« October 2005 | Main | December 2005 »

Sexual orientation: $1,914,104 verdict affirmed
November 30, 2005 by Ross Runkel at LawMemo

Employment discrimination because of sexual orientation is unlawful in California. And expensive.

Bruce Hope, a gay man, won a jury verdict for $914,104 in economic damages plus $1,000,000 in non-economic damages. On November 30 the California Court of Appeal affirmed. Hope v. California Youth Authority (California Ct App 11/30/2005).

Hope worked as a cook in one of California's youth correctional facilities. He claimed that he was harassed - because he was gay - over a period of about five years. The jury agreed. The employer appealed, arguing that the verdict was not supported by the evidence. (On an appeal the court has to assume that the winner's evidence was true, and I'll do the same here.)

The court did a nice job of laying out the facts (way too much detail to repeat here) and explaining the various elements of sexual orientation harassment.

• Severe or pervasive. The harassment has to be because of Hope's sexual orientation, and also has to be severe or pervasive enough to alter the conditions of his employment.
• His immediate supervisor called him a m**f** faggot and "homo." Perhaps 150 times.
• A security officer in the kitchen called him the same names, and more.
• He was promoted and then almost immediately that was revoked.
• The security officer threw trash on the floor after Hope had cleaned it.
• He was denied merit increases.
• The employer knew. In order for the employer to be liable, the employer has to have knowledge or be in a position where it should have known.


• Hope complained often.


• His own supervisor was one of the perpetrators.


• Another supervisor knew but did not report it up the chain of command.


• Sounded to me like just about everybody knew.
• Corrective action by the employer? There wasn't enough.


• Hope complained to six people.


• There was some "Don't do that again" instruction.


• The offensive conduct continued, and got worse.
• Economic damages - $914,104.


• The jury implicitly found that Hope would have worked for the state until retirement age but for the harassment.


• Although Hope was HIV positive, he had no obligation to prove that he had a normal life expectancy. He didn't have AIDS, and was responding well to medication.


• Although the employer argued that Hope did not prove he could never work again, it was the employer's burden to prove what he would have earned. The employer produced no evidence as to the amount Hope would have earned, and no evidence as to the availability of comparable employment.
• Non-economic damages - $1 million. "The award does not shock the conscience."

My view:

• The appeal was based on a claim of insufficient evidence. I thought there was plenty.


• Of the three judges, one concurred in the judgment without joining the opinion. I wonder why.

LawMemo publishes Employment Law Memo.

Sources of employment law: Employment Law 101: #2 of 60
November 30, 2005 by Ross Runkel at LawMemo

Question: What are the sources of employment law? What are the laws that govern the employer and employee? The constitution (federal or state)? Statutes (federal or state)? Administrative regulations (federal or state)? Decisions by administrative agencies (federal or state)? State common law (that is, judge-made law) such as contract and tort law?

Answer: Possibly all of the above.

[Employment Law 101, published Monday-Wednesday-Friday, is a series designed to give you ideas and help you spot legal issues. It is not a substitute for getting a good lawyer or doing thorough research. For the most current developments in employment law court cases, try Employment Law Memo - World's Best.]

Employment law is complex. Get a lawyer to help you.

• American law is complex and often confusing.
• Employment law is one of the most complex branches of law.
• There is no one place one can look to find all the laws that might be involved in a specific case.
• It is a checker-board of state and federal laws, statutes, administrative rules, and "case law" or decisions by courts and administrative agencies.
• Because employment law is so complex, and usually is different from one state to the next, I recommend that nobody should try to handle an employment law situation without an expert lawyer.
• If you have a toothache you need a dentist.
• If you have an employment law problem you need an employment lawyer.

Some sources of employment law to keep in mind. They might not all apply in an individual situation, but often more than one of them will apply.

• Federal constitution (usually only as to state public sector or federal employees and employers).
• State constitution (usually only as to state and local government employees and employers).
• Federal statutes such as Title VII, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Family and Medical Leave Act (FMLA), and so on.
• State statutes that are similar to the federal statutes. These statutes vary from one state to another. Often state statutes are more favorable to employees than the federal statutes by applying to a greater number of employers, by provide more employee rights, and by providing more generous remedies.
• Federal administrative regulations or rules adopted by the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL), and other agencies.
• State administrative regulations or rules adopted by similar state agencies.
• Case-by-case decisions by federal and state administrative agencies.
• State common law (judge made law), especially dealing with contract law and tort law.
• Federal court decisions.
• State court decisions.
• Contracts between employers and employees.
• Collective bargaining agreements between unions and employers.

Coming next: Employment at-will: Employment Law 101: #3 of 60

LawMemo publishes Employment Law Memo.

Sereboff v. Mid Atlantic Medical; law vs. equity
November 28, 2005 by Ross Runkel at LawMemo

The US Supreme Court once again has decided to resolve the question of an ERISA Plan's ability to get reimbursement from a participant who recovered a settlement from a third party. The Court announced November 28 that it will decide this issue in Sereboff v. Mid Atlantic Medical Services - a case from the Fourth Circuit Court of Appeals.

An ERISA Plan paid about $75,000 to Plan participants Joel and Marlene Sereboff for accident-related benefits. The Sereboffs then recovered $750,000 from the tortfeasors in settlement of a personal injury claim. The Plan then sued the Sereboffs to get reimbursed for the medical benefits it had paid.

The Plan sued the Sereboffs under ERISA Section 502(a)(3), which allows a Plan to recover "other equitable relief." The Sereboffs defended on the ground that the Plan was seeking "legal" relief which a Plan cannot recover under Section 502(a)(3).

The trial court held for the Plan, and the 4th Circuit affirmed. Mid Atlantic Medical v. Sereboff (4th Cir 05/04/2005).

It all goes back to Great-West Life & Annuity Insurance Co. v. Knudson, decided by the US Supreme Court in 2002. In Knudson, with somewhat similar facts, the Supreme Court characterized the Plan's claim as "legal" rather than "equitable," and therefore held that the Plan could not recover under 502(a)(3). Of particular importance was the Court's statement that "the term 'equitable relief' refers to those categories of relief that were typically available in equity."

Knudson facts: The Plan paid money to the Knudsons to cover medical expenses connected to an injury. The Knudsons recovered money from a tortfeasor. The settlement agreement provided that the proceeds would go into a trust for Janette Knudson’s medical care.

Sereboff facts: The Plan paid money to the Sereboffs to cover medical expenses connected to an injury. The Sereboffs recovered money from a tortfeasor. The settlement proceeds were disbursed to the Sereboffs, who placed them into their investment accounts.

The Fourth Circuit distinguished the Knudson case, which concluded that the Plan was really seeking to "impose personal liability" on the Knudsons "for a contractual obligation to pay money." The main points:

• The Plan seeks to recover funds that are specifically identifiable.
• The funds belong in good conscience to the Plan.
• The funds are within the possession and control of the Serboffs.

LawMemo publishes Employment Law Memo.

Introducing Employment Law 101: Employment Law 101: #1 of 60
November 28, 2005 by Ross Runkel at LawMemo

This week Ross' Employment Law Blog begins publishing a series of about 60 short essays on Employment Law. I'll talk about hot topics like sexual harassment and genetic testing, plus some boring (yet crucial) topics like statutes of limitations and remedies.

This is a new thing for me. Usually I comment on current court cases. (I'll continue doing that, too.) I'm looking forward to Employment Law 101, and hope you'll join me three times a week.

[Employment Law 101, published Monday-Wednesday-Friday, is a series designed to give you ideas and help you spot legal issues. It is not a substitute for a good lawyer or thorough research. For the most current developments in employment law court cases, try Employment Law Memo - World's Best.]

Some of the topics I'll be discussing:

• Sources of employment law
• Employment at-will
• Just cause under a collective bargaining agreement
• Employment contracts - express, implied, oral, written
• Handbooks and policy documents
• Promissory estoppel
• Good faith and fair dealing
• Discharge in violation of public policy
• Constructive discharge
• Whistleblowing
• Discrimination
• Disparate treatment
• Employee's prima facie case
• Employer's non-discriminatory reason
• Pretext
• Mixed motive
• BFOQ - Bona fide occupational qualification
• Disparate impact
• Discrimination because of sex
• Discrimination because of race or color
• Discrimination because of national origin
• Discrimination because of religion
• Discrimination because of age
• Discrimination because of a disability
• Duty to reasonably accommodate a disability
• Discrimination because of union activity
• Discrimination because of sexual orientation
• Harassment - Sex, race, etc.
• Retaliation
• Remedies
• EEOC procedures
• Statutes of limitations
• Family and medical leaves
• Libel and slander
• Non-competition agreements
• Trade secrets
• Ownership of inventions
• Drug testing
• Genetic testing
• Surveillance and monitoring
• Wage and hours laws
• Arbitration under a collective bargaining agreement
• Arbitration under an individual agreement
• Federal Arbitration Act
• Compelling arbitration
• Unconscionable arbitration agreements
• Court review of an arbitration award

Coming next: Sources of employment law: Employment Law 101: #2 of 60

LawMemo publishes Employment Law Memo.

Employment Law 101
November 26, 2005 by Ross Runkel at LawMemo

I've had this idea of writing a series of short items on a variety of employment law subjects. Less focus on recent developments and more of a focus on explaining the basic principles of employment law.

So, beginning Monday I'll be writing a series of roughly 60 little items about employment at will, discrimination, harassment, retaliation, whistleblowing, drug testing, non-competition agreements, and so on. This will be a Monday-Wednesday-Friday series, and will be in addition to my comments on recent court cases.

[Employment Law 101, published Monday-Wednesday-Friday, is a series designed to give you ideas and help you spot legal issues. It is not a substitute for getting a good lawyer or doing thorough research. If you're looking for the most current developments in employment law court cases, be sure to try Employment Law Memo - World's Best.]

LawMemo publishes Employment Law Memo.

Add to Google button
November 25, 2005 by Ross Runkel at LawMemo

OK, I'm quite a Google fan.

• Look to the left margin. See the Add to Google button.
• Click it and you're on your way to two different ways to keep up-to-date with Ross' Employment Law Blog.
• I use it to keep up-to-date with other sites, and it works quite well.
• Oh, yes, free is a very good price.

LawMemo publishes Employment Law Memo.

Section 1983 did not override state's immunity statute
November 24, 2005 by Ross Runkel at LawMemo

Larry Woodward, a public employee, claimed his supervisors retaliated against him for engaging in constitutionally protected activity.

He sued the employer's supervisors seeking damages for violation of 42 USC Section 1983.

The employer cited New York Correction Law section 24 which provided that no civil action could be brought in any state court against employer's employees in their personal capacity for damages for acts done in the scope of employment and discharge of duties.

The trial court granted the employer's motion to dismiss, and the New York Supreme Court, Appellate Division affirmed (3-2). Woodward v. State of New York (New York App Div 11/17/2005)

The issue was whether 42 USC Section 1983 preempted Correction Law section 24.

The court reasoned that since New York did not provide a state forum for similar state law claims, the state was not federally mandated to provide a state forum for 42 USC Section 1983 claims (Martinez v State of California, 444 US 277 (1979)).

The DISSENT argued that Correction Law section 24 presented an obstacle to the enforcement of 42 USC Section 1983 rights because of the complete bar to actions for monetary relief.

LawMemo publishes Employment Law Memo.

EEOC revises EEO-1 report
November 16, 2005 by Ross Runkel at LawMemo

The U.S. Equal Employment Opportunity Commission (EEOC) issued the following press release November 16, 2005, announcing changes to the EEO-1 report.

COMMISSION APPROVES REVISIONS TO EEO-1 REPORT

New Survey Format for Employers Would Be Effective in 2007 Reporting Cycle

WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) today voted 3-1 to approve final proposed revisions to the Employer Information Report, also known as the EEO-1 Report, which would be effective for the 2007 reporting cycle. The EEO-1 report is the principal reporting form by which certain employers provide the federal government with a count of their workforces by ethnicity, race and gender, divided into job categories.

"The proposal approved today modernizes the EEO-1 Report so that it continues to be relevant and have value, while minimizing the reporting burden," said EEOC Chair Cari M. Dominguez, noting that the report has not been significantly revised since 1966.

Prior to today's meeting, the Commission consulted with a broad range of stakeholders and held extensive discussions with other federal agencies - including the Office of Management and Budget (OMB) and the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP). In June 2003, the Commission published a notice of proposed revisions to the EEO-1 Report in the Federal Register, received and considered public comments, and held a public hearing on the topic in October 2003. The final proposal approved today incorporates some of the recommendations received by the Commission during the past two years.

The final proposed changes to the EEO-1 Report's race and ethnic categories include:

• Adding a new category titled "Two or more races not Hispanic or Latino";
• Separating "Asians" from "Pacific Islanders";
• Adding a new category titled "Asians not Hispanic or Latino";
• Adding a new category titled "Native Hawaiian or Other Pacific Islander not Hispanic or Latino";
• Extending the EEO-1 data collection by race and ethnicity to the State of Hawaii; and
• Strongly endorsing self-identification of race and ethnic categories, as opposed to visual identification by employers.

The final proposed changes to the EEO-1 Report's job categories include:

• Dividing "Officials and Managers" into two levels based on responsibility and influence within the organization: "Executive/Senior Level Officials and Managers" and "First/Mid-Level Official and Managers"; and
• Moving non-managerial business and financial occupations from the "Officials and Managers" category to the "Professionals" category.

A notice about the revisions to the EEO-1 Report will be published shortly in the Federal Register, and the public will have 30 days to submit comments to OMB on the final proposal. OMB can approve a final EEO-1 after considering the public comments -- at which time the Commission will post on its web site the final EEO-1, with valid OMB number, along with the revised Instruction Booklet.

EEO-1 reports are submitted annually to the Joint Reporting Committee for the use of the EEOC and OFCCP. The survey must be filed annually by employers with 100 or more employees, or employers with federal government contracts of $50,000 or more and 50 or more employees. The survey includes data on the size of employer establishments, the existence of other establishments within the company, the locations of the company's establishments, the industry of each company establishment, and the metropolitan area of the establishment. Further information about the EEO-1 Report, including questions and answers on the final proposed revisions, is available on the agency's web site at www.eeoc.gov.

[Remainder of press release omitted.]

LawMemo publishes Employment Law Memo.

Peter N. Kirsanow nominated for NLRB
November 16, 2005 by Ross Runkel at LawMemo

The Whitehouse announced on November 16, 2005: "The President intends to nominate Peter N. Kirsanow, of Ohio, to be a Member of the National Labor Relations Board, for the remainder of a five-year term expiring August 27, 2008. Mr. Kirsanow is currently a Partner with Benesch Friedlander Coplan & Aronoff, LLP. In addition, he serves as a Member of the United States Commission on Civil Rights. Mr. Kirsanow previously served as Senior Legal Counsel for Leaseway Transportation Corporation in Cleveland, Ohio. Prior to that, he served as Labor Counsel for the City of Cleveland. Earlier in his career, Mr. Kirsanow practiced law with Calfee, Halter & Griswold, LLP. He received his bachelor's degree from Cornell University and his JD from Cleveland Marshall College of Law."

This biography from the web site of Benesch Friedlander Coplan & Aronoff, LLP.

Mr. Kirsanow focuses his practice on representing management in employment-related litigation, as well as in contract negotiations, NLRB proceedings, EEO matters, and arbitration. He frequently testifies before and advises members of the U.S. Congress on various employment laws and issues.

Mr. Kirsanow formerly served as senior labor counsel of Leaseway Transportation Corp. and labor counsel for the city of Cleveland.

He has extensive experience in public sector employment matters as well as in industries such as heavy manufacturing, trucking, health care, radio and television and employee leasing.

Mr. Kirsanow is past chair of the board of directors of the Center for New Black Leadership, is on the advisory board of the National Center for Public Policy Research and has been an adjunct professor at Cleveland Marshall College of Law.

Mr. Kirsanow was appointed by President Bush to the U.S. Commission on Civil Rights in December 2001.

LawMemo publishes Employment Law Memo.

Who owns faculty-generated intellectual property?
November 15, 2005 by Ross Runkel at LawMemo

The university? The faculty member? Or is it negotiable?

After Pittsburg State University (Kansas) proposed a policy that said the university would own any intellectual property created by its faculty members, the faculty union said the whole thing should be negotiated as a matter of collective bargaining.

The university asserted that it had no duty to negotiate, and thus had the right to adopt whatever policy it wanted without discussions with the union.

The university had a bunch of reasons to support its position:

• Federal law preempts the subject of ownership of IP rights.


• State law preempts the subject of ownership of IP rights.


• IP ownership is a "management prerogative under state collective bargaining law.


• Bottom line: No requirement to negotiate.

Enter the Kansas Supreme Court. Pittsburg State University v. Kansas Board of Regents (Kanasas 11/10/2005).

The court noted that state statute requires the university to negotiate

salaries, wages, hours of work, vacation allowances, sick and injury leave, number of holidays, retirement benefits, insurance benefits, prepaid legal service benefits, wearing apparel, premium pay for overtime, shift differential pay, jury duty and grievance procedures.

And that is not an exclusive, narrow list. Negotiation is also required if a subject is "significantly related" to the above list.

The court decided that --

• Neither state nor federal law preempted the subject.
  
• The case had to be remanded for a more detailed examination of issues which the Public Employee Relations Board had not bothered to address:
  
  • the "significantly related" concept
  
  
  • whether it is a "management prerogative."

LawMemo publishes Employment Law Memo.

Donning and doffing: IBP v. Alvarez; Tum v. Barber Foods
November 08, 2005 by Ross Runkel at LawMemo

The Supreme Court, in a unanimous opinion, held that the Fair Labor Standards Act (FLSA) requires that employees be paid wages for the time they spend walking to their work stations from the place where they put on required protective clothing. Employees also must be paid for the whole day, including time spent waiting to take off the clothing, and the day ends when they take off the protective clothing. However, there is no requirement that employees be paid for time spent waiting to put on the first piece of protective clothing.

IBP v. Alvarez; Tum v. Barber Foods (US Supreme Court 11/08/2005)

Employees working in meat-packing and chicken-cutting plants must wear special protective clothing. They show up at the plant and wait (sometimes in line) to don (put on) the clothing. Then they walk to their individual workstations. At the end of the shift they walk back to a locker room, perhaps do some waiting, and then doff (take off) the protective clothing.

What's paid and what's not under the Fair Labor Standards Act (FLSA) and Portal-to-Portal Act?

• Initial pre-shift pre-donning waiting time: Not.
• Donning time: Paid.
• Walking to the work area: Paid.
• Walking back from the work area: Paid.
• Waiting to doff: Paid.
• Doffing: Paid.

LawMemo publishes Employment Law Memo.

---

	Web www.LawMemo.com  This form will search the LawMemo web site. It does not include the Caselaw Database.

Employment Law Memo emails designed for lawyers.  Expert summaries of decisions from all federal and state appellate courts.  Direct link to full text.  Click here for free 4-week subscription

 

Home | Free Trial | Products & Prices | Feeds | Caselaw Database | Sample   
EEOC | NLRB | Nat'l Arbitration Ctr | Supreme Court | Articles | Lawyers
Employment Law Blog | Arbitration Blog | Employment Law 101    
Employment Law Memo | NLRB Law Memo | Arbitration Law Memo

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.