Jottings By An Employer's Lawyer

Friday, September 25, 2015

Lessons from Just One Day's Daily Labor Report

One of the venerable sources of information for labor and employment lawyer's has been BNA's Daily Labor Report. I can't remember when I first started reading it regularly, but it has been a long time. Now it comes neatly to my in box, but back in the old days the paper version was circulated and so for the first few years it was certainly not new news by the time it made it to my desk.

But I was just struck by three stories in yesterday's publication that are just so telling for employment law practitioners.

The first was a story on an FMLA lawsuit:

Firing After FMLA Request Raises Triable IssuesA tool and die designer for a Wisconsin manufacturer who was fired one work day after he asked for intermittent Family and Medical Leave Act leave to tend to his son's mental health problems raised triable claims that the company retaliated...

How many times do we see these cases, where suspicious timing is the key. A few years back, I can remember trying a case in New Orleans where an employee had been terminated on his first day back after returning from FMLA leave for a heart condition.

The employer was acting on things that it had uncovered while the manager had been out on leave. That of course didn't keep opposing counsel from harping on the fact that the timing alone was enough to show it was FMLA retaliation. I expected that from opposing counsel, a little more unnerving was the comment by the Judge that he didn't understand why big companies, with all their resources, do what they do when they knew that it would get them sued.

Fortunately, the jury understood the employer's dilemma. If, when we had discovered the issues that ultimately led to the termination while he was out on leave, the company had called him in then, the suit would have been about interfering with his actual leave. And woe to the company if that had exacerbated his heart condition!

Still, timing is always a real danger in these cases.

The second story is just yet another example of the proof of the old adage in our business that no good deed goes unpunished.

Recommendation Letter Saves Fired Professor's Bias SuitA black University of California professor who alleged that a department director was motivated by racial bias to refuse to reappoint him under a pretext of budget cuts and poor performance can proceed with his race discrimination claim, the...

A professor bringing a race claim escapes summary judgment because the department head wrote him a positive letter of reference after telling him he would not be re-appointed because of a budget deficit. The deficit was avoided, others who had also been told they would be let go were not, and Exhibit A is the gracious reference letter.

Finally, a note showing how aggressive governmental agencies have become in at least considering pushing the limits of employer responsibility.

Commission Seeks Comment on Workplace Murder Case
The Occupational Safety and Health Review Commission is requesting briefs from interested parties on a pending case that involves the murder of a health-care worker by a potential client, the commission announced in a statement issued Sept....

Obviously a tragic event where a health care worker is murdered by a psychiatric patient that she had visited at his home on several occasions. The ALJ found the employer was responsible for a general duty violation. The Commission is now seeking briefing from interested parties:

The commission seeks comments on the extent to which a health-care provider should be able to protect its employees from the potential violent acts of third parties, and whether an employer's failure to do so should be considered a violation of the general duty clause (29 U.S.C. ยง 654(a)(1)).

Amazing at how just one day's post can hit so many of the things I have learned over the past 40 years.

It remains to be seen how much longer I will be learning these lessons from The Daily Labor Report, but it certainly has been a major source of information for a long time.

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