1st Cir. - Use FLSA Standard For Willful Violation For FMLA

Posted 5:42 PM by Michael Fox

In a case of first impression in the First Circuit, the Court found that the test for a willful violation of the FMLA which would extend the statute of limitations to two, not three, years should be the one used for the FLSA. That standard the Court said was:

If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful . . . . If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then . . . it should not be . . . considered [willful.] [cites omitted] In crafting this understanding of the term willful, the Court expressly rejected two other tests for determining willfulness: the Jiffy June test that asked only whether the employer knew the Act "was in the picture," Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir. 1972), and another test that asked if the employer acted unreasonably in believing it was complying with the statute. McLaughlin, 486 U.S. at 134.

Here the plaintiff could not establish a willful violation which resulted in his FMLA claim being time barred. It was an all around bad day as he also failed to convince the court to reverse the summary judgment granted the employer on his age and gender discrimination claim. Hillstrom v. Best Western TLC (1st Cir. 12/31/03).

Labels: FLSA

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Tuesday, December 30, 2003

EEOC Revocation of Right To Sue Almost Fatal, But Not Quite

Posted 10:47 PM by Michael Fox

In perhaps the judicial understatement of the year, Judge Jolly notes that the 'procedural facts of this case are slightly offbeat.' Martin v. Alamo Community College District (5th. Cir 12/30/03) [pdf]. On September 17, 1999 the EEOC issued Martin a right to sue letter. On December 17, 1999 Martin filed suit against the College District. However, on the same day the suit was filed, the EEOC mailed a 2nd letter to Martin informing her that it had re-opened its investigation and rescinded its original right to sue letter. Martin had not yet sought service and in light of the 2nd letter did not do so. Five months later the District Court dismissed the case without prejudice.

Two months later, Martin received a second right to sue notice and filed a second suit. The college district challenged the suit as untimely. The case ultimately boiled down to whether Martin could have continued the first suit. There is an EEOC regulation which revokes the right to proceed with suit unless it is filed before the right to sue notice is revoked. Not surprisingly, it did not specify what happens when the suit is filed and the right to sue is rescinded on the same day.

In a judicial sleight of hand, which nevertheless makes sense, the 5th Circuit judicially declared the following rule:

We hold that, under 29 C.F.R. § 1601.19(b), when the notice to reconsider is issued on the same day that the complaint is filed, the issuance and filing are simultaneous (irrespective of the hours and minutes) and, consequently, the complaint has not been filed before the issuance of the notice.

The ruling was supported by a footnote which amplified on one aspect of the ruling:

Because some offices register the hour and minute of pleading receipts and others do not, and because mail is deposited at different times during the day, the rule is more nearly uniform and more easily manageable when time is calculated by the day.

So the long and short of it, four years after the initial right to sue was issued, the case may now move forward on the merits. Slightly offbeat, seems hardly close.

Labels: EEOC

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5th Cir. Restricts Holding of Quantum Chemical To Substantive Discrimination Cases

Posted 10:20 PM by Michael Fox

Two years ago, in Quantum Chemical Corp. v. Toennies, the Texas Supreme Court held that the under the TCHRA the proper standard for discrimination was whether the protected category was a 'motivating factor' rather than the stricter 'but for' test. Today, the 5th Circuit holds that Quantum Chemical is not as broad a decision as it might seem and that is in not applicable to retaliation claims brought under the TCHRA. Pineda v. United Parcel Service (12/30/03) [pdf]. It is rather unlikely that Mr. Pineda is too upset over this ruling however, as the 5th Circuit upheld his jury award over UPS, and declined the invitation to further lower his award. His initial award of $400,000 for compensatory damages had been reduced on a remittitur by the district court to $202,500 an amount the court found did not leave it with the 'perception that the verdict is clearly excessive'.

Labels: retaliation

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Monday, December 29, 2003

Hitting a Nerve, Or Just a Slow News Day - Reimbursement of Government Contractors Legal Bills

Posted 6:11 PM by Michael Fox

Although by now government contractors are used to being perennially raked over the coals, today's AP article on reimbursement of Department of Energy contractors' legal bills, clearly seems newsworthy to a large cross section of publications. In fact the story with this specific headline, Feds Pick Up Legal Bills for Contractors has appeared in 31 publications in the last 2 hours according to a quick google search. Since a large part of it appears to be for the fees of lawyers representing the contractors in employment law claims, it caught my attention.

As with most government contracting stories, it is easy for some to hit a rhetorical high note. This article's example is from a University of Baltimore Law Professor Charles Tieffer:

While you'd expect all corporate managements to spend lavishly on their legal self-defense, only a few have the privilege of using a key to the Treasury, namely generous 100 percent cost-reimbursement contracts, to make the taxpayer foot the bill.

A little more rational is the point made by Steve Schooner, the co-head of the government procurement program at George Washington University Law School:

There's a certain zero-sum game aspect to all of this. If one of these contractors performs only government work and we refuse to reimburse them for a legitimate cost of doing business - which many legal costs are - then we've put them in an untenable position where they're operating at a loss.

And of course if operating at a loss, they are not likely to be a long term provider of services or jobs.

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2000 Census Data Now Available

Posted 5:54 PM by Michael Fox

Although designated the 2000 census, only today are the figures that are used for various employment law purposes like the compiling of Affirmative Action Plans available for public use. The press release from the U.S. Census Bureau has a special link to the Census 2000 Special Equal Employment Opportunity (EEO) Tabulation. There you can find more than you ever wanted to know about the racial and sexual profiles of almost 500 jobs in counties throughout the country. Have fun!

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If You Are Looking For A Theme In Employment Law For 2004

Posted 5:35 PM by Michael Fox

One issue that would have to receive consideration is the increasing tension between groups supporting more liberal policies with respect to sexual orientation and those whose religious beliefs are in opposition. The likely result for employers --- caught in the middle. The headline and sub-head on this article in Christianity Today sums up the position of one group:"Corporate Thought Police:Growing pro-gay business agenda jeopardizes religious employees." With the issue of gay marriage being viewed by politicos as a 'wedge issue' in this presidential election year, it is unlikely that variations on that theme won't be played out in the workplace as well.

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Sunday, December 28, 2003

"Hit List" of Employees With Overtime Leads to Lawsuit

Posted 7:09 PM by Michael Fox

A list of the 300 employees who had the most overtime that was circulated within the track department of the Burlington Northern Santa Fe led to a class action suit in Montana state court. The list which had the employees names, social security number and station was posted on bulletin boards, left on tables in break rooms and given to anyone. The suit alleged violation of privacy rights. Although originally dismissed by the trial court, it has now been revived, at least temporarily by the Montana Supreme Court. The AP story ran in several papers including thisstory at the Fort Wayne web site.

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Personal Background of EEOC Commissioner Stuart Ishimaru Provides Context

Posted 5:53 PM by Michael Fox

A third generation Japanese American, Stuart Ishimaru, was recently confirmed to the EEOC. A story in his hometown San Jose Mercury News reports that his parents had been among the 120,000 Japanese Americans forced to live in detention camps during World War II. Hard to have a more sensitizing background for protecting civil rights during war time.

Labels: EEOC

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How Juries Think - Sometimes Surprising

Posted 5:42 PM by Michael Fox

Ross Laguzza who consults with lawyers about how juries might react to a certain case is profiled in this story in the Roanoke Times. One example he gives is a sexual harassment case where the victim was a 6 foot 3 inch, ex-Marine who claimed he was harassed by his 5 ft 1 inch, 100 lb female boss. As you expect (otherwise it wouldn't be mentioned in the article), what would seem to be the obvious strategy, turned out to not sit well with potential jurors.

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Monday, December 22, 2003

2 of 3 Top Supreme Court Cases in 2003 Have Employment Implications

Posted 12:50 PM by Michael Fox

At least if you agree with a survey of Top Legal Developments which comes from the good folks at West Publishing. The press release which highlights the Desert Palace v. Costa and Green Tree v. Bazzle decisions can be found on the Yahoo news site. My first posting (with cite to the decisions) on each of the cases can be found here and here.

Green Tree is not strictly an employment law case, but did hold that it was up to arbitrators to decide whether or not class actions were permitted under arbitration agreements if the agreements themselves do not say otherwise. West reads the decisions more broadly finding it allows employers to force class action lawsuits into arbitration.

According to Professor Rick Rossein it has "huge implications for the arbitration of employments disputes, particularly statutory discrimination claims." I am not quite sure what he means by that, as I doubt many employers are going to opt to have their arbitration agreements permit class action claims, unless forced to do so by the courts as a condition of having their agreement enforced. A quick google search didn't find the statement to place it in context, so we will just have to for further illumination on what the 'huge implications' are.

It is the potential practical effect of Desert Palace v. Costa, particularly raising the summary judgment bar, which earns it a spot. Those consequences aren't yet, and may never, play out, but the change in litigation if they do are of great importance to employers and their counsel.

Labels: arbitration

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Employer's Trial Strategy - Avoid Trials Just Before Christmas

Posted 12:12 PM by Michael Fox

Unfortunately, you can't always do that and there is really no indication that was the reason for the $2 million dollar verdict handed down by a Birmingham jury last week. The Birmingham News story on the whistleblower case by a former Vice President of Shelton Community College, Ted Spring, is one of the relatively few million dollar verdicts in an employment case that we have noted this year. But if nothing else it serves as a reminder that the claims of whistleblowers remain a serious threat, and of course, not to try cases the week before Christmas.

Labels: MDV

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Sunday, December 21, 2003

Perceived Disability Cases Not That Easy

Posted 6:02 PM by Michael Fox

Once the courts took a restrictive view of the definition of a disability under the Americans with Disabilities Act, the concern of employers was that the path to successful claims would be through the 'perceived' prong of the ADA definition. But Epps v. City of Pine Lawn (8th Cir. 12/19/03) [pdf] shows that the most frequent pattern, an employer decides that the employee can't perform a particular job, won't be enough to make a perceived disability claim. Here the City terminated Epps a 13 year veteran of the police force because he was no longer physically able to perform the role of a patrolman. But that perception, based on a doctor's opinion, is not enough. The money quote on the key distinction: "an employer is free to decide that . . . some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." As it turns out, the difference between limiting and substantially limiting is much larger than anyone could have imagined.

Labels: ADA

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Tuesday, December 16, 2003

Never Mind the Stiff Upper Lip - Even Brits Can Get in Trouble At the Holiday Office Party

Posted 9:02 PM by Michael Fox

It is the time of year for warnings about one's conduct at the office holiday party, but this year more of them seem to be coming from overseas than here at home. The Manchest On-line site has a recounting of some of the less auspicious happenings at parties past across the pond. Not to be totally left out, the Department of Labor has a page on its website on how to avoid the problems of the employee who drinks too much while partying.

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Monday, December 15, 2003

I Will Take Any Job, Anywhere - Not Sufficient In The 11th Cir.

Posted 10:18 PM by Michael Fox

At least not where the employer has a well publicized job posting system and the plaintiff was aware of open jobs but did not apply for them. Failing to do so in this circumstance was fatal to an age discrimination claim based on failure to transfer or rehire. Smith v. J. Smith Lanier Co. (11th Cir. 12/12/03) [pdf].

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The Taxman Cometh - And Maketh Settlement More Expensive

Posted 9:59 PM by Michael Fox

After a successful (from the employee's perspective) trial, the employer agreed to a $1.2 million settlement. In order to minimize tax liability, the employee requested and the employer paid $799,000 to the employee and $401,000 to his attorney. The employee declared only the $799,000 as income.

The IRS declared a deficiency for the failure to report the $401,000. The Commission ultimately determined that the $401,000 could be counted as a miscellaneous business expense under § 115 of the Tax Code. Unfortunately, the employee was trapped by the now famous Alternative Minimum Tax (AMT) which does not permit the use of any miscellaneous deductions. An attempt to make it an above the line deduction under Â§ 62 relating to certain employee reimbursement programs failed as well. Biehl v. CIR (9th Cir. 12/12/03) [pdf]. Mr. Biehl went from a triumph to a tax crises. Although perhaps sympathetic, the 9th Circuit offered little solace pointing out that: "If this result strikes some as bad policy, or unfair, the remedy is with Congress, not the courts."

Biehl emphasizes a problem that is significant enough that both sides of the organized employment bar have approached Congress with a proposed solution that would minimize the tax consequences of settlements. The most recent iteration is the Civil Rights Tax Relief Act of 2003. One of the problems is in the title itself, tax relief, e.g. a revenue drain. Leaving it in the category of an idea that has not yet borne legislative fruit.

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Not Just Joni Mitchell Has Looked At Both Sides Now

Posted 1:41 PM by Michael Fox

So has David Linesch, a Florida lawyer who having represented management early in his career, now has an employee oriented employment law practice in Florida. The St. Petersburg Times has the story. He offers some good tips for employers on how to avoid ever having to see him on the opposite side.

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Saturday, December 13, 2003

Not A 9th Cir. Decision Yet - Illegal To Require Women to Wear Makeup?

Posted 12:21 PM by Michael Fox

But coming soon to a casebook near you will be the 9th Circuit's pronouncement on whether Harrah's mandate that all female barkeeps wear make up is discriminatory. The Reno Gazette Journal has the story, Lawsuit about more than being fired on the underlying facts that led to Darlene Jesperson's termination after 21 years because of her refusal to comply with the makeup requirement initiated by Harrah's "Beverage Department Image Transformation” program. Personally, I think Harrah's should lose based on the bureaucratic title of the program alone, but fortunately that is not a legitimate grounds for judicial intervention into the workplace, even in the 9th Circuit. Thanks to How Appealing for the pointer to the article. Stay tuned for the decision.

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Wednesday, December 10, 2003

3rd Cir. Joins 5th Circuit Interpretation That Email At Rest Is Not "Intercepted" Under the ECPA

Posted 9:48 PM by Michael Fox

After an insurance company became suspicious of the actions of one of its agents it conducted a search of his email. What it found led it to terminate his services and caused him to file a claim for wrongful termination as well as for violation of the Electronic Communications Privacy Act because of its review of his email.

Reaching the issue for the first time the 2nd Circuit accepts the interpretation under the Electronic Communications Privacy Act adopted by the 5th Circuit and all other circuits to consider it, that an e-mail can only be "intercepted" when it is in actual transmission. Fraser v. Nationwide Mutual Insurance Co. (3rd Cir. 12/10/03) [pdf]. Here, since the e-mail was already resident in the company's e-mail system when it was reviewed by the company, there was no violation of the ECPA under Title I. Additionally, the Court found no violation under Title II since it excepts actions by the person or entity providing the electronic communications service. Since the insurance company provided the e-mail service that was in question, it had no liability under Title II as well.

The agent also lost his claim for wrongful termination, but at least got a second look on the forfeiture of deferred income because of his violation of a non-compete agreement based on some new Pennsylvania state case law.

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An Insurance Company Putting Its Money In Strikers Hands

Posted 3:22 PM by Michael Fox

Not the most usual business practice to see an insurance company making a contribution to a union strike fund, but then not that many insurance companies cater to labor unions. Credit American Income Life Insurance Company for supporting their customers. The Austin Business Journal has the story of their initial $10,000 contribution and pledge to make that contribution each month for the duration of the strikes against the national grocery companies.

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3rd Circuit -- NJ State Law Sexual Harassment Claim Viable Under Disparate Impact Theory

Posted 7:46 AM by Michael Fox

While on the national scene the Supreme Court left dangling the question of whether the refusal to re-hire a drug user could be successfully attacked under a disparate impact theory, the 3rd Circuit was predicting that such a theory would be sufficient to state a cause of action for a sexual harassment hostile environment case under the New Jersey Law Against Discrimination. In Thomas v. Town of Hammonton (3rd Cir. 12/4/03) [pdf] it reversed summary judgment against a police dispatcher trainee who had been treated as a part of a class of two, to a series of sexually explicit comments, including portions of 911 tapes with sexual connotations. (Incidentally confirming some 'urban myths' about the types of injuries seen in hospital emergency rooms involving household appliances.) In the money quote, the Court said:

Based upon the rationale of Lehmann, we would expect the Supreme Court of New Jersey to hold that a sex-oriented employment environment that has a disparate impact on reasonable women violates the LAD. Lehmann, 626 A.2d at 454 (acknowledging that intent to discriminate is not necessary and that there is a distinction between an environment that a reasonable man would consider hostile and one that a reasonable woman would consider hostile). It would be permissible, we believe, for a trier of fact to conclude that the environment created by Howard was 'qualitatively different' for a woman than for a man.

On the brighter side for employers, the Court also dealt with the perennial problem of whether timing alone will serve as a sufficient basis for causation in a retaliation case. Here, a 3 week period taken in the context of other developments did not. This was the Court's standard:

We have recognized, to be sure, that a suggestive temporal proximity between the protected activity and the alleged retaliatory action can be probative of causation. See Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001). However, [e]ven if timing alone could ever be sufficient to establish a causal link, . . . the timing of the alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link will be inferred. Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (internal quotations omitted; alterations in original); see also Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two days between protected activity and alleged retaliation sufficient to draw inference of causal connection). In cases such as this one where the temporal proximity is not so close as to be unduly suggestive, we have recognized that timing plus other evidence may be an appropriate test . . . . Marasco, 318 F.3d at 513 (internal quotations omitted).

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Friday, December 05, 2003

Fair Credit Report Amendment To Correct Problem (Which Might Never Have Existed) On Sexual Harassment Investigations Signed Into Law By President Bush

Posted 10:53 AM by Michael Fox

How lawyers can make a mountain out of a mole hill. On the occasion of my 48th birthday, although I do not believe this was anything other than happenstance, a Federal Trade Commission staff attorney responded to a private sector lawyer's inquiry to the FTC, by opining that a sexual harassment investigation conducted by a 3rd party met the definition of a consumer report under the FCRA, thus invoking a number of requirements under the FRCA including obtaining permission of the person to be investigated and providing the subject of the investigation a copy of the report prior to taking any adverse action. The letter concluded, as did all such opinions, that -- This is an informal staff opinion and is not binding on the Commission."

Although it is unknown, at least to me, what prompted this inquiry, I am not aware of any reported instance where a claim had successfully been brought or even been asserted that the failure to comply with the FCRA in connection with a sexual harassment investigation by a third party was illegal under the FRCRA. Having started the ball rolling however, and still as far as I am aware any reported case where this had proved to be an actual problem, yet another private lawyer inquired about implementing the FCRA provisions in connection with a 3rd party investigation, and received a similar non-binding letter that it was impermissible to redact any information from the report before giving it to the person being investigated.

Given these two non-binding opinions, the purveyors of legal information, in this case primarily management side employment lawyers' went into full swing to notify all concerned about this "development". A smattering of such reports derived from just the first page of a google search gave us the following headlines: SEXUAL HARASSMENT INVESTIGATIONS MAY BE SUBJECT TO FCRA; FEDERAL TRADE COMMISSION FLEXES ITS MUSCLES IN THE EMPLOYMENT ARENA; The FTC Says Sexual Harassment Investigators Must Comply With the Fair Credit Reporting Act ; The New Sexual Harassment Pitfall: The Fair Credit Reporting Act and Sexual Harassment Investigations and on on. In full disclosure, I am sure that I too wrote or at least made similar proclamations.

As a result, substantial attention to this problem, that still as far as I know had never resulted in a successful claim being made under this theory, on the part of the Society for Human Resource Management and others have led to a legislative fix. Yesterday, President Bush signed into law the Fair and Accurate Credit Transactions Act of 2003 which contains § 611 to resolve the problem, although that particular piece didn't make it into the Fact Sheet released by the White House.

So more than 5 years after we started down this road, and killed no telling how many forests to get the word out about the problem that could have been, we can now all sleep better knowing that this is one dragon that has been slain. At least until we get to comment on the regulations that no doubt will follow.

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Thursday, December 04, 2003

City Funds Trapped By Sexual Harassment Judgment

Posted 7:26 AM by Michael Fox

Cash flow in Bernardsville, NJ (population 7,345) just got a little tighter as a lien for $1.4 million was placed on the city's bank account just before Thanksgiving. The lien was based on a $500,000 jury verdict, which was coupled with $900,000 in legal fees stemming from a claim of sexual harassment by a former police department employee.

The city said it was blindsided by the action. In what I hope is a misquote or at least taken out of context, a lawyer hired to evaluate an appeal for the city (which decided not to) said, "I can't really give you a good rational explanation why she did this," he said." I think I can. She wanted (and no doubt was entitled to) her money. That's what happens when judgments become final. You can check out the story in the Bernardsville News.

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Wednesday, December 03, 2003

Updated Thoughts on Raytheon v. Hernandez

Posted 1:01 PM by Michael Fox

After seeing a number of headlines today saying in effect, company wins, for example the Daily News Tribune and the Boston Globe , I thought I better re-read the opinion and my comments. It is true that the company won yesterday in the sense that the employer was going to trial as a result of the 9th Circuit decision, and now they are at least going back to the 9th Circuit, and maybe even back to the district court on the issue of their summary judgment. And absent some real reaching to find some other evidence that there was an intention to discriminate because of the prior drug use (which may be difficult since there was some indication that the person applying the rule was not aware that the reason he was terminated initially was for failing the drug test) the company might prevail, even in the 9th Circuit, on that issue.

Where it could lose, and certainly where it seems the bigger question that was dodged by the Supreme Court is -- does such a rule have a disparate impact on individuals with disabilities, and if so, is such a rule justified by business necessity? The Supreme Court without much analysis seemed to say that the disparate impact theory is available in an ADA case which means that the next challenge to such a rule will come under that theory. The old "rule of the case" doctrine may preclude Hernandez himself from getting a bite at that apple. However, it is likely that some other company with such a policy, who may feel much better about it today because of some of the headlines referred to above, may find that they have just picked up the laboring oar of proving that it does not disproportionately impact those with disabilities and/or that it is justified by business necessity. While the Boston Globe article discounts that as only a theoretical possibility, not likely to succeed, a statement from the National Council on Disability calls it a 'partial victory' for those with disabilities. I think I was right - it was mostly a punt, but from Raytheon's perspective, it was probably a good one that may have pinned down the other side near their own goal line.

Labels: ADA

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Ever Wanted to Determine What Turn Over Really Costs?

Posted 9:27 AM by Michael Fox

Check out the handy Turnover Calculator that the folks at the superb website, workforce.com have tracked down. It helps quantify both out of pocket as well as the still real, but hidden, soft dollar costs such as loss of productivity and administrative time in processing leaving employees out and new employees in. You have to fill in your own numbers, but my guess is that doing this analysis might be a good incentive for better hiring decisions, as well as training and even treating your current employees better!

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Tuesday, December 02, 2003

First Supreme Court Employment Law Decision of the Term Is A Punt

Posted 2:35 PM by Michael Fox

Raytheon v. Hernandez (U.S. 12/2/03) raised the interesting question of whether or not an employer's no rehire for misconduct rule violated the ADA when applied to a former employee who was terminated for testing positive on a drug test. The answer is .... maybe, but we don't know yet because the 9th Circuit applied the wrong test. Instead of treating the case as a disparate impact case it applied the McDonnell-Douglas analysis used in cases of disparate treatment. The result, kick it back without reaching the question on which certiorari was granted.

Maybe it will come back for a second shot after the 9th Circuit revises its opinion, but I would be somewhat surprised. If I am correct, that is probably bad news for the company.

Update 12/3/03: After seeing a number of headlines today saying in effect, company wins, for example the Daily News Tribune and the Boston Globe , I thought I better re-read the opinion and my comments. It is true that the company won yesterday in the sense that the employer was going to trial as a result of the 9th Circuit decision, and now they are at least going back to the 9th Circuit, and maybe even back to the district court on the issue of their summary judgment. And absent some real reaching to find some other evidence that there was an intention to discriminate because of the prior drug use (which may be difficult since there was some indication that the person applying the rule was not aware that the reason he was terminated initially was for failing the drug test) the company might prevail, even in the 9th Circuit on that issue.

Where it could lose, and certainly where it seems the bigger question that was dodged by the Supreme Court is -- does such a rule have a disparate impact on individuals with disabilities, and if so, is such a rule justified by business necessity. The Supreme Court without much analysis seemed to say that the disparate impact theory is available in an ADA case which means that the next challenge to such a rule will come under that theory. The old "rule of the case" doctrine may preclude Hernandez himself from getting a bite at that apple. However, it is likely that some other company with such a policy, who may feel much better about it today because of some of the headlines referred to above, may find that they have just picked up the laboring oar of proving that it does not disproportionately impact those with disabilities and/or that it is justified by business necessity. While the Boston Globe article discounts that as only a theoretical possibility, not likely to succeed, a statement from the National Council on Disability calls it a 'partial victory' for those with disabilities. I think I was right - it was mostly a punt, but from Raytheon's perspective, it was probably a good one that may have pinned down the other side near their own goal line.

Labels: ADA

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Where To Put The Portable Toilet - Let's Count The Cost of Deciding

Posted 8:17 AM by Michael Fox

As always, there is no doubt much more behind the story than is told by this 10 page opinion, including no doubt a long history of mistreatment by some of migrant workers. Nevertheless, the lengths that it took to get a reasonable reading of an OSHA standard which requires with some (very important for this case) exceptions, a toilet and handwashing facility be within a 1/4 mile walk for any hand laborer in a field, do seem to be the sort of issue that makes many question the wisdom of the legal process and government bureaucracies.

The particulars detailed in Advanta v. Chao (8th Cir. 12/01/03) [pdf] are that the exception allows toilets be located at the point of vehicular access when the terrain makes the 1/4 mile rule unworkable. In this case, Advanta placed the toilets at the end of corn rows, since putting them in the middle of the field which would have been required by the literal language of the standard, would have precluded the company from successfully detasseling the corn, the purpose for which the workers were there. Notwithstanding language in the preamble to the standard which seems, and in fact was, tailor made for this particular problem, first the DOL, then an administrative law judge and finally the Occupational Safety and Health Review Commission issued and enforced a $1,000 citation against Advanta.

Challenging the rules under the appropriate procedural process, Advanta went through those two proceedings and appealed to the 8th Circuit. There they were supported by an amicus brief of the American Trade Seed Association, a trade organization of 800 companies involved in seed corn production. ATSA must have been surprised to be there since it was the organization's initial comment to the standard during the rule-making process which elicited the language in the preamble to the standard which seemed to support precisely what Advanta (and apparently all 800 companies who are involved in similar activities) did on a regular basis.

In finding the DOL's position unworthy of support, the Court had a number of arguments to make that case, but the concluding one gives you a tenor of their feeling:

We also find it curious that the DOL's interpretation of the Standard would require a seed company to place facilities in cornfields for seasonal corn detasselers who are never more than a half hour from a facility, while a seed company would not have to provide facilities at all - whether in the field or at a point of closest vehicular access - for seasonal corn detasselers who work three hours or less each day. See 29 C.F.R. § 1928.110(c)(2)(v) ("Toilet and handwashing facilities are not required for employees who perform field work for a period of three (3) hours or less (including transportation time to and from the field) during the day.") The DOL's decision to interpret the Standard in such a confusing manner further convinces us the DOL's interpretation of the Standard is unreasonable and is unworthy of deference and enforcement against Advanta.

So let's count the cost - Initial rule-making, with participation by ATSA. Investigation by OSHA, hearing before an administrative law judge, appeal to the Occupational Safety and Health Review Commission, and finally the appeal to the 8th Circuit. It does seem to be a long and expensive road to common sense.

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Sunday, November 30, 2003

Settlement Gone Bad - Law Firm Now In Defendant's Box

Posted 10:31 PM by Michael Fox

The law firm of Leeds, Morelli & Brown has won the first round of a law suit by their former clients claiming the firm sold them out in their class action suit against Nextel. According to the story in the Denver Post, the firm agreed to a two year consulting agreement with Nextel, for a cool $2 million. What makes that appear even more unusual was that the individual claims of the employee/plaintiffs were still to be resolved. Still, the law firm won the first round of a trial in Arapahoe County District Court. Stay tuned, appeal promised.

Even more interesting is this link to Eichen, Levinson (self described as personal injury trial lawyers) who are again in their own words

aggressively investigating this matter [which refers to their description of a similar case involving Prudential and solicitation of employees of several other firms, not Nextel]. If you or a friend or family member retained Leeds Morelli in any discrimination matter, and you were not told of the millions of dollars of up-front legal fees they received before you recovered a dime, and if you were never told of secret lucrative ‘back end’ consulting deals Leeds Morelli got from some of the very defendants they were supposedly suing, then call us at EICHEN LEVINSON, or email us your information, so that we may take steps to help you.

Is it too much to hope that all of the firms engaged in class solicitation will turn on each other?

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The Worst of All Worlds - Recanting of Management Witness Comes Too Late, But He Still Ends Up Convicted of Perjury

Posted 8:37 PM by Michael Fox

Sometimes things just don't work out. After Forest River, a manufacturer of recreational vehicles was hit with a $320,000 sexual harassment verdict, one of its management employees who had been accused of the harassment changed his story. Although during deposition and trial he denied any sexual relationship, after the verdict he admitted that he had a consensual affair with the plaintiff. The judge unfortunately did not believe him, refused to set aside the verdict and referred the matter to the U.S. Attorney for an investigation of possible perjury. Last Monday, the story was completed when he pled guilty to perjury. The eTruth, the on line site of the Elkhart, Indiana Truth has the story. Actually, since sentencing hasn't occurred, probably too early to say the story is complete. Not too early, to say it is a pretty strange tale.

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Thursday, November 27, 2003

Trade Secrets in the World of Tropical Fish - A Better Deal at Petco than Wal-Mart?

Posted 9:17 AM by Michael Fox

Given the vaunted power of Wal-Mart in demanding low prices from its suppliers, perhaps the most amazing thing about Fox v. Tropical Warehouses, Inc. (Tx.Ct. App. - Fort Worth 11/20/03) is that Petco could command a better price from their wholesale tropical fish supplier than the Arkansas based powerhouse. But more importantly from an employment law standpoint, the case is a good illustration of some general principles of Texas trade secret law in a definitely non-high tech context. It also shows the common sense of a Texas appeals court, which reached what seems to be an imminently fair result in modifying a temporary injunction, while still upholding the integrity of trade secret law.

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Tuesday, November 25, 2003

Something to Be Thankful For From Congress - Health Savings Accounts for All

Posted 10:49 AM by Michael Fox

Lost in all the hoopla about the new Medicare bill and presciption cards for "seniors" (or at least I didn't hear much about it) is the expansion of Health Savings Accounts (HSA), which is much like an IRA. In the past they were available only on a limited basis, but now are potentially open to anyone. The major news organizations are talking about it today including an article in the Guardian and a brief description in a USA Today story.

Since I am certainly no benefits lawyer, I had the temerity to summarize a brief summary by one of my colleagues who is a benefits lawyer, Peter Kelly. Since it is a summary of a summary, you can be sure any errors are mine, not Peter's. The highlights, without any of the really technical stuff, as I understand them are:

Employees who select a high deductible coverage for their healthcare insurance may establish an HSA. A coverage option will qualify as a high deductible at any level of deductible of $1,000 or more for self-only coverage ($2,000 for spouse/family coverage).

Employees, employers and even family members can contribute to an employee's HSA The overall limit on the amount that can be deducted each year is the lesser of the deductible or a dollar limit. For employees under 55, the dollar limit is $2,250 plus COLA for self-only coverage and $4,500 plus COLA for spouse/family coverage. If COLA applies for 2004 (and the legislative history indicates it might) the 2004 limits could be as much as $2,600 and $5,150, respectively. In addition the annual contribution for employees aged 55 or more is increased by $500 (a differential that increases by $100 each year until it is $1,00 per year more in 2009).

An HSA is much like an IRA. It is a tax exempt, individual account that must be invested with a bank, insurance company or other entity approved by the Treasury Department. (Just wait for the ads from the brokerage companies to start rolling out.) As long as amounts withdrawn are only used to pay for medical expenses they will not ever be taxed. HSA's may not be used to pay insurance premiums other than COBRA coverage costs or Medicare premiums (Medicare itself, not Medigap). Virtually any other medical cost is permitted. The accounts are vested, and like any IRA completely portable.

HSA's may be offered through cafeteria plans. Like IRA contributions, HSA contributions may be made at year end or even early in the following tax year.

According to the politics, it was the HSA provision that got a number of conservative Republicans to go along with the otherwise sweeping expansion of a government program. I can't help but think of one of the early champions of HSA's who never saw them come to pass while he was still the senior Senator from Texas, Phil Gramm.. Maybe that will be a bright spot in his week, as I hope he has a bad Friday as Texas crushes his beloved Aggies.

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Monday, November 24, 2003

No One Ever Said The Legislative Process Was Simple- White Collar Exemption Rulemaking Survives

Posted 3:32 PM by Michael Fox

Earlier this fall, in a highly publicized vote the Senate passed the Harkin amendment barring the Department of Labor from moving forward with its proposed amendments to the white collar exemption regulations of the Fair Labor Standards Act of 1938. Then, the House of Representatives, which had earlier passed a spending bill without such restrictions, passed a non-binding instruction to the House conferees to accede to the Senate position. At that point, many, if not most, supporters of reform tossed in the towel. But the threat of a presidential veto, which the White House stuck to, and continued efforts by the business community, resuscitated the regulation process. MSNBC has the story of the brass knuckle in-fighting that occurred before this result was reached.

Although the ability of the DOL to continue the process has survived, the fight is by no means over. When the DOL issues its final proposed regulations, you can expect a true political donnybrook over the regulations complete with all the hot air that can be mustered in a presidential campaign year. Assuming no other legislative barriers, after the regulations are published in final form in the Federal Register, the only mechanism to keep them from becoming effective is for Congress to veto them within 60 days under the Congressional Review Act, a 1996 bill that has been rarely used. Assuming however a Bush administration that shows the same backbone that it took to revive them through the legislative process, an actual veto of a Congressional act to nullify the regulations would have to be overridden by a 2/3 majority vote in each House.

One other scenario would be a delay in getting the final regulations written and approved by the various regulatory agencies, prior to publishing. If there were to be a Democratic presidential installed before the regulations are actually published, they could be withdrawn by the new administration. One would assume having come this far and put so much political capital on the line for the regulatory process, that this Administration will ensure that the lights will be burning late at the DOL, and other agencies, to ensure there is no possibility of that happening.

The bottom line is that although it is way too soon to say that the regulations will be law, and for certain there will be some changes in the regulatory stage, it may be time to brush up on the major concepts, as change may be coming. After 40 years, hardly too soon.

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Some Employment Litigation Highlights - Or Was That Lowlights?

Posted 1:49 PM by Michael Fox

Overlawyered.com takes a look at some of the not so Great Moments in Discrimination, including a kind mention of our reference to the weird and wacky cases of the year surveyed by the California Chamber of Commerce.

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Friday, November 21, 2003

No Microsoft Result for ExxonMobil - Contract Workers Not Covered By Benefit Plans

Posted 9:24 PM by Michael Fox

A challenge by employees of third parties who worked for Mobil prior to its merger with Exxon, sued for benefits under cerain Mobil benefit plans. Some of the workers had worked in their contractor capacity for as long as 10 years. Often they worked right alongside Mobil workers, with their employer of record being the only difference. However, since the plans themselves provided that the employees were not covered, the Court held that the administrator's determination to that effect was not invalid, even applying a sliding scale because of the potential conflict of interest of the administrator. MacLachlan v. ExxonMobile (5th Cir. 11/20/03) [pdf]. Sensibly enough, the Court rejected the plaintiff's argument that "emerging judicial doctrine" supported their position, finding instead that "Whether these cases are the vanguard of an emerging judicial doctrine is a matter for the legal academy; they do not help us decide the appeal now before us: whether, on the facts of this case, the administrator abused his discretion." And that answer, which must have made the folks at Irving headquarters smile with relief, is no.

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Wednesday, November 19, 2003

What I Have Been Saying About Performance Appraisals For A Long Time

Posted 8:57 PM by Michael Fox

You won't find many experienced management employment lawyers arguing with the general thesis articulated in at least the title of Performance Appraisals Don't Work. The reason - been burned by them too many times, as the now ex-employee's best evidence.

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Monday, November 17, 2003

Another Way For Plaintiff To Lose At McDonnell Douglas, Concede A Different But Not Illegal Reason

Posted 9:16 PM by Michael Fox

If the plaintiff argues that there is a different reason than the one articulated by the employer in response to its burden of production, it is enough to sink their own discrimination claim according to the 10th Circuit. Neal v. Roche (10th Cir. 11/17/03) [pdf]. Here plaintiff did not get a promotion she desired. Instead a white candidate was selected because of "her experience as a purchasing agent, her knowledge of the cost centers and the process through which a major portion of the hospital budget is spent."

Plaintiff challenged that, claiming the real reason was that she was selected in order to protect her from a layoff, since her position was being eliminated. Relying on cases approving the legality of 'cronyism', the Court noted this was a narrow example where proving pretext alone was not enough to get past summary judgment. Where plaintiff concedes a reason for the action, that while different from that voiced by the employer, is not discriminatory, plaintiff loses. The lesson, prove pretext, but be careful of what you allege the real reason is.

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Saturday, November 15, 2003

5th Circuit - Court Must Consider Unequal Application of Job Standards at Prima Facie Stage

Posted 9:28 AM by Michael Fox

The question has been raised in light of the Supreme Court's decision in Costa whether the McDonnell Douglas shifting framework remains viable. See Johnson v. Pepsi-Cola General Bottlers of Iowa, Inc. for a long discussion by Chief Judge Max Bennett of the Northern District of Iowa on that issue.

Even while that debate is ongoing, the 5th Circuit finds occasion yesterday to refine its application of McDonnell Douglas. Johnson v. State of Louisiana. (5th Cir. 11/14/03) [pdf]. The district court had granted summary judgment because none of the plaintiffs had shown that they met the objective qualifications for the positions that they sought. It did not consider that the state had not required that the two applicants who received the position to meet those standards. It argued that was not required to be taken into account at the prima facie stage, and since the applicants could not show they were qualified, thus creating a prima facie case there was no need to go further.

There is a problem with that analysis according to the 5th Circuit, which adopts the reasoning of two cases from the 11th Circuit. The money quote is:

The district court believes it should address the unequal application of the objective requirements at a later stage of the case, but this solution would disallow courts from remedying this type of discrimination. A plaintiff would never reach the later stage of the case if the unequal application were not addressed at the prima facie stage. Allowing an employer to point to objective requirements in arguing that a plaintiff is unqualified, even though the requirements were not applied to other employees, would subvert the intent of Title VII and McDonnell Douglas.

Notwithstanding this flaw in the lower court's reasoning, the Court did uphold the summary judgment for all but one of the plaintiffs.

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Thursday, November 13, 2003

Ever Wonder What the Bright Line for Age Discrimination Is - A Survey By the 6th Circuit

Posted 8:43 PM by Michael Fox

Answering a question that has probably been burning at least in the back of your mind, the 6th Circuit after surveying its sister circuits, decided that hereafter, in the 6th Circuit when an employee is replaced by a person less than 6 years younger, they can't meet the fourth element of a prima facie case of age discrimination, at least without some special showing. Grosjean v. First Energy Corp. (6h Cir. 11/13/03).

What they found in checking out the other circuits,was the bright line in the 7th Circuit of 10 years, Hartley v. Wisc. Bell, 124 F.3d 887 (7th Cir. 1997), and that most other circuits followed the Hartley rule. Summing up, their standard is "also at least as lenient towards plaintiffs as all decisions of our sister circuits with the exception of the standard-less Ninth Circuit and the three-year-standard Eleventh Circuit."

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Additional Focus On AIDS/HIV Discrimination - ACLU Task Force

Posted 5:56 PM by Michael Fox

The ACLU has issued a task force report based on a survey of 40 community based AIDS service providers, finding a wide range of continuing discriminatory practices reported not only in employment, but in areas of housing, and medical care. The Report, HIV & Civil Rights co-incides with a renewed educational and litigation effort spearheaded by the ACLU AIDS project. Among the areas singled out for attention in the employment area are food service and health care.

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Criminal Malicious Prosecution Cases in Texas Now Harder - Texas Supreme Court

Posted 5:29 PM by Michael Fox

Although not strictly an employment law issue, employers are sometime (in fact more and more it seems) confronted with questions of whether certain information should be presented to police or other law enforcement officials. One underlying concern has always been a suit for malicious prosecution. The law has been relatively clear that one would not be guilty for malicious prosecution unless it is shown that they presented information that they knew was false to the police. However, leaving that kind of determination in the hands of a third party fact finder is enough to discourage some from taking the chance. Last week, the Texas Supreme Court added one other barrier to a successful claim for malicious prosecution when, without hearing oral argument, it reversed and rendered a verdict favoring plaintiffs in a malicious prosecution case. King v. Graham (Tex. 11/7/03). In King the Court held that it was not only necessary to show the defendants had provided false information, but that the false information had been the reason that the prosecution action was initiated. Here, there was evidence that the prosecuting authority did not rely only on the defendants' information, so that it failed the necessary "but for" test.

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Not All the Crazy Employment Cases Come From California

Posted 4:31 PM by Michael Fox

but the good folks at the California Chamber of Commerce have collected the highlights this year. Hard to pick a favorite among this group.

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Avoiding The Hanging Jury - And We Are Not Just Talking About the Law West of the Pecos

Posted 2:56 PM by Michael Fox

I often tell clients that my goal when trying an employment law case is to win, but a close second is to make sure that we don't lose big. And in employment law cases that usually means don't give the jury the ammunition or desire for a large punitive damage award. Even if you can (and you often can) get them reversed or lowered on appeal, it still makes for an uncomfortable period of time while that judgment is hanging around your head and on your balance sheet. Dr. Joni Johnston, who has been linked to before here, makes that same point and some ways to avoid it in her lexisONE article on The Role of Emotions in Punitive Damage Decisions.

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5th Cir. - Disparate Impact Theory NOT Available in Age Discrimination Cases

Posted 12:55 PM by Michael Fox

While the Supreme Court was grappling with the complexities of the ADEA in another context yesterday, today's 5th Circuit decision in Smith v. City of Jackson, Mississippi (5th Cir. 11/13/03) holding that the theory of disparate or adverse impact is not available in age discrimination cases is an important victory for employers. If the decision were different, any neutral practice that adversely impacted those over 40, would have to be justified as a business necessity. Although a plus for employers, it is unlikely to be the last word since Judge Stewart dissented, and there is a split among the circuits over this precise issue.

In fact the Supreme Court granted certiorari on this particular issue once before in Adams v. Florida Power , but then one month after oral argument (transcript of argument here) dismissed the case finding certioriar to have been improvidently granted. (Meaning in all likelihood, after thinking about it, we don't want to tackle this one yet.) Although it may not be Smith v. City of Jackson, sooner or later, it is a major issue that ultimately will be decided by the Supreme Court.

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Wednesday, November 12, 2003

Supreme Court Takes Up Age Discrimination Class Warfare - The Forty Year Olds vs. Those Over 50

Posted 1:39 PM by Michael Fox

What has been dubbed a reverse discrimination case is being argued today before the Supreme Court. The suit, General Dynamics v. Cline pits a group of those between the ages of 40 to49 who were not eligbile for retiree benefits unless they were 50 or older on a July 1, 1997 The argument at its very simplest is: 1) we are over 40, so it is illegal to discriminate against us because of our age; 2) we are not getting a benefit solely because of our age, therefore 3) the defendant is guilty of age discrimination. Obviously it is a lot more complicated than that, but I think that pretty well sums up what it is all about.

As you can see from the post at the Benefits Blog, a decision finding age discrimination would create all kinds of havoc with benefit plans. For a look at the consequences and why the Court shouldn't uphold the decision of the 6th Circuit see the amicus brief [pdf] in support of granting the writ of certiorari filed by numerous pro-employer groups. The decision was by a divided court, with the deciding vote cast by my old friend from summer clerkship days at Vorys, Sater in Columbus, Justice Guy Cole. He summed up where he stood as follows:

In short, the result we reach today strikes me as counterintuitive. But, the clarity with which Congress spoke convinces me that the ADEA permits younger workers in the protected class to sue their employers for age discrimination that favors older employees. Also, although a close call, I do not believe that our result violates Supreme Court precedent. For those reasons, I agree to reverse the district court's dismissal of plaintiffs' ADEA claims.

Whether he correctly anticipated the Supreme Court's view remains to be seen. One prophecy of my own, if Justice Thomas writes the decision, General Dynamics is doomed.

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Tuesday, November 11, 2003

Employer v. Competing Employee - The Personal Side of the Story

Posted 9:41 PM by Michael Fox

Covenants not to compete and employee loyalty litigation seems to be an ever more present part of the business world these days. But there is a personal side, really on both sides. The Milwaukee Journal Sentinel has the story of a shoot out in an unlikely business, the printing of church bulletins. It is a good picture of what I call the soft dollar cost of litigation.

Labels: competing employees

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Friday, November 07, 2003

Your Tax Dollars At Work - GAO's Concerns About the U.S. Commission On Human Rights

Posted 8:50 AM by Michael Fox

If you remember seeing news stories and headlines that made you think things were not going all that well at the U.S. Commission on Civil Rights, there is more fuel for that fire in a recently released report [pdf] from the General Accounting Office.

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Thursday, November 06, 2003

What Managers Know Deep Inside, But Forget Sometimes....

Posted 3:48 PM by Michael Fox

say when defending against an organizing drive. At that point it's always easy to point to money or benefits as the reason a third party is making headway with your employees. But deep down, most know what has now been confirmed, again, in a recent survey by Accountemps. The critical key to job satisfaction is the relationship with the boss. Yahoo Finance has a summary of the survey and some key points. And although this survey was among white collared executives, if you think it doesn't also apply to blue collar, pink collar and no collar jobs, you are only kidding yourself.

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Latest Violence In the Workplace - Westchester, Ohio 2 Dead, 3 Injured

Posted 2:36 PM by Michael Fox

Another grim story. ABC News report on an incident at the Watkins Motor Line facility near Cincinnati. CBS News' report has more details, including that the apparent shooter was a former employee.

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Intermediate Texas Appellate Courts - Tougher on Plaintiffs Than Defendants

Posted 1:56 PM by Michael Fox

Thanks to Howard Bashman for the pointer to the Houston Chronicle story reporting on, of all things, a law review article by two of the fine appellate lawyers at my former firm, Haynes and Boone. The article promises to be campaign fodder for those seeking some liberalization of the courts, and no doubt will be severely questioned by those who are happy with the current state of affairs. In fact, the story has the first inkling that both have begun. What will be most interesting is to see how many who comment on it in the future will have actually read it. If so, it may be the first 'sell out' of a South Texas Law Review edition in some time.

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Wednesday, November 05, 2003

FLSA Collective Action - Parties Opt In to Action Not Claims According to the 11th Circuit

Posted 6:30 PM by Michael Fox

Although you can sympathize with a district court who was probably trying to clear his docket of a bothersome case, his theory didn't work. Here a FLSA claim was turned into a collective action when hundreds of former employees opted in to the suit. At the time they opted in, there were two claims of FLSA violations. A third was later added. The district court granted summary judgment on all three causes of action. The 11th Circuit affirmed on two but remanded on the third. Then is when the district court got in trouble. Instead of ruling on the merits, it dismissed the third claim on the basis that the parties had not re-opted into the action after the third FLSA claim was added, so they were not parties to the only claim that remained. A clever idea, but the 11th Circuit couldn't find any support for it, and so sent it back to the trial court for yet another attempt at resolution. Prickett v. DeKalb County (11th Cir. 11/5/03) [pdf]. Another indication of how time consuming and tricky FLSA collective actions can be.

Labels: FLSA

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More On How the 11th Circuit Dodged Deciding Tough Questions Under Faragher/Ellerth

Posted 10:01 AM by Michael Fox

Professor Grossman of Hofstra University echoes my earlier report on how the 11th Circuit dodged some key questions under the Faragher/Ellerth affirmative defense in its recent Walton v. Johnson & Johnson decision. Her findlaw column goes a step further, arguing that the 11th Circuit was wrong. Employers relying on Walton for protection in similar circumstances should understand the questions were dodged on narrow procedural grounds, by a court that may have felt something about this particular case didn't merit the result that Professor Grossman argues is required. The next case with similar facts might well turn out differently.

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Hospital Has Big Overtime Bill For Not Watching the Fine Points of FLSA

Posted 7:59 AM by Michael Fox

HR Next has the story of Mount Sinai Hospital Medical Center in Chicago's agreement to pay over $600,000 in back pay for overtime following an audit by the Wage and Hour division of the DOL. The hospital's blunder - they just paid overtime after 80 hours every 14 day pay period. Wage and Hour is normally determined on a 7 day workweek period, but there is an exception for hospitals which allows a 14 day work period, but to qualify an employer must pay the greater number of overtime hours figured over 80 hours in the 14 day period or after 8 hours in a day. 29 CFR § 778.601. The period covered 18 months and the payment amount doesn't appear to include liquidated damages which would have been likely if this had been a case brought as a collective action.

It points out the benefits of not only paying close attention to the wage and hour regulations, but also to the advantage of considering working through the DOL if you have a problem rather than waiting for a plaintiffs' employment lawyer to pick you off.

Labels: FLSA

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Ergonomics Rules Go Down To Defeat In Washington State

Posted 7:47 AM by Michael Fox

Although I have not had to deal with ergonomic rules (or the threat of them) very often, they are a big concern to many employers. To this point there has been more talk about them than action. The Washington state experience seems to be a good example. A comprehensive set of rules was enacted, but implementation was postponed. After other battles, the latest was a well funded initiative opposing them. which was apparently successful yesterday. The Seattle Post-Intelligencer has the story. Could be interesting that the rules wouldn't fly with the general public, or it could just be another example of what occurs in the sometimes wacky world of initiative.

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Tuesday, November 04, 2003

6th Cir. Spends Little Time In Allowing Both KY Teacher Disability Pension and ADA Claim

Posted 9:52 PM by Michael Fox

Jumping quickly to the position that where the contention is that the employee could have continued in her position if the employer made a reasonable accommodation, which it didn't, the 6th Cir. not only came out differently on the issue of whether an ADA claim was barred because of a claim under the KY disability pension statute than the 3rd Circuit did a month ago in dealing with a similar question, (see earlier Jottings post) but also took a whole lot less time in doing so. Justice v. Pike County Bd of Education (6th Cir. 11/4/03) [pdf].

Labels: ADA

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Electronic Communication of Policies Sufficient - No Need For Paper According to the 6th Cir.

Posted 9:41 PM by Michael Fox

Although the bulk of the opinion deals with when the "reasonable expectations" of an employee are sufficient to imply something other than an at will status under Michigan law (certainly not close here), the money quote in Mannix v. County of Monroe (6th Cir. 11/3/03) [pdf] for those who worry about whether posting policies on a computer network will be sufficient is as follows: "Uncontradicted evidence establishes that the County did provide reasonable notice, in that it undertook steps reasonably calculated to reach the affected employees. Considering the advancement and ubiquity of electronic corporate communications, we will not induce a return to older practices by imposing a paper receipt requirement." Amen.

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6th Cir. - Participation In Internal Investigation Related to EEOC Charge Protected Under Participation Clause

Posted 9:14 PM by Michael Fox

Where an employee was named as a witness to an incident that led to an EEOC charge being filed, and subsequently told the employer that he did see the incident and would so testify, the activity was protected under the participation clause of Title VII. Abbott v. Crown Motor Co. (6th Cir. 11/3/03) [pdf]. In a case of first impression for the Circuit, the court held that participation in an internal investigation linked to a filed EEOC charge was participation. The court also found that statements allegedly made by the employer near the time of the termination that he was going to get back at those who were involved in the charge and that the plaintiff was fired for sticking his nose where it didn't belong, plus a negative reference given in violation of the company's own policy, were sufficient to reverse the trial court's summary judgment. Retaliation seems destined to be one of plaintiffs best causes of action.

Labels: retaliation

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Making It Easier To Complain - Coming Soon An EEOC Call Center

Posted 11:35 AM by Michael Fox

Although I haven't seen a mention of it in the regular press, the Daily Labor Report (subscription required) is reporting that the EEOC is voting to set up a national call center which would apparently take discrimination complaints. It would be on a 2 year trial basis and would employ contractor employees. (I can see the ads now, Telemarketers - Tired of Selling Steak Knives - Come Listen To Employees Complain). The U.S. Newswire did have a storyl ast week which focused on the opposition of the AFGE union to many of the proposed changes.

The call center is just one of a number of internal changes being proposed by the Chair, Cari Dominguez to the full five member Commission. Following confirmations of Naomi Earp (who had been sitting under a recess appointment and who was originally opposed by the NAACP), Leslie Silverman and Stuart Ishamaru by the Senate last Friday, the EEOC is now at full strength for the first time in a number of years. The fifth member is Paul Steven Miller.

Labels: EEOC

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Sunday, November 02, 2003

Diabetes and the ADA - Check Out EEOC Fact Sheet

Posted 9:46 PM by Michael Fox

As diabetes becomes a more common medical issue - another aging of the workforce issue? - the EEOC has released Questions and Answers About Diabetes in the Workplace and the Americans with Disabilities Act (ADA).

Labels: ADA

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Friday, October 31, 2003

9th Circuit Holds Mischaracterizing Leave As Personal Not FMLA Leave Can Be FMLA Violation

Posted 6:28 PM by Michael Fox

Although the case is more complicated, as witnessed by the split decision, with one judge complaining the court should have gone further on the employee's behalf and another claiming it went too far, one holding that does seem clear is that the mere mischaracterization of leave as personal not FMLA, could in itself be a violation of the FMLA. Even if, as here, the plaintiff actually did not lose any rights since she was lawfully terminated while she was on leave. Liu v. Amway (9th Cir. 10/30/03) [pdf]. Just the unclear nature of the procedural issues in the case makes it unlikely that it will get higher review, but it certainly seems the holding that mischaracterization alone, where there was not an actual failure to give her any benefits required under the FMLA, is wrong.

Labels: FMLA

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What Cases Under Costa Could Look Like - Plaintiffs Winning the Battle, Losing the War

Posted 6:05 PM by Michael Fox

Although the Supreme Court's decision in Costa is not mentioned in Wheeler v. Missouri Dept. of Transportation (8th Cir. 10/31/03) it nevertheless represents a case where liability attached, but no damages were awarded since the jury was charged and found that the employer would not have given the plaintiff the promotion anyway. The facts were interesting in that plaintiff alleged he had not been given a promotion because of pressure on the Defendant to select a female for the position. Since liability was found, plaintiff was entitled to attorneys' fees. Significantly his attorney's request of just over $250,000 in fees was reduced to $21,250. In part, the Court held that the reduction was proper because one of the factors to be taken into account was the degree of success, and given that plaintiff did not ultimately prevail, he was only entitled to a limited recovery. It probably also didn't help that plaintiff's counsel took 37 depositions, many of which the court noted "were not warranted."

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Failure To Give Pay Raise More Than 3 Years Before Charge Is Still Actionable Under Title VII, At Least in Part

Posted 5:29 PM by Michael Fox

A black employee was promised a 45 cents per hour raise after his first six months, but did not receive it. Unfortunately, he did not recognize the error until more than three years later. When he did, he found that not only did he not get it, but white employees did. He filed a charge with the EEOC claiming that he did not receive the raise because of his race. The EEOC, and later the trial judge, both found his claim time barred as filed more than 300 days after the 'discrete act' of failing to give him the promised raise.

After appointing the pro se plaintiff counsel for his appeal, the 7th Circuit considered the issue and found the claim timely, at least for the paychecks received within 300 days of filing the charge. (The Court notes that plaintiff had wisely abandoned claims to anything outside that time period.) After discussing some confusing precedents within the circuit, the Court found that in its most recent consideration of this issue, the Supreme Court had left what it called a:

... narrow channel for Title VII plaintiffs who wish to complain that their paychecks, in compensation for work they have presently performed and completed in pay periods within the limitations period, are discriminatorily low because of an earlier act that occurred outside the limitations period. Each paycheck is the kind of discrete act to which the Court referred in National Passenger Railroad Corp.; thus checks corresponding to pay periods before the 300 day time limit are time-barred, but those within it may form the basis of claim.

Reese v. Ice Cream Specialties, Inc. (7th Cir. 10/30/03) [pdf]. Interestingly, although the Reese court seemed to imply that this would be a rather rare circumstance, a different panel of the 7th Circuit was coming to a similar conclusion in a different case on the same day. Hildebrandt v. Illinois Dept. of Forestry (7th Cir. 10/30/03) [pdf].

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Tuesday, October 28, 2003

When the Plaintiff Files Bankruptcy - Whose Claim and What Happens When It Is Not Disclosed

Posted 6:20 PM by Michael Fox

In the Northern District of Georgia, at least initially it depended on whether it was the bankruptcy court or the district court whose view prevailed. The facts were simple, an HR Director demoted from her position filed a lawsuit alleging discrimination. Months later when she filed Ch. 7 bankruptcy she did not disclose the lawsuit. When she signed the statement of affairs she did not mention the employment lawsuit, although a question asks for all legal proceedings. She did tell the Trustee at the creditor's meeting, but told him she was only seeking reinstatement, even though the complaint had been amended two days earlier to request compensatory and punitive damages. A discharge was granted in bankruptcy court, and for the first time the employer found out about it through the disclosure of documents in discovery.

Subsequent proceedings ensued with her requesting that the bankruptcy judge permit her to re-open the bankruptcy to now list the claim and the employer filing for summary judgment on the grounds that she was estopped from proceeding on the employment claim. The District Court granted the summary judgment. The bankruptcy court allowed the re-opening, but did not enter a written order until after the judge had granted the summary judgment against her. On appeal, the Court sorted it out by first finding that the claim was an asset of the Estate and that the Trustee was the real party in interest and should have been all along. It also found, after a lengthy analysis of the law that she was judicially estopped. Blaming it on her attorney did not work, although the court suggested a malpractice claim as her remedy, saying that it would not do to pass the burden of inappropriate conduct of her counsel to the defendant. Barger v. City of Cartersville, GA (11th Cir. 10/28/03) [pdf]. It was not a total victory for the employer however, as the Court held that she was not estopped from bringing a claim for injunctive relief, so her claim for reinstatement to her HR Director's position could proceed. No answer to the question what happens if the City now tries to settle the case monetarily.

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The Fine Lines That Make The Difference In An FMLA Claim - 4th Cir. Says Employee On the Right Side

Posted 5:49 PM by Michael Fox

One of the pre-requisites of obtaining an FMLA leave is that the employee be employed for 12 months with the employer. The facts present a textbook case of fine distinctions making the difference. Kimberly Babcock started work for BellSouth on June 1. The following May 19th she took a leave of absence for a health condition. On May 22, she told her supervisor that her doctor was recommending that she be off for six weeks. On May 30th her doctor faxed that recommendation to Bell South. Thinking that her leave was approved for six weeks, she left town and did not return until June 9th. In her mail box were two letters from BellSouth informing her that leave was only authorized through May 27th, and that if she did not return to work on June 9th she would be terminated. Babcock called to discuss her situation and asked for more leave, either paid or unpaid. She was told that she was not eligible for leave since she had not worked for twelve months as required under the FMLA. When she did not return to work BellSouth true to their word terminated her, leaving the Rubik's cube to be sorted by the courts.

Both the district court which denied BellSouth's motion for summary judgment and its motion for judgment after the verdict in her favor of $91,000 and the appellate court saw things her way. True enough, she had not been eligible for FMLA leave when she initially left on May 19th. And the court agreed with the DOL regulations that eligibility must be determined at the time the leave begins. However, what was in question was her status between May 27th and June 9th. Although BellSouth argued she was on leave, its own records showed otherwise. She was only authorized for leave until May 27th. Thereafter the Court concluded she was an employee on unauthorized absence. With the key factor she was still an employee, now having past her first year anniversary. So when she again requested leave on June 9th, she was entitled to leave under the FMLA and her termination was in violation of that Act. Babcock v. BellSouth(4th Cir. 10/28/03) [pdf]. What a law exam question!

Labels: FMLA

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Sunday, October 26, 2003

Employment Defamation Case Kicked Out - But No Mention of the Privilege Statute

Posted 5:49 PM by Michael Fox

Austin v. Inet Technologies (Tex. App. - Dallas 10/23/03) has all the aspects of defamation cases that can arise in the workplace. The plaintiff was discharged following a dispute with her supervisor which he allegedly misreported to HR and on up the chain. (He said that she yelled at him in front of fellow employees and clients; she disagreed that she "yelled".) She claimed the internal comments were defamatory, that she was defamed during a reference check, and that she was forced to pass on the defamatory comment, relying on the theory of compelled self publication.

Although the Court upheld summary judgment, finding that the employer had established the comments were privileged, there was no malice, that the reference was substantively true, and that she could not prove the first element of self-publication since she knew it was defamatory. Interestingly, what was not mentioned in all of the various successful defenses was the 1999 legislation designed to protect employers when giving references, now codified at Section 103 of the Texas Labor Code.

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Employment Lawyers Aren't Always What One Would Think

Posted 4:58 PM by Michael Fox

Not that anyone with much of a life would be giving much thought to employment lawyers, but if you did, you might be surprised. Or at least that's the premise of an article in today's Grand Rapids Press the opposing counsel in a current gender discrimination trial involving the Grand Rapids Police department. One is a former staffer in President Reagan's White House in the 1980s and the other is a blues music aficionado and long-time advocate of bringing greater racial and gender diversity to the legal community. If it weren't so obvious that this is a set up, you might be surprised as to their respective clients.

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Saturday, October 25, 2003

5th Cir. View On White Collar Exemption Issue of Discretion and Independent Judgment

Posted 9:49 AM by Michael Fox

Earlier this month in an unpublished opinion* the court held that Event Coordinators who work for the Dallas Convention Center exercise sufficient "discretion and independent judgment" to qualify under the administrative exemption. Bondy v. City of Dallas (5th Cir. 10/9/03) [pdf]. If we are not going to get a revision to the regulations, it is at least good to see common sense decisions coming from the courts under the existing ones.

On the issue of the wage and hour revisions, the President has renewed his threat to veto the appropriations bill if it contains the Harkin amendment and the business community which has mobilized support for a change in the regulations is making another advertising push in hopes of keeping the regs on track. Lost in the whole argument is that the DOL had not yet finalized the regs, it had just made proposals and received the comments. It really does seem bizarre that Congress is acting before they are even final. But then what about Congress these days doesn't seem bizarre?

*When I do my regular review of circuit court decisions for the blog, I generally check only the published decisions, not because there are not interesting and perhaps even important employment cases that are designated unpublished, but because they have no or certainly less precedential value and it just takes too much time. On one day last week the 5th Circuit released 153 unpublished opinions. That was an exception, but you get the point on how much time could be consumed. But that means I sometimes miss or if not miss totally, am late in reporting on decisions that at a minimum offer an interesting insight into how a court is handling a particular issue.

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Thursday, October 23, 2003

Sarbanes Oxley Whistleblowers - Cover Story For CFO's

Posted 4:52 PM by Michael Fox

Magazine, that is. Not sure how I missed this one since I spend a fair amount of time writing, thinking, advising and now defending on Sarbanes Oxley whistleblower claims, but thanks to the Securities Law Beacon for pointing me to this October 1 article.

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1st Cir. - Important Ruling On Attorney Client Privilege - Avoiding Wholesale Waiver

Posted 2:09 PM by Michael Fox

Although not arising out of an employment law matter, the 1st Circuit yesterday issued an important opinion on the 'implied waiver' of the attorney client privilege. In an opinion secretively styled In Re Keeper of the Records, Grand Jury Subpoena Addressed to XYZ Corporation
(1st Cir. 10/22/03) the Court held:

Accordingly, we hold, as a matter of first impression in this circuit, that the extrajudicial disclosure of attorney-client communications, not thereafter used by the client to gain adversarial advantage in judicial proceedings, cannot work an implied waiver of all confidential communications on the same subject matter.

Nice to see a pro-privilege decision for a change.

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Wednesday, October 22, 2003

Critique of Supreme Court's Albertson’s, Inc. v. Kirkingburg Decision From the National Council on Disability

Posted 3:35 PM by Michael Fox

What employers see as a prudent, limiting decision may be viewed differently by others. Certainly that is the case with today's critique of one of the many decisions by the Supreme Court on the ADA. Robert L. Burgdorf Jr. of the University of the District of Columbia, David A. Clarke School of Law has a detailed view of the interaction of the ADA and other statutes and regulations and how he feels the Supreme Court blew it. You can read his view here. And thanks to the Elder Law Blog for the pointer to this article.

Labels: ADA

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Hostile Environment Law and Correct Speech - Signs of Rebellion?

Posted 6:21 AM by Michael Fox

I don't know if it's a new phenomenon or one I am just beginning to notice, but there does seem to be a growing "push back" to what many might call the excesses of political correctness stemming from the desire to avoid being sued over a hostile environment. David Bernstein, George Mason University professor of law and author of a new book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, provides an excerpt of his book in a column for Tech Central Station, "Isn't That Fascism? No, Because We Don't Call It Fascism." That quote, taken from an episode of South Park, no less, sums up at least one perspective:

After a visit from the "Sexual Harassment Panda," the children of South Park begin to sue each other for harassment over minor insults. Eventually, the children pursue deeper pockets, the school at which these insults take place. The school is bankrupted, while Kyle's attorney father, who represents all of the plaintiffs, becomes wealthy. This leads to the following exchange:

Father: You see, son, we live in a liberal democratic society. The Democrats [sic -- it was a mostly Republican EEOC and Supreme Court] created sexual harassment law, which tells us what we can and cannot say in the workplace, and what we can and cannot do in the workplace.

Kyle: But isn't that fascism?

Father: No, because we don't call it fascism.

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Tuesday, October 21, 2003

7th Cir. Upholds Termination For Poor Performance When Employee Returns From FMLA Leave

Posted 9:10 PM by Michael Fox

Plaintiff's claim was simple (even if looking at the brief facts of the case it appears his life might not be). While he agreed he was terminated because of his poor performance, it was only because his replacement had done so much better while he was out on leave. That made it an illegal termination. Wrong, says the Court. Phelan v. City of Chicago (7th Cir. 10/21/03). Basically, the court notes that an employee gains no additional rights when on FMLA leave, so it is not illegal to terminate for poor performance, regardless of when that decision is reached. Obviously, it is all in the proof of motive, which can sometimes be trickier than the Court found it here.

Labels: FMLA

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3rd Cir. Title VII's 15 Employee Limit Not Jurisdictional, Part of Plaintiff's Claim

Posted 8:46 PM by Michael Fox

Although it is not terribly important, except for those who guard carefully the principle that the federal courts are courts of limited jurisdiction, the 3rd Circuit joins those Circuits which hold that the 15 employee requirement of Title VII is not jurisdictional, but an element of the merits of the claim.Nesbit v. Gears Unlimited, Inc. (3rd Cir. 10/21/03). By the 3rd Circuit's count, there are three other circuits which now take that position, the 2nd, 7th and D.C. Circuits. By contrast, the 5th, 6th, 9th, 10th and 11th Circuits have said it is jurisdictional. Somehow, notwithstanding a large split in the circuits, I don't see the Supreme Court resolving this less than burning issue anytime soon.

On a more important issue, whether two companies should be joined together for purposes of meeting the 15 employee limit, the Court rejects the test used by the NLRB for determining joint employers. The two statutes have different goals, with Title VII being focused on sparing small employers the expense of having to comply with the nuances of Title VII. Instead, the Court adopts two of three tests used by the 7th Circuit, but differs on a 3rd standard. The first two cases when companies will be joined are: when a company has been purposefully split for the purposes of avoiding coverage under Title VII, and when the parent company directs the action that is being complained of as discriminatory. For the third way, the 3rd Circuit adopts the standard used to determine whether two entities should be consolidated in bankruptcy. It is an open ended equitable standard, but one which the court notes is very difficult to meet.

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11th Cir. Upholds Summary Judgment Based on Faragher/Ellerth Defense - Dodges 2 Unanswered Questions

Posted 6:21 AM by Michael Fox

The 11th Circuit was the birthplace of one-half of the Faragher/Ellerth defense, actually to be precise, one half of the cases that were wrongly decided from which the Supreme Court fashioned the defense. So perhaps it is only fitting that it spend a lot of time (46) pages applying that decision, only to avoid two of the key questions that remain unanswered 5 years later. No sense in getting them wrong. Walton v. Johnson & Johnson (11th Cir. 10/20/03) [pdf]. It is another case where, first an employer and then a court, are faced with deciding whether it was a case of sexual harassment or a consensual affair. The male supervisor claimed the latter, his female employee the former, including allegations of rape. Reading between the lines, all involved seemed to believe that it was at least consensual in nature to start with. The upshot was the supervisor lost his job for poor management decisions and the employee sued for sexual harassment. She lost in the trial court when the employer established the affirmative defense that it had in place a policy to prevent sexual harassment and the employee did not take advantage of it. The appellate court upheld the decision and along the way rejected her argument that the company could not take advantage of the defense because it did not have an effective policy in place. Her three reasons, the company did not provide offices for the employees but allowed to work out of their homes which contributed to the situation, the employer had failed to name a specific individual that employees should address harassment complaint to, and the company did not check with the alleged harasser's then current employer before hiring him, were all insufficient to defeat the first element.

What it did not answer are two of the questions that remain without a definitive answer after 5 years of Faragher/Ellerth. What happens when the employee timely complains and the company promptly acts in response to that claim, a situation it dubs "sudden sexual harassment"? In other words, if the employee promptly complains, is it impossible for the company to win? The second question is whether or not constructive discharge is sufficient for a tangible employment action? Actually there was a third question, although the 11th Circuit found it related to the issue of constructive discharge, whether forcing an employee to engage in sex (a premise accepted for purpose of summary judgment) is a tangible job action that precludes the employer from utilizing the defense. Although any of these could have derailed the summary judgment, since they were not raised before the trial court the appellate court was able to duck them.

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Monday, October 20, 2003

One Last Favor by Governor Davis - Signs Law Which Empowers Employees to Sue On Behalf of Fellow Employees For Labor Code Violations

Posted 5:53 PM by Michael Fox

Without even knowing the full details, just the hype surrounding the passage of S. 796, described in Walter Olson's post Calif.: here comes labor-law bounty hunting at overlawyered.com makes me think that the next sound you hear in California will not be Terminator sounds from the Governor's mansion, but moving vans backed up to employer's facilities taking them (and the jobs that they provide) eastward. How about coming over to Texas?

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Update on FMLA Expansion Contained In Senate Version of Iraq Supplemental Funding Bill

Posted 10:18 AM by Michael Fox

Although just posted on Friday, the link to the amendment offered by Senator Feingold is already out of date. Here is anotherlink that will hopefully last longer.

In case it doesn't, here is the text of the amendment which was adopted by the Senate last Thursday evening without a roll call vote:

SA 1852. Mr. FEINGOLD (for himself, Mr. WYDEN, Mr. DAYTON, and Mrs. MURRAY) proposed an amendment to the bill S. 1689, making emergency supplemental appropriations for Iraq and Afghanistan security and reconstruction for the fiscal year ending September 30, 2004, and for other purposes; as follows:

On page 38, between lines 20 and 21, insert the following new title:

TITLE III--LEAVE FOR MILITARY FAMILIES

SEC. 3001. SHORT TITLE.

This title may be cited as the ``Military Families Leave Act of 2003''.

SEC. 3002. GENERAL REQUIREMENTS FOR LEAVE.

(a) ENTITLEMENT TO LEAVE.--Section 102(a) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)) is amended by adding at the end the following:

``(3) ENTITLEMENT TO LEAVE DUE TO FAMILY MEMBER'S ACTIVE DUTY.--

``(A) IN GENERAL.--Subject to section 103(f), an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period because a spouse, son, daughter, or parent of the employee is a member of the Armed Forces--

``(i) on active duty in support of a contingency operation; or

``(ii) notified of an impending call or order to active duty in support of a contingency operation.

``(B) CONDITIONS AND TIME FOR TAKING LEAVE.--An eligible employee shall be entitled to take leave under subparagraph (A)--

``(i) while the employee's spouse, son, daughter, or parent (referred to in the subparagraph as the `family member') is on active duty in support of a contingency operation, and, if the family member is a member of a reserve component of the Armed Forces, beginning when such family member receives notification of an impending call or order to active duty in support of a contingency operation; and

``(ii) only for issues relating to or resulting from such family member's--

``(I) service on active duty in support of a contingency operation; and

``(II) if a member of a reserve component of the Armed Forces--

``(aa) receipt of notification of an impending call or order to active duty in support of a contingency operation; and

``(bb) service on active duty in support of such operation.

``(4) LIMITATION.--No employee may take more than a total of 12 workweeks of leave under paragraphs (1) and (3) during any 12-month period.''.

(b) SCHEDULE.--Section 102(b)(1) of such Act (29 U.S.C. 2612(b)(1)) is amended by inserting after the second sentence the following: ``Leave under subsection (a)(3) may be taken intermittently or on a reduced leave schedule.''.

(c) SUBSTITUTION OF PAID LEAVE.--Section 102(d)(2)(A) of such Act (29 U.S.C. 2612(d)(2)(A)) is amended by inserting ``or subsection (a)(3)'' after ``subsection (a)(1)''.

(d) NOTICE.--Section 102(e) of such Act (29 U.S.C. 2612(e)) is amended by adding at the end the following:

``(3) NOTICE FOR LEAVE DUE TO FAMILY MEMBER'S ACTIVE DUTY.--An employee who intends to take leave under subsection (a)(3) shall provide such notice to the employer as is practicable.''.

(e) CERTIFICATION.--Section 103 of such Act (29 U.S.C. 2613) is amended by adding at the end the following:

``(f) CERTIFICATION FOR LEAVE DUE TO FAMILY MEMBER'S ACTIVE DUTY.--An employer may require that a request for leave under section 102(a)(3) be supported by a certification issued at such time and in such manner as the Secretary may by regulation prescribe.''.

There is a similar version for civil service workers. Although one publication has said Senator Feingold said this only impacts families of reserve units, I think as written it could be subject to a broader reading depending on the definition of 'contingency operation.' Hopefully, that issue will be straightened out in a conference committee, along with the important question of whether this is the right way to deal with an amendment to the FMLA when there are a number of issues that should be addressed about the legislation.

Labels: FMLA

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Saturday, October 18, 2003

Communicating With Your Expert - Be Mindful Who Will Be Reading It

Posted 3:20 PM by Michael Fox

While not new, always good to be reminded that what you say to an expert may well be subject to discovery. And when as in this law.com article, it is in an employment law case, it just makes the message more germane.

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To Texas Baptists - Don't Beat Up the EEOC Yet

Posted 2:39 PM by Michael Fox

The headline and article in the The Baptist Standard, The Newsmagazine of Texas Baptists, implies a little too much when it says that the EEOC has filed against the Missouri convention. What it is really reporting is that the former controller, Carol Kaylor, has filed a complaint with the EEOC complaining of discrimination. The EEOC is required to accept complaints and investigate them, regardless of their merit. Once it investigates it is empowered to file a lawsuit if it believes there is merit to the charge, but that is not what has happened at this stage.

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Latest Look At Mandatory Arbitration

Posted 2:21 PM by Michael Fox

Probably prompted by the final demise of Duffield in the 9th Circuit, the AP takes another survey look at the status of arbitration as a condition of employment. It notes that AAA says it now administers programs covering 7 million employees, up from 3 million five years earlier. Here is the story as carried by the Seattle-Post Intelligencer.

Labels: arbitration

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A Few Different Takes on Sexual Harassment

Posted 1:40 PM by Michael Fox

A quick look at sexual harassment issues in the news the last couple of days provides a look at some odd twists that pop up now and then. First, there is the City Council member in Waukesha, Wisconsin who refused to attend a "mandatory" sexual harassment training video. Saying he had grieved the same issue when employed at GE when he felt the presentation was too one sided, he is not concerned about any ramifications. The mayor, probably somewhat overstating the case, was beside herself claiming that the City would 'loose' [sic] any sexual harassment claim brought against it because of Hilden's refusal to attend. GMToday which reports on news in the Greater Milwaukee area has the story.

A similar negative view of how far the issue of sexual harassment has come is the subject of a novel by Stanley Bing, a pen name for CBS executive Gil Schwartz. Unfortunately, You Look Nice Today is gently panned by rival publication Forbes. The reviewer sums up both the plot and his view of the book rather succinctly:

The moral of the story is that the business place has become so drenched in sexual harassment hysteria that almost anyone in a position of power is a potential victim of false accusations. Unfortunately, what is unjust and outrageous in real life doesn't always translate well into fiction. Sometimes it falls painfully flat on paper.

And finally on a slightly different note, the woman who filed a complaint of sexual harassment against the President of Middle Tennessee State University was "stunned" that her complaint could be come public, based on her reading of the university's sexual harassment policy. She has obtained a restraining order preventing the Board of Regents from disclosing it following a request from the Tennessean newspaper, which has the story. The policy provided that complaints would be as 'confidential as possible', but of course there are those issues of public records which newspapers always take seriously, particularly when scandalous matters are at hand.

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Friday, October 17, 2003

Throwing Petrol On the Fire - The Dangers of Attacking the Plaintiff

Posted 6:29 PM by Michael Fox

Thanks to Carolyn Elefant, at My Shingle for pointing me to this article posted on the website of the Legal Assistant's Division of the State Bar of Texas. Although not written exclusively from an employment law standpoint, the advice may be particularly apt for our cases.

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