Wednesday, February 28, 2007

Employer’s Paid Leave Policy Illegal Under FMLA

The Seventh Circuit held that an employer’s FMLA policy violated the statute because it required the use of vacation pay when the employee already was receiving disability benefits. In Repa v. Roadway Express, the employee took FMLA for surgery.  Under the employer’s policy, she was required to use vacation and sick time as a “substitute” for FMLA leave. However, she also received $300 per week from a union’s disability insurance plan.  Although she received both forms of pay, she sued Roadway, claiming that the requirement that she use paid sick and vacation benefits violated the FMLA because of a DOL regulation, 29 CFR 825.207(d)(1).  The Seventh Circuit agreed, rejecting all of Roadway’s arguments that the regulation was not applicable.  The Court refused to consider Roadway’s argument that the regulation is invalid because Roadway did not make the argument in the district court.

Friday, February 23, 2007

Week In Review (February 23, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9329”>The Employee Free Choice Act: It’s More than Just a Misleading Name.</A>
The Employee Free Choice Act (EFCA), introduced into the U.S. House of Representatives on February 5, 2007, would amend the National Labor Relations Act (NLRA) to change dramatically the world of both union organizing and bargaining over first time labor agreements. The proposed law, which also will soon be introduced into the U.S. Senate, would constitute the most significant change to the NLRA in its over 70-year history.
Located On: Littler Mendelson, P.C.

Most Popular State Law Article

<a >Competition from Former Employees: Ohio Appellate Court Clarifies Application of the “Inevitable Disclosure” Doctrine.</A>
A recent court decision in Ohio provides an important new interpretation of the rights, and limitations, that employers may face when key employees leave and begin to compete. The decision also highlights several critical steps that employers should take if and when an employee leaves to compete, and when company trade secrets, other confidential information, and customers are at risk. In particular, employers must move quickly to protect against threats to their trade secrets and customer relationships, and they must take steps to carefully identify – and maintain the confidentiality of – their trade secrets and other sensitive business information.
Located On: Littler Mendelson, P.C.

Most Popular Headlines

<a TARGET=“_blank”]Opinion: Workplace sex always carries consequences[/url]
News Leader - February 19, 2007

Wednesday, February 21, 2007

Try Mediation

Don’t be reluctant to propose mediation for fear that it is a sign of weakness. The consensus of the litigators and neutrals who attended the New York State Bar Association Committee on ADR program, “Winning Through Mediation: Know When to Hold ‘Em and Know When to Fold ‘Em,” is that it is always prudent to propose mediation and should not be viewed as a sign of weakness. Attorneys can propose mediation to their adversary even before a case is filed or in the early stages of litigation by using these strategies: state that it is your “practice in every case” to discuss mediation before the case gets too deeply into litigation; include an offer to mediate in a demand letter or position statement; ask the judge or law clerk to recommend mediation.  Empirical research suggests that those making the first offer to negotiate may even strengthen their bargaining position by appearing to negotiate from a position of power and confidence.

Tuesday, February 20, 2007

U.S. Supreme Court Limits Punitive Damages Awards

The U.S. Supreme Court decided in Phillip Morris USA v. Williams that a $79.5 million punitive damages award on actual damages of about $800,000 was excessive under the Constitution.  This is not an employment law case, but it is relevant to punitive damages claims asserted in employment law cases.  This was a product liability case based on Williams’ cigarette smoking. The plaintiff argued at trial that the jury should punish Phillip Morris not only for the harm it caused to Williams, but also to punish Phillip Morris for harm it caused to non-parties.  Phillip Morris unsuccessfully argued below that punitive damages should not be assessed on the basis of conduct directed towards non-parties.  The Supreme Court, on review from the Oregon Supreme Court, agreed.  The Court reasoned that the defendant has no opportunity to defend against claims that others were harmed in the single-plaintiff trial. The Court held that to permit awards based on harm to non-parties amounted to a taking and a violation of the due process clause of the 14th Amendment.

Friday, February 16, 2007

HR 800 - Employee Free Choice Act - Reported Out of Committee

The Employee Free Choice Act, HR 800, is the bill that would require the National Labor Relations Board to certify unions as bargaining representative based on a “card check.”  This means unions can sign up employees via signed authorization cards which are easier to obtain than votes in a secret ballot election. Under current law, the employer can reject a card check as proof of the union’s representation, and demand the election, which is typically conducted by the NLRB.  The new Bill also would impose civil penalties for certain unfair labor pratices.  Finally, the Bill would set short timetables for negotiating a firist contract, with “interest arbitration” required if the parties do not come to agreement within a specified time. The Bill was just reported out of committee on February 14.  (“Happy Valentine’s Day, Unions!”)  Passage is likely in the House.  Unclear what will happen in the Senate.  According to this Reuters article, Vice Pres. Cheney says the President will veto the Bill if passed.

Week In Review (February 16, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9276”>Unlocking the Power of Documentation: Why and How to Document.</A>
What would you say if I told you there is something that can help you improve employee performance, reduce the risk of being sued, and improve your case if an employee does sue? You would probably wonder what could hold such mystical powers.
Located On: Fredrikson & Byron, P.A.

Most Popular State Law Article

<a >Three Often-Overlooked and Potentially Costly Employment Requirements.</A>
Employers know they must comply with numerous state and federal laws. They also know that failure to do so can lead to significant monetary damages and/or other penalties, either by way of employee claims or enforcement actions initiated by state and/or federal agencies. This article highlights three often-overlooked and potentially costly employment requirements.
Located On: Fredrikson & Byron, P.A.

Most Popular Headlines

<a TARGET=“_blank”]Study: One ‘Bad Apple’ Employee Spoils A Workplace[/url]
CBS5 - February 14, 2007

Saturday, February 10, 2007

Ninth Circuit Explains “Regarded As” Claims under ADA and Rehab. Act

An employer’s acknowledgement that an employee has an “impairment” is not enough to support a claim that the employee is “regarded as” having a disability.
Walton v. U.S. Marshall Service involves a former security guard at a federal courthouse. The essential functions of the job include the ability to “localize” sound. Walton had only one functioning ear, which affected her ability to localize sound. After a required medical exam, the security services contractor terminated Walton’s employment because she could not perform essential functions of her job. She claimed the contractor “regarded” her as having a disability.
The Ninth Circuit held:

to state a “regarded as” claim a plaintiff must establish that the employer
believes that the plaintiff has some impairment, and provide evidence that the
employer subjectively believes that the plaintiff is substantially limited in a
major life activity. If the plaintiff does not have direct evidence of the
employer’s subjective belief that the plaintiff is substantially limited in a
major life activity, the plaintiff must further provide evidence that the
impairment imputed to the plaintiff is, objectively, a substantially limiting
impairment.

Applying this rule, the Court of Appeals decided that the employer’s actions demonstrated only that the employer regarded the employee as having an “impairment,” but there was no evidence the employer considered the impairment to be “substantially limiting” in one or more major life activities.

Employers often ask whether exploring the possibility of accommodation, asking an employee to have a fitness for duty examination, or otherwise acknowledging medical impairments will create “regarded as” liability. This decision makes it harder for plaintiffs to make that argument under the ADA and federal Rehabilitation Act.

AB 1825 Harassment Training Regulations Disapproved

The California Fair Employment and Housing Commission’s regulations implementing AB 1825 (mandatory sexual harassment training) failed to gain approval from California’s Office of Administrative Law. The FEHC made the announcement here.

The OAL’s chief concern was that the regulations were not sufficiently “clear” in certain respects, particularly regarding who is qualified to prepare and conduct anti-harassment training under the statute. There were also some more technical flaws.

The FEHC plans to modify the regulations and publish them for a brief public comment period before re-submitting them to the OAL. The FEHC’s modifications may have a significant effect on existing programs, depending on whether the new standards “raise the bar” on who is qualified to prepare or conduct AB 1825 training.

Once the regulations are re-issued, employers should reevaluate whether their trainers and training programs meet the new standards.

Friday, February 09, 2007

Week In Review (February 9, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9204”>Finally: Relief from the 3 big FMLA headaches (pdf).</A>
Breathe a sigh of relief regarding the FMLA: The Department of Labor finally recognizes HR’s pain and is doing something about it.
Located On: Michael Best & Friedrich LLP

Most Popular State Law Article

<a >Incentive Pay Plan Violated Payment of Wages Act; Employer Ordered to Pay Treble Damages, Attorneys Fees, And Costs (pdf).</A>
In Ross v. Ligand Pharmaceuticals, Inc (Dec. 21, 2006), the South Carolina Court of Appeals ruled that an employer’s incentive compensation plan violated the South Carolina Payment of Wages Act because the plan did not provide a date certain when incentive payments would be made.
Located On: Nexsen Pruet

Most Popular Headlines

<a TARGET=“_blank”]Women flirt their way to top: survey[/url]
CNN-IBN - February 06, 2007

Wednesday, February 07, 2007

US DOL Extends Comment Period for FMLA Regulations

The U.S. Department of Labor has solicited comments about the current regulations implementing the federal Family and Medical Leave Act of 1993. The deadline for submitting comments has been extended from February 2 to February 16, 2007. Here’s how to go about sharing your views.

Tuesday, February 06, 2007

Ninth Circuit Court of Appeals Affirms Certification of Nationwide Class of Wal-Mart Employees

A couple of years ago, in Dukes et al. v. Wal-Mart, Inc., the U.S. District Court for the Northern District of California certified a class of female employees against Wal-Mart. The case was noteworthy because it is a nationwide class action in which the plaintiffs claim Wal-Mart discriminates against pretty much all of its female employees in setting compensation and promotion decisions. The class size was estimated at 1.5 million workers, and was defined as “All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.”

Wal-Mart appealed the class certification order. The Ninth Circuit heard oral argument in August 2005, and finally issued its opinion today. A three judge panel voted 2-1 to affirm the district court’s decision. Barring settlement or a successful decertification of the class, the huge class action against Walmart will proceed to trial at some point in the future.

DGV

Friday, February 02, 2007

Week In Review (February 2, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9123”>OSHA Injury and Illness Summaries Must be Posted on February 1.</A>
This is a reminder that beginning February 1, employers who are not exempt from this requirement (see the list below) must post OSHA Form 300A, which is a summary of the total number of job-related injuries and illnesses that occurred in the preceding year. Employers must also provide information about the annual average number of employees and total hours worked during the calendar year to assist in calculating incidence rates.
Located On: Ford & Harrison LLP

Most Popular State Law Article

<a >Preemployment Testing Challenged under Antidiscrimination Laws,</A>
Anti-discrimination laws generally are simple to understand and abide by. Employers are prohibited from making decisions that are based on illegal criteria such as race, sex, or religion. In most cases, there is a straightforward analysis regarding the reasons an employer treated a plaintiff less favorably than a similarly situated co-employee.
Located On: Shaw Valenza LLP

Most Popular Headlines

<a TARGET=“_blank”]‘At will’ employment has limits [/url]
Charleston Post and Courier - January 29, 2007