Jottings By An Employer's Lawyer

Thursday, April 29, 2004

Not Constructive Discharge, But Constructive Resignation?

A new concept on me I must admit. Probably because there are not many cases where it would really make a difference whether it was a discharge or a resignation, but this case presented one such case. Under the collective bargaining agreement, if the employee were deemed to have resigned she would owe the employer $14,500 in a relocation bonus. If she were terminated, even for cause, she would not. The district court found her conduct, basically gross insubordination was sufficient to meet the test under Wisconsin state law for constructive resignation. The 7th Circuit noted that the standard, almost of necessity was extremely vague which made it a poor case for summary judgement. Bean v. Wisconsin Bell (7th Cir. 4/26/04) [pdf]. While affirming the district court's grant of summary judgment on the racial discrimination claim, it reversed summary judgment in favor of the employer on constructive resignation, and sent it back to the trial court with a gentle hint that the court might want to kick it back to state court since no federal issue remained. My guess is that is precisely what will happen. But for me, I learned a new concept --- constructive resignation ... I like the sound of it.

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Statute of Limitations For Retaliation Under False Claims Act - 6 Years in 4th Circuit

But the dissent is not happy and other circuit courts are split. 6 years is a long time for a retaliation claim to survive, but the majority in United States v. Graham County Soil and Water Conservation District (4th Cir. 4/29/04) [pdf] found no ambiguity in the clear language of the statute. Given the disagreement sounds like one the Supreme Court will ultimately get to resolve.


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Friday, April 23, 2004

NLRA Stops At This Country's Border - No Extraterritoriality Jurisdiction

Congratulations to my fellow shareholder Steve Semler who convincingly argued that the National Labor Relations Act does not apply on Canadian soil, even when the workers are there only on temporary assignment. Asplundh Tree Expert Company v. NLRB (3rd Cir. 4/22/04) [pdf].

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Thursday, April 22, 2004

New Wage and Hour Regulations - A View From the Employees' Lawyer Side

The debate over the wage and hour regulations released two days ago has certainly been one of the more high pitched, even if not particularly well reasoned debate, of an employment law issue that made its way to the political mainstream. The result when the actual regulations were released, a somewhat muted response from both sides. See the comment from Workplace Fairness, a website affiliated with the National Employment Lawyers Association, "the country's only professional organization comprised exclusively of lawyers who represent individual employees in cases involving employment discrimination, wrongful termination, employee benefits, and other employment related matters."

The fact that the response is muted probably speaks well for the value of public discourse. Now wouldn't it be nice to see what would happen if we had more reasoned discourse from both sides.

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Wednesday, April 21, 2004

More White Collar News - But This Time, Unions Not Exemptions

While the rest of the labor and employment world was focused on the new Section 541 regulations modifying the so called white collar exemptions to the Fair Labor Standards Act, more than 600 Prudential insurance agents were voting to be represented by the Office and Professional Employees Union, Local 153. The New York Times has the story. Those against, only 151. With numbers like that, there may be substantially more attention to white collar employees in the future, from both labor and management.

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Tuesday, April 20, 2004

California Not the Only State Interested In Workers Compensation Reform

Count the Volunteer state in as well. Fear of losing jobs is the motivating factor according to the story on the website of WBIR-TV, a Knoxville TV station.

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Today, The Next Step Forward to the White Collar Exemption Reform

While I was away today, Secretary Chao was unveiling the final version (at least insofar as the administrative process is concerned) of the revised white collar regulations, which differer significantly from the initial version which drew more than 80,000 comments, not to mention millions of dollars of advocacy advertising, both pro and con. For a quick overview and links to the final regulations themselves, check out the Ogletree Deakins Legal Alert prepared by our crack client services group and our inveterate Washington insider, Hal Coxson.



Today, the U.S. Department of Labor announced its eagerly-anticipated final overtime pay regulations which make substantial changes to the criteria for overtime exemptions under the federal Fair Labor Standards Act of 1938 ("FLSA"). The Labor Department asserts that the revised federal regulations will expand overtime eligibility to an additional 6.7 million low-wage workers, including 5.4 million workers who will be guaranteed overtime for the first time because their base salaries are now below the increased minimum salary level.

The 536-page final regulations are revisions to 29 CFR Part 541 (the "Part 541 Regulations"), which had become badly outdated. In recent years, the difficult-to-interpret federal Part 541 Regulations have resulted in employer misclassifications of salaried "white collar" employees as "exempt" from overtime pay, thus triggering employer liability for back pay and a growing number of "collective action" lawsuits.


The final Part 541 Regulations, first proposed in March 2003, resulted in over 80,000 public comments. In the final regulations, the Labor Department devotes a substantial discussion in the Preamble - and several new substantive sections - responding to the misleading attacks from opponents. For example, new Section 541.3(a) makes clear that "blue collar" workers are entitled to overtime pay. New Section 541.3(b) clarifies that police, firefighters, paramedics, and emergency technicians are not exempt from overtime pay requirements. New Section 541.301(d) provides that military service veterans are not exempt from overtime pay as a result of their military training. New Section 541.301(e)(2) provides that licensed practical nurses (LPNs) are eligible for overtime, as are registered nurses (RNs) under current law. New Section 541.4 provides that nothing in the regulations relieves employers from overtime pay obligations to workers under union contracts.

Also, apparently reacting to public comments, the final regulations are significantly changed from those originally proposed last year.

Major Provisions

Effective Date. The final Part 541 Regulations will become effective 120 days from the date of their publication in the Federal Register (which is expected to occur later this week or the first of next week).

Basic Framework. Although the new regulations clarify the criteria for the Part 541 exemption, the basic regulatory framework remains the same. To be considered exempt under the Part 541 Regulations, "white collar" employees must: (1) be compensated above a specified "minimum salary level"; (2) be paid on a "salary basis"; and (3) perform certain specified primary "job duties" involving managerial, administrative, or professional skills.

"Salary Level" Test. The final Part 541 Regulations increase the minimum salary level required for exemption from overtime pay to $455 per week, or $23,660 annually, for all "white collar" employee classifications - executive, administrative, and professional employees. That means employees paid less than that amount will not be exempt from overtime pay without regard to their managerial, administrative, or professional job duties. The current minimum "salary level" is $155 a week using a "long test" of job duties; $170 per week for professionals; and $250 a week under a "short test" requiring performance of fewer managerial, administrative, or professional job duties. (Note that the March 2003 proposal set the salary level at $425/week, or $22,100/year. Thus, the final regulations are slightly higher than the original proposal.)

For many employers, the new minimum "salary level" will require increasing the salaries for "white collar" employees to retain their current exempt classifications, since any employee paid less than that amount will automatically be eligible for overtime pay.

"Highly Compensated Employee" Test. The final Part 541 Regulations provide a new, special streamlined test for "highly compensated employees" who are paid at least $100,000/year (including base salary, commissions, and non-discretionary bonuses). To qualify, a "highly compensated employee" must: (1) be paid at least $455 per week in base salary; (2) perform office or non-manual work; and (3) customarily and regularly perform one or more exempt "job duties" (as discussed below) required for executive, administrative, or professional employees, or computer or outside sales employees. (Note that the March 2003 proposal originally set the base annual compensation for the new "highly compensated employee" exemption at $65,000.)

"Salary Basis" Test. The final Part 541 Regulations retain the current requirement that exempt "white collar" employees must receive their full salary on a weekly or less frequent basis without regard to the quality (job performance) or quantity (number of hours) of work performed. Thus, the final regulations retain the controversial prohibition on deductions from pay for partial-day and many partial-week absences ("no pay-docking" rule).

The final Part 541 Regulations do, however, make important changes permitting deductions for full-day disciplinary absences (i.e., a one-day unpaid suspension). Current regulations only permit one-day deductions for violations of major safety rules; otherwise, unpaid disciplinary suspensions must be for a full workweek.

The final regulations also provide a broader interpretation of the "safe harbor" for employers that make improper deductions from exempt employees' pay. The "safe harbor" will prevent the loss of the overtime exemption for either "isolated" or "inadvertent" deductions from pay.

Under the final regulations, the overtime exemption would be lost only if a pattern or practice of improper deductions exists. Even then, the exemption would be lost only for the particular employees in the same job classification working for the same manager who is responsible for the improper pay deductions. The loss of exempt status would not extend to employees company-wide, thus reducing the incentive for trial lawyers to threaten or file multi-plaintiff collective actions.

Similarly, the final regulations provide an expanded "window of correction" for improper pay deductions which applies where employers: (1) have a policy that prohibits improper pay deductions; (2) clearly communicate that policy to employees; and (3) reimburse employees for any improper deductions. Unless the improper pay deduction is repeated or willful (such as where an employer does not take action in response to an employee complaint), the "window of correction" will prevent the loss of exempt status.

"Job Duties" Tests. Perhaps the most significant revisions in the final Part 541 Regulations are in the "job duties" tests for executive, administrative, and professional employees. The final Part 541 Regulations eliminate the current "long test"/"short test" dichotomy and substitute a single "standard duties" test.

The final Part 541 Regulations also eliminate the former requirement for all "white collar" employee classifications that exempt employees must not devote more than 20 percent of their time performing non-exempt work (or, under the former regulations, exempt employees in retail or service establishments spend no more than 40 percent of their time performing non-exempt work). Instead, the final regulations substitute a "primary duty" test for each "white collar" employee classification.

The final regulations, however, now retain the requirement from the current Part 541 Regulations, proposed to be deleted in the March 2003 version, that exempt "administrative" employees must consistently exercise "discretion and independent judgment." The "job duties" tests under the final Part 541 Regulations are:

Executive Employees. An exempt "executive employee" must be paid a salary of $455 per week and: (1) have the "primary duty" of the management of the enterprise or a recognized department or subdivision; (2) customarily and regularly direct the work of two or more other employees; and (3) have the authority to hire, fire, promote, etc., or where such recommendations as to hiring, firing, promotion, etc. are given particular weight. The final Part 541 Regulations delete the "sole charge" executive provision.

Administrative Employees. An exempt "administrative employee" must be paid a salary of $455 per week and: (1) have the "primary duty" of performing office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (2) customarily and regularly exercise discretion and independent judgment. Note that the job duties criteria for exempt administrative employees are essentially the same as the current "short test." The final Part 541 Regulations delete from the March 2003 proposal the requirement that the exempt administrative employee must hold a "position of responsibility."

Professional Employees. An exempt "learned professional" employee must be paid a salary of $455 a week and have the "primary duty" of performing office or non-manual work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction, but which can be acquired by alternative means such as an equivalent combination of intellectual instruction and work experience. Note that the final Part 541 Regulations eliminate the reference in the March 2003 proposal to equivalent training in the armed forces, technical schools, and community colleges. An exempt "creative professional" employee must be paid a salary of $455 per week and perform the "primary duty" of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.

Outside Sales Employees. An exempt "outside sales employee" must: (1) perform the "primary duty" of making sales or of obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and (2) be customarily and regularly engaged away from the employer's place of business. Note that the final Part 541 Regulations eliminate the requirement under the current regulations that an exempt "outside sales employee" must not devote more than 20 percent of hours worked to nonexempt activities that are not incidental to and in conjunction with the exempt employee's own outside sales or solicitations.

Computer Employees. The final regulations make no changes to the current requirements for exemption of certain computer-skilled employees, either the salary level or job duties tests, since those requirements are codified in the FLSA's Section 13(a)(7).
The Future

It is expected that these Part 541 Regulations will be challenged on a variety of fronts - including under the Congressional Review Act and possibly in federal district court under the Administrative Procedure Act. We will keep you apprised of the latest developments with regard to these new regulations.

Further Information

Recognizing the significance of the final Part 541 Regulations, Ogletree Deakins will devote two panels to the topic at the 2004 Workplace Strategies Seminar to be held at The Ritz-Carlton, Buckhead in Atlanta on May 13 and 14. In addition, Ogletree Deakins and the Institute for Applied Management & Law (IAML) will co-sponsor an audio conference on the subject on Wednesday, May 19.

To register for the Workplace Strategies Seminar, visit our website or contact Kim Beam at (800) 277-1410 or For more information on the audio conference, contact IAML directly at (949) 760-1700 or via their website at Be sure to request the special "Ogletree Deakins" rate.

You may obtain a copy of the final Part 541 Regulations [pdf] on the U.S. Department of Labor's special website. Also available on the website are fact sheets, frequently asked questions, and other useful information. The Department also has a toll-free number (1-866-445-WAGE) and e-mail address for additional questions.



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Sunday, April 18, 2004

Curious About Psychometric Tests Used in Employment Decisions?

Then download a small e-book from the UK HR site, HR Gateway which presents a brief overview of 7 popular tests -
· The 16PF Questionnaire
· Myers-Briggs
· The ABLE series
· The FIRO-B Personality Questionnaire
· The Innovation Potential Indicator
· The ‘Benchmarks Questionnaire
· The Thomas-Kilmann Conflict Mode Instrument.

The site to download the brief over view and an explanation of who drafted it can be found here.

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Bullying Laws Now on the North American Continent

If you follow this blog regularly you may know that I have commented several times on growing efforts to add protection against "bullying" to the array of workers' rights. Apparently, there is a now such a law on the North American according to the story on the Occupational Hazards website, Quebec Deals with Workplace Bullies. Although not disagreeing with the sentiment behind it, I fear the wide door to mischief that such a cause of action will bring.


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Saturday, April 17, 2004

Connecticut Supreme Court Rejects Compelled Self Publication

Since I don't often read the opinions of other states, I would not have caught the case of Cweklinksky v. Mobil Chemical Co. (Conn. 1/6/04) [pdf] except that it was answering a certified question from the 2nd Circuit which duly accepted its answer and applied it in Cweklinsky v. Mobil Chemical Co. (2nd Cir. 4/13/04) [pdf]. The plaintiff who had not been terminated for allegedly altering a doctor's note sued claiming defamation among other causes of action and testifying that the publication occurred because he felt obligated to tell employer's he was applying for work when they asked why he was terminated. Since that was primarily a decision of state common law which Connecticut had not addressed, the 2nd Circuit tossed it to them. After conducting their own survey of other states' law the court found:
Our own jurisdictional survey leads us to agree with the Court of Appeals' assessment that "most jurisdictions have yet to recognize compelled self-publication defamation or have expressly rejected it." ... Furthermore, although as many as seven state appellate courts have adopted the doctrine; ... the highest appellate courts of only two states, Colorado and Minnesota, have adopted it. Moreover, in both those states, the legislatures responded by eliminating or restricting the doctrine's application.
The Court went on to reject it primarily because of the harm it would do to open communications between employers and employees if employers were afraid that anything they said to an employee could be "retold" and serve as a basis of liability. A clearly reasonable fear, and thus, a totally reasonable decision.

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Award Based on 9 Years of Religious Harassment Upheld by 1st Circuit

Although the jury that found religious harassment awarded $400,000 in compensatory damages and $750,000 in punitive damages, those figures were reduced to the $300,000 maximum under Title VII. Since the $400,000 compensatory damage figure alone exceeded the cap, the court did not have to consider the employer's challenge that the punitive damage award was improper. The plaintiff, a former Assemblies of God minister who remained active in his church even after beginning to work as a janitor, alleged that he was harassed over a period of nine years by his supervisor, who repeatedly commented about his state of chasteness. The employer sought to defend on the difference raised in an earlier First Circuit case, Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 189 (1st Cir. 2003) of a "conceptual gap between an environment that is offensive to a person of strong religious sensibilities and an environment that is offensive because of hostility to the religion guiding those sensibilities." Notwithstanding a conceptual possibility, the court did not find it in this case, upholding the jury's award. Johnson v. Spencer Press of Maine, Inc. (1st Cir. 4/16/04).

The Court also held that even though the plaintiff had been terminated for misconduct at a subsequent job, there is not a per se bar against any damages for lost wages after discharge for misconduct at another position. In this case, since the plaintiff had been totally unable to work after that termination and could not show that it was the fault of the employer, it was proper in this case to end his back pay claims at that point.

From just the facts recited in the court's opinionn, it was clear that the supervisor engaged in what was extremely vulgar conduct. Notwithstanding the "conceptual gap" that the employer tried to exploit, this case stands as a good reminder of what I heard a very successful plaintiff's employment lawyer say about employers and their counsel --- they consistently underestimate the power of bad facts. Amen.

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Friday, April 16, 2004

Minnesota Wants To Be 2nd State To Negate New White Collar Regulations

Or at least one chamber of their legislature does, as the Minnesota Senate has passed a bill similar to that signed into law in Illinois which would override the new overtime provisions of the forthcoming revisions to the white collar exemptions. The Pioneer Press website has the story, State Senate bill overrides overtime. Fortunately, for those seeking a modernization of the rules, the bill faces a much rockier road in the House.

A most interesting point is that the legislation is being passed even before the final rules have been published. But you know in an election year, the idea of deliberate and careful policy, such as knowing what it is you are acting on, rather than just press reports of what might happen, often loses out to populist rhetoric and chest thumping. Maybe I could just eliminate the first clause of that sentence.

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Thursday, April 15, 2004

Employment Law Is Not Just For the Big City

Cookeville, Tennessee, the self described Hub of the Upper Cumberlands, a town of about 24,000 located halfway between Knoxville and Nashville is probably not the first place you would think of when you thought about a case of religious accommodation involving a member of the Messianic Assembly who refused to shave his beard and lost his job as a service station attendant. But that's what happened and a suit brought by the EEOC was resolved yesterday with a payment of $62,400 and Rafael Segura's former employer Pilot Oil, also agreeing to adopt a written policy about religious accommodation and conduct training on the subject for its managers according to the story on the Cookeville Herald-Citizen website.

Coming from a town somewhat smaller, I can also guess that the $62,000 payment probably was a bigger deal than many larger dollar amounts in other locales. And Mr. Segura? According to the paper, he has a new job, and is still wearing his beard.

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Sunday, April 11, 2004

The MDV Returns in the First Week of April - From Stanford University to a Michigan Movie House

Probably because I haven't been looking regularly lately, it has been awhile since I have seen a $1,000,000 employment verdict, but Friday in Half Moon Bay, Stanford University came out on the short end of such a stick. A researcher who had a long running fight with Stanford, alleged it had interfered with her obtaining a new position. You can check out the story of the three week trial in the Contra Costa Times.

Some others have been out there as well. Earlier last week, A 52 year old movie cinema manager who got a court order against a part-time concession worker who was harassing him after their relationship went sour obtained a $3,000,000 jury verdict against National Amusements under the Michigan Whistleblower Act. The company fired him for showing favoritism towards her, he claimed it was for reporting the problem to the court. The Flint Journal story can be found here.

Also on Monday of last week, the 9th Circuit Court of Appeals revived a $1,000, 000 verdict for a Portland special education teacher who claimed she was fired after she began to speak up about the quality of services for special education students. An article on the reversal is in The Oregonian, where plaintiff's counsel estimates the judgment with interest will near $2,000,000, or you can read the case itself, Settlegoode v. Portland Public Schools (4/5/04) [pdf].

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Saturday, April 10, 2004

An Opinion For Your Next Discovery --- Discussion -- With Opposing Counsel

Discovery disputes it seems are the bane of trial judges. And often, no doubt caused by far too many hours wasted by lawyers appearing more like petulant kids than rational adults, they tend to treat all lawyers appearing before them as such. And just like parents pushed too far by sibling warfare, sometime react indiscriminately, seeking more to put an end to the dispute than to a precise determination of the right and wrong. All of which is a long of way of saying that discovery disputes are not generally one of the law's finest hours. (Not to mention the great disservice it does to clients whose precious dollars are chewed up in this process.) So it is refreshing to have a clear, crisp opinion which goes to the heart of many of those potential disputes. And soon to be Supreme Court Justice Paul Green has authored just such an opinion, In Re Greyhound Lines (Tx. App. - San Antonio 4/7/04). In short, Justice Green makes it clear that in seeking information about other employee's in a non-class action case, the plaintiff is limited to information about other employees "at the same plant or office, by the same supervisory personnel, and by the same pattern of conduct."

If you are an employment lawyer, particularly on this side of the docket, this is one opinion you will want to keep close by your side. It should be an invaluable ally in the most certain way of prevailing in a discovery dispute, avoiding one.

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TWCC Power to Conduct Desk Audit of Physician Upheld by Austin Court of Appeals

Part of the Texas Workers Compensation reforms of legislative sessions past was to give the TWCC the power to perform desk audits of physicians "services to workers compensation patients." Upon receipt of such a request, rather than complying, a physician challenged the request on three different grounds: "the Commission lacks statutory authority to conduct a desk review, that the desk review in question is a warrantless search that violates his right to be free from unreasonable search and seizure, and that the desk review constitutes an impermissible regulation of the practice of medicine." Schade v. Texas Workers Compensation Commission (Tx. App. - Austin 4/8/04). In keeping with the opening of baseball season, it was in effect, "three strikes and you're out," as the doctor lost all three arguments.

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Caveat Emptor - Buyer of A Business Assets Should Get An Assignment of Arbitration Agreements

Is the lesson to be learned from Autonation USA Corp. v. Green (Tx. App. - Houston [1st Dist] 4/8/04). In an employment dispute, the employee preferred not to arbitrate. The employer did. The question, as it always is --- was there an agreement to arbitrate? Not an agreement signed by Autonation, which was the purchaser of the assets of Green's former employer, and a party with whom Green had agreed to arbitrate. All was not lost however, quoting from another case involving Autonation, the Court noted that the rule is:
An entity that was not a party to the arbitration agreement may not enforce the agreement's provisions unless that non-signatory entity falls into an exception, recognized under general equitable or contract law, that would allow such enforcement. One such exception is that, as with any contract, an assignee, such as a successor-in-interest, can be bound to the terms of an arbitration agreement signed by its assignor, such as a predecessor-in-interest, depending on the assignment's terms.
The problem was, this was an asset sale, and the arbitration agreements were not mentioned as assets, nor was there a separate assignment. The defendant's post-litigation attempt, "provid[ing] the trial court with affidavits and an authenticated acknowledgment; executed after this lawsuit was filed, as evidence that Green's former employer and the AutoNation parties interpreted the language of the asset-purchase agreements as assigning all employment arbitration agreements to [AutoNation]," was clever, but not successful. No ambiguity in the agreements, no reliance on extraneous evidence was proper.

Another potential drafting lesson was the court's willingness to find this case governed by the TAA, not the FAA, because the former was specified in the agreement in question. Although of no significance in this case except as to which method of review, mandamus or appeal, was appropriate, the FAA is generally preferable, and should have been available at the time of the drafting of the agreement. But for real problems look what can happen under Texas archaic rule which requires you to seek mandamus if it is under the FAA and interim appeal under the TAA. In Mony Securities Corp. (Tx. App - Corpus Christi 4/1/04) neither act was specified and Mony both appealed and sought mandamus. Without ruling whether it was under the FAA or TAA, the court refused to grant mandamus and then dismissed the appeal for want of jurisdiction without, as the dissent noted, ever ruling on the merits. One would have hoped that it was merely an April Fool's joke, but apparently not.


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Friday, April 09, 2004

How Hard Summary Judgment Can Be In A Mixed Motive Case -4th Cir. Provides An Example of "Dueling Notes"

In a mixed motive case, where there is some evidence that an illegal decision played a role, the burden on the employer to obtain summary judgment, every defendant's goal, is heavy. Summarized in the penultimate sentence of EEOC v. Warfield-Rohr Casket Co. (4th Cir. 4/8/04) [pdf] Chief Judge Wilkins, not one to uphold summary judgment where an employer has established its right to prevail, states the standard simply:
Although the record contains evidence of plausible, nondiscriminatory reasons that might have supported Warfield-Rohr's decision to terminate Kuehnl, that evidence does not conclusively show that the company would have terminated him if his age had not been considered.
Unfortunately, for employers, that sentence could be copied verbatim and transposed in far too many cases -- along with the holding of summary judgment reversed, or at the trial court, denied.

Here there was direct evidence of age discrimination in the form of the plaintiff's testimony, backed up by his contemporaneous journal notes of the termination meeting:
[Ayres] said to me, you're fired. You're getting too f---ing old, you're making too much f---ing money. Get the f--- out. I said, Howard, can't I work less time and less pay to keep my job until 65? He says, no, get the f--- out. I said, why can't you get rid of Matt [Moore] instead of myself? He said to me, Matt could give him more years and he needed a job. I said, I need a job, too. (Deletions contained in the original, whether as a matter of practice in the 4th Circuit, or a bow to post Super Bowl sensibilities is unknown.)
Surprisingly (said with tongue planted firmly in cheek), the employer's notes, prepared 'to include everything that I had to say to [Kuehnl] and make sure I said them accurately to him, " spoke only of the financial inability to continue his employment with no mention of his age.

In one bright spot for employers, the Court does note that since this is a case under the Age Discrimination in Employment Act, direct evidence probably remains necessary to utilize a mixed-motive argument, unlike Title VII where the argument died in Costa v. Desert Sands. However, even on this point, the Court makes clear that remains an open question, which it need not and does not reach here.

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Thursday, April 08, 2004

Keeping HR In the Dark - Generally A Bad Idea, In This Case a Real Problem. And A Broader Thought On Political Discourse.

I don't often refer to district court decisions because they are difficult to easily obtain, the sheer volume, and their generally limited precedential effect. Obviously however there is much wisdom to be gained from federal district judges who are the first to face issues, often with little guidance, and almost always with the difficult task of applying general principles of law to specific, often factually complex and tangled situations. The 73 page opinion from Judge Dominic J. Squatrito, probably falls into that category. I qualify only because I know nothing about him, or I must candidly confess even having read the whole opinion. However, just based on the summary from today's DLR (subscription required) I know that the case presents the difficult, and ever more common, case where retirees are claiming that they were misled by the company about anticipated changes in retirement plans. And it is hard not to have confidence in a judge who candidly notes:
The parties have spent much of their time before this Court arguing about what fiduciary duty NU owed its employees. This is a thorny question, and requires the Court to balance two important interests: the interest of employees to have access to relevant retirement information, and the interest of employers in maintaining the confidentiality of their deliberative process with regard to downsizing plans. The Court cannot carve out a specific protocol for employers to follow when seeking to balance these two interests. All the Court can do is assess the facts of this case under the standard that has been set by courts in this Circuit. The Court believes that the touchstone of this standard is one crucial ideal: truthfulness.
Broga v. Northeast Utilities One aspect of the case that caught my eye was that the employer in an effort to ensure no leaks until everyone was informed of its plans kept changes even from its human resources group charged with supplying information to employees about benefits. Judge Squatrito may not ultimately be held correct in his determination, but his view of the matter, taken from an earlier case is this:
Fundamentally, NU argues that it did not breach its fiduciary duty to avoid misstatements because its human resources employees spoke truthfully, based on their own ignorance. In sum, this argument is contrary to ERISA's fiduciary ideal: A fiduciary cannot leave its front-line benefits counselors in the dark, or instruct them to give noncommittal and nonfactual responses to inquiries regarding potential benefit changes, if the information that is withheld is material to beneficiaries. Such a stance is inconsistent with the mandate that a fiduciary discharge its duties with the care, skill, prudence and diligence required by the statute. Mullins, 147 F. Supp. 2d at 109.
The following may not be reflective at all of what happened in Broga, given my lack of knowledge. But for some reason particularly today, when Condolezza Rice by all accounts appears to have acquitted herself quite well in light of what could be considered harsh questioning, it seems important to remember how difficult problems can be, how people of good will and good faith can approach and view them so differently, and how hindsight is so ever more clear than peering into the future. It is refreshing to see how our legal system can work at the ground level to try to sort out some of those difficult issues, the best way we can. As lawyers, when we contribute our arguments forcefully but civilly with respect for those whose opinions differ, we contribute. The same is true of those who serve in the more political realm of government. But when any of us resort to rhetoric and ill will, without respect for others and remembering they may also serve in good faith, all are served badly.

The soapbox is hereby put away.

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5th Cir. -- Permissive Pretext Jury Instruction Required, At Least For Now

If you try jury cases in the 5th Circuit (or states that rely on its interpretation of Title VII for guidance on state laws) you will want to closely follow Kanida v. Gulf Coast Medical Personnel, LP (5th Cir. 4/7/04) [pdf]. One question presented was whether or not the trial court erred by refusing to give the jury the so-called "permissive pretext" instruction based upon the language from the Supreme Court in Reeves v. Sanderson Plumbing. The submitted instruction, which the Court found was a correct statement of law was:
If the plaintiff disproves the reasons offered by Defendants by a preponderance of the evidence, you may presume that the employer was motivated by retaliation.
Although articulating four reasons why such an instruction should not be required, the Court holds that it is, because of an earlier ruling, Ratliff v. City of Gainesville 256 F.3d 355, 359-60 (5th Cir. 2001). Fortunately for the defendant in this case, the Court goes on to hold that it does not rise to the level of reversible error in this cae; importantly for all defendants, it calls for an en banc reversal of the Ratliff decision.

The court also rules on other jury submission issues, including upholding the trial court's use of a business judgment instruction as well as some evidentiary issues, all resulting in upholding the defendant's jury verdict of no liability. Although good for this employer, it is important that this panel's call for reversal of Ratliff be followed, if not here, soon.

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Wednesday, April 07, 2004

Cat's Paw Theory Fares Better in First Circuit

We recently reported here on the 4th Circuit's en banc decision to not follow the line of so called cat's paw theory cases, where the machinations of a non-decision maker supervisor with illegal motives influenced the ultimate employment action holding
In sum, to survive summary judgment, an aggrieved employee who rests a discrimination claim under Title VII or the ADEA upon the discriminatory motivations of a subordinate employee must come forward with sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decision maker for the employer.
Hill v. Lockheed Martin Logistics Management (4th Cir. 1/5/04) [pdf].

But given a similar option, a three judge panel of the First Circuit takes a different route, following the line cat's paw line of cases from other circuits, without using that colorful termination. Holding that if in fact a vice-president, who had made age related comments concerning the plaintiff, had withheld information about a key issue from the three senior level members of Hertz management who had made the actual termination decision, that the decision would be impermissibly tainted with his bias. Cariglia v. Hertz Rental Equipment Corp. (1st Cir. 4/5/04) [pdf].

And for those of you, like me, who wondered at the derivation of this phrase, someone else did as well and a full report on the phrase as used in discrimination law can be found here. But here's the gist of it:
It seems that although cats in mythology and folklore are generally portrayed as wily, clever, resourceful and sophisticated, the story behind "cat's paw" is an exception to the rule, and not one that any self-respecting cat would want on his resume. An ancient fable tells the story of a monkey who came upon some chestnuts roasting in a fire. Lacking the means to retrieve the tasty chestnuts from the fire, the clever monkey managed to convince a somewhat dim cat to reach into the flames with his paw and fetch them. The monkey got his chestnuts, the cat was rewarded with a nasty hotfoot, and a metaphor for "chump" was born. While the original "cat's paw" was someone who is tricked into doing something dangerous or foolish on behalf of someone else, the term has broadened somewhat over the years...

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Monday, April 05, 2004

A Troubling Story About Alteration of Time Cards

Steven Greenhouse of the NYTimes news service, looks in depth at a troubling trend of managers altering time cards. Check out the story as published in the Tuscaloosa News here. One possible reason, pressure from above. Should not be happening. Period.

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When Do We Get the Mug Shots?

Probably what a lot of California Wal-mart employees are thinking as they were recently fingerprinted. And although Wal-mart bashers might like to believe it is just another intrusive step by the retailing giant, at the cost of $32 per employee (and its one of six warehouses that will need to be done), it is highly unlikely that this is something Wal-mart was keen on doing. The real culprit is a new interpretation of a California law regulating facilities that have products containing pseudoephedrine. See the story from the Redding paper, and thanks to Susan Heathfield at About Human Resources for the pointer.

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Sunday, April 04, 2004

Making the Taxman Less A Part of Settlements - Maybe

In many discrimination cases, the plaintiff gives a contingency fee (usually 33% to 40%) to his or her lawyer. When the case settles or the plaintiff wins and the attorney collects, is the amount of the contingency fee income to the plaintiff? The Tax Court takes that position, which becomes even more serious when the alternative minimum tax is considered which often prevents it from being deductible. Now the Supreme Court has agreed to decide. The NY Times headlines it this way, Supreme Court to Review Tax Dispute Over Judgments. Of the two cases in which the Court granted cert. we had talked about the 6th Circuit decision, Banks, here earlier.

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Bad Timing - AFL-CIO's 'Show Us the Jobs' Campaign - Debuts Day Before Largest Job Numbers in 4 Years

Sometimes your timing just stinks. The AFL-CIO announced their latest media campaign highlighting the lack of new job creation, see their press release, only the day before the headlines read: Welcome back, jobs! Labor data thrills stock markets.

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Why the Fight Over the New White Collar Regs Will Be A Snore in Illinois

Because of legislation signed Friday by Gov. Blagojevich which has the effect of negating the DOL revisions even before they are published in final form. See the self-congratulatory press release of the Illinois Democrats behind the legislation. The act accomplishes this by adopting the white collar rules as in effect on March 30, 2004, although it will be willing to accept the higher minimum salary levels contained in the rules. Check out S.B. 1645 for the details. For Illinois employees, it is the best of both worlds; which of course means the opposite for Illinois employers.

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Friday, April 02, 2004

Failure To List Discrimination Claim In Bankruptcy Not Always Fatal - 11th Circuit

The folks at Wendy's have a little less to be happy with this week as they lost one of those fun 'wins on a technicality'. After a plaintiff filed her discrimination lawsuit, she filed a no asset bankruptcy without listing the case. After receiving a discharge, she discovered she should have reported the claim and notified the Trustee. He investigated and moved to reopen the bankruptcy to pursue the case which was granted. Wendy's successfully argued in district court that the case was barred under the doctrine of judicial estoppel, because the plaintiff had taken different positions about her claim in a court, relying on a prior 11th Circuit case. Unfortunately, the Court found distinguishing factors, here concluding based on the timing the omission was inadvertent and to strike the claim would only grant a windfall to Wendy's. Parker v. Wendy's International, Inc. (11th Cir. 3/31/04) [pdf].

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Mashgiach Falls Within Ministerial Exemption of the FLSA - 4th Circuit

For a case more interesting for its insight into an aspect of Orthodox Judaism, than a case of wide application see Shaliehsabou v. Hebrew Home of Greater Washington, Inc. (4th Cir. 4/02/04) [pdf]. A mashgiach is "an inspector appointed by a board of Orthodox rabbis to guard against any violation of the Jewish dietary laws." Here the majority found him covered by the "ministerial exception" to the FLSA, an exemption not found in the literal wording of the statute. In fact, the dissent pointedly argued that there was no such exemption, and if there were, it would not go as far as the majority holding would take it. Judge Luttig found it so misguided that he urged the plaintiff to seek en banc re-hearing, and if unsuccessful, to petition for review by the U.S. Supreme Court. A suggestion I have no doubt will be honored.

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Public Policy Might Support Firing Alleged Harasser, But Won't Top Explicit Contract

At least according to the Third Circuit. An executive accused of sexual harassment had a contract which provided that certain benefits continued if he were terminated by the company. When he was terminated following allegations of sexual harassment (while on vacation with his family), he sued when the company failed to honor its contract. Against the argument that requiring it to pay him violated the public policy which opposes sexual harassment in the workplace, the court found otherwise. Noting that it did not keep the employer from effectively removing a sexual harasser from the workplace and thus protecting public policy, the Court held that in the future if they wanted protection against an employee's misconduct, such penalties should be negotiated as part of the contract. Fields v. Thompson Printing Co., Inc. (3rd Cir. 3/31/04) [pdf].

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New Requirement for Texas Non-Subscriber Plans - Must Meet 'Fair Notice' Standard

Non-Texas readers may be surprised to know that Texas, ever the bastion of independence, does not require employers to provide workers compensation insurance for their employees. (It does however penalize non-subscribers by prohibiting them from utilizing any of their common law defenses, such as contributory negligence, assumption of the risk or the fellow servant doctrine.) In lieu of workers compensation a substantial number of employers have adopted their own plans which provide benefits in case of injury, often conditioning them on a post-injury waiver and release. As of today, those plans now have an additional requirement to be enforceable, that they meet the so called "fair notice requirements." Storage & Processors, Inc. v. Reyes (Tex. 4/2/04).

The Court itself explained just what that meant, and its effect:
A contract which fails to satisfy either of the fair notice requirements when they are imposed is unenforceable as a matter of law. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509B10 (Tex. 1993); see also U.S. Rentals, Inc. v. Mundy Serv. Corp., 901 S.W.2d 789, 792 (Tex. App.BHouston [14th Dist.] 1995, writ denied). One fair notice requirement, the express negligence doctrine, requires that "the intent of the parties must be specifically stated in the four corners of the contract." Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 707 (Tex. 1987).[1] The other requirement, of conspicuousness, mandates "that something must appear on the face of the [contract] to attract the attention of a reasonable person when he looks at it." Dresser, 853 S.W.2d at 508 (quoting Ling & Co. v. Trinity Sav. & Loan Ass'n, 482 S.W.2d 841, 843 (Tex. 1972)). Language may satisfy the conspicuousness requirement by appearing in larger type, contrasting colors, or otherwise calling attention to itself. Littlefield v. Schaefer, 955 S.W.2d 272, 274B75 (Tex. 1997). However, if both contracting parties have actual knowledge of the plan's terms, an agreement can be enforced even if the fair notice requirements were not satisfied. Dresser, 853 S.W.2d at 508 n.2 (citing Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex. 1990)).
Because a plan that does not comply is not enforceable, non-subscribers with such plans should review them quickly.

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