Alaska Employment Law

FMLA adverse action:  An employee alleged that her employer retaliated against her for assertion of her FMLA by transferring her.  She, thus, had to show that the transfer was an “adverse employment action.” The 9th Circuit reversed summary judgment for the employer, because of evidence that the new sales position covered a lower-growth territory with less possibility for commissions and because the supervisors themselves didn’t perceive the two territories as equivalent.  Hochhalter v. Stephens Group, Inc., 2008 WL 1930444 (9th Cir. May 2, 2008)(unpub.) 

Due Process liberty interest:  The temporary placement of stigmatizing information in a public employee’s personnel file is not “publication” if no member of the public actually sees the information in the file.  Murdock v. Mingus Union High School District, 2008 WL _______ (9th Cir. May 2, 2008)(unpub.)

FOIA Exemption 6 and personnel information:  FOIA Exemption 6 authorizes federal agencies to withhold information from “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”  The Forest Service relied on this exemption to withhold the names of Service employees identified in an investigative report that was critical of the Service’s response to a fire.  Before balancing the private and public interests, the panel addressed the purpose to which the requestors intended to put the information: “FOIA provides every member of the public with equal access to public documents and, as such, information released in response to one FOIA request must be released to the public at large.”  Thus, it mattered not that the requestor was a (self-described) “public interest watchdog organization.” 

As to the privacy interests, the Court held that employee privacy is more protected if the employee is low level, has not been accused of official misconduct, and will be subject to embarrassment or harassment through disclosure.  The public’s interest in disclosure, on the other hand, depends on the likelihood that the information would “appreciably further” the public’s right to monitor the agency’s action.  Because the Service’s response to the fire had already been scrutinized by a number of organizations, and because additional scrutiny by the watchdog group depended precisely on further invasions of employee privacy, the Court held that the public’s interest would not be advanced by mandating the release of the individual employee identities.  

Forest Service Employees for Environmental Ethics v. United States Forest Service, 2008 WL 1902511 (9th Cir. May 1, 2008)