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Employer must pay for psychotherapy time and travel time
December 30, 2005 by Ross Runkel at LawMemo
If an employer requires an employee to have psychotherapy outside her normal work hours, is the time spent getting there, being there, and getting back, paid time under the Fair Labor Standards Act (FLSA)?
Yes, says the 7th Circuit. Sehie v. City of Aurora (7th Cir 12/27/2005).
Sehie sued her employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to pay for time spent attending and traveling to and from counseling sessions mandated by the employer. There were 16 sessions, one hour each, plus two hours travel time each.
On stipulated facts, the trial court found in favor of Sehie. The 7th Circuit Court affirmed.
The court found that the trial court did not clearly err by finding that Sehie's counseling sessions were necessary and primarily for the benefit of the employer.
The employer argued that 29 CFR Section 785.43 required compensation only for that time spent by an employee in waiting for and receiving medical attention at the direction of the employer during the employee's normal working hours.
The court declined to find as a general rule that 29 CFR Section 785.43 prevented compensation for the time an employee spent during non-working hours receiving employer-required treatment for a work-related injury.
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Wal-Mart lunch break verdict: $172,000,000
December 23, 2005 by Ross Runkel at LawMemo
In a class-action suit claiming that Wal-Mart did not give California employees a 30 minute lunch break, a jury brought in a verdict of $172,000,000.
The class of employees bringing the suit was about 116,000 Wal-Mart employees and former employees in California.
California law requires an employer to give a 30 minute unpaid lunch break to any employee who works over six hours. The employees claimed Wal-Mart violated that law, and the jury agreed.
The jury heard testimony for four months and deliberated for about three days before reaching a decision.
The verdict was for $57 million in general damages plus $115 million in punitive damages. Wal-Mart claims, among other things, that the California statute does not allow for punitive damages.
Wal-Mart will appeal.
Read more in Yahoo! News and at Law.com.
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Partners are "employees"? - EEOC v. Sidley Austin
December 21, 2005 by Ross Runkel at LawMemo
A U.S. District Judge will allow EEOC's suit against the Sidley Austin Brown & Wood law firm to go forward, saying the EEOC could obtain monetary relief for "partners" expelled or forced to retire on account of their age.
An EEOC press release dated December 20 says, in part:
The EEOC lawsuit is a "class" age discrimination case brought, first, with respect to 31 former Sidley & Austin partners who were involuntarily downgraded and expelled from the partnership in October 1999 on account of their age; and, second, with respect to other partners who were involuntarily retired from Sidley & Austin since 1978 on account of their age pursuant to a mandatory retirement policy. The Age Discrimination in Employment Act (ADEA) prohibits employers with 20 or more employees from making employment decisions, including decisions regarding the termination of employment, on the basis of age (over 40). The ADEA also prohibits such employers from utilizing policies or rules which require employees to retire when they reach a particular age (over 40).
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Non-competition agreements for in-house counsel
December 19, 2005 by Ross Runkel at LawMemo
Employees often agree that they won't compete with the employer after the termination of employment. But is this ethical for lawyers? Specifically, for in-house counsel?
According to an article in today's New Jersey Law Journal, the New Jersey Supreme Court's Advisory Committee on Professional Ethics is investigating whether it is ethical for lawyers employed by BASF Corporation to sign a non-competition agreement that the company requires of all employees.
The answer is, of course, a no-brainer. It is unethical under the provisions of the code of ethics that has been adopted in practically every state.
Rule of Professional Conduct 5.6:
"A lawyer shall not participate in offering or making: (a) a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement."
There is always room for debate about what the law should be in this area. Employees in other professions can ethically make such agreements, and lawyers seem to be in a class by themselves.
But there can be no legitimate debate that Rule 5.6 forbids lawyers to make such agreements.
So, according to the article, BASF has backed off pending the investigation.
I suppose the next step will be an attempt to change the law for in-house counsel. It might also be time for the ethical experts to re-examine whether it really makes sense as a general matter for lawyers to be absolutely barred from agreeing not to compete against their former employers and partners.
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USERRA regulations, posters, explanation
December 17, 2005 by Ross Runkel at LawMemo
Hats off to DOL for publishing new regs in a Q-and-A format, regs that apply to over one-half-million citizen soldiers mobilized during the past three years. The regulations come under the Uniformed Services Employment and Reemployment Act (USERRA).
DOL's interactive web site "USERRA Advisor" provides easy to find answers to questions by employees and employers.
Excerpt from the DOL press resease:
The U.S. Department of Labor [December 16, 2005] announced regulations, to be published Monday, Dec. 19 in the Federal Register, interpreting the law that protects employment and reemployment rights and benefits of service members upon their return to civilian life. This is the first time since its passage in 1994 that the Department of Labor has developed regulations to explain and clarify the Uniformed Services Employment and Reemployment Act (USERRA). The department’s action is the latest in a series of proactive steps taken to ensure job security for the largest group of mobilized National Guard and Reserve service members since World War II. USERRA prohibits discrimination against past and present members of the uniformed services and establishes reemployment rights for service members who want to return to the jobs they held prior to service.
I first learned about this from an email from Edward Still in Birmingham Alabama.
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Employment Law 101 - moved
December 15, 2005 by Ross Runkel at LawMemo
The three-per-week series "Employment Law 101" has been popular, and I've moved it to a permanent location.
Read it
- online at www.LawMemo.Com/101/
- by RSS feed: http://www.lawmemo.com/101/atom.xml
Learn more about automatic updates.
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Parental leave - mothers and fathers are different
December 15, 2005 by Ross Runkel at LawMemo
Biological differences between mothers and fathers provide a different twist in this sex discrimination case:
- David and Jennie, parents-to-be, both worked for the University.
- Jennie was allowed to use accrued sick leave to be paid for absences after the birth.
- David was not.
David sued claiming violation of the equal protection clause and Title VII. The 8th Circuit denied the claim. Johnson v. University of Iowa (8th Cir 12/15/2005).
The court rejected David's claim that it was unlawful to distinguish between biological mothers and biological fathers. Here's why:
- Paid leave is granted to biological mothers "due to the physical trauma they sustain giving birth," so this is really a form of disability leave.
- This allows biological mothers pregnancy-related disability leave on the same basis as employees with other disabilities, as is required by the Pregnancy Discrimination Act of 1978 (part of Title VII).
As for adoptive parents, the University allowed both to use accrued sick leave, so David also argued that denying similar leave to him (a biological father) was sex discrimination that violated the equal protection clause. The court rejected that argument because:
- This classification is not subject to "strict scrutiny." Biological fathers are not a "suspect class," and the right to paid leave is not a "fundamental right."
- The proper constitutional test is whether the University had a "rational basis" for its distinction.
- "Adoptive parents face demands on their time and finances that may be significantly greater than those faced by biological parents."
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WARN Act - California style
December 14, 2005 by Ross Runkel at LawMemo
Employment Law Memo today reports on the first appellate court interpretation of California's WARN Act: MacIsaac v. Waste Management Collection (California Ct App 12/12/2005)
California Labor Code Section 1401, subdivision (a), of the California Worker Adjustment and Retraining Notification Act (California WARN Act) forbids an employer from ordering a "mass layoff" unless the employer gives 60 days notice to affected employees and certain government entities. The court framed the primary issue on appeal as "whether there has been a 'mass layoff' within the meaning of the California WARN Act where employees are transferred from one employer to another for whom they perform the same work at the same rates of pay and with whom they retain the same benefits."
The court concluded that the answer to the question presented is "no." The term "layoff" is defined under the Act as "a separation from a position for lack of funds or lack of work" (Section 1400, subdivision (c)). The court determined that this definition is ambiguous, and concluded that "[u]nder the Legislature’s chosen definition of 'layoff,' the determining factor is whether the employee has been separated from 'a position,' not whether the employee is separated from an 'employer.'" The court noted that "[w]e have found no California case construing the terms of the California WARN Act" and that "[l]egal commentary and other secondary authority on the statute are … in short supply."
For a longer discussion: New Decision Finds California WARN Act Does Not Apply To Seamless Transfer Of Employees To Same Positions With New Employer from Sheppard Mullin's Labor & Employment Law Blog.
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Discharge in violation of public policy: Employment Law 101: #8 of 60
December 14, 2005 by Ross Runkel at LawMemo
One gigantic exception to the at-will employment doctrine is the idea of a discharge that violates public policy.
The at-will doctrine is a principle of contract law - the law of agreements. The public policy exception is a principle of tort law - the law of civil wrongs. Therefore, most courts apply the principle of wrongful discharge in violation of public policy whether the contract is at-will or some other kind of contract.
[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 employment lawyer or thorough research. For the most current developments in employment law court cases, try Employment Law Memo - World's Best.]
Courts recognize four types of public policy situations. Caution: Not every court recognizes every one of these. These are cases where the employer fires the employee because the employee:
- refused to do something that was unlawful. Examples:
- Refusing the employer's demand to commit perjury.
- Refusing to submit false reports to the government.
- A nurse refusing to perform a procedure he or she is not licensed to perform.
- performed a duty required by the law. Examples:
- Serving on a jury, which required being absent from work.
- Providing court testimony in response to a subpoena.
- exercised a right that the law gives to employees. Examples:
- Filing a claim for worker compensation.
- Filing a court complaint against the employer.
- reported unlawful employer conduct - "whistleblowing." Examples:
- Reporting to authorities that the employer's product had been mislabeled.
- Reporting to the supervisor's manager that the supervisor skipped mandatory product inspections.
Exception: Many courts will not recognize a tort of wrongful discharge in a specific situation if the employee has another remedy under a statute.
Example: The employee is fired for filing a worker compensation claim. The worker compensation statute prohibits firing an employee for filing a claim. Most courts will not recognize a tort of wrongful discharge here because the employee already has a remedy under the statute.
Coming next: Constructive discharge: Employment Law 101: #9 of 60
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Employment lawyer - how to find one
December 13, 2005 by Ross Runkel at LawMemo
I get a lot of emails from folks looking for a good employment lawyer.
I've put some ideas into a short article: Employment lawyer - how to find one.
Here is what you'll find:
- How do I find my lawyer? Four steps
- Here are some sources
- Should you handle your own case, and just skip the lawyer?
- Should you be in a hurry to find a lawyer?
- What kind of lawyer should you seek?
- Will a lawyer be expensive?
- Repeat after me: Legal claims have time limits. Act quickly.
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Employee vs. employer civil RICO
December 13, 2005 by Ross Runkel at LawMemo
If an employer conspires with a recruiter to employ and harbor illegal workers, does that violate RICO?
The US Supreme Court will decide this question in Mohawk Industries v. Williams (No. 05-465), certiorari granted 12/12/2005, decision below: Williams v. Mohawk Industries (11th Cir 06/090/2005)
Williams and other hourly employees alleged that the employer's widespread and knowing employment and harboring of illegal workers allowed the employer to depress wages for its legal hourly employees and to discourage workers compensation claims - all in violation of the federal RICO statute. The trial court denied the employer's motion to dismiss; the 11th Circuit affirmed; the US Supreme Court granted certiorari to review the 11th Circuit decision.
Plaintiffs alleged that the employer conspired with recruiting agencies to hire and harbor illegal workers.
The key issue is whether plaintiffs alleged an "enterprise" that has a "common purpose."
- The 11th Circuit concluded that the "enterprise" is the association-in-fact between the employer and the third-party recruiters.
- As for the "common purpose," the complaint alleged that the recruiters and the employer share the common purpose of "obtaining illegal workers for employment by [the employer]" with the same objective of reducing the wages paid to the employer's hourly workers
- The 11th Circuit said, "Because the complaint clearly alleges that the members of the enterprise stand to gain sufficient financial benefits from [the employer's] widespread employment and harboring of illegal workers, the plaintiffs have properly alleged a 'common purpose.'"
The 7th Circuit reached a contrary conclusion on similar facts, concluding that the entities in the enterprise did not have a common purpose (the employer wants to pay lower wages and the recruiters want to be paid more for services rendered). Baker v. IBP (7th Cir 02/04/2004).
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$300 million generated from whistleblowers
December 12, 2005 by Ross Runkel at LawMemo
In a short article about Notable National Security whistle-blower cases, the Austin American-Statesman reports that
Whistle-blower claims of government contract fraud have raised the amount of money collected for false claims from $27 million in 1985 to more than $300 million annually.
And other interesting facts.
My source: quitamhelp.com.
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Good faith and fair dealing: Employment Law 101: #7 of 60
December 12, 2005 by Ross Runkel at LawMemo
Two basic principles of contract law seem inconsistent with each other, and cause courts a problem.
- Employment at-will: The principle that an employer can fire an employee at any time and for any reason and without advance warning. Unless the employer and employee have a different agreement, this usually will be the rule a court will apply.
- Covenant of good faith and fair dealing: The principle that every contract includes an implied duty to act in good faith as to the performance and enforcement of the contract.
[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.]
Let's say an employer fires Jane because she is a vegetarian. Other than that, Jane has been an excellent employee and the employer has no need to reduce the overall number of employees.
- If a court applies the at-will doctrine by itself, then Jane has no contract claim.
- If a court applies the covenant of good faith and fair dealing, then Jane has a good argument that this was not in good faith.
Courts vary from state-to-state on how to deal with this.
- Some courts say that the covenant of good faith and fair dealing applies to all contracts, including at-will contracts.
- Some courts say that the covenant of good faith and fair dealing is totally inconsistent with the idea of at-will employment, so the covenant of good faith and fair dealing will not be used in these cases.
- This is state law, which varies from state-to-state, so the outcome will depend on which state you're in.
Coming next: Discharge in violation of public policy: Employment Law 101: #8 of 60
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DOL improves web site
December 09, 2005 by Ross Runkel at LawMemo
The maze of statutes enforced by the US Department of Labor (DOL) is easier to navigate thanks to an enhanced web site.
From a single page, you can get access to information from three different angles:
1 - By topic. You don't need to know the name of the statute that applies to your situation because there is a menu of options that are in plain English.
2 - By audience. Organized by categories such as "veterans," "small business," "youth," etc.
3 - By major law. For those who know the statute name, there is a list.
Nice going DOL.
Thanks to Workplace Prof Blog for the tip.
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Employer handbooks: Employment Law 101: #6 of 60
December 09, 2005 by Ross Runkel at LawMemo
Employers often have handbooks or policy manuals that spell out employee behavior rules, procedures for disciplining or firing employees who violate the rules, and "money matters" such as wages, holidays, vacations, and so on.
The question is whether such a handbook becomes part of the contract between the employer and the employee. And there is no easy answer.
[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.]
Confusion in the courts:
- Courts often do not consider a handbook to be part of a contract.
- Courts often see a handbook as nothing more than a statement of policy or intention.
- On the other hand, some courts in some situations will consider a handbook to be part of a contract.
- There has been a trend in the law for courts to view a handbook as a contract.
For a handbook to be part of contract, usually these things must happen:
- The employer makes an "offer." This can be done by the employer distributing the handbook to employees.
- The employee accepts the offer. This can be done by the employee signing an acknowledgement form, or perhaps simply by continuing to come to work.
- There must be "consideration." This means the employee must give or promise to give something of value. Typically, that is simply continuing to come to work.
Disclaimers:
- Over the years, as more and more courts viewed handbooks as contracts, many employers made changes in how they wrote the handbooks.
- The main change has been to include a disclaimer - a provision that says that the handbook is not intended to be a contract.
- Even so, some courts have said these handbooks can be contracts if the disclaimer was not clear or of it was not conspicuous.
Coming next: Good faith and fair dealing: Employment Law 101: #7 of 60
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Sue Your Boss Law
December 08, 2005 by Ross Runkel at LawMemo
Sheppard Mullin's Labor & Employment Law Blog today is exploring the November 23 case involving California's "Sue Your Boss Law" (Labor Code Private Attorney General Act of 2004 ("PAGA")) - California Court Interprets Procedural Requirements for the "Sue Your Boss Law."
It's a bit complex. The blog says that the case, Caliber Bodyworks, Inc. v. Superior Court, "exemplifies the complex compliance requirements of California's wage and hour laws and the complex remedies and procedural requirements involved in wage and hour litigation."
Meanwhile, the blog was mentioned favorably today in a Law.com article that is oddly named Blogging Is the New Black.
Sheppard Mullin's Labor & Employment Law Blog was designed by LexBlog, a pretty happening outfit that has designed a large number of professional blogs for law firms.
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Lambda Legal's "Of Counsel" newsletter
December 08, 2005 by Ross Runkel at LawMemo
 Lambda Legal describes itself as "a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work." Their bimonthly eNewsletter Of Counsel is a must-read for anyone who needs to keep up-to-date on the litigation strategies being implemented by the group. Whether you agree or disagree, this is a great way to keep informed. Today's issue includes articles on using common law strategies in states that do not have statutes prohibiting discrimination on the basis of sexual orientation, anti-gay harassment, comments on Supreme Court Justice-nominee Samuel Alito, an update on Jespersen v. Harrah's Casino, HIV discrimination, and more. |
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Non-contracting party standing: 42 USC 1981
December 07, 2005 by Ross Runkel at LawMemo
42 USC Section 1981 forbids race discrimination in a contractual relationship. Does a non-contracting party have standing to sue for a violation?
Assume this: ABC Corporation has a contract with XYZ Corporation. XYZ is wholly owned by John McDonald, who is black. ABC terminates the contract because of McDonald's race.
- Question 1: Can XYZ recover damages against ABC? (I suppose so, but that's not the question I want to address.)
- Question 2: Can McDonald recover damages against ABC? Another way to ask that: Does McDonald have "standing" to sue when he was not a party to the contract?
The US Supreme Court heard oral arguments on December 6 on Question 2 in Domino’s Pizza, Inc. v. John McDonald. [Summary and briefs]
SCOTUSblog summarizes the arguments here: Recap of Yesterday’s Argument: Domino’s Pizza, Inc., et al. v. John McDonald
My view:
- The Court has to figure out what Congress intended when it wrote the original version of the statute over 100 years ago.
- In those days hardly anybody (hardly any lawyers, that is) thought that a contract suit could be brought by anybody other than the two corporations that signed the contract. I think a majority of the Court will grab that idea to conclude that Congress never intended for non-contracting parties to have rights under Section 1981.
- Some of the Justices have sympathy for McDonald's situation, but the Justices' personal desires should not get in the way of interpreting Congressional intent.
- Another point: McDonald chose to do business through the corporate form. That provided him with certain advantages, such as limited liability. The disadvantage is that he's not a party to any contracts entered into by his corporation.
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Express contracts: Employment Law 101: #5 of 60
December 07, 2005 by Ross Runkel at LawMemo
The simplest and most direct way to overcome the "employment at will" doctrine is to have an express contract.
- The employment at will doctrine says that the employee can quit, and the employer can fire the employee, at any time and for any reason and without any prior notice.
- This employment at will doctrine is a "default" rule of contract law. That means it applies whenever the employee and employer have not agreed on something else.
- Therefore, the solution is simple: Agree on something else.
[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.]
An express contract can be in writing or it can be oral. (Of course, it is easier to prove something that is in writing.)
Here are some things an employee might want to have in an express contract:
- The employee can be fired or otherwise disciplined only for "just cause" or "reasonable cause" or some such general language.
- A more detailed list of the grounds for discipline or discharge.
- Before the employee is discharged or disciplined, the employee has to have an opportunity to explain or have some kind of hearing.
- Discipline will be "progressive." For example, there should be a warning (rather than immediate discharge) for the first offense.
- If the employee is to be laid off, there must be advance notice and severance pay.
- And surely you can think of other things.
Here are some things an employer might want to have in an express contract:
- An agreement not to compete (non-competition agreement).
- An agreement not to use the employer's trade secrets, customer lists, and so on.
- An agreement to arbitrate disputes rather than take them to court.
- And surely you can think of other things .
Coming next: Employer handbooks: Employment Law 101: #6 of 60
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Solomon amendment will survive
December 06, 2005 by Ross Runkel at LawMemo
After today's oral argument at the US Supreme Court, it seems beyond doubt that the Solomon Amendment will survive attempts to have it declared unconstitutional.
Law schools that oppose the military's position on gays and lesbians have taken the position that military recruiters should not be allowed on campus. The Solomon Amendment says that to do that means a cut-off of certain federal funds. (Trust me, it's a lot of money.)
I have thought that the law schools' argument was weak: that they have a first amendment right to take federal money and also refuse to allow military recruiters.
A good description of the oral argument, from SCOTUSblog: Solomon Amendment likely to survive
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"Adverse employment action" reaches Supreme Court
December 05, 2005 by Ross Runkel at LawMemo
What's an "adverse employment action" in a retaliation case? The US Supreme Court said on December 5 that it will decide that question in Burlington Northern v. White (Docket No 05-529).
Sheila White claimed her employer retaliated against her because she filed an EEOC charge. A jury agreed. The 6th Circuit (en banc - 13 judges) affirmed. The unhappy employer has persuaded the US Supreme Court to take a look.
The issue was whether two actions were adverse employment actions under Title VII.
- White was working as a fork lift operator, and the employer transferred her to a job as a standard track laborer
- Later, the employer suspended White without pay for 37 days. After she filed a grievance, the employer reinstated her and gave her full back pay.
The 6th Circuit explained that in order to succeed in a retaliation case the employee must prove that there was an "adverse employment action." Although some courts have said that Title VII applies only to an employer's "ultimate employment decision" such as hiring, granting leave, discharging, promoting, and compensating, the 6th Circuit joined the majority of circuits in rejecting that test.
The 6th Circuit also rejected the test included in the EEOC Guidelines: "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity."
The test adopted by the 6th Circuit distinguishes between (a) situations in which there is "a materially adverse change in the terms of her employment" and (b) situations involving a "mere inconvenience or an alteration of job responsibilities" or a "bruised ego."
Under the 6th Circuit's test, the suspension was an adverse employment action because it is "not trivial" and involves more than a "mere inconvenience" or "bruised ego." The job transfer was an adverse employment action even though both jobs were paid the same. The laborer job was more arduous, dirtier, and carried less prestige, and the trial court characterized it as a demotion.
CONCURRENCE: Although the 6th Circuit was unanimous as to the above result, five judges (out of 13) took the position that the court should adopt the standard proposed by the EEOC: "reasonably likely to deter [employees] from engaging in protected activity." This would be more consistent with the statutory language, Congressional intent, and Supreme Court case law.
Decision below: White v. Burlington Northern (6th Cir en banc 04/14/2004)
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Collective bargaining agreements: Employment Law 101: #4 of 60
December 05, 2005 by Ross Runkel at LawMemo
A collective bargaining agreement, or CBA, can be an effective exception to the "employment at will" doctrine.
Employment at will is a state law contracts principle that says that an employer can fire an employee at any time and for any reason.
[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.]
A CBA is simply a contract between an employer and a labor union, and a CBA can give employees significant job protection. A typical CBA will override the employment at will doctrine.
A typical CBA contains these key job-protection provisions:
- An employee can be discharged or otherwise disciplined (for example, by suspension or demotion) only for "just cause."
- An employee who is disciplined can file a grievance, or have the union file a grievance.
- If the grievance is not settled satisfactorily, the union can require it to be decided by an arbitrator.
- The arbitrator will hold a hearing and then issue a decision that is final and binding.
Let's look briefly at each of these provisions.
- "Just cause" can mean many things. Usually it means at least this: (1) The employer must prove that the employee did what the employee was accused of doing. For example, arrived late too often, stole something, performed poorly. (2) The amount of discipline must fit the seriousness of the offense. For example, discharge would be too serious for one incident of arriving to work late.
- Grievance. Usually the employee or union must file a written grievance (perhaps after an informal discussion) with the employee's immediate supervisor. There will be a short time limit, sometimes as short as 10 (yes, ten) calendar days or as long as 30 days. Failure to file a grievance within the time limit can wipe out the employee's claim. Filing a grievance (not going to court) is the only way to enforce the just cause provision.
- Failure to settle. If the grievance cannot be settled at the supervisor level, it usually goes up to a higher level. Eventually, it can go to an arbitrator. Usually it is only the union, not the employee, that gets to decide to send a case to an arbitrator.
- Arbitrator. The employer and union select the arbitrator, who holds a hearing, listens to the evidence, and then makes a decision - usually in writing. The arbitrator's decision (called an "award") is final and binding. The case will not go to court or be reviewed by a court, except in the rarest and most unusual situations.
Coming next: Express employment contracts: Employment Law 101: #5 of 60
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Solomon amendment tested in US Supreme Court
December 04, 2005 by Ross Runkel at LawMemo
Does the 1st amendment protect schools from losing federal funds when they refuse to allow military recruiters? The US Supreme Court hears oral arguments on that question on December 6 in Rumsfeld v. Forum For Academic and Institutional Rights (No. 04-1152).
- The Solomon Amendment allows the Secretary of Defense to deny grants to any university that prohibits on-campus recruitment by the military.
- Most law schools have policies against discrimination on the basis of sexual orientation, and refuse to allow the use of school resources for recruiting by employers who engage in sexual orientation discrimination - including the military.
- The government response has been to threaten withdrawal of funding - not just for the law school, but for the whole university.
- A group of schools sued to enjoin the application of the Solomon Amendment on the ground that it impairs the 1st amendment rights of the schools.
- The trial court refused to issue a temporary injunction.
- The 3rd Circuit reversed, holding that the schools were likely to prevail on their first amendment arguments.
- The US Supreme Court granted certiorari to review the 3rd Circuit decision.
Decision below: Forum v. Rumsfeld (3rd Cir 11/29/2004)
Briefs: http://www.lawmemo.com/docs/us/forum/
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42 USC 1981 suit by non-contracting party
December 04, 2005 by Ross Runkel at LawMemo
Does a person who was not a contracting party have standing to sue under 42 USC 1981? The US Supreme Court will hear arguments on that question on December 6 in Domino's Pizza v. McDonald (No. 04-0593).
Federal Circuit Courts have provided conflicting answers.
Here's what happened in the 9th Circuit:
- Domino's Pizza had entered into several contracts with JWM Investments, a corporation.
- McDonald, an African-American, was an officer and the sole shareholder the JWM corporation.
- McDonald personally was not a party to the contracts.
- McDonald sued Domino's claiming that Domino's terminated its contracts with JWM because of race.
- The suit was brought under 42 USC Section 1981 which provides that "All persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens."
- The trial court dismissed the suit, saying McDonald did not have standing because he was not a party to the contracts.
- The 9th Circuit reversed, saying "the same discriminatory conduct can result in both corporate and individual injuries."
- The US Supreme Court granted certiorari to review the 9th Circuit decision.
Decision below (unpublished): McDonald v. Domino's Pizza (9th Cir 06/18/2004)
Briefs: http://www.lawmemo.com/docs/us/dominos/
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Federal employees' access to federal courts
December 04, 2005 by Ross Runkel at LawMemo
The US Supreme Court hears oral arguments December 5 in Whitman v. Department of Transportation (No. 04-1131).
Whitman sued in federal court claiming his employer, the Federal Aviation Administration, disproportionately tested him for substance abuse in violation of the first amendment and a federal statute. The trial court held it had no subject matter jurisdiction; the 9th Circuit affirmed; the US Supreme Court granted certiorari to review the 9th Circuit decision.
The 9th Circuit reasoned that the Civil Service Reform Act (CSRA) generally does not allow federal court suits. The CSRA requires collective bargaining agreements to include procedures for resolving "grievances" such as Whitman's claims. Before 1994 CSRA provided that the collectively bargained procedures "shall be the exclusive procedures for resolving grievances." The 1994 amendment added one word: "shall be the exclusive ADMINISTRATIVE procedures for resolving grievances." The 9th Circuit said the amendment "does not constitute an express grant of federal court jurisdiction."
Decision below: Whitman v. Department of Transportation (9th Cir 08/30/2004)
Briefs: http://www.lawmemo.com/docs/us/whitman/
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NLRB GC meets performance goals
December 02, 2005 by Ross Runkel at LawMemo
Arthur F. Rosenfeld, Acting General Counsel of the National Labor Relations Board (NLRB) issued what is surely his last report: Summary of Operations (Fiscal Year 2005).
Highlights:
- The Office of the General Counsel met all of its performance goals under the Government Performance and Results Act of 1993 in its Headquarters and Regional Offices.
- A 97.2 percent settlement rate in meritorious unfair labor practice cases.
- Initial elections in union representation cases were conducted in a median of 38 days from the filing of the petition, with 94.2 percent conducted in 56 days.
- An 87.2 percent “win rate” in whole or in part in litigation before the Administrative Law Judges and the Board.
- A total of $84,628,885 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines, and 2,842 employees were offered reinstatement.
- The United States Courts of Appeals decided 73 enforcement and review cases involving the Board, compared with 62 in FY 2004. Of these cases, 94.5 percent were enforced in whole or in part, and 78.1 percent were won in whole.
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Employment at-will: Employment Law 101: #3 of 60
December 02, 2005 by Ross Runkel at LawMemo
What does it mean to say one state is an "at-will" state and another state is not? What is "at-will employment" anyhow?
The "at-will doctrine" is a rule of contract law (which is state law). The rule is that an employee can quit at any time and an employer can fire an employee at any time and for any reason. Because this is a contract rule, the employer and employee are free to change it by agreement. But if their agreement is silent on the question, then the employee can be discharged without warning, without a hearing, and without a reason.
[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.]
When the at-will doctrine is applied by a court, here is what happens as a matter of contract law:
- A job that is described as "permanent" does not mean that it will last forever. It means only that the job is not temporary or not seasonal.
- The employer can discharge the employee at any time and for any reason.
- The employer can discharge the employee for a really stupid reason. For example, simply because the employee asked for a day off.
- The employer can discharge the employee without any warning. For example, for the very first time the employee comes in 5 minutes late.
- The employer can discharge the employee without offering the employee any kind of "hearing" or chance to explain.
- The employer is not required to give an employee two-weeks notice, or any advance notice at all.
- The employer is not obligated to tell the employee the reason for the discharge.
Every state has a different approach, so the law will be different from one state to the next. It's pretty hard to find a state that follows the at-will doctrine without any exceptions; and it's hard to find a state that doesn't follow the doctrine at all. States tend to fall somewhere in between.
Because the at-will doctrine provides an employee no job protection at all, it is important to understand that there are a lot of exceptions. In some states there are so many "exceptions" that one might conclude that the state is not an "at-will state" at all.
Here are some exceptions:
- A contract between the employer and employee that provides greater protections for the employee.
- A collective bargaining agreement between a union and the employer that provides for discharge only if there is "just cause."
- Wrongful discharge in violation of public policy.
- Federal statutes that prohibit certain kinds of discrimination, allow for medical leaves, protect whistleblowers, or provide other protections.
- State statutes that are similar to the above federal statutes. (Some state statutes provide the employee with greater protections than the federal statutes provide.)
- An implied promise.
- Promissory estoppel.
- Employer's handbook, manual, or policies.
- Intentional infliction of emotional distress.
- Duty of good faith and fair dealing.
Coming next: Just cause under a collective bargaining agreement: Employment Law 101: #4 of 60
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Medical marijuana, discharge, and California's Compassionate Use Act
December 01, 2005 by Ross Runkel at LawMemo
The California Supreme Court announced November 30 that it will hear an appeal in Ross v. Ragingwire Telecommunications (California Ct App 09/07/2005).
California's Compassionate Use Act provides that certain criminal statutes prohibiting the possession and cultivation of marijuana shall not apply to a patient (or caregiver) "who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." Thus, the Compassionate Use Act grants limited immunity from criminal prosecution to qualified patients and caregivers. The Court of Appeal framed the issue as follows: "[i]f an employer discharges an employee for using marijuana, even though it is being used for medical reasons in accordance with the Compassionate Use Act, does the discharge violate FEHA [California's Fair Employment and Housing Act], public policy, or an implied contract not to terminate the employee except for just cause?" The court held that the answer to that question is "no." The court stated that "[b]ecause the possession and use of marijuana is illegal under federal law, a court has no legitimate authority to require an employer to accommodate an employee's use of marijuana, even if it is for medicinal purposes and thus legal under California law."
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Disciplinary grievance cannot bypass Personnel Board
December 01, 2005 by Ross Runkel at LawMemo
The California Supreme Court unanimously ruled today that collectively-bargained, legislatively-approved agreements for grievance-and-arbitration that would bypass the state's Personnel Board violated the California constitution. State Personnel Board v. Dept of Personnel Administration (California 12/01/2005).
In the court's words:
The memoranda of understanding (MOU’s) of four state employee bargaining units allow covered employees to challenge disciplinary actions either by seeking review before the State Personnel Board or by pursuing an alternative grievance/arbitration procedure that bypasses the State Personnel Board. The Legislature ratified the grievance/arbitration procedures set forth in the four MOU’s by enacting implementing legislation. (See Gov. Code, § 18670, subds. (c), (d) & (e); further undesignated statutory references are to the Government Code.)
Does this bypass of the State Personnel Board violate article VII, section 3 of the California Constitution, which provides that the State Personnel Board “shall . . . review disciplinary actions” taken against state civil service employees? (Cal. Const., art. VII, § 3, subd. (a).) We conclude that it does.
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$72.3 million false claim
December 01, 2005 by Ross Runkel at LawMemo
Philip Michael, partner in Troutman Sanders, represented the plaintiff in a $72.3 million agreement to settle charges that Beth Israel Hospital made false reports to Medicare that generated exaggerated reimbursements. The plaintiff gets 20 percent: $14.5 million.
More at quitamhelp.com
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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