there is no "end" in sight. All that an employer can do is take proactive steps to ensure compliance with all applicable employment laws.

Richmond, Va.: Four years into employment with a Virginia firm, the company asked me to sign an agreement whereby I can not join any affiliate, competitor or client of the company for one year after separation. How valid is this contract in light of today's employment scenario? They are also planning to sign another contract that stops employment with any client or competitor of their affiliates. Can they win a court battle?

Doug Towns: There have been several questions regarding non-compete agreements. In general, non-compete agreements are contracts between the employer and the employee in which the employer agrees to provide something of value (a job, a promotion, a bonus, etc.) and the employee agrees to refrain from competing, subject to certain limitations. As these are contracts, the law varies drastically from state to state. Some states are very liberal and will strictly enforce these agreements, while other states may view these agreements as an illegal restraint of trade. That being said, many states, at least, require a temporal limitation of some type (e.g. one to two years), an activity limitation, and a geographic scope. As with many of the questions, you would need to consult with an attorney in your state to assess the enforceability of your contract.

Fairfax, Va.: During this era of "at will" employment, employees have very few protections. I cannot begin to count the times I've seen managers fire employees for "bad performance" with rationale that has been partially or totally forced to fit their objectives. Managers seem to have no accountability for their decisions. Soliciting your read of the current employee-employer situation in the U.S.

Doug Towns: Without having additional information, I cannot comment on the specifics that you mention regarding terminations that you have witnessed. However, unlike other countries, employees in the United States enjoy many protections. In addition to state restrictions, federal law prohibits discrimination on the basis of sex, race, age, national origin, disability, pregnancy, family leave, and a host of other protections.

Washington, D.C.: What are your views on affirmative action? Is it an effective combattant of discrimination or does the concept reinforce divisions in the workforce?

Doug Towns: For years, affirmative action is a politically charged issue. Some employers are required to have an affirmative action plan that may identify areas of underutilization that need attention. However, this question will again be addressed by the Supreme Court -- they have agreed to hear a case involving a "plus" given to minority applicants in college/graduate school admissions.

Washington, D.C.: Do we have to offer retirement benefits to part-time employees even though our employee manual says that there will be no benefits for part-time employees? We are a non-profit 501c(3)org. We do offer the 403B employment retirement plan to all full-time employees.

Doug Towns: Benefits offered by the employer are purely voluntary. That is, employers are not required to offer any retirement benefits at all. On the other hand, if they offer benefits, they must be offered on a non-discriminatory basis. That is, they cannot be offered to men, but not women. However, many employers have decided to provide certain benefits only to full-time employees, or employees that have met certain eligibility requirements (e.g., length of service).

Moderator: What can employers do to reduce the litigation risks associated with a reduction in force?

Doug Towns: Given today's economic environment, many employers are being forced to terminate employees as part of a large reduction in force. Employees may claim that they were selected for the RIF because of their sex, race, or (more often) age. Although there is no way to completely insulate an employer from liability, a company may decrease some risk by taking some proactive steps before the RIF. For example, in some cases, employers may be able to select employees based upon objective factors like productivity (or lack thereof) or other recent performance measures. Employers should also be mindful of any company policies that may be implicated in the RIF and be sure that the company is in compliance with those procedures. In some cases, employers may also want to conduct an EEO audit to ensure that no protected group of employees is disproportionately impacted by the RIF.

Arlington, Va.: Are instant messages on company computers screened in addition to email? And what would be the penalty if the conversations were borderline sexual?

Doug Towns: It depends on the employer. Employers typically provide the computer and other equipment (phone, fax, etc.) for business purposes and can legitimately restrict the right to use that equipment for other purposes. Instant messages, like email, could be the basis for a claim of harassment or discrimination. Although an instant message may not be "permanent," the message may still be in violation of the company's policy or federal law. Although generally not required, employers may want to be proactive and tell employees that the Internet and email are only to be used for business purposes and that their usage of these business tools may be monitored for compliance with federal law as well as corporate policies.

Mercer Island, Wash.: If an employee accepts a job that his employer represented as being an opportunity for long-term employment and it can be proven that the employer's intent was to use him as a temp and that no permanent position existed, is there a cause of action for damages even though he was terminated within the employer's one-month probationary period?

Doug Towns: We have received several question like this regarding possible causes of action against an employer. As you can imagine, the answers to these questions vary greatly depending on the jurisdiction that you are in. For example, some states grant very "pro-employee" protections (either by statute or case law), including claims for breach of an employer's implied duty of good faith and fair dealing or for breach of an implied contract (i.e., from a handbook provision). On the other hand, other states are more "pro-employer" and do not have greater protections than those offered under federal law. You would need to consult with an attorney in your state and give him/her the full story to fully assess the claims, if any.

Burtonsville, Md.: What are the most common type of employment lawsuits, outside of discrimination? Are whistleblower-retaliation cases common or on the rise?

Doug Towns: Outside of discrimination claims, the number one area is harassment. Traditionally, these claims have focused on sexual harassment. While still the most prevalent, in recent years there has been an increase in the number of harassment claims based on disability, race, or age. Outside the discrimination/harassment context, many employers are now being hit with challenges under the Fair Labor Standards Act. In many cases, employees claim that they are "misclassified" as exempt and should have be entitled to receive overtime payments. Other cases involve allegations that the employer forced the employee to work off the clock and that the employee was not paid for all time worked.

Pontiac, Mich.: Interestingly enough I have a question which is the reverse of one of the previous queries in regard to non-compete issues. In the business I am in (contract engineering) we have been told by both the contract house (employer) and the customer (XYZ Corp.) that we are not able to leave our present positions for a new, better-paying position at another contract house if the new position is working on an XYZ Corp. program. We are only able to do make this move after a period of 30-60-or 90 days after quitting -- or getting laid off. There is no written statement of this policy. This has been status quo for 10 years or more with many of us contract employees getting stuck in a rut when we could be postioning ourselves better financially as well as professionally. I just can't see the legality of this at all.

Doug Towns: I would need to know more about the issue. In general, there would need to be a contract or other agreement that would prohibit you from working for another employer/client/customer. However, in addition to non-compete or non-solicitation agreements, some employers will ask employees to sign non-disclosure agreements that would prevent the employee from using or disclosing confidential or proprietary information. That type of agreement or policy may also explain this situation.

Washington, D.C.: How can you beat a non-compete?

Doug Towns: I refer you to the question from Richmond, Virginia.

Washington, D.C.: Is it legal to increase the work hours of an employee's work schedule?

Doug Towns: Employers have the right to enforce uniform policies and procedures regarding work hours or other terms and conditions of employment. Assuming that the employer is asking everyone (or everyone in a given group, shift, etc.) to work these extra hours, there is no problem. Indeed, most employers all require employees to work overtime as necessary.

Doug Towns: Thank you for joining the discussion. I enjoyed answering your questions today. If you would like to learn more about some of the topics that we discussed, you could look at some of the related articles on www.gigalaw.com or the links on this page. In addition, you can contact me through our Web site at www.jonesday.com. Thanks again.

Moderator: Our thanks to Doug Towns, Jones, Day, Reavis & Pogue and all who participated.