Privacy in the Workplace - An Intro to RFID Technology
Posted
5:11 PM
by Michael Fox
Who Should Be More Scared -- Employers or Federal Judges?
One of the reasons for this disappointing result is that judges have interpreted the ADA and Title VII through the lens of "workplace essentialism." For either the ADA or Title VII to restructure the workplace successfully, judges first must envision an alternative. To do so, judges must be able--and willing--to parse out the malleable ways that job tasks are organized from the actual tasks that comprise the essence of the job itself. Judges repeatedly have demonstrated an inability--or simply an unwillingness--to take this step. Instead, judges have assumed that jobs are defined at least in part by the default organizational structures that make up the full-time face-time norm, thereby placing those structures beyond the reach of antidiscrimination law and undermining the law's transformative potential. Labels: ADA
Posted
4:55 PM
by Michael Fox
What caught my attention was this quote from the article pointing out (in the author's view) a problem with the interpretation of the ADA by the judiciary:
Quick, Judge Owen Where Are You? 5th Circuit Affirms Summary Judgment for Plaintiff
Labels: constitutional rights
New FMLA Regulations Coming Soon?
While I hope I am wrong, I would be very surprised to see the DOL venture out too far into controversial regulatory waters so soon after the heated rhetoric over the changes to the FLSA white collar exemptions. Changes to the FMLA would not have to be controversial, but given the partisan rhetoric that permeates every issue in Washington these days, it would be. This is one prediction I would be happy to see be spectacularly wrong, but don't put too much money against me on this one. Updated: Not quite three years later, the proposed regulations are in the February 11, 2008 federal register. See my post here with a link to the proposed regulations. Labels: FMLA
The Guidebook for EEOC Lawyers
All in all a helpful reference when you find yourself opposite the EEOC in litigation. Labels: EEOC
Does Your IT Department Ever Make You Feel Nervous?
Perfume Allergy Worth 10 Million? In Detroit It Was
"To have brought the perfume with her suggests forward planning. This appears to be a premeditated attack which was entirely unprovoked by me in anyway," Weber wroteHer employer, Infinity Broadcasting said it asked the offending employee to stop wearing the perfume, changed their schedules so they did not interact and ultimately fired Weber when she did not come to work. The AP has a pretty bare bones story, see here, that has been widely circulated but the Detroit Free Press has more details in Radio DJ wins $10.6 million in stink over perfume. A pre-verdict story also in the Free Press, Jury deliberates radio personality's lawsuit, said Weber was forced to work in a studio where a guest on an earlier show had spilled acetone while giving another host a manicure. There was also evidence that even though Weber's show was a ratings success, she made only $66,000 a year while males earned 2 or 3 times as much. Weber complained about the pay issue to the EEOC. All of that apparently did not set well with the all female jury since according to the Free Press story, it awarded "$7 million in punitive damages, $2 million in mental anguish and emotional distress and $1.6 million for past and future compensation." While the "perfume allergy" makes for good copy, including my favorite headline from a South African website, DJ wins $10m in smelly saga, one wonders if it will even stand up as a disability claim. My guess is it was the other aspects of the employer's conduct that set the jury off into an MDV frenzy; it may have been the unequal pay or the retaliation claim that Weber made after she filed a complaint with the EEOC. Even then the jury twice sent notes to the judge saying they were having difficulty reaching a decision. Given the numbers, my guess the fights were over damages not liability, and if I am right there was someone on the jury who was pressing for an amazingly high number. (Not that $10 million isn't!) One other thing about the headlines accompanying the AP story, most refer to a $10 million judgment. By all accounts all that has happened is that a jury verdict has been returned. A verdict is only a step (albeit in this case a giant one) to a judgment, which must either be appealed or paid. But before a verdict becomes a judgment, the Court must apply the law to it, which in this case might very well reduce much of the award by application of the $300,000 caps on compensatory and punitive damages if the claim was only under the ADA. In any event as Infinity Broadcasting, the owner of the station, was saying, the judgment, when there actually is one -- "will be appealed". Nevertheless the verdict is an impressive reminder of how serious some juries can be when it comes to meting out punishment to an employer for their perceived wrongdoing. Labels: MDV
Call In Requirement Not Barred By FMLA
During regular working hours, when an employee is home on sick leave, the employee must notify the appropriate authority or designee when leaving home and upon return. An employee is to remain at home except for personal needs related to the reason for being on sick leave. While on sick leave an employee may be called or visited by a sick leave investigator unless the employee has 150 days or more of accumulated sick leave credit. In granting the City’s motion for summary judgment, the District Court found that the City’s sick leave policy requiring an employee on leave to “call the Sick Leave Hotline when leaving home during regular working hours does not conflict with any substantive provisions of the FMLA.” ... Further, the Court reasoned that the purpose of the FMLA is not compromised by this policy because it “neither prevents employees from taking FMLA leave nor discourages employees from taking such leave. It simply ensures that employees do not abuse their FMLA leave.” We agree. Labels: FMLA
Arbitration Announced By 'Barebones' Email - Not Sufficient According to 1st Circuit
For purposes of this opinion the Court assumed there would be an enforceable agreement under Massachusetts state law. Its decision to not enforce the arbitration policy turned on a requirement in the ADA first articulate in its 1999 decision in Rosenberg v. Merrill Lynch. Under the Rosenberg standard, the Court found its task here to be: whether General Dynamics's e-mail announcement of the Policy provided sufficient notice to the plaintiff that his continued employment would constitute a waiver of his right to litigate any employment-related ADA claim, thereby rendering judicial enforcement of that waiver appropriate. To be blunt, the e-mail announcement undersold the significance of the Policy and omitted the critical fact that it contained a mandatory arbitration agreement. The result was that a reasonable employee could read the e-mail announcement and conclude that the Policy presented an optional alternative to litigation rather than a mandatory replacement for it. Because that primary communication lends itself to such a conclusion -- rather than cluing in the reader by including a simple statement of the kind contained in the Policy itself that '[t]he mutual obligations set forth in [the] Policy shall constitute a contract between the Employee and the Company' -- we conclude that it failed to put the recipient on inquiry notice of the unilateral contract offer contained in the linked materials. Just as an aside, although you were not yet quite sure why, you had some idea how the case might turn out just by the Court's choice of language in describing the plaintiff's relationship to the employer: "For a period of nearly three years, plaintiff-appellee Roderick Campbell toiled as an at-will employee of General Dynamics Government Systems Corporation." Employees a court views as 'toiling' are often on their way to judicial success. Labels: arbitration
Challenging Conventional Wisdom - Private Settlements of FLSA May Be OK
Therefore, the Court holds that, according to the language of the FLSA, its amendment by the Portal-to-Portal Act of 1947 and the Fair Labor Standards Amendments of 1949, and its interpretation in the case law, parties may reach private compromises as to FLSA claims where there is a bona fide dispute as to the amount of hours worked or compensation due. A release of a party's rights under the FLSA is enforceable under such circumstances. Labels: FLSA
Is Your Work Email More Likely To Be Monitored in Europe or the U.S.?
Given the significance of email and the productivity (and other) issues with surfing the internet, it doesn't seem likely either of these is going to become less frequently monitored. The next big monitoring issue would seem to be gps or similar monitoring. For employers with mobile employees, the technology will soon be there if it isn't already. If you don't think so, check out Tag Team: Tracking the Patterns of Supermarket Shoppers, from Wharton Knowledge, how grocers are now studying the route you wheel your cart through their store using RFID techonology. But so far at least according to the study, less than 10% of employers have ventured off into these waters, according to the data in the AMA's press release on the study. But my guess -- it will be the topic of more and more discussions over the next year.
Help To the Procrastinators of the World, More Benefits News
AARP and The Retiree Health Benefit Conundrum
The bigger problem is that if AARP remains successful, the logical consequence is that fewer employers will offer any retirement medical benefits at all, a result that is not likely to be in the interests of most members of AARP. The Blue Cross, Blue Shield Health Issues website has a good overview of the the problem, AARP's Daunting Dilemma. The only solution that would seem to solve AARP's problem would be to mandate employers to provide such benefits; an idea whose time really has not come. If anything, it appears Congress might step in on the side of business and the EEOC to trump the ongoing AARP litigation. In many respects, it does seem to be a basic policy decision, which in my view makes Congress the place it should be resolved.
9th Cir. To Take Make Up Case En Banc
Derivative Discrimination Claim Still Not There In the 7th Circuit
co-workers singing racially derogatory songs, references to African Americans as “monkeys,” and graffiti including “N-I-G-A” written throughout the warehouse. made no attempt to establish that the conduct was so offensive to him as a third party as to render the workplace hostile not only for him but for any reasonable employee who likewise was a bystander rather than a target of the harassment. all but closes the door on the notion that an employee who observes workplace hostility but is not a member of the class of persons at whom the harassment was directed may bring a derivative claim for the harassment.
Diversity - Does It Include Thought?
4) find people of color who speak with white voices and advocate policies detrimental to their own racial and/or ethnic community. You can always find "white" Latino/as, African-Americans, Asians-Americans and Amerindians who are willing out of conviction, profit, self-loathing or survival to parrot the dominant culture's ideologies. Such individuals step on the heads of their own people to catch the eye of those in power, hoping to be rewarded for publically preferring whiteness over their own group. We Latino/as call them "coconuts" because they are brown on the outside but white on the inside. African-Americans call them "Oreos." They are known as "bananas" by Asian-Americans and "apples" by Amerindians. They allow the institution to become multi-colored without having to become multi-cultural, which is, after all, what many institutions secretly prefer. Isn't it?
"Just Make It Go Away" - Now $8 Million Later
The jury awarded $8 million in punitive damages (only $2,500 in actual damages), but it could have been worse. According to the story, the jury foreman reported: The evidence against the Douglas County satellite-TV company was so damning that some jurors wanted to award plaintiff Dale Alton, of Lakewood, as much as $30 million. "This was a compromise," he said. "I know it probably sounds like a lot of money . . . but it's something we felt was equitable." When Mr. Alton first went to EchoStar to apply, EchoStar told him it would not do him any good to put in an application because they were not set up to handle blind people. However, after receiving a copy of his charge of discrimination, EchoStar invited Mr. Alton back and put him through a sham interview process that included a Braille test, which was longer and more difficult that the test given sighted people, and a Windows skill test that consisted of a person giving him directions on how to access icons, such as "move to the left, move down, now click." Labels: MDV
OSHA's New Initiative - Not Your Normal Republican Policy
The initiative does not entail new legislation or regulation. Instead, it seeks to marshal a spectrum of existing laws that carry considerably stiffer penalties than those governing workplace safety alone. They include environmental laws, criminal statutes more commonly used in racketeering and white collar crime cases, and even some provisions of the Sarbanes-Oxley act, a corporate reform law.
Executive Compensation and the IRS - Check Out Their Guidebook
"All Politics Is Local," But This Is Just Bizarre
But now following her election, the Park Board President announced that the State Attorney is being asked to consider perjury charges against his new colleague based on her sworn statements to the EEOC. According to a story on the St. Louis Post-Dispatch website, it is related to the approximately $10,000 in costs the Board spent in defending itself. According to the Board President's statement: It is the park district's position that taxpayers should not have to bear the expense when disgruntled employees perjure themselves in an attempt to influence management decisions.
Mixed News For Those That Want the Right To Pack Heat At Work
Although I am certain employers will be happy to avoid liability, they are probably more likely to be concerned about the life of their workers if Dr. Loomis' data is correct. To be fair, it is unclear whether Dr. Loomis study dealt with an unrestricted right to bring guns on an employer's premises or also included workplaces where guns were allowed to be kept in locked cars. Something I am sure the Texas legislature will check out before going forward (he said with tongue firmly planted in cheek).
Paramour Cases - California Style
According to court papers, Lewis Kuykendall, the warden of Valley State Prison for Women in Chowchilla in the 1990s, had at least three lovers on staff. He promoted them and bestowed other advantages. One of those women, in turn, formed a close personal alliance with another high-ranking woman. Together, they made work intolerable for two female officers after they threatened to complain. The situation continued for several years. If the California Supreme Court issues a favorable decision, even though it is under a California statute, employers would be well served to prepare for another round of such cases. Put most succinctly, executives 'fooling around' with office mates, should cut it out now. Update: The California Supreme Court has now decided the case, reversing the lower courts. For a link to the decision see Paramour Claims Live in California.
Taxpayers and Employee Lawsuits
Posted
2:01 PM
by Michael Fox
More to the point on the Salge case, it is somewhat unusual for a plaintiff to win summary judgment in any employment case as there are usually factual questions which clearly preclude it. So much so in fact that such motions are rarely filed. Here though there was no dispute that a school secretary was fired for answering a reporter's question about the contract status of the principal that she worked for. Whether that involved public or personal speech and how it fared in the balancing between the employer's interests and the constitutional right of Ms. Salge, was under the circumstances a legal question. The 35 page decision is a good overview in the legal aspects that are relevant in 1st amendment retaliation cases.
Posted
12:37 PM
by Michael Fox
Posted
10:36 AM
by Michael Fox
Posted
6:16 PM
by Michael Fox
Just try firing one. George Lenard has a scary post about the potential consequences over at George's Employment Blawg, Insiders with axe to grind wreak cyber-havoc.
Small hint, when considering insider problems, "in 92% of the cases, a negative work-related event triggered the insider action."
Posted
5:30 PM
by Michael Fox
Posted
3:46 AM
by Michael Fox
In Callison v. City of Philadelphia (3rd Cir. 5/20/05) [pdf] the Court rejected the employee's argument that his suspensions for violation of this policy was prohibited by the FMLA. The Court's view was simple:
And not that anyone really cares, but so do I.
Posted
3:20 AM
by Michael Fox
Posted
5:40 PM
by Michael Fox
But perhaps even more amazing, earlier this year, Judge Xavier Rodriguez, of the Western District of Texas, who before becoming a member of the judiciary was a practicing labor and employment lawyer, has challenged another musty principle -- that a private employer cannot resolve a wage and hour dispute without either the participation of the Department of Labor or court supervision. In a well reasoned opinion, after exploring past Supreme Court decisions, the legislative history of the Portal to Portal Act, its judicial treatment and a review of circuit court decisions in this area, Judge Rodriguez comes up with the following conclusion:
Posted
2:42 PM
by Michael Fox
Posted
1:34 PM
by Michael Fox
The nitty gritty is here in Notice 2005-42. For some of us, all this does is delay the timing of our last minute rush, but for world class procastinators it's still like manna from heaven. Of course, your employer has to make sure that they amend their plan to give you that extra time. And that is something that can't be put off. So tell your plan administrator, "call our benefits lawyer -- now. "
Posted
1:22 PM
by Michael Fox
Posted
5:33 PM
by Michael Fox
Posted
9:41 PM
by Michael Fox
Walker's discrimination claim was not based on his own race, but was more a bystander claim. As the Court noted, while he like any enlightened employee was offended, his claim for derivative discrimination failed because he :
Walker's retaliation claim was more straight forward. If he were retaliated against because of his complaints of racial harassment, he would prevail. Unfortunately for Walker, it failed because he could not show an adverse employment action. All of the incidents of which he complained were ultimately short of what is required to be an adverse employment action, one of the elements for a successful retaliation claim.
Posted
1:45 PM
by Michael Fox
Intrigued, I read the article and also googled Dr. de la Torre, who currently is in the news for his change in positions from Hope College to Iliff School of Theology, a Methodist seminary in Denver. According to news stories the change is occurring either because of pressures brought on Dr. de la Torre following some recent editorials (described as theologically conservative, socially liberal) which caused him to spar with Dr. James Dobson and his conservative Christian group, or because he hasn't been compensated for the scholarly work he has been doing. Or what seems more likely, a combination of the two.
But in any event, back to the originally linked editorial, Diversity that's only skin-deep written by Dr. de la Torre. After appreciating much of what was said in the editorial, I ended up focusing on the following paragraph which was near the end, a fourth way to make it appear that you were interested in diversity, without really doing anything about it:
Which does nothing to take away from the validity of the points he makes in other parts of this article and perhaps in many of his other writings. But it does make me reflect that it is all too easy for us to condemn as "wrong", others who think differently than we do. And isn't it that kind of thinking which makes the discussion of diversity necessary in the first place?
Posted
3:13 PM
by Michael Fox
Another note to the wise. This is not the first time this year that the EEOC has been reported in an MDV story, see MDV Watch - EEOC Hits DuPont in Louisiana Trial and Just In Time For Christmas - FedEx MDV Verdict. In the past, EEOC trial lawyers have often been discounted, and in fact they are often stretched too far and too thin. However, given the recent results it is a clear that they can be a force to be reckoned with. Any employer (or their counsel) who goes to trial under the impression that they will not be able to try a good case, should probably think again.
Posted
2:07 PM
by Michael Fox
Posted
8:46 PM
by Michael Fox
If you are an executive, or in charge of executive compensation, you might want to check out the IRS guidance to their agents who are conducting executive compensation audits. The various topics: Transfers of Compensatory Stock Options to Related Persons
A tip of the hat to Janell Grenier at Benefitsblog: Executive Compensation Audit Technique Guides for the link.
Non-Qualified Deferred Compensation Plans
Stock Based Compensation
IRC 162(m) Salary Deduction Limitation
Fringe Benefits
Golden Parachutes
Split Dollar Life Insurance
Posted
6:39 PM
by Michael Fox
Posted
6:07 PM
by Michael Fox
The proposed Texas law, H.B. 79 which has been reported out of committee, would still permit an employer to ban guns from its "premises", but not from keeping guns in a locked vehicle, unless the vehicle is going to be parked in a garage or lot that is fenced in, not open to the public and guarded by security personnel. Interestingly, the bill does not provide the "guarded lot" exception for public employers. The legislation also has language protecting employers from liability in a civil action because of an occurrence inolving a handgun carried by someone licensed under this chapter.
Posted
2:31 PM
by Michael Fox
You have to love a story with a lead like "Prisons are notorious for being hotbeds of sexual intrigue, where the strong prey on the weak. In one California institution, the offenders weren't inmates, though." The story goes on to give the heart of the allegations:
Here is a link to the summary of the case as posted on the Supreme Court's calendar for today and the underlying appeals court decision [pdf], denying the claim.
Posted
9:32 PM
by Michael Fox
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