Jottings By An Employer's Lawyer

Friday, August 29, 2003

Not Exactly A Million Dollar Verdict, But the Money Is Still Green


Since this was a determination by a judge, not a jury, wouldn't be quite right to call it a million dollar verdict, however Sharon Pollard probably won't mind. Yesterday, the case the Supreme Court used to clarify that front pay awards do not count against the Title VII damages cap, Pollard v. DuPont(U.S. 2001) [pdf] was back in district court. She was there for a hearing on the issue of punitive damages, following a ruling by the District Court that duPont was also liable for intentional infliction of emotional distress which has no caps. The amount of damages, before punitive damages is $2.25 million. Check out the story at GoMemphis.com. Of course, as Ms. Pollard already knows, you can't spend a judgment, but still today she is no doubt smiling.

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A Consultant's 11 Tips on Terminating Employees


Somehow seems a funny Labor Day message, but the tips are basically sound. 11 Things to Remember About Terminating Employees Wonder why 11? Maybe because its time for football?


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Thursday, August 28, 2003

Overly Broad Subpoena Leads To Much Bigger Problems Than Just Sanctions


Being hit with $9,000 in sanctions for issuing an overbroad subpoena to an internet service provider of your opponent in litigation would be bad enough, but that is just the start of the problems for a litigant and his counsel. In Theofel v. Farey-Jones (9th Cir. 8/28/03) the Court re-instated a cause of action against the two for violations of both the Stored Communications Act and the Computer Fraud and Abuse Act, as well as related state claims. It did affirm the dismissal of the claim under the Wiretap statute. The opinion is noteworthy not only for its liberal reading of both statutes, but its extensions to litigants for reviewing the email 'voluntarily' provided by the internet service provider. Since the ISP acted only because of an obviously overbroad and invalid subpoena, the Court found it did not serve as a protective shield.

This is a good reminder of both the dangers of aggressive litigation tactics and of venturing into another's email, without making sure of one's justification. A lesson that is a good reminder in these days where the two are often combined.

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Checking Employees Out


Thanks to be Spacific for a link to a publication by the Privacy Rights Clearinghouse, Small Business Employment Background Checks, which is certainly timely given yesterday's note about increased liability for employers who don't adequately check out prospective employees. One of the challenges is complying with the Fair Credit Reporting Act, a name that has become almost deceptive, since it applies to far more than credit histories, and is something that every employer needs to know about.

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A View of Arbitration From Trial Lawyers Assembled by the ABA Litigation Section


The ABA Litigation section completed a survey of members to determine the effectiveness of arbitration as a means of alternative dispute resolution. A rather mixed bag of comments. It would be interesting to see how it would compare with the parties viewpoint. You can check out the Task Force's report here.

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Yet Another Way That Arbitration Can Be More Complicated Than It Looks


Arbitration is by its very nature a contractual agreement of the parties. Unfortunately at the time when it comes into play, there are, again by definition, differences between the parties. Thus there is not always cooperation and harmony even in going forward with the "agreed means" of resolving the parties' dispute. Here, an accounting partnership agreement provided that a dispute between the firm and any departing partner would be resolved by arbitration, with three arbitrators, each of the parties to pay one-half the costs.

After an initial motion to compel arbitration filed by the firm was granted, the partner refused to pay for his share and the arbitration was suspended by the AAA for lack of payment. In Re Burton, McCumber & Cortez, L.L.P (Tx. App. - Corpus Christi 8/25/03). The firm wanted to proceed, presumably as it was seeking some form of relief, but was blocked by the recalcitrant former partner. A second motion to compel him to pay the required arbitration fees was granted by the trial court. When he still failed to pay, the a motion to hold him in contempt was filed. At that hearing, the Court modified its earlier order, finding that the cost would be excessive, and required that the partner pay only half of one arbitrator's fees, with the firm to pay the other half, plus the costs of the two other arbitrators. The request for mandamus by the firm followed.

Noting Texas strong support of arbitration agreements, the Court of Appeals correctly said that the Court had no authority to change the contractual provisions of the parties, thus vacating the trial court's attempted modification. (There is no mention of the Supreme Court's Green Tree decision concerning the cost of arbitration, or any of the cases dealing with fee shifting in the context of statutory claims.) However, in a complicating addition, the Court also held that the trial court had no authority to order the partner to pay his share of the original fees, that was the province of the AAA.

So, after spending two years in the courts, the accounting firm is now back where it started - with a partner who has agreed to arbitrate, but refuses to do so, and no apparent judicial means to compel him to cough up the fees for doing so. Arbitration certainly has its place as an alternative forum, but there are clearly gaps that may no doubt appear at times as bottomless pits of costs and frustration to at least some of the parties.

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Wednesday, August 27, 2003

As Technology for Screening Gets Better; Responsibility For Bad Hring Gets Stricter


Or at least that's the pitch of Dean Schabner's ABC News story. The money quote comes from who else, a vendor of criminal screening services:
""It's scary simple," suggested Timothy Dimoff, president of Akron, Ohio-based SACS Consulting & Investigative Services, Inc., and a retired law enforcement detective. "[C]ourts are recognizing that it's not hard to check out. … The solution is there. If you want to go back and say they didn't have time to check on an applicant's background, they didn't know the technology existed — the courts are eating them up."
Notwithstanding his obvious bias, he makes a good point.


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Tuesday, August 26, 2003

1st Cir. - Intentional Discrimination = Punitive Damage Submission In Most Cases


Sending a case back to trial solely on the question of punitive damages, the Court notes that intentional discrimination is exactly the type of case where punitive damages are most proper. Che v. Massachusetts Bay Transport Authority Nos. 02-2078, 02-2079 (1st Cir. 8/26/03). Although there is a narrow category of cases where an employer could be guilty of intentional discrimination and yet not liable for punitive damages, this case fits none of those narrow exceptions.

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From the Mouth of -- Wage/Hour Investigator, Retired


The coordinater of FMLA investigations in Salt Lake City before her retirement in 2002, minces few words in responding to a writer who refers to the FMLA as the "Ultimate Slacker's Law". To quote:
I wish I had a dime for every employer who said they couldn't afford to let someone have a few weeks "unpaid" time off because they needed the person at work. However, they had a new vehicle sitting in the parking lot, a motor home parked at their six-bedroom house for a family of four and were building a mountain home as a "getaway."
I am sure she was more restrained in expressing her viewpoint, pre-retirement.

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New EEOC Action For Teetotaler


The Jewish World Review has the story of an action filed by the EEOC against an aircraft manufacturer on behalf of a Mormon who alleges he was terminated because he did not drink.

With no reference to this particular matter, one of the fascinating things about employment law is how almost any issue that could arise in the workplace, seems to ultimately lead to a possible claim of some sort. Whether or not that is progress and the best way for all who have an interest in the workplace, which is pretty much anyone who depends on a job to maintain their standard of living, remains to be seen.

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Wage and Hour Issue of Volunteers in the Computer Age


Although the headline and lead paragraph are a little overreaching, the Chicago Tribune article about AOL's desire to have the law clarified that 'volunteers' are not entitled to compensation is a serious issue for companies who use similar individuals. I say the stretched because all the article refers to is comments made by AOL lawyers on the much broader white collar exemption regulations which are under consideration by the DOL. That hardly rises to the level of the implied idea of a special request to the "Bush administration to keep outside the reach of U.S. labor laws". A story dating back from 1999 explains the nature of the issue.

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From the Sportspage - Maybe You Should Dust Off Your Nepotism Policy


I always like it when we can learn something from the sportspage as it is just one more justification for reading it. In today's world it is where many of the legal oriented stories are found. Dennis Lee's workforce.com article on the importance of nepotism, or more accurately anti-nepotism, policies uses recent collegiate scandals as proof. One only need recite the several instances of coaches hiring their sons, with resultant problems, to get Dr. Lee's point, which is a good one. Closer to home, and going back a few years and one national championship ago, were the problems of the revered Coach Gus of the UT baseball program.

Update: Since I rarely think of nepotism, funny that I should run across two articles in one day. Here from Inc. magazine, a review of a book which takes a different view on the subject than Professor Lee. Actually, it seems as if they are talking about two different issues. Professor Lee about nepotism within an existing organization, and Adam Bellow's, In Praise of Nepotism about family businesses so they are not necessarily contradicting points of view.

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OSHA Update to Whistleblower Investigations Manual


If you want the inside information on what the agency assigned to investigate most federal whistleblower complaints is going to do, check out the most recent directive from OSHA.

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This Should Get Your Intention - $100,000 Lien On Supervisor's Home as Pre-Judgment Remedy


Anyone who has read many of my comments will know I have a rather low opinion of the tort of intentional infliction of emotional distress. Its standard is so vague as to be almost meaningless, and while courts most often get it right, sometimes it can itself be used in an outrageous fashion. No more so than in this recent opinion by an intermediate appellate court, Benton v. Simpson, AC 22674 (CT-App. 8/19/03). Under Connecticutt law, plaintiffs were required to show that there was probable cause that they would receive a judgment of a certain amount because of the supervisor's intentional infliction of emotional distress. After two days of testimony, the judge so concluded and awarded an attachment on the equity of the supervisor's home in the amount of $25,000 for each of the four plaintiffs who testified in the hearing. The appellate court brushed aside the defendant's argument that such an action was bad public policy.

This is not to say that the supervisor was a poster child for correct management action, however knowing how different evidence of personal misconduct can sound in the courtroom as opposed to being put in context, I think a decision of this nature, at the pre-judgment stage is truly amazing.

These are the "facts" that the court relied on in making its probable cause determination:
Benton testified that she witnessed the defendant lose his temper six to nine times, including instances such as the following: The defendant displayed anger at her yearly review; used profanity; banged on a filing cabinet; publicly admonished another plaintiff; and made the statements: ‘‘You women make me sick, you’re like a cancer,’’ and, ‘‘Geri, you have Alzheimer’s [disease].’’

Moore testified that she heard the defendant describe the plaintiffs as a ‘‘cancer.’’ Additionally, when Moore disagreed with the defendant’s assessment of the plaintiffs, he made the statement: ‘‘Donna, you are straddling the fence, you will be sore, may even have to take a hot bath tonight.’’

Cifatte testified about incidents of being belittled bythe defendant and stated that he would get ‘‘in your face’’ or ‘‘in your space.’’ At one point, Cifatte relayed to the defendant that her computer was inoperable, and the defendant responded, ‘‘Kim, I am so goddamned sick of hearing about your goddamned computer, if I could shit you out a computer I would.’’ Cifatte testified
that the defendant then hit a file cabinet and stated, ‘‘ ‘let’s take this into my office now.’ ’’‘‘You women make me sick, you disgust me, I feel sorry for anybody that has to work for you.’’

Buonincontra testified that she was present at a meeting where the defendant described the plaintiffs as a ‘‘cancer.’’ She further witnessed the defendant bang his fist to make a point and was a party to an exchange with the defendant when he followed her as she walked away from him and shouted at her."
I think there are more than a few cases where such allegations could be made. Maybe it was just the heat of summer, but this strikes me as incredibly bizarre.


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Sunday, August 24, 2003

If You Had These Workplace Comments, Wouldn't You Think Your Chances of Winning A Sexual Harassment Case Were Good?


In her suit against the City of Chicago Police Department, would be officer Kathy Durkin had the following evidence about comments made during her training:
From one of her shooting instructors, "I could teach a fucking monkey to shoot.” Later, after a satisfactory performance by Durkin, the instructor said, “look I taught a fucking monkey to shoot.” The same instructor referred to women as "broads", "fucking broads" and "cunts" in Durkin's presence. And after telling her she would never pass the test or make it as a police officer, he told her that her brain was too small and asked “who did you fuck to get that [college] degree?” When Durkin's husband, already a Chicago detective talked to the instructor, he was told “you have a real blonde on your hands.” And then asked him, “is she that stupid at home?” Soon thereafter he asked her if she “pulled out her witch bag.” After Durkin asked what he meant, the instructor explained “so I hear you told your husband that you’re not going to fuck him unless he came down here and talked to me.”
And others in the department were of the same ilk as the shooting instructor:
Driving with two classmates, one of them unzipped his pants, urinated, and said “suck this.” Another classmate told Durkin that he wanted to get her drunk and “fuck her and lick her all over.”
And yet the result, summary judgment against Durkin on her claims of sexual harassment, gender discrimination and retaliation was affirmed. Durkin v. City of Chicago (7th Cir. 8/22/03).

Given the nature of the testimony, give credit to the City's counsel for good lawyering. The opinion of the Court points out the importance of carefully analyzing each part of a case. Here, there was no tangible job action, since she had been provided more than adequate training. That removed strict liability for sexual harassment. There was no negligence on the part of the city since it was not aware of the conduct because Durkin failed to complain of sexual harassment through the individuals designated to receive complaints. Although she did complain, it was not about sexual harassment. (The only incident of the above mentioned was the 'witch' comment.) With respect to gender discrimination, she did not carry her burden of showing that there were similarly placed males who were treated differently. And her retaliation claim failed because her failure to complain, also meant there was no protected conduct.

Obviously, if summary judgment had not been obtained, this would have been a difficult case for defense counsel to try. But even bad fact cases, with good lawyering and a discerning court, can sometimes be made to go away.


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Thursday, August 21, 2003

11th Cir. Applies Georgia Law to Non-Compete


Stepping gingerly into the world of conflicts of law as applied to covenants not to compete, the 11th Circuit wisely asked the Supreme Court of Georgia for clarification. Having received it, the Court had no problem finding that Georgia would apply its own law to a former employee's non-competition agreement, and find it unenforceable. The employee's victory was not unmitigated however, as the Court struck down the lower court's permanent injunction against enforcing the covenant not to compete in any other jurisdiction. The reach of Georgia's power to enforce its view of whether the non-compete was enforcible extended only to its boundries and the injunction needed to be revised accordingly. Keener v. Convergys, Inc., No. 02-11324 (11th Cir. 8/21/03).

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11th Cir. - Florida Whistleblower Statute Not Pre-empted by Airline Deregulation Act, Even Though It Now Has Whistleblower Provision


Nothing is worse (well almost nothing) than being told that it is really a close call, before the Court says - "you lose". That was what happened to the defendant as it argued that it should be entitled to summary judgment because the Airline Deregulation Act pre-empted the Florida whistleblower statute, which was the only cause of action brought. Close, but no cigar, or words to that effect, according to the Court. Branche v. Airtran Airways, Inc., No. 02-14920 (11th Cir. 8/21/03) [pdf].

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Kash N Karry Settles Gender Discrimination Class Action for Cash and Coupons


Utilizing a common settlement technique in consumer class actions, a grocery chain has settled a gender discrimination case for $3.1 million, but $500,000 of that will be in grocery coupons good at, yep Kash N Karry. The AP wire has the story here. I am not sure I know of a case where coupons have been used to settle an employment discrimination case.

It is also something that will not be happening in Texas state courts, at least unless the lawyers for the class are willing to take their fees in coupons as well. That's one of the many, many provisions in HB 4, the tort reform legislation passed by the Texas legisature in its last regular session. Check out new Section 26.003(b) of the Civil Practice and Remedies Code which really puts the burden on the Texas Supreme Court to implement rules by 12/31/03 which will provide that
Rules adopted under this chapter must provide that in a class action, if any portion of the benefits recovered for the class are in the form of coupons or other noncash common benefits, the attorney's fees awarded in the action must be in cash and noncash amounts in the same proportion as the recovery for the class.
Stay tuned for the new rules.

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Aggressive Workers Compensation Claims Management Used to Support $1.6 Million Retaliation Judgment


Haggar, which has seen more than its fair share of workers compensation retaliation claims in its border area plants, has another unpleasant visit to the courthouse in Haggar Clothing Co. v. Hernandez (Tex. App. - Corpus Christi 8/21/03). Here its active workers compensation claims management policy which included having a nurse accompany workers to doctor visits and a safety policy which gave awards for the absence of lost time injuries, were used to support the malice necessary for punitive damages. Additionally, the trial court allowed testimony by other employees who were employed at the same plant during the same time period to testify about their own experiences and in fact instructed the jury that the termination of other employees could be considered in assessing punitive damages. This case exemplifies how good "control" policies can be spun another way. This time with a nasty result.

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Wednesday, August 20, 2003

First African American Deputy's Retaliation Claim Against Clackamas County Carries the Day


Following a detailed rendition of the troubles that occurred following his complaints of racial remarks, the 9th Circuit has no trouble in finding that plaintiff was retaliated against for raising them. In addition to making you want to be careful about driving through certain parts of Oregon, it is another example of where the proximity of the retaliation to the protected conduct was sufficient to support the jury's finding of retaliation. Bell v. Clackamas County (9th Cir. 8/20/03). Since the retaliation case was clear, the Court did not need to review the racial discrimination finding since the damages would have been redundant.

Even though the jury had awarded punitive damages, they had been reduced by the district court. The 9th Circuit, remanded finding Desert Palace v. Costa's holding on the sufficiency of circumstantial evidence applicable to the award of punitive damages as well as liability. It also charged the lower court to review the amount of damages assessed againt the individuals on an individual basis, rather than as a group. And as a break for the plaintiffs' attorneys who had seen their hourly rate reduced to $175 from $200, the Court ordered that it be restored to $200 an hour, or at least reconsidered without relying on an unpublished opinion that had set the lower rate.

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6th Cir. Rejects Both False Act Claim and Related Whistleblowing


It wasn't a good pleading day for the plaintiff when he failed to allege with sufficient specificity the fraudulent certifications that he claims his employer had made to the government. Holding that a plaintiff under the False Claims Act has the same level of pleading required by FRCP 9(b), the court affirmed the dismissal of his claim for failure to state a cause of action. Yuhasz v. Brush Wellman, Inc. (6th Cir. 8/20/03). He had no better luck on his whistleblowing claim since the Court found he had not sufficiently alleged his employer was aware of his protected activity when he was terminated. Noting the difference between advising the employer that its conduct was improper and could lead to penalties under the False Claims Act, with advising the employer that he intended to bring a claim under the FCA, the Court held that since he was the one most responsible for monitoring and notifying the employer of problems, he was only doing his job by bringing this to the employer's attention. For someone whose job it is to monitor compliance, it must be clear to his employer that he is pursuing a complaint against the company in order to raise the protection of the whistleblower statute.

Adding salt to the wound, the Court found that plaintiff's claim that he had not been allowed to amend his complaint in response to the 12(b)(6) motion to dismiss was invalid because it was unnecessary. Since the Rule 12(b)(6) motion was not an answer, and an answer was never filed, he retained the right to replead without permission of the court pursuant to Rule 15(a).

In the era of whistleblower as hero, this might be viewed as an unusually tight reading of the generally liberal pleading requirements.


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Tuesday, August 19, 2003

7th Circuit On Board With Most Other Circuits - Employment At Will Status Sufficiently Contractual for § 1981 Claim


No surprise except for the lengthy time period before this precise question got to the 7th Circuit. Can an at will employee bring a § 1981 claim, which must be founded in contract? Yep. Walker v. Abbott Laboratories, Inc. (7th Cir. 8/18/03) [pdf]. Fellow '75 UT Law School Classmate, Circuit Judge Diane P. Wood was on the panel, although not the author.

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Write Your Arbitration Agreement In 1996 and Have It Applied Today and Be Wary of the Results


Today's 3rd Circuit decision is a good lesson in the dangers of letting a policy age without keeping it in tune with the times; although more accurately in this case a lesson in how long it sometimes takes to get matters resolved through litigation. Here the arbitration agreement in questions was signed in August, 1996 and referred to 1993 rules of the AAA. The disputed employment actions occurred in December 1996 and early 1997. Perhaps not surprisingly for an arbitration agreement of those times it allowed only a 30 day statute of limitations, limited remedies to actual damages, and required the loser to pay for all costs of the arbitration. Unfortunately, measured by 2003 standards it was (no doubt correctly) found to be both procedurally and substantively unconscionable. Alexander v. Anthony International, Inc. (3rd Cir. 8/19/03) [pdf]. The most serious difference was whether or not these elements could be severed thus leaving an enforceable agreement. The majority held they could not, the dissent would at least have sent it back for a further look. So, although through no apparent fault of the employer's, a case begun amost seven years ago now heads for its first determination on the merits. Not an ideal way to run a railroad, or more accurately, a justice system.

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From Across the Atlantic - British Employers "Audit" Gay/Lesbian Employees in Advance of Gay Rights Legislation


The Belfast Telegraph has the story of the plans of a number of employers who are either asking or considering asking their employees whether they are gay or lesbian in advance of the effective date of the Employment Equality (Sexual Orientation) Regulations 2003. Some gay advocacy groups are less than thrilled with this tactic.


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Sunday, August 17, 2003

Even Low Level Employees Have Duty to Employer


All was not harmony on the island paradise of Hawaii as two lower level employees prepared to compete with their employer before leaving their employment. Mere preparation was not a problem, but actually submitting a competing bid for a government contract and winning while still employed was. At least that is how the 9th Circuit thought the Supreme Court of Hawaii would rule. In Eckard Brandes, Inc. v. Riley et al ((th Cir. 8/11/03) [pdf] the court found that the violation of the duty of loyalty would create a cause of action, that it would be governed by the six year statute of limitations and that disgorgement of the profits on the government contract was a proper remedy. What is interesting is not only the 9th Circuit's enforcement of the duty of loyalty against lower level employees, but the irony that it was the employees' lawsuit for wage and hour violations that led to a counterclaim for the breach of the duty of loyalty. A good example of why one should think twice of one's own conduct before initiating litigation.

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Desert Palace v. Costa - How It Will Make A Difference


Since the Fourth Circuit is generally a favorable forum for employers, its decision in Rowland v. American General Finance, Inc. (4th Cir. 8/12/03) [pdf] may well be a harbinger of how the revival of the mixed motive discrimination case by the Supreme Court in Costa earlier this summer may change discrimination litigation. Here the court waited on the Costa decision before reversing the jury verdict in favor of American General because the court had not given the requested mixed-motive instruction. Although you could argue that the plaintiff had submitted direct evidence of discrimination that would have entitled her to such an instruction even under the standard used prior to Costa, it is quite clear that the Fourth Circuit views the Supreme Court's decision as a significant change in how cases must be viewed. Although warnings of dire consequences of decisions occur far more often than do the consequences, this time may be different.

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Why Lawyers Get A Bad Name, And What More Courts Should Do


This case demonstrates the importance of collegiality and professionalism among members of the Bar. Collegiality and professionalism can obviate unnecessary court intervention, needless expense and fees for clients, and protracted legal proceedings. Zealous advocacy on behalf of one’s client does not excuse a belligerent and uncompromising approach to the discovery process.
Naviant Marketing Solutions, Inc. v. Larry Tucker, Inc. (3rd Cir. 3/8/03) [pdf]. Read the case for the details, but the point is made by the opening sentences of the opinion set out above.

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1st Cir - Dismissal For Failure to File Charge With EEOC Without Prejudice


A defendant loses a quick victory when the appellate court reverses a trial court's dismissal of a Title VII lawsuit with prejudice because the plaintiffs filed their suit before filing their EEOC charge. LeBron-Rios v. U.S. Marshall Service (1st Cir. 8/14/03) Although it might not always be the case, here it was meaningful since there was still time to file a timely charge with the EEOC.


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Friday, August 08, 2003

Lose A Big Job In A Bad Economy - Find A New One? Nah, Get A Lawyer


Or at least that seems to be the trend. Jennifer Barrett's Newsweek story, which can be found here, surveys the changing landscape from the perspectives of employment lawyers, law professors and the growing presence of Employment Practices Liability Insurance providers.


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Thursday, August 07, 2003

Unrestricted Right To Amend Dooms Arbitration Program


Another court holds that an employer who retains an unrestricted right to amend an arbitration agreement ends up with an agreement that will not be enforced. In Re: Jobe Concrete Products, Inc. (Tx. App. - El Paso 7/31/03). The Texas Supreme Court has already approved a way for an employer to maintain the flexibility to modify a plan and still have it enforcible in In Re: Halliburton Company:

Myers also asserts that Halliburton's promises were illusory because the company retained the right to modify or discontinue the Program. But the Program also provided that “no amendment shall apply to a Dispute of which the Sponsor [Halliburton] had actual notice on the date of amendment.” As to termination, the plan stated that “termination shall not be effective until 10 days after reasonable notice of termination is given to Employees or as to Disputes which arose prior to the date of termination.” Therefore, Halliburton cannot avoid its promise to arbitrate by amending the provision or terminating it altogether. Accordingly, the provision is not illusory.
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Once plans are drafted it is important to make sure that they stay in sync with developing law.

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EEOC Hand Slapped, And Deservedly So, By 11th Circuit


Upholding a district court's finding that the EEOC had failed to engage in reasonable efforts to conciliate before filing suit, the 11th Circuit affirms the dismissal of the EEOC suit and the award of attorneys' fees to the employer. EEOC v. Asplundh Tree Expert Co (11th Cir. 8/7/03) [pdf]. After taking three years to investigate a charge, the EEOC issued a cause finding and then gave the employer 12 business days to respond to a proposal for a nation wide conciliation decree. When the company retained local counsel and responded one day after the EEOC's arbitrary deadline, the EEOC declared conciliation had failed and filed suit. The Court surmised out loud that perhaps the reason that the Miami office of the EEOC had done so was that conciliation was private, while a lawsuit would allow for publication of what were perhaps newsworthy allegations. This was borne out by an article in the New York Times which the court mentions in a footnote "inaccurately suggests that an Asplundh employee placed a noose around Lewis’ neck." The article which has been saved in a Yahoo group, reports on a number of suits brought around the country by the EEOC where "nooses" were involved.

Although obviously a serious matter, the facts as relayed in the decision make it clear that even if the event did happen, which was disputed, the employee who did it was a city inspector, not an employee of Asplundh, and when the employee complained to his supervisor, he arranged for a meeting with the inspector who apologized for any offensive conduct, and according to the employee no further events occurred. When the EEOC fails to act appropriately in these type of cases, and in fact engages in overreaching conduct, it hurts its credibility in dealing with cases where there is legitimate cause for action. And in that event, everyone loses.

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ADA - Disability Must Be Related To Needed Accommodation To Be Actionable


A redi-mix driver fell in a hole and suffered severe nerve damage which resulted in a number of physical problems. He was terminated because his restrictions, including the inability to lift more than 50 lbs, left him unable to perform his redi-mix driving job. He sued saying that he was discriminated against because of a disability. The court's decision is a good study in how an ADA case is evaluated by the courtw. Wood v. Crown Redi-Mix, Inc. (8th Cir. 8/7/03) [pdf]. He alleged that he was disabled because of limitations with respect to walking, standing, turning, bending, lifting, working and the ability to procreate. The trial court granted summary judgment for the employer on all claims. The 8th Circuit affirmed the claims on the basis of walking, standing, turning, bending, and lifting by evaluating them in light of what it called the "high bar" set by Toyota Motor Manufacturing, Kentucky., Inc. v. Williams (U.S. 2002), which requires that an individual must have an "impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Measured against that standard, although the court characterized the restrictions as moderate, they were not severe. With respect to working, he could not show that he was limited to a substantial range of jobs.

Although hesitant to do so without additional proof, the court accepted for purposes of this case Wood's unsupported assertion that the injury had left him unable to procreate, therefore making him disabled under the ADA (impairment of the major life function of procreation). Even accepting that, the court still affirmed summary judgment, holding that since his inability to procreate had nothing to do with the accommodation that he was requesting, he failed to establish a prima facie case under the ADA. To so hold the court found, "would be a strange result, and one we do not believe Congress intended, to have the viability of Wood's claim that he should have been accommodated as an employee of a truckdriving company turn solely on whether or not he was impotent."

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More Than You Probably Want To Know (But Should) About Electronic Data Retention


Comes from an article in Australia's CIO Magazine. Although written from down under the article has great relevance for all organizations. And it ends with a Top 10 Tips for Effective Electronic Data Managment.

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What The World Has Come To: These Days, Hands Off Is The Best Policy


Always plenty of folks willing to comment on a topic, and that results in the article on touching run by the Cox News service. You can see it here at the Springfield Sun website. This story was inspired by the allegations against the now confirmed gay Episcopalian bishop, that he inappropriately touched another man at a church function. It turned out those touches were on the arm and back and in full view of a number of other people. Nevertheless, some of the quoted wisdom summed up by the headline, can't just be scoffed at given todays litigious society.

Incidentally, the Mail & Guardian seems to have already promoted Gene Robinson to archbishop. See the headline here, although that error is not repeated in the main story.


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Tuesday, August 05, 2003

You Thought I Was Kidding About A Cause of Action For Bullying


So did I. Last Friday I commented here on a near 1 million pound award to a broker in London who was bullied by his boss, and jokingly remarked that I couldn't wait for the cause of action to cross the Atlantic. It was the other coast I should have been worried about. Check out the website of, I kid you not, The Workplace Bullying & Trauma Institute, which is seeking backing for legislation offered earlier this year in the California legislature which it claims could be the first anti-bullying legislation in the country. You can read the details of AB 1582 here. Truth is stranger than fiction.

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EEOC's Foul Play Initiative And the Ironies In Sexual Harassment Law


David Bernstein over at the Volokh Conspiracy has an interesting post on EEOC action against foul language emanating out of its Cleveland office (the action, not the foul language) and some other ironies in the evolution of the law of sexual harassment, including a quote from South Park.

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And On the FMLA's 10th Anniversary - Why It Is Not Enough


From supporters of the FMLA, what is lacking: Paid family leave is what workers need.

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SF Trial Lawyers View of Arbitration As A Condition of Employment Is ...


well, what you would expect. See the opinion piece in the Sacramento Bee. Ultimately, the dispute over arbitration as a condition of employment is part of the ongoing tension over the balance of control over 'a job' between the entity that provides the employment and a potential employee. Clearly society no longer is willing to give employers unfettered discretion even over private jobs, so the question becomes how much control it will demand and how much the system will permit.

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Sexual harassment 'test' raising eyebrows at CBS


Why HR manager get gray hair. Or another example of the bean bag affect: fix one problem, cause another. The Sun-Times tv columnist reports here on AFTRA's complaint about WBBM's on line sexual harassment training.


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Monday, August 04, 2003

Don't Forget the Cake With 10 Candles Tomorrow


The first employment law initiative passed under the Clinton Administration, the Family & Medical Leave Act, turns 10 tomorrow. Signed by President Clinton in February, 1993 it was effective on August 5 of that same year. The Society of Human Resources Management marks the anniversary with a continuing initiative seeking clarity on some of the more troublesome provisions. See the story here. For more in depth information see the website of the FMLA Technical Corrections Coalition, a group of corporations seeking similar changes.

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Sunday, August 03, 2003

When Geeks Start Talking About Unions As A Possible Answer


Outsourcing computer and other white collar work has been much in the news lately. See one of my earlier comments here. But when the blogging world of consultants start talking about unions as a possible answer, see for e.g. Duffbert's Random Musings, even if they are not now in favor, I would suggest that management in the high tech world keep their ear to the ground. Or more literally, their eyes on the net.

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Walking Off to Protest A Supervisor In A Non-Union Shop - 7th Circuit Style


Highlighted by some intra-court sparring between Judges Posner and Easterbrook, two of the court's brightest intellects, the majority opinion written by Judge Posner enforces a Board order that a non-union employer violated the NLRA when he discharged six employees who walked off the job to protest the incompetence of a supervisor. Trompler, Inc. v. NLRB (7th Cir. 8/1/03). Reading Judge Posner's opinion, with a gentle chide at his colleague's concurrence, and that opinion by Judge Easterbrook gives a good review of the complexity of issues as to what conduct is protected and what is not when it comes to protesting a supervisor's actions.

And in the middle of it all, Judge Posner as he often does, has a great money quote, this time about the model of labor relations:
The National Labor Relations Act models labor relations as tests of strength between workers and management. Workers withhold or threaten to withhold their labor in order to impose costs on management that will induce management to improve the workers' 'terms or conditions of employment,' and employers if they don't want to knuckle under to the workers' demands can try to impose costs on the workers by locking them out, laying them off, and hiring permanent replacements. [cite omitted] This 'combat' model of labor relations does not sort well with a requirement that the combatants act reasonably.

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A Hint of Things To Come: The Complexity (and Cost) of Attorneys Fees Litigation


Although it is the amount of the damage award that gets the most attention from the press, and initially even the parties, that is a long way from establishing the true hard dollar cost of employment litigation. Where attorney fee shifting statutes are involved, as with Title VII and many others, a liability finding then becomes an invitation for a second inquiry as to the amount of attorneys fees. How expensive can that be? Take a look at a case that has been working its way through the judicial system since the case was filed in 1994. After two jury trials (a motion for new trial was granted on the first), a jury awarded $60,000 for disability discrimination to the plaintiff. The judgment entered by the court included attorneys fees, interest on the attorneys fees and costs in the amount of $554,672.21. Shott v. Rush-Presbyterian-St. Luke's Medical Center (7th Cir. 8/1/03). This was a one-third reduction from the amount sought by the plaintiff.

The appellate court dealt with a number of unusual issues. Among them: it found the trial court should not have awarded fees for the first trial, since the error which caused the need for the second trial was the plaintiff's faulty trial strategy which prejudiced the defendant. It did find it was proper to allow fees for the preparation for the first trial since it undoubtedly was helpful in the second trial. It found the court correctly did not discount because the plaintiff had rejected a settlement offer near the start of the litigation which defendant argued was little more than what she won. This was true only when one took into account the impact of the Alternative Minimum Tax on the plaintiff. Fortunately for both courts and lawyers, the court held that parties and lawyers are not required to take into account the tax consequences when making decisions on settlements. The court also held that the award of interest on the attorneys fees was an appropriate way to compensate for the delay in payment.

Still nine years after the case was filed, it is sent back to the trial court for one more round of judicial tweaking on the issue of attorneys fees. With what may have been tongue in cheek, the court noted that fee litigation has added a "heavy burden" on the federal courts. Given the likely impact of the recent Desert Palace decision which may well result in more trials and more fee disputes, the burden is likely to get heavier.

So when this one gets written up as "just a $60,000" award, care should be given to remember the ultimate amount of attorneys' fees and interest the defendant gets to pay to the plaintiff's counsel, plus the unknown number it has paid to its counsel over the past nine years.


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MDV: Indian Prison Guard With Long History of Unanswered Complaints Awarded $1.16 Million


A Baltimore federal jury has sided with retired corrections officer Mathen Chacko last week when it found he had been harassed because of his national origin. The SunSpot has the story about a long history of complaints of treatment at the hands of his fellow officers, which went uncorrected.

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Interesting View on the State of Male/Female Relationships in a Litigious World


Marianne M. Jennings essay in Jewish World Review has an interesting view on the use of the legal system to police male/female relationships.


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Friday, August 01, 2003

Update on IBM Pension Case - Copy of Opinion Now Available Online


COOPER V. THE IBM PERSONAL PENSION PLAN
and IBM CORPORATION
[pdf] is now posted on the court's website.

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5th Circuit Holds Faragher/Ellerth Affirmative Defense Not Available When Harasser is Proxy for Company


Declining an invitation to read the Faragher/Ellerth decisions narrowly, the 5th Circuit held that the affirmative defense is not available when the harasser is at a high enough level so that his or her conduct is a proxy for the conduct of the company. Under such circumstances, the company is vicariously liable. Ackel v. National Communication, Inc. (5th Cir. 8/1/03) [pdf]. In making this determination, the court noted it was following the lead of the 7th Circuit in Johnson v. West (7th Cir. 2000). The three judge panel, including a 9th Circuit judge sitting by designation, reversed a summary judgment and remanded to the trial court for a determination as to whether or not the alleged harasser was in fact a proxy for the company.

In this case, the harasser was the general manager, 2% stockholder and member of the board of directors of the employer, Fox 29 in Lake Charles, LA. Although the defendant had maintained that with only 2% stock ownership he could not be a proxy, the court held that ownership was irrelevant, it was his position of control and authority that would determine his status.

The court did reaffirm the 5th Circuit's position that paramour discrimination is not a viable cause of action because it is not based on gender, but on favoritism which impacts both sexes equally. Additionally, the court upheld the summary judgment for the retaliation claims.

Although not applicable to a large number of cases, for sole owners and very high level executives in companies, this case makes definitive what had appeared clear from the original Faragher/Ellerth decisions, your conduct puts the company at risk, beyond the saving grace of a well implemented sexual harassment program.

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Eyebrow Ring v. Prohibition On Discrimination On Basis of Physical Appearance - Who Wins?


Madison, Wisconsin has its own Title VII type ordinance which includes physical appearance as a protected category. Sam's Club's prohibition against nose rings or other facial jewelry ran squarely against Tonya Maier's desire to wear a ring through her eyebrow to work, which ultimately led to her discharge. Although she convinced the Madison Equal Opportunities Commission that she had been discriminated against, when the Commission pursued judicial enforcement on her behalf, it was not so successful. The trial court, after considering expert testimony on the type of image that Sam's Club was trying to present (conservative), found it had established the affirmative defense in the statute. Sam's Club v. Madison Equal Opportunities Commission (Wisc. Ct. App. - 7/24/03). The defense allows rules if there is a reasonable business purpose.

Maybe it's the heat of summer, but it sure seems that there are a lot of cases recently which do nothing to bolster one's confidence that we have our priorities straight in the ways judicial resources get allocated. Which is not a comment at all on the judiciary who must deal with what comes before them.

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EEOC Study on Women of Color


HRnext has an overview of the EEOC's in house study of how women of color have fared in the workplace. The whole report is available here from the EEOC website.

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Employer's Lawyer Confirmed To The Bench


Not all that often that one of our own, a management side employment lawyer, is confirmed to the bench, but the Senate's action late last night did just that when it confirmed Xavier Rodriguez, to the United States District Court for the Western District of Texas. He will sit in San Antonio, replacing Judge Ed Prado, who is now on the Fifth Circuit. Judge Rodriguez had earlier served on the Texas Supreme Court. The Austin American Statesman has this report on his confirmation and his biography submitted to the Senate can be found here. Supported by both sides of the employment bar, Judge Rodriguez is an excellent addition to the bench.

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HIPAA, ADA, General HR Security A Concern: Try Biometric Access


Or at least check with Brevard County to see how it is working for them. They are one of the first in the country according to this article in InformationWeek. The particular technology being used, bioLock, uses fingerprints to control access to sensitive documents.

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Can't Wait For "Bullying" Cause of Action to Cross the Atlantic


He said sarcastically, in light of yesterday's near 1 million pound award to a former broker employed in the London office of Cantor Fitzgerald, the U.S. company heavily hit in the 9/11 attack on the World Trade Center. The report on the website of Croner Consulting sounds closest to the U.S. tort of intentional infliction of emotional distress or outrage. It is a slippery slope when we start using lawsuits to determine what is civil behavior and what is not. Of course we started on that course some time ago.

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IBM Loses Round One On Cash Conversion Pension Plan


The trial court has now given its view that IBM's 1995 conversion to a cash-balance plan was illegal. The Forbes headline, IBM loses pension plan lawsuit, will appeal is the succinct bottom line. For more in depth coverage check out the first of what I am sure will be many more posts in the Benefitsblog.


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