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Is "payment" for missed meal period a penalty or a wage?
February 23, 2006 by Ross Runkel at LawMemo
California Labor Code Section 226.7 provides:
"If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided."
California Courts of Appeal have been split on the issue of whether the "additional hour of pay" is a "wage" subject to a three or four year statute of limitations or is a "penalty" subject to a one year statute of limitations.
The California Supreme Court granted review in Murphy v. Kenneth Cole Productions, and is expected to resolve the conflict. The Court of Appeal in the Murphy case concluded that the payment was a "penalty."
Murphy v. Kenneth Cole Productions.
Court of Appeal decision (12/02/2005)
Order granting review (02/22/2006):
More details: Labor & Employment Law Blog
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42 USC Section 1981 limited to contracting parties
February 22, 2006 by Ross Runkel at LawMemo
Domino's Pizza v. McDonald (US Supreme Court 02/22/2006): The US Supreme Court holds (unanimously) that a plaintiff who lacks any rights under an existing contractual relationship with the defendant, and who has not been prevented from entering into such a contractual relationship, cannot bring suit under 42 USC Section 1981.
Domino's Pizza had several contracts with JWM Investments, a corporation. McDonald, an black man, 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 racial animus toward him. 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 reversed the 9th Circuit decision.
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Title VII's 15-employee threshold is not jurisdictional
February 22, 2006 by Ross Runkel at LawMemo
Arbaugh v. Y & H Corp (US Supreme Court 02/22/2006): The US Supreme Court holds (unanimously) that Title VII's definition of "employer," which includes only those having "fifteen or more employees" is matter going to the substantive ingredients of a Title VII claim for relief, and is not a matter that affects federal court subject-matter jurisdiction.
Arbaugh sued in federal court under Title VII and state tort law. After a jury verdict for Arbaugh, the trial court granted summary judgment for the defendants and vacated the verdict because the defendant corporation did not employ 15 or more employees and thus was not an "employer" under Title VII. The 5th Circuit affirmed. The US Supreme Court reversed the 5th Circuit decision.
So what?
- If a federal court lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety. That would mean the court would lose jurisdiction over both the Title VII case and the state law case (over which the federal court has supplemental jurisdiction).
- A subject matter jurisdiction question can be raised at any time (even on appeal) and can be raised by the court even if the parties do not raise it. Because the 15-employee threshold goes to the merits, it has to be raised by the defendant or it is waived, and it has to be raised prior to the close of trial on the merits.
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Supreme Court: "Slap you in the face" is the wrong test
February 21, 2006 by Ross Runkel at LawMemo
Plaintiff's superior qualifications, compared to the employee who got the job, can be evidence of pretext in a Title VII case. The US Supreme Court now has rejected the 11th Circuit's requirement that the difference in qualifications must be so great that they "slap you in the face."
Poetic imagery, but not a proper legal standard.
Two African-Americans were superintendents who were denied promotions, and sued claiming race discrimination in violation of Title VII and 42 USC Section 1981. They prevailed in a jury trial; the trial court granted the employer a new trial; the 11th Circuit affirmed in part and reversed in part. The US Supreme Court granted certiorari and remanded the case, without even hearing oral arguments.
The employees submitted evidence that their qualifications were better than the two whites that were promoted. This evidence was designed to prove pretext. The 11th Circuit's rule (also the 5th Circuit's) is: "Pretext can be established through comparing qualifications only when 'the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.'" US Supreme Court said that this visual image "is unhelpful and imprecise." The Court rejected the 11th Circuit's standard without suggesting what the proper standard is.
Ash v. Tyson Foods (US Supreme Court 02/21/2006).
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Supreme Court - "Boy" can be probative of racial bias
February 21, 2006 by Ross Runkel at LawMemo
If a manager refers to a black employee as "boy," is that evidence of racial animus?
The 11th Circuit thought not, unless "boy" was modified by some obviously racial adjective such as "black" or "white." Thankfully, the US Supreme Court has a better grip on reality. Ash v. Tyson Foods (US Supreme Court 02/21/2006)
Two African-Americans were superintendents who were denied promotions. They sued claiming race discrimination in violation of Title VII and 42 USC Section 1981. The 11th Circuit decision went against them. The US Supreme Court granted certiorari and remanded the case in a per curiam decision, without hearing oral argument.
There was evidence that the plant manager (the decisionmaker) referred to each of the employees as "boy." The 11th Circuit held that use of "boy" alone (without adding "white" or "black") was not evidence of racial animus. The US Supreme Court said this was error because "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage."
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Well settled NLRB rules
February 20, 2006 by Ross Runkel at LawMemo
I just learned about a new web site / blog that is unique.
- Title: It is well settled that ...
- Concept: Quotes From NLRB Decisions Since January 14, 2004 Recognizing What Is "Well Accepted," "Well Established," Or "Well Settled."
- Author: David Hoskins, Member of Frost Brown Todd LLC, with his office in Louisville, KY.
- David's main blog: Kentucky Employment Law Notes
Go see it now.
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Religious Freedom Restoration Act, ADEA, and ministers
February 19, 2006 by Ross Runkel at LawMemo
Is the “ministerial exception” dead?
The general rule is that federal anti-discrimination statutes do not apply to disputes between religious entities and their spiritual leaders. This is the ministerial exception. Well, not so fast. Maybe the Religious Freedom Restoration Act changes all that.
In Hankins v. Lyght (2nd Cir 02/16/2006) an ordained clergyman of the Methodist church claimed he was forcibly retired because he had reached the age of 70. Naturally, he sued under the Age Discrimination in Employment Act (ADEA). Just as naturally, the trial court threw out the suit, citing the ministerial exception.
The 2nd Circuit (voting 2-1) had a different idea: Apply the Religious Freedom Restoration Act (RFRA):
(a) In general. Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) Exception. Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
The court framed the issue on appeal as whether the Religious Freedom Restoration Act (RFRA) amended the ADEA. The court found that both the EEOC and private parties could enforce the provisions of the ADEA and, thus, the substance of the ADEA could not change depending on whether the EEOC or a private party brought the enforcement action. The court joined other circuits in holding that the RFRA was constitutional as applied to federal law under the Necessary and Proper Clause of the United States Constitution. The court stated that the RFRA amended the ADEA and governed the merits of this action.
The DISSENT argued that the RFRA by its own terms did not apply to suits between private parties and that the "ministerial exception" applied to the ADEA.
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US Supreme Court re-argument in employee speech case
February 17, 2006 by Ross Runkel at LawMemo
The US Supreme Court has ordered that Garcetti v. Ceballos (Docket No. 04-473) be re-argued. This case was argued in October. Since then, Justice Alito has replaced Justice O'Connor.
Order for re-argument | Transcript of first oral argument (10/12/2005) | Decision below: Ceballos v. Garcetti (9th Cir 03/22/2004)
Ceballos sued his employer (the County) and his supervisors claiming they retaliated against him in violation of the 1st amendment. Ceballos wrote a memorandum to his supervisor in which he claimed that a deputy sheriff had lied in an application for a search warrant. Ceballos claimed that he was demoted in retaliation for this. The trial court granted summary judgment for the individual defendants on the ground of qualified immunity. The 9th Circuit reversed. The US Supreme Court granted certiorari on February 28, 2005 to review the 9th Circuit decision.
The 9th Circuit concluded that the individual defendants were not entitled to qualified immunity because "the law was clearly established that Ceballos' speech addressed a matter of public concern and that his interest in the speech outweighed the public employer's interest in avoiding inefficiency and disruption." A concurring 9th Circuit judge argued that the 9th Circuit's jurisprudence in this area of law is wrong. He would hold that public employees are not protected by the 1st amendment when their speech is uttered in the course of carrying out their employment obligations. That is because Connick v. Myers, 461 US 138 (1982), requires that the public employee be speaking "as a citizen," which the judge says Ceballos was not.
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City's Equal Benefits Law is preempted
February 15, 2006 by Ross Runkel at LawMemo
Council of City of New York v. Bloomberg (New York 02/14/2006) holds (by a 4-3 vote) that New York City's "Equal Benefits Law" is preempted by a state statute and by ERISA.
New York City's law says no city agency can enter a contract for more than $100,000 with a company that fails to provide its employees' domestic partners with benefits equal to those provided to spouses. A "domestic partner" is anyone registered under either the Equal Benefits Law or NYC Administrative Code Section 3-240(a) (Local Civil Rights Restoration Act of 2005).
New York's highest court has ruled the Equal Benefits Law is preempted by a state statute on public works contracts. General Municipal Law Section 103 says "all contracts for public work involving an expenditure of more than twenty thousand dollars and all purchase contracts involving an expenditure of more than ten thousand dollars, shall be awarded . . . to the lowest responsible bidder . . . ."
The court says "the Equal Benefits Law violates this requirement by excluding from public contracting any 'responsible bidder' that does not provide equal benefits to domestic partners and spouses."
The court also ruled that the law is preempted by ERISA - the federal Employee Retirement Income Security Act because it "seemingly seeks to ... prescribe the terms of [ERISA-regulated] benefit plans."
A DISSENT by three judges argued that the court should not have reached the merits of the case due to the procedural posture of the case (an Article 78 proceeding) which does not allow for a full examination of all the facts. The dissent would have sent the case back to allow for declaratory judgment action to proceed in the normal course.
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Discharge for having firearms on company property
February 14, 2006 by Ross Runkel at LawMemo
An inevitable clash between a constitutional right to bear arms and a company policy forbidding possession of firearms in the parking lot. The company wins. Bastible v. Weyerhaeuser (10th Cir 02/13/2006)
Employees got fired when a vehicle search uncovered firearms. The company had a no-firearms policy, and the employees argued they had a constitutional right that was violated.
The employees argued that their discharge from employment violated Oklahoma public policy as declared in the Oklahoma constitutional provision on the right to keep and bear arms.
Just one problem with that argument. The Oklahoma constitution allows the legislature to regulate "the carrying of weapons," and a statute specifically allows employers to "control the possession of weapons" on property they own or control.
Here's how the 10th Circuit put it:
The district court described this issue as "whether a public policy cause of action for wrongful discharge may be maintained by Plaintiffs based upon the right to keep arms espoused by the Oklahoma Constitution." Order at 23, Appellants' App. at 627.(11) As the district court acknowledged, Oklahoma law recognizes a public policy exception to the otherwise virtually unfettered ability of an employer to terminate an at-will employee. "[T]he circumstances which present an actionable tort claim under Oklahoma law is where an employee is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy." Burk v. K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989). The Oklahoma Supreme Court has, however, cautioned that this "unique tort" applies "to only a narrow class of cases and must be tightly circumscribed." Clinton v. State ex rel. Logan County Election Bd., 29 P.3d 543, 545 (Okla. 2001). While the Oklahoma courts have not addressed the precise question of whether there is a clear and compelling public policy involving the right to bear arms, such that an at-will employee(12) may not be terminated when he exercises that right, we are confident that those courts would not embrace that view. As indicated, both the Oklahoma Constitution and the Oklahoma courts recognize that the right to bear arms is not unlimited, and, indeed, may be regulated. We agree with the district court that "[g]iven the finding by [the Oklahoma Supreme] Court that the right to keep arms is not unfettered, establishing a wrongful discharge tort for exercising a statutorily sanctioned restriction on the right would be counterintuitive." Order at 24, Appellants' App. at 628.
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Can union require its employees to join the union?
February 13, 2006 by Ross Runkel at LawMemo
Unions have employees. Can a union require, as a condition of employment, that its own employees become and remain members of the union?
It all depends on what these employees do for a living, and what their job duties are, according to a recent decision by the NLRB.
Union field representatives: The union can require these employees to belong to the union. This is because, as the NLRB has said, these employees, "in conducting the [union's] business, might be asked to explain how the [union] functions as a collective-bargaining representative, or why it is desirable for workers to organize." Retail Store Employees Local 428, 163 NLRB 431 (1967).
Clerical employees: Not in this case, says a majority of the NLRB. Stationary Engineers Local 39, 346 NLRB No. 34 (01/31/2006).
After review of the job duties of clerical employees in this case, Chairman Battista and Member Schaumber determined that the clerical employees have no responsibility for explaining to members or others the benefits of membership or how the union functions. They contended that the Union has failed to show that membership in the Union is either "necessary" for, or even "reasonably related" to, the clericals' proper performance of their job duties. Accordingly, they concluded that union membership is not necessary for the performance of clerical functions in this case, finding that the union violated the Act.
Member Liebman would find that a union can require its employees to be members of the union if membership is reasonably related to their performance of the job duties. She wrote: "The majority's view interprets Retail Store Employees far too narrowly, undervaluing the clerical employees' duties as they relate to serving the membership of the Union." She further wrote: "[T]he [administrative law judge's] key finding - that 'the clericals who perform duties dealing with membership issues and collective bargaining are performing the type of work which permits [the Union] to require them to be members and thus sisters or brothers to the members it represents' - is consistent with record evidence and the principles of Retail Store Employees."
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Maryland Wal-Mart law, and ERISA preemption
February 12, 2006 by Ross Runkel at LawMemo
Maryland's "Wal-Mart law" says companies with more than 10,000 in Maryland must either (1) spend at least 8 percent of payroll on health care or (2) contribute the difference to the Maryland Medicaid Fund.
It's called the "Wal-Mart law" because Wal-Mart is the only company that comes within the 10,000 employee requirement and does not spend at least 8 percent on health care.
Inevitably, there is a law suit challenging the new (January 12, 2006) statute. The Retail Industry Leaders Association (RILA) sued in federal court. The main claim is that the statute is preempted by the federal Employee Retirement Income Security Act (ERISA).
Here are some resources:
- The court complaint.
- RILA's legal arguments: Legal Overview: Discriminatory Health Care Mandates
- Discussion at BenefitsBlog
- Discussion at WorkplaceProf Blog
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Whistleblower: Be careful where you blow
February 12, 2006 by Ross Runkel at LawMemo
Is a whistleblower protected from retaliation if she blew the whistle inside the employer's organization, or blew it to the wrong individual or government agency?
As general rule, an employee-whistleblower is more likely to have statutory protection if she
- reports wrongdoing to a government agency rather than merely reports it to someone within the employer's organization.
- reports wrongdoing to the "correct" individual or government agency, that is, the individual or agency that is in a position to correct the wrongdoing.
Recent examples:
- The risk manager of a bank wrote some critical memos and delivered them to the bank's board of directors, audit committee, and upper management. The bank discharged the manager, and he sued claiming retaliation under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) as amended by the Federal Deposit Insurance Corporation Improvement Act (FDICIA). That statute protects disclosures to "any Federal banking agency or to the Attorney General."
The 11th Circuit held that this does not protect employees who make only internal reports to their own banks. Even though it was inevitable that the memos would come to the attention of one of the banking agencies mentioned in the statute, that was not enough to provide protection to the employee. Lippert v. Community Bank (11th Cir 02/08/2006).
(Other statutes do protect employees who engage in internal whistleblowing. It all depends on what the statute says.)
- An employee of a state-owned facility thought there were some financially improper transactions taking place. He reported these transactions to other government employees. The problem was that the alleged wrongdoing was being done by people who were the superiors to the persons he made the reports to. Therefore, the court held that he was not making a report to somebody who was in a position to correct the alleged wrongdoing. As a result, his activity was not protected by the Maryland Whistleblower Statute. Dept of Natural Resources v. Heller (Maryland Ct App 02/09/2006). (The Maryland court split 4-3 on this issue.)
I discuss whistleblowing in general as part of the "Employment Law 101" series: Whistleblowing #13.
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Religion discrimination complaint was OK
February 11, 2006 by Ross Runkel at LawMemo
Rule 8(a), Federal Rules of Civil Procedure, does not require an employee to plead all the elements of a prima facie case.
When Christopher Kolupa got fired, he sued claiming it was because of his religion - a violation of Title VII. A federal district judge dismissed the complaint for failure to state a claim (Rule 12 (b)(6)), but the 7th Circuit reversed. Kolupa v. Roselle Park District (7th Cir 02/10/2006).
The district judge required:
"that the complaint allege facts corresponding to each aspect of a 'prima facie case' under Title VII. The judge summarized what plaintiffs must prove to make out a prima facie case of religious discrimination and then faulted the complaint for omitting some points. One aspect of a prima facie case is that the employer treated differently persons who are similarly situated except with respect to the protected attribute (race, sex, religion, and so on). See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The district judge wrote that this complaint is defective because, although Kolupa 'attempts to describe several situations where other Roselle Park District employees allegedly were treated more favorably than [Kolupa], he fails to allege that the employees were similarly situated in their conduct or that any of the [other] employees were [sic] outside of his protected class.' The judge did not explain why a complaint must include such allegations (let alone why a plaintiff must use the indirect McDonnell Douglas method even though direct proof may be available)."
The 7th Circuit Court of Appeals said:
"It is enough to name the plaintiff and the defendant, state the nature of the grievance, and give a few tidbits (such as the date) that will let the defendant investigate. A full narrative is unnecessary. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) . . ..
"The question presented in Swierkiewicz was whether the complaint in a Title VII case must include factual allegations corresponding to each aspect of a prima facie case; the Court held that it need not, writing that '[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.' 534 U.S. at 510. Yet the district court dismissed Kolupa’s complaint on the same ground that Swierkiewicz had disapproved. The [Supreme] Court held, and we reiterate, that complaints need not plead facts and need not narrate events that correspond to each aspect of the applicable legal rule. Any decision declaring 'this complaint is deficient because it does not allege X' is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b)."
[Read the Swierkiewicz complaint.]
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Sick leave buy-back compensation is FLSA "pay"
February 10, 2006 by Ross Runkel at LawMemo
Sick leave "buy-back" monies should be included in an employee's "regular rate of pay" under the Fair Labor Standards Act (FLSA), says the 8th Circuit. Acton v. City of Columbia (8th Cir 02/08/2006).
(The 6th Circuit holds to the contrary. Featsent v. City of Youngstown, 70 F.2d 1456 (6th Cir 1995).
Section 207(e) of the FLSA provides that "all remuneration for employment paid to, or on behalf of, the employee" must generally be included in the employee's regular rate of pay.
The employer had a program whereby employees could buy back certain unused sick leave. The court held that "sick leave buy-back monies constitute remuneration for employment" under Section 207(e) and should thus be included in an employee's "regular rate of pay."
The court relied in principal part on 29 CFR Section 778.223, which addresses whether monies paid to employees for remaining on call are excluded from the regular rate of pay under Section 207(e)(2). The court observed that "[t]he plain language of the regulation makes clear that all monies paid as compensation for either a general or specific work-related duty should be included in the regular rate." Based on that observation, the court then reasoned that "[t]he critical question before this court is whether sick leave buy-back monies compensate the [employees] for some specific or general duty of employment." The court determined that the answer to that question is "yes," stating "the primary effect of the buy-back program is to encourage [employees] to come to work regularly over a significant period of their employment tenure." Recognizing consistent attendance to be a general duty of employment, the court reached its ultimate conclusion that sick leave buy-back monies constitute remuneration for employment under Section 207(e).
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EEOC discrimination charges decline in 2005
February 09, 2006 by Ross Runkel at LawMemo
Let the EEOC press release speak for itself:
WASHINGTON – Discrimination charges filed with U.S. Equal Employment Opportunity Commission (EEOC) against private sector employers declined last year by 5 percent, the agency reported today as part of its Fiscal Year 2005 data. EEOC officials cited the agency’s aggressive outreach and training efforts as a possible factor in the charge decrease.
Charges filed at EEOC field offices throughout the country totaled 75,428 for FY 2005, which ended Sept. 30, continuing a three-year decrease. Meanwhile, the agency last year held a record 5,516 outreach, education, and technical assistance events nationwide, reaching more than 350,000 people. These events covered laws enforced by the agency, as well as its major initiatives: Freedom to Compete, Youth@Work, and the President’s New Freedom Initiative.
“We are pleased to see that our proactive prevention efforts may be having an impact on the decrease in charges,” EEOC Chair Cari M. Dominguez said. She noted that other factors may also have played a part, including the economic cycle. Chair Dominguez stressed the Commission’s balanced approach of promoting voluntary compliance and strongly enforcing anti-discrimination laws.
The FY 2005 data also showed increases in merit resolutions, monetary benefits and lawsuits:
- Charge Resolutions - Resolved 77,352 private sector discrimination charges, 21.5% of which were closed with a favorable outcome for the charging party (merit resolution). The average charge processing time was 171 days.
- Mediation - Resolved 7,908 cases through the agency’s National Mediation Program, with an average resolution time of 81 days, and increased the number of “Universal Agreements to Mediate” with employers at the national, regional, and local levels.
- Monetary Benefits - Obtained nearly $380 million in monetary relief for charging parties through enforcement and litigation combined, including a record $271.6 million at the pre-litigation stage (including $115 million through mediation).
- Litigation - Filed 383 merits lawsuits (direct suits, interventions, and conciliation agreement enforcement actions), resolved 337 merits suits, and obtained $107.7 million in litigation monetary benefits. Of the total litigation activity, 139 suits were filed and 116 suits resolved that involved multiple aggrieved parties or victims of discriminatory actions.
The FY 2005 data is available on the agency’s web site at www.eeoc.gov. The year-end statistics show that charges based on race, sex and retaliation were the most frequent filings. While the number of charge filings decreased, there was little change in the percentage of all bases of discrimination alleged when compared to the agency’s total caseload (individuals may allege multiple types of discrimination in one charge filing). The FY 2005 charge filings break down as follows:
- Race - 26,740 charges (35.5% of all filings)
- Sex - 23,094 charges (30.6% of all filings)
- Retaliation - 22,278 charges (29.5% of all filings)
- Age -16,585 charges (22% of all filings)
- Disability - 14,893 (19.7% of all filings)
- National Origin - 8,035 (10.7% of all filings)
- Religion - 2,340 (3.1% of all filings)
- Equal Pay - 970 charges (1.3% of all filings)
Additionally, there were 12,679 sexual harassment charge filings and 4,449 pregnancy discrimination filings in FY 2005 with EEOC offices and state and local Fair Employment Practices Agencies (combined). Of the total number of sexual harassment charges, 14% were filed by men.
The EEOC is the federal government agency responsible for enforcing the nation's anti-discrimination laws in the workplace. Further information about the EEOC is available on its web site at www.eeoc.gov.
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Standard of review in ERISA benefits denial
February 07, 2006 by Ross Runkel at LawMemo
What is the standard of review for a court reviewing an ERISA-regulated benefit plan' denial of benefits?
- "abuse of discretion"?
- "de novo"?
The default rule is that review is "de novo."
The review is "abuse of discretion" if the plan gives the administrator discretionary authority to determine eligibility or benefits.
Even then, the review will be "de novo" if the plan is operating under a conflict of interest that reaches a level that the court thinks might have actually made a difference.
The 9th Circuit has ordered an en banc review of such a case and has withdrawn the earlier decision of a three-judge panel. The order: Abatie v. Alta Health & Life (9th Cir 02/06/2006).
Karla Abatie sued the administrator of an ERISA-regulated benefit plan for denying her claim for life insurance benefits. The trial court held that "abuse of discretion" was the standard of review, and denied Abatie's claim.
A 9th Circuit panel affirmed (2-1). Abatie v. Alta Health & Life (9th Cir 08/31/2005) (this opinion has been withdrawn, but you can still read it).
The DISSENT argued that "de novo" was the correct standard of review on the grounds that the administrator had a conflict of interests, and violated ERISA's procedural protections by ignoring a probative deposition and by adding an additional reason late in the internal appeals process.
For more, see my original source Workplace Prof Blog: Ninth Circuit Grants En Banc Review to Determine Proper Standard of Review in Denial of Benefits Case.
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Sexual orientation discrimination outlawed in Washington
February 04, 2006 by Ross Runkel at LawMemo
"Sexual orientation" will no longer be a lawful reason for employers to use in hiring, firing, and setting terms and conditions of employment in Washington State.
The legislature has enacted amendments to the Law Against Discrimination. The new statute, House Bill 2661, was signed by the Governor January 31, and is scheduled to go into effect June 8, 2006.
The amended statute defines "sexual orientation" this way: "heterosexuality, homosexuality, bisexuality, and gender expression or identity."
"Gender expression or identity" will mean: "having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth."
Rumor has it that there will be a a citizen initiative that will delay the effective date and put the matter on the ballot in the fall.
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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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