Human resources & employment law cumulative case briefs
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- credibility of employer's explanation of reason for dismissal: tardiness initially was excused, but later documentation stated it had not been excused. Roberts v. Park Nicollet Health Serv., No. 07-1738 (8th Cir., 6/24/08); 2008 U.S. App. LEXIS 13291; Internet article: http://www.plol.org/Pages/Login.aspx?d=Ej0I0osxqmWLrYu2TXDmDg%3d%3d&l=Cases [enhanced lexis.com version]. FMLA: Damages for missed work days, not intentional infliction of emotional distress Illustrative; not controlling law. The employer appealed from an award of damages for work days missed because of stress suffered from denial of the FMLA claim, and the appellate court upheld that award, pointing out that the damages were for days of work missed, not for the tort of intentional infliction of emotional distress. Farrell v. Tri-county Metropolitan Transportation District of Oregon, No. 06-35484 (9th Cir., 6/29/08); 2008 U.S. App. LEXIS 13574; Internet: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/4DB783F3B774B72D882574750000B8E8/$file/0635484.pdf?openelement [enhanced lexis.com version]. Immigration Nursing Relief Act: DoL action sufficient Illustrative; not controlling law. $1,041,824 ordered by the Department of Labor for back pay was upheld , the appellate court holding that because the DoL had received notice of the INRA violation, and once proceedings start, the backpay may be awarded as long as the employer continues to pay less than the law allows. Alden Management Services, Inc. v. Chao, No. 07-3828 (7th Cir., 6/25/08); 2008 U.S. App. LEXIS 13356; Internet article: http://www.plol.org/Pages/Login.aspx?d=j8aYlHJZ34x0AQYUJEvIqw%3d%3d&l=Cases [enhanced lexis.com version]. ADA: obvious disability, no accommodation request, failure to accommodate, adverse employment action Illustrative; not controlling law. Involuntary transfer from pharmacy assistant to collecting shopping carts and garbage, though not affecting pay or benefits, resulted in a "less distinguished title" and "significantly diminished material responsibilities". Brady v. Wal-Mart Stores, Inc., July 2, 2008); Docket No. 06-5486-cv (2nd Cir., 7/2/08); 2008 U.S. App. LEXIS 13850 [enhanced lexis.com version]. Disclosure: work product privilege, civil trial procedure rules Illustrative; not controlling law. Protection of an attorney's trial preparation work keeps the opposing attorney from benefiting from the work of another, i.e., no free ride. Federal Rule of Civil Procedure 26(b)(3) [and similar state rules] provides this protection unless the opposing party "shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." The opposing party failed to meet that requirement, and disclosure to the EEOC of a private investigator's report detailing the harassment of an employee with a disability in anticipation of litigation against a county parks department did not waive the work product privilege, even though it had been made to a "third party" because that is not an automatic waiver of the work product protection. Costabile v. County of Westchester, (SDNY, 6/18/08). Insurance: untimely claim, coverage denied Illustrative; not controlling law. Don't lose the insurance coverage you have paid for by not promptly filing a claim with the insurance company. Though this is a California case, it is typical of almost every, if not every, insurance policy because the insurer has a vital interest in becoming involved as soon as possible in the case to gather important information, make informed decisions, direct the defense, etc. The insured waited nine months to report the claim, a violation of the mandatory 30 day period, and so coverage was validly denied by the insurer. Westrec Marina Management, Inc. v. Arrowood Indemnity Co., B195047 (CA.Ct.App., 6/16/08); 2008 Cal. App. LEXIS 914; Internet: http://www.courtinfo.ca.gov/opinions/documents/B195047.DOC [enhanced lexis.com version]. Malpractice: attorney misrepresentations to plaintiff, damages against attorney Illustrative; not controlling law. An employee's sexual discrimination claim failed because her attorney failed to adequately pursue the claim. However, the jury awarded damages against the attorney for malpractice. [As you may will recall, the question of malpractice was raised in this database a few cases back in Niswander v. Cincinnati Insurance Co. in which the attorney may have not adequately protected the client in disclosure of confidential company documents in that pay discrimination claim.] Black v. Shultz, No. 07-3108 (8th Cir., 6/24/08); 2008 U.S. App. LEXIS 13303; Internet article: http://www.plol.org/Pages/Login.aspx?ReturnUrl=%2fPages%2fSecure%2fDocument.aspx%3fd%3dFYb0BZlg60OXtG%252bQi4MFRQ%253d%253d%26l%3dCases%26rp%3d15&d=FYb0BZlg60OXtG%2bQi4MFRQ%3d%3d&l=Cases&rp=15. ADEA: reduction in force (RIF), evidence, reasonable factors other than age (RFOA), employer's burden of establishing reasonableness of an employment practice, disparate impact Controlling law; major change. When deciding to reorganize or reduce the workforce, under this decision construing the ADEA employers now must establish the reasonableness of their explanation for a suspect employment practice. Employers should discuss the specific details of this case with their employment attorneys if a reduction in force is contemplated. Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, 554 U.S. ____ (6/19/08); 2008 U.S. LEXIS 5029; CCH 91 EPD 43,231; Internet: http://www.supremecourtus.gov/opinions/07pdf/06-1505.pdf [enhanced lexis.com version]. The Supreme Court rejected the previous ADEA test of "business necessity" in disparate impact cases, holding that it was inappropriate in this type of litigation because it would be confusing to apply both a business necessity test and the RFOA test. Now, the employee must establish that an employer's specific business practice had a disparate impact on older workers, and the employer must then prove that any disparate impact was based on reasonable factors other than age. Benefits: employee benefit plan administrator, "dual role" of both evaluating and paying claims, conflict of interest Our 10th Circuit Court of Appeals already had taken the position (along with the 3rd, 4th, 5th, 9th, and 11th circuits) that when a benefits administrator is required to evaluate a disability benefits claim and also to pay the claim if determined to be valid, such conflict of interest must be taken into account on judicial review of a benefits determination. MetLife v. Glenn, No. 06-923, 554U.S. ____ (2/18/08); 128 S. Ct. 1117; 169 L. Ed. 2d 845; 2008 U.S. LEXIS 1101; 76 U.S.L.W. 3391; Internet: http://www.supremecourtus.gov/opinions/07pdf/06-923.pdf [enhanced lexis.com version]. The Supreme Court held that there is a clear conflict of interest in such a situation because: - every dollar provided in benefits is spent by the employer, and every dollar saved belongs to the employer, and - even if there is an insurance company providing coverage, that may affect the employer's decision in choosing a company that predominantly denies claims.
ADEA, Public Sector: state disability plans - age basis or disability basis Controlling law. The ADEA allows pension eligibility to depend on age. The Supreme court ruled that if a pension plan includes age as a factor, and then treats employees differently based on pension status, then the employee must provide evidence that such a difference of treatment was "actually motivated" by age rather than pension status. In this case, benefits were also offered for disability benefits for employees in all hazardous occupations if they became disabled before retirement age and, it assumes that they would have worked until a time at which they would have been eligible for pension benefits. In this case, the employee was already covered. Essentially then, the Kentucky state benefits plan does not provide a "safety net" to an employee who does not need one. Kentucky Retirement Systems v. EEOC, No. 06-1037, 554 U.S. ____, (6/19/08); 2008 U.S. LEXIS 5032; CCH at 91 EPD 43,230; Internet: http://www.supremecourtus.gov/opinions/07pdf/06-1037.pdf [enhanced lexis.com version]. Statute of Limitations: 300 days, express written term-by-term employment contract Controlling law. Litigation expenses might well have been avoided in this case if the employer (i.e., HR) had followed up with a clear written termination letter specifying the termination date, had requesting immediate return of school keys and other items, had immediately removed him from mailing lists, and had responded to his claim for unemployment insurance. Nonetheless, both the trial and appellate courts ruled that this part-time adjunct professor had sufficient information to understand that his services were no longer needed and that his employment was at an end: - After an altercation with a student his division chair informed him he was relieved of his duties for the remainder of the term. - His employment agreement was limited to each term and expressly stated that he had "no expectation of continued adjunct employment at the college beyond the term governed by this contract." The courts rejected the employee's contentions that: - His department chair told him he would have a job in the fall. - He never received a written termination notice. - The school didn't respond to his unemployment insurance application in which he said he quit voluntarily. - The school continued to send him memos about teaching opportunities. - The school did not request him to return his keys until after he complained to the department chair's supervisor.
Retaliation: reprisal; disclosure of confidential company information, disparate pay class action; participation protection, opposition protection Illustrative law; not controlling. Disclosure of confidential company information, some involving privacy of insured customers, by an employee violated the employer's policies, and the employee was fired. This case discusses the extent of protection the may apply to actions of employees, the difference between participation protection and opposition protection, and provides six points of consideration when determining whether disclosure of company information by an employee was reasonable, and thus activity protected from retaliation or reprisal by an employer. Niswander v. Cincinnati Insurance Co., No. 07-3738 (6th Cir., 6/24/08); 2008 U.S. App. LEXIS 13284; 2008 FED App. 0221P (6th Cir.); Internet: http://www.ca6.uscourts.gov/opinions.pdf/08a0221p-06.pdf [enhanced lexis.com version]. The employee had opted into pay discrimination class action litigation. Her attorney encouraged the employee to turn over company information, which the employee did, and apparently there was a failure by her attorney to specify the kinds of materials to disclosure and to review and screen what documents would be produced in the litigation [i.e., was information disclosed essential to the employee's pay discrimination claim?] Based on the analysis applied by the courts in the cases discussed above, we believe that the following factors are relevant in determining whether Niswander's delivery of the confidential documents in question was reasonable: (1) how the documents were obtained, (2) to whom the documents were produced, (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claim of unlawful conduct, (4) why the documents were produced, including whether the production was in direct response to a discovery request, (5) the scope of the employer's privacy policy, and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer's privacy policy. These factors are designed to take into account the employer's "legitimate and substantial interest in keeping its personnel records and agency documents confidential" and yet protect the employee's alleged "need for surreptitious copying and dissemination of the documents." [Note: Might the employee have a malpractice claim against her attorney for not properly handling the confidential company items not related to the pay claim?]. ADEA: reduction in force (RIF), evidence, reasonable factors other than age (RFOA), employer's burden of establishing reasonableness of an employment practice, disparate impact Controlling law; major change. When deciding to reorganize or reduce the workforce, under this decision construing the ADEA employers now must establish the reasonableness of their explanation for a suspect employment practice. Employers should discuss the specific details of this case with their employment attorneys if a reduction in force is contemplated. Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, 554 U.S. ____ (6/19/08); 2008 U.S. LEXIS 5029; CCH 91 EPD 43,231; Internet: http://www.supremecourtus.gov/opinions/07pdf/06-1505.pdf [enhanced lexis.com version]. The Supreme Court rejected the previous ADEA test of "business necessity" in disparate impact cases, holding that it was inappropriate in this type of litigation because it would be confusing to apply both a business necessity test and the RFOA test. Now, the employee must establish that an employer's specific business practice had a disparate impact on older workers, and the employer must then prove that any disparate impact was based on reasonable factors other than age. Benefits: employee benefit plan administrator, "dual role" of both evaluating and paying claims, conflict of interest Our 10th Circuit Court of Appeals already had taken the position (along with the 3rd, 4th, 5th, 9th, and 11th circuits) that when a benefits administrator is required to evaluate a disability benefits claim and also to pay the claim if determined to be valid, such conflict of interest must be taken into account on judicial review of a benefits determination. MetLife v. Glenn, No. 06-923, 554U.S. ____ (2/18/08); 128 S. Ct. 1117; 169 L. Ed. 2d 845; 2008 U.S. LEXIS 1101; 76 U.S.L.W. 3391; Internet: http://www.supremecourtus.gov/opinions/07pdf/06-923.pdf [enhanced lexis.com version]. The Supreme Court held that there is a clear conflict of interest in such a situation because: - every dollar provided in benefits is spent by the employer, and every dollar saved belongs to the employer, and - even if there is an insurance company providing coverage, that may affect the employer's decision in choosing a company that predominantly denies claims.
ADA: regarded, vertigo, safety hazard Controlling law. Trial will be held on a number of issues. The main issue was whether an electrician was discriminated against when he was demoted because his employer was concerned that after his stroke he experienced vertigo and balance problems and thus might be a danger to himself and others. However, the employer claimed that he was not restricted from performing either a "class of jobs" or a "broad range of jobs," which is an ADA requirement under the concept of "major life activity of working". Disagreeing, the 10th Court of Appeals denied the employer's motion for summary judgment on the ground that this situation presented a triable issue. Medical records of the employee did not support the employers concerns. Also remaining at issue is whether this employee presented a "direct threat" to safety of others in the plant. Justice v. Crown Cork And Seal Company, Inc., No. 07-8036 (10th Cir., 6/3/08); 2008 U.S. App. LEXIS 11769 [enhanced lexis.com version]. ADEA: layoff, employment policy, rehire, statistical analyses, disparate impact, prima facie case Illustrative law, not controlling. Allstate's policy of denying rehiring for at least one year after layoff is an "employment policy" under the ADEA rather than a "hiring policy". This allowed challenge by a "disparate impact" legal theory. EEOC statistical analyses showed that Allstate's rehire policy had significantly greater adverse effects on older workers, which established a prima facie (legally sufficient basic legal evidentiary) case of disparate impact of the policy on older workers. EEOC v. Allstate Ins. Co., No. 07-1559 (8th Cir., 6/10/08); 2008 U.S. App. LEXIS 12337; Internet: http://www.ca8.uscourts.gov/opndir/08/06/071559P.pdf [enhanced lexis.com version]. Title VII: retroactive pay raise defense failed Illustrative; not controlling law. The employer's attempt to avoid a discrimination charge by deciding to reverse its adverse employment action and grant the merit raise failed. The 11th Circuit followed the reasoning of the 7th Circuit, stating that a retroactive raise "could not alter the fact that she had been denied the increase or erase all injury associated with it, specifically the lost value and use of the funds during the time she was not receiving them". Crawford v. Carroll, No. 07-11603 (11th Cir., 6/308); 2008 U.S. App. LEXIS 11830; 21 Fla. L. Weekly Fed. C 758; Internet: http://www.ca11.uscourts.gov/opinions/ops/200711603.pdf [enhanced lexis.com version]. ADEA, OWBPA: reduction in force (RIF), group termination releases, disproportionately laying off older workers, "knowing and voluntary" waiver, deficient description Illustrative, not controlling law. The Older Workers Benefit Protection Act has been construed by the United States Supreme Court to be strictly construed when applying it to releases from liability of employers in layoffs. Because the legal requirements are specific and particular, employers should review the full text of this opinion and fully discuss it with human resources professionals and legal counsel. Peterson, et al. v. Seagate U.S. LLC, No. 0:2007cv02502 (D.MN, 5/28/08); 2007 U.S. Dist. LEXIS 42179; Internet reference: http://dockets.justia.com/docket/court-mndce/case_no-0:2007cv02502/case_id-91710/ [enhanced lexis.com version]. Whistleblower: FLSA disclosures by employees, protection Illustrative, not controlling law. Following a DOL FLSA investigation the employer moved to compel disclosure by the DOL of statements by current former employees. DOL produced those statements and depositions, but the federal district court trial judge ruled that such information from employees who did not testify were protected by the whistleblower "informer privilege". Chao v. Raceway Petroleum, Inc., No. 2:2006cv03363 (D.N.J. May 14, 2008); Internet reference: http://dockets.justia.com/docket/court-njdce/case_no-2:2006cv03363/case_id-191730/ [enhanced lexis.com version]. Title VII, PDA: medically recommended abortion, deformed fetus; indirect evidence, McDonnell Douglas, pretext Illustrative, not controlling law. Citing to both Title VII and the Pregnancy discrimination Act, the gender discrimination claim of a female employee will proceed to trial. Her pregnancy was complicated, medical examinations and tests indicated her fetus would be born with severe deformities, and professional advice was to terminate the pregnancy which she ultimately did. Because of these pregnancy complications, surgery and the funeral service, she missed a significant amount of work. The employer was aware of the problem and as she was leaving for the funeral she observed her work station being packed to move and learned her employment was being terminated. The employer's defense was unexcused absence, but evidence showed that the adverse employment action apparently was based on her supervisor's consideration that she "didn't want to take responsibility". The appellate court found that (1) the supervisor was aware of and approved of her absences, (2) that sufficient evidence indicated he knew of the abortion, and (3) that there was sufficient evidence for a trier of fact to infer that it was more likely than not that his knowledge was the determinative cause motivating termination of her employment. Further, evidence from other witnesses indicated other employees were treated differently when calling to be excused from work for illnesses. C.A.R.S. Protection Plus, Inc., Nos. 06-3625, 06-4508 (3d Cir., 5/3008); 2008 U.S. App. LEXIS 11519; Internet: http://www.ca3.uscourts.gov/opinarch/063625p.pdf [enhanced lexis.com version]. USERRA: harassment, hostile work environment, military status Illustrative, but not controlling law. As we have noted in the past few years, courts now often compare various discrimination laws and borrow legal theories and remedies to consistently and predictably analyze facts, fashion remedies and resolve claims. The intent of Uniformed Services Employment and Reemployment Act is to encourage military service, and an Alabama federal district trial court judge thus ruled it should be construed to allow a harassment/hostile work environment to proceed to full trial. Otherwise, said the judge, the act would be meaningless if an employer made working conditions so intolerable the employee would "feel forced to quit" and but would left without a remedy for discrimination and harassment. Dees v. Hyundai Motor Mfg.LLC, 2008 U.S. Dist. LEXIS 40952, (M.D. Ala., 5/21/08); McGuireWoods LLC article: http://www.mcguirewoods.com/news-resources/item.asp?item=3330 [enhanced lexis.com version]. Arbitration: review limited to contract issue, statutory claim triable in court Illustrative law; not controlling. "While the expertise of arbitrators lies in the application of facts to the terms of an employee's contract or collective bargaining agreement, the expertise of federal courts lies in the application of facts to anti-discrimination cases". Thus, the employee could proceed with her ADA claim because it was of a 'distinctly separate nature' from 'independent statutory rights accorded by Congress."The Goodyear Tire & Rubber Co., No. 06-6563 (6th Cir., 5/23/08); 2008 U.S. App. LEXIS 11076; 2008 FED App. 0195P (6th Cir.) [enhanced lexis.com version]. ADEA: reassignment, adverse employment action; evidence, prima facie case Download 5.55 Mb. Share with your friends:
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