Jottings By An Employer's Lawyer

Friday, October 31, 2003

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

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.


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

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

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

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

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!


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Sunday, October 26, 2003

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

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

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

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

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

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

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.


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Hostile Environment Law and Correct Speech - Signs of Rebellion?

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

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.


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

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

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

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 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

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:



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


(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:


``(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.


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Saturday, October 18, 2003

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

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 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

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

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.


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A Few Different Takes on Sexual Harassment

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

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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Stealth Expansion of the FMLA Under Cover of the War on Iraq

Although not well publicized, last night the Senate accepted, without a roll call vote, Senator Feingold's amendment to the supplemental appropriations bill for the operations in Iraq, which would require employers to extend 12 weeks of FMLA leave to a spouse, child or parent of a member of the Armed Services on active duty in support of a contingency operation, which includes at least operations in Afghanistan and Iraq. The text of the amendment, S. AMDT 1852 to S. 1869 can be found here. Hopefully, before it is considered in the conference committee, at least some attention will be focused on this expansion of the FMLA. But the patriotically entitled "Military Families Leave Act of 2003,'' may prove too hot politically for any politician to challenge. If not, the expansion of the FMLA, which continues to evolve as a major problem for employers in managing their workforce, may be a done deal before most employers even know it is being considered.

Update: Senator Feingold originally introduced this legislation on March 21, 2003 (S.B. 683) and it was referred to committee, but no hearings have been held.


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A Lesson On the Sometimes Elusiveness of Summary Judgment

Lawyers who defend employment discrimination cases are concerned that the recent Supreme Court Costa decision may make summary judgment more difficult because it does away with the requirement of direct evidence to invoke the mixed motive analysis. The effect, at least it is thought, will make summary judgment more difficult. On the other hand, summary judgment can be elusive even when a court gets that point wrong, as pointed out by today's decision in Kenney v. Swift Transportation, Inc. (8th Cir. 10/17/03) [pdf].

Perhaps because the case was briefed and argued before Costa the Court used this framework: "Kenney has no direct evidence race was a reason for Swift’s failure to hire him, so his claims are evaluated under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973)."

While catching a break on that point, the defendant still didn't prevail. Its articulated reason for not hiring the plaintiff, that he had failed to follow the written requirement on the application that it must contain ten years worth of information, was rebutted by plaintiff's sworn statement that he had been told by the employee's representative that he need only provide his most recent employers. Although denied under oath by the employer representative, the Court found that only made for a credibility decision, one that could not be made by the Court on summary judgment. This case clearly shows that even before Costa, when a court strictly applies Reeves Plumbing's rejection of pretext plus, that summary judgment is only a "swearing match" away from being gone.

Once that becomes clear, talk about opening the proverbial 'floodgates of litigation'.

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Tuesday, October 14, 2003

Still Governor Davis Does the Right Thing on Arbitration Bill

While I previously expressed my doubts, Governor Davis has done the right thing, certainly the consistent thing, by again vetoing a bill that would have prohibited arbitration as a condition of employment. The Metropolitan News Enterprise has the story, but thanks to my good friend Jeni Houston, an in house employer's lawyer, for first catching the Davis veto pen in action. The demise of A.B. 1715 won't make up for her Cards faltering at the end of the season. And now to have her next-favorite Cubs fall to a 7th game, is just too much.


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6th Cir. Holds Plaintiff Not Responsible For Income Tax on Attorney's Contingency Fee

One of the few issues that has gained the enthusiastic support of both the plaintiff and defense employment law bars in recent years is an attempt to reform the tax law so that more of a plaintiff's recovery, particularly in settlement will not be taxed. So it is fitting that I found a reference to Banks v. Commissionerr of Internal Revenue (6th Cir. 9/30/03) in Workplace Fairness, a blawg from the employee's perspective. Although the 6th Circuit refused to go along with plaintiff's characterization of his settlement as for a personal injury (and thus non-taxable), it did agree that the $150,000 contingency fee earned and paid to his attorney, was not income to him. The Workplace Fairness article points out the split in the circuits on this very important issue when it comes to resolving lawsuits.

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Death In the Workplace - Which Jobs Ar the Most Dangerous

Thanks to Philip Greenspun for the pointer to this CNNMoney story that includes a Letterman type Top 10 list of the most dangerous jobs in America.

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8th Cir. Holds Expert Not Appropriate in Disparate Treatment Case

Although I normally don't mention unpublished decisions, this one is short and sweet but makes a very important point. The trial court refused to allow plaintiff's expert to testify that there had been discrimination. Noting that this case of disparate treatment turned on witness credibility (as many do), the Circuit Court held the matter was well within the province of the jury and an expert's testimony was not appropriate. Townsend v. Martine (8th Cir. 10/14/03) [pdf].

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8th Cir. Rebukes District Court For "Outmoded Judicial Hostility" To Arbitration

Reversing a Minnesota district court decision which struck down an arbitration agreement where a group of Ameriquest account executives brought a suit for overtime, the 8th Circuit found the court's analysis reflected a view of arbitration that had been consistently rejected by the Supreme Court. Bailey v. Ameriquest (8th Cir. 10/14/03) [pdf]. The district court's decision, decided in January, 2002 has been cited frequently by those opposing arbitration agreements. Here the account executives had a litany of complaints:
The account executives argue that the Arbitration Agreement is unenforceable because its one-year statute of limitations unlawfully limits the damages they may recover under the FLSA; because the agreement's cost-sharing provision may impose significantly greater costs than a judicial forum; because the California venue provision may increase costs and discourage the assertion of FLSA claims; and because the agreement does not expressly provide for collective action, as the FLSA does, see 29 U.S.C. § 216(b).
Although not denying that those could be problems, the Circuit Court focused on the power of the arbitrator to deal with such problems, noting that an arbitrator is not bound by a contractual limitation if it conflicts with a statute. The Court also emphasized that where the parties have clearly left the issue of arbitrability to the arbitrator, that choice must be respected.

Although it makes it look as if this were an easy decision, it should be noted that the case was argued on November 22, 2002.


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Sunday, October 12, 2003

6th Cir. Holds FMLA Trumps Internal Reporting Requirement

An employee was injured in a motorcycle accident and called in every day he was supposed to work to let the employer know. He did not comply with the company rule that if the absence was to be more than three days in a row, that he had to contact Leave Control. Two of the days he missed were counted against him and he received a written counseling. When he failed to comply with another attendance requirement he was terminated. In the review process, the fact of the earlier counseling was used as justification for his termination.

Faced with a situation where he had given sufficient notice to comply with the FMLA, but not met an employer's internal reporting requirement, the 6th Circuit found the FMLA is what counted. Utilizing his absence which qualified under the FMLA as a grounds for termination was improper. Cavin v. Honda of America Manufacturing, Inc. (6th Cir. 10/10/03) [pdf]. To do so, the Court found it had to differ with decisions from the 7th and 10th Circuit, raising the possibility of another future FMLA issue for the Supreme Court.


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Fact Sheet from EEOC On the ADA and the Job Applicant

If you have any questions about what rights an applicant has during the hiring process, or just want to know what potential applicants might have learned if they spent some time on the internet, you can find the fact sheet, Job Applicants and the Americans With Disabilities Act on the EEOC website.


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One of the Reasons We Got Sarbanes: Pressure on Accountants To Keep Profitable Clients

There have to be competing pressures when you are tasked both with monitoring compliance of public standards and being a rainmaker for your firm, a dual role that many accountants have found themselves in over the past few years. And now some academicians have done a study that, not terribly surprisingly, says that in dealing with those conflicting pressures, the one most closely linked to their own financial interest often wins out. A SmartPros website article reports on a soon to be published study in the Journal of Accounting and Public Policy. Their suggestion for making things better -- make failure to comply more costly with increased scrutiny and fines: the accountants will take that into account in making their internal assessments. Sad that it is needed, but not too terribly surprising.

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Friday, October 10, 2003

FMLA Claimant Doesn't Fare Well In State Court

It will be relatively rare to see a state court decision on FMLA issues, at least in Texas, as most cases are removed to federal court. If you knew you would get the same result as in Horelica v. Fiserv Solutions, Inc. (Tx. App. - San Antonio 10/8/03), there wouldn't be a need to remove. Plaintiff claimed retaliation under the FMLA when she was terminated for job abandonment when she didn't return to work following foot surgery. The Court held summary judgment was proper as the employer disproved one of the elements of a retaliation claim, that she was within a protected group. The Court held she was not in a protected group because she did not show she gave timely notice or gave notice that her condition was a serious health condition. Clearly, the court was influenced by the fact that she had surgery knowing it had a six week healing period and only told the employer the day before the proceeding and then only told it that she would be two days. Given that rationale, it seems unlikely that she would have fared any better even if she had brought it as entitlement claim rather than retaliation.


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Thursday, October 09, 2003

New Term For Supreme Court - ADA Case Up First

On a term that so far does not have many blockbuster employment law cases scheduled, the first day of argument addressed the question of whether an employee terminated for failing a drug test can sue if he is not rehired when he is drug free. The company's position is that he was barred because of its no re-hire rule when an employee is terminated for misconduct. In Hernandez v. Hughes Missile Systems (9th Cir. 2002), Judge Stephen Reinhardt writing for the court ruled against the company. Jan Greenburg of the Chicago Tribune has the story on how the argument went. Hopefully, given the 9th Circuit's checkered history in the Supreme Court, this will be reversed. Although one of the most important employment law cases last term was Costa v. Desert Palace, where the 9th Circuit view prevailed. Hopefully, that will be the exception rather than the rule.


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Wednesday, October 08, 2003

Wage and Hour Claim Barred By Small Court Claims Loss

There is plenty more in the opinion, from a close look at joint employment to what it means to have a willful violation for purpose of liquidated damages. On the latter the court reminds that double damages are the norm, not the exception, and this case is not out of the norm. But the most interesting aspect of the case was the denial of one individual's claim because she had raised it as a counterclaim in an earlier small claims court proceeding and lost. Chao v. A-One Medical Services, Inc. (9th Cir. 10/6/03). Under a statute where an employer doesn't get a lot of breaks, it is at least nice to know there are some circumstances where you don't have to win twice.

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Telling Social Security One Thing and the Court Another - Doing the Analysis

Four years ago, the Supreme Court held that an employee or applicant who had qualified for social security disability payments, by saying he was permanently disabled, was not automatically barred from claiming that he had been discriminated against under the Americans with Disabilities Act. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) Instead, the Supreme Court outlined an analytical model for courts to follow in making that decision. This week, in an age discrimination case, the 3rd Circuit offers a textbook example of how such an analysis should be done. Detz v. Greiner Industries, Inc. (3rd Cir. 10/7/03) [pdf]. The end result is the case is thrown out because of the contradictory statements, unable to work for SS benefits, but claims of discrimination in court. Hard not to sense the displeasure of the Court for some one trying to have it both ways.

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Sunday, October 05, 2003

This Weekend's Message - Pregnancy Bias

Sometime ago I noted there seemed to be an employment law story each weekend that was picked up by a number of papers across the country. This weekend, in addition to the stories of Arnie's past gropings, it seems to be pregnancy discrimination. The AP story is carried in the Chicago Daily Herald as well as a number of other papers across the country. Last year charges of pregnancy discrimination filed with the EEOC increased by 10%. As might be expected, there are differing views on the reason, with some claiming increased knowledge of their rights and higher positions by women and others noting the tough economic times. While there may be disagreement on the reason, given the number of stories this weekend, it probably would not be a good week to push the envelope on a close decision involving an employee who is pregnant.

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Thursday, October 02, 2003

Austin Court Holds Covenant Not To Compete Invalid For Reasons That Make Me Look Like Carnack

Well maybe not as good at predicting as Johnny Carson's Carnack, but when I reported yesterday on Beasley v. Hub City, Inc. , I noted the outcome would likely have been different if the employer had not been been able to show that the type of confidential information provided after signing a non-compete upon becoming president, truly was different from what he had access to before. Sure enough that is the holding of Alex Sheshunoff Management Services, L.P. v. Johnson (Tex. App. - Austin 10/2/03). Since the employee was given no new confidential information after he signed the covenant, it did not meet the tests of Light. The Court also held that mere daily changes in the information in the daily course of business was not sufficient, and that the promise of 2 weeks notice was not sufficient, since it was highly unlikely the employer would have actually imparted any confidential information to the employee after giving the notice.

Updated: Almost two years after it was argued the Texas Supreme Court finally issued its opinion in Sheshunoff, see Major Change in Texas Non-compete Law.


White Collar Regulation Reform Goes Down In the House

The House of Representatives has just voted by 221-203, to instruct the conferees of the House to accept the Harkin amendment which would have the effect of preventing the Department of Labor going forward with the proposed white collar exemption regulations. Although technically non-binding, it would seem to make it highly unlikely that the provision will not be in the final bill. If, as it seems likely, there is an omnibus appropriation bill, it makes it even less likely that there would be a presidential veto. (Even without an omnibus appropriations bill the chance of a veto was probably somewhere between slim and none.)

The only good news is that my decision not to spend much time learning the details of the proposed regulations seems to have been a wise one. Good for me, but a real tragedy for the country as a whole not to get some clarity on such an important issue.

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Wednesday, October 01, 2003

Assault By Supervisor - Workers Comp Bar Applies; Company Not Liable For Intentional Tort

An employee who returned late from work was struck with a steel pipe by his supervisor. (Not a recommended practice to cure tardiness.) The supervisor ultimately pled no contest to a criminal assault charge. The employee sued the company under a negligence theory and also for the intentional tort of the supervisor. The court held that the 3rd party personal animosity exception did not apply, since the assualt resulted solely from a work related incident. Thus workers comp barred all claims founded in negligence. When the employee countered that the employer was liable for the supervisor's intentional tort, the court rejected that claim as well. Only if the supervisor were the equivalent of the alter ego would liability be proper. Here there was no such finding, so no liability. The final shot was a retaliation claim brought under the Texas Commission on Human Rights Act. The only alleged protected activity was filing this suit, which had no relationship to the protected categories outlined in the Texas Commission on Human Rights Act. With no connections on three tries, the struck employee, effectively struck out. Urdiales v. Concord Technologies Delaware, Inc. (Tex. App. - Houston [14th Dist.] 9/30/03).

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Centel Cellular v. Light - Once More Around the Track - Court Upholds Covenant Not To Compete

Texas courts, and parties are beginning to show increased understanding of drafting, arguing and deciding cases to conform with the peculiarities of Texas covenant not to compete law as interpreted by the Texas Supreme Court in Centel Cellular v. Light. (One of the legacies of then Justice, now Senator, John Cornyn). It seems clear that a promise by the employer to provide confidential information to an employee in return for a covenant will meet the 'otherwise ancillary to an enforceable agreement" standard of Light. In Beasley v. Hub City Texas, Inc. (Tex. App. - Houston [1st. Dist.] 9/29/03), the facts were not that straightforward. Here, an employee was promoted to President. While the contract provided that he would be provided access to confidential information, the employee argued that he already had the information before, so there was no consideration. If proven, that would have probably defeated the covenant. Unfortunately for him, his employer had proven to the trial court's satisfaction that it had provided confidential information to him that he did not have access to as Vice President. Indeed, the Court had so found in one of its findings of fact. Under those circumstances, the Court found that it fell within the parameters laid out by the Supreme Court in Light and upheld the Court's entry of a temporary injunction enforcing the covenant not to compete.


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What Employers Fear Most - Settlements (and Successful Suits) Beget More Claims

Fort Lauderdale is getting a reputation as more than a place for a fun spring break. Based on what has happened the last two years, its employees appear to see it as an easy mark for discrimination complaints. Sonji Jacobs of the Miami Herald has a story on the most recent jury verdict which ended Tuesday, with an almost $500,000 verdict, which could double before it is finally resolved. The case involved a maintenance employee who claimed he was not promoted because he was Haitian. He remained employed during the litigation and convinced the jury that he had been retaliated against following his complaint.

Since 2001, the City (and its insurer) has paid out almost $2 million. The City manager resigned last Friday, after having to deal with a "steady stream of complaints", many filed under its predecessor. An unfriendly way of being reminded of the importance of good employment practices, proper treatment of your employees, and the appropriate handling of complaints.

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Rash of EEOC Litigation

In reviewing federal court filings across the country for the last few days, I noticed a large number of lawsuits filed by the EEOC. Given that they file relatively few suits per year, I was curious about the timing of so many suits at once, until it dawned on me that it was the end of the government's fiscal year. So for those of you who have or will soon receive an invitation to litigate with the EEOC, give thanks that your federal tax dollars are actively at work.


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