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When charging party refuses to cooperate with EEOC
July 31, 2006 by Ross Runkel at LawMemo
If a charging party refuses to cooperate with an EEOC investigation, can she still bring a court case? Circuits are split.
The 10th Circuit has said either cooperate or you can't sue. Shikles v. Sprint/United Management (10th Cir 2005). Quoting the 10th Circuit:
We hold that (1) the ADEA requires a private sector claimant to cooperate with the EEOC in order to exhaust his or her administrative remedies; (2) a plaintiff's exhaustion of administrative remedies is a jurisdictional prerequisite to suit under the ADEA; and (3) a plaintiff's failure to exhaust his or her administrative remedies does not justify granting summary judgment to the defendant, but rather justifies dismissing the case for lack of jurisdiction.
The 7th Circuit disagrees. You can sue even if you didn't cooperate with the EEOC investigation. Doe v. Oberweis Dairy (7th Cir 07/28/2006).
In the Doe case (involving Title VII) the 7th Circuit pointed out that the text of Title VII does not require a charging party to cooperate. In addition, EEOC regulations do not make cooperation a condition of the charging party's being able to sue.
My view: It's always nice to see a court (here, the 7th Circuit) that can read a statute and a regulation rather than making up its own rules.
More discussion of this: Statutory Rape and Title VII -- But Much More from the 7th Circuit from Jottings By An Employer's Lawyer
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Statutory rape is never "welcome" sexual harassment
July 28, 2006 by Ross Runkel at LawMemo
Say a 16-year-old girl voluntarily has sex with her supervisor and then claims sexual harassment in violation of Title VII. Can the employer get off the hook because the sex was "welcome"?
It's important to know, because the usual definition of sexual harassment involves "unwelcome" sexual advances.
The 7th Circuit says there should be a bright line. Look to the law of the state where the girl was employed and see if she was below the age of consent. If she was, then it's automatic. She cannot "welcome" the sexual advances of an older man.
Doe v. Oberweis Dairy (7th Cir 07/28/2006)
Jane Doe's claim has to jump some more hurdles. The case simply reversed a trial court's grant of summary judgment for the employer. Jane still has to prove her facts. Even if she can prove harassment by the supervisor, she has to connect that to her employer (which could be a little difficult because the supervisor wasn't really a full-blown supervisor). Also, the 7th Circuit suggested that her damages might be reduced because she was a willing participant.
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Deafness and Hearing Impairments and the Americans with Disabilities Act
July 26, 2006 by Ross Runkel at LawMemo
The EEOC has a new question-and-answer fact sheet on hearing impairments and the ADA.
Well written, and useful.
Here are some of the items covered:
- when a hearing impairment is a disability under the ADA;
- when an employer may ask an applicant or employee about a hearing impairment;
- how employers can ensure the confidentiality of applicants’ and employees’ medical information;
- what types of reasonable accommodations an individual with a hearing disability may need;
- to what extent an employer must provide a reasonable accommodation to an individual with a hearing disability;
- how an employer should handle safety concerns and harassment issues; and,
- how an individual with a hearing impairment can file a claim against an employer under the ADA or the Rehabilitation Act.
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Must employer front-end employee's attorney fees when employer sues employee?
July 26, 2006 by Ross Runkel at LawMemo
It seems improbable that an employee can require an employer to advance litigation costs in a suit by the employer against the employee.
This is exactly what might have to happen in a case in which the employer claims that the employee unlawfully deleted material from a laptop computer in violation of the federal Computer Fraud and Abuse Act.
The employment contract contained provisions requiring the employer to pay any expenses incurred in successfully defending suits "based on acts performed in connection with the company's business."
The employer sued the employee in federal court, and then the employee sued in state court seeking an order compelling the employer to advance him money for attorney fees and other expenses incurred in defending against the employer's suit.
Then the employer asked the federal court to enjoin the state suit.
No dice, says the 7th Circuit. Intl Airport Centers v. Citrin (7th Cir 07/25/2006).
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WARN Act no help for airport security screeners
July 24, 2006 by Ross Runkel at LawMemo
When the federal government took over airport security screening, formerly done by private companies, a lot of employees got laid off.
Employees were laid off without getting a 60-day WARNing notice. So they sued the private employer claiming a violation of the WARN Act.
The 9th Circuit holds that the WARN Act does not apply here. Deveraturda v. Globe Aviation Security (9th Cir 07/24/2006).
Why? Because the WARN Act applies only when an employer orders a plant closing or mass layoff. In this case, the layoff was caused by the federal government and not by the private employer.
My view:
This seems to be the correct interpretation of the WARN Act, which says: "An employer shall not order a plant closing or mass layoff until the end of a 60-day period" etc. etc.
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$17 million verdict against labor union
July 24, 2006 by Ross Runkel at LawMemo
A jury decided that a labor union owes $17,292,850 for mailing 11,000 defamatory postcards to customers of a hospital chain.
That's about $1,500 per postcard.
The union, UNITE Here, had a labor dispute with the Angelica Corp laundry service. Angelica had a contract with the Sutter Health hospital chain to clean sheets and towels. The union wanted Sutter to put economic pressure on Angelica. So the union sent 11,000 postcards to Sutter's customers and potential customers saying they "may be bringing home more than your baby if you deliver at a Sutter birthing center."
Just one problem. The jury in Placer County California thought this was defamatory, and issued a verdict for the hospital chain on July 21.
I learned about this from Jottings By An Employer's Lawyer, where Michael Fox likes to keep track of MDVs (million dollar verdicts) - Unusual MDV - Union Held Liable for Defamation
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Sexual stereotypes - perceived to be gay
July 22, 2006 by Ross Runkel at LawMemo
Co-workers harassed Christopher Vickers because they thought he was gay. Vickers thought that was sex stereotyping in violation of Title VII, but the 6th Circuit disagreed. Vickers v. Fairfield Medical Center (6th Cir 07/19/2006) (2-1 vote).
The United States Supreme Court in Price Waterhouse v. Hopkins, 490 US 228 (1989) held that making employment decisions based on sex stereotyping (i.e. - the degree to which an employee conforms to traditional notions of what is gender-appropriate) is actionable gender discrimination under Title VII.
The 6th Circuit rejected Vickers' reliance on Price Waterhouse, however, stating "[w]e conclude that the theory of sex stereotyping under Price Waterhouse is not broad enough to encompass [Vickers' case] .... "
The court noted that "Price Waterhouse focused principally on characteristics that were readily demonstrable in the workplace, such as the plaintiff's manner of walking and talking at work, as well as her work attire and her hairstyle." The court also noted that "[b]y contrast, the gender non-conforming behavior which Vickers claims supports his theory of sex stereotyping is not behavior observed at work or affecting his job performance."
The court opined that "[u]ltimately, recognition of Vickers' claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination. In all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices."
The DISSENT argued "I do not believe we can conclude on the basis of the pleadings alone that the harassment endured by the plaintiff was motivated solely by the defendants' perception that he was a homosexual, as distinguished from a belief that for reasons other than sexual preference the plaintiff did not conform to the stereotypical image of masculinity .... Because the majority believes that the case can be resolved on the pleadings alone, I respectfully dissent."
See what some others are saying:
- Leonard Link - Same-Sex Harassment Fails in the 6th Circuit says the case "is really out of step with other same-sex harassment decisions."
- Jottings By An Employer's Lawyer - Holding the Line on Gender Stereotyping says, "The dissent was from a district judge sitting by designation, so it will be interesting to see if there are enough votes on the Court to give this case a broader hearing. My guess -- no."
- Workplace Prof Blog - Distinguishing Gender Stereotype Discrimination from Sexual Orientation Discrimination says, "I think this decision is just plan wrong."
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Wal-Mart health care law is preempted - Part 2
July 19, 2006 by Ross Runkel at LawMemo
Why do I say the judge was wrong in holding that Maryland's Wal-Mart health care law is preempted by ERISA?
I said that here: Wal-Mart health care law is preempted.
The court opinion: Retail Industry Leaders Association v. Fielder (US District Court, District of Maryland 07/19/2006).
The judge's primary error is that he begins his analysis by declaring that the Maryland statute mandates that Wal-Mart pump more money into an ERISA plan.
Instead, one should ask the question: Does the Maryland statute mandate that Wal-Mart pump more money into an ERISA plan?
The answer: No. The Maryland statute does not mandate that Wal-Mart pump more money into an ERISA plan.
The Maryland statute mandates that Wal-Mart take 8% of its wages, and do one of the following three things. The choice is up to Wal-Mart:
- Spend it on an ERISA plan.
- Spend it on providing health care directly.
The judge quoted a federal regulation dealing with on-premises "facilities for the treatment of minor injuries or illnesses or rendering first aid in case of accidents occurring during working hours."
The judge then writes off this option as springing from the "active imagination of ... lawyers," and "utterly out of line with reality."
He seems to have a vision of neatly dressed nurses handing out aspirin tablets. That's obviously not what the regulation had in mind.
Bottom line: The judge wrote this option out of the state statute because he didn't think the legislature meant it. (A very interesting legal theory, indeed.)
- Write a check to the state government.
The judge dismisses this: While this is "theoretically true, it does not even approximate reality."
Why? Because "no rational employer would pay the state." Smart employers, given the choice, would beef up their ERISA plans rather than write a check to the state.
Bottom line: The judge wrote this option out of the state statute because Wal-Mart probably won't use it.
In the end, the judge took a statute with three options and rewrote it to contain only one option.
Now that the re-written statute requires Wal-Mart to spend money on its ERISA plan, the statute is preempted by ERISA. Nice going, Your Honor.
I have some other statutes I don't like. Could you come over and rewrite these for me?
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Wal-Mart health care law is preempted
July 19, 2006 by Ross Runkel at LawMemo
Maryland's statute requiring large employers to pay 8% of wages on health care is preempted by ERISA. Retail Industry Leaders Association v. Fielder (US District Court, District of Maryland 07/19/2006).
I think this decision is wrong, but here's what happened:
Maryland statute requires private employers with more than 10,000 employees (translation: Wal-Mart) to spend at least 8% of payroll on "health insurance costs." That means either "provide health care or health insurance."
The judge decided that this statute "has a connection with an ERISA plan and is preempted on that ground."
Essentially, the judge says there's a need to avoid multiple regulation from multiple states and localities, and the intended effect of the statute is to "force Wal-Mart to increase its contributions to its health benefit plan, which is an ERISA plan."
Sounds good, and there are US Supreme Court cases that tend to say this.
However, I think the district court erred.
The court stressed that it was looking at the "realities." I think the court should look at the legalities.
The state statute actually provides that Wal-Mart must do one of three things, only one of which has anything to do with ERISA plans. Thus, there are two ways for Wal-Mart to comply without implicating ERISA in any way.
Wal-Mart can (1) beef up its ERISA plan, (2) provide health care directly, or (3) pay the equivalent amount of money to the state.
The judge thought the realities were that Wal-Mart would beef up its ERISA plan. That's fine for realities, but the state law does not require that to happen.
Thanks to Jottings By An Employer's Lawyer for the tip.
I look forward to hearing an "I told you so" from Paul Secunda at Workplace Prof Blog
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4 rules of employment litigation
July 18, 2006 by Ross Runkel at LawMemo
I had to laugh at this one.
Suits in the Workplace, an employment law blog out of California, tells about Alberigi v. Sonoma County, Cal. Super. Ct., No. SCV-233788 (06/20/2006): No Good Deed Goes Unpunished.
It's the story of an employee with agoraphobia and panic disorder who applied for a job involving face-to-face interviewing. I'm not sure how this all landed in court, but a jury awarded him $6,000,000. The judge reduced that to $2,500,000.
Oh yes, the lawyer fee award was almost $900,000.
It's an interesting story, told with an immense sense of humor. Read it here: No Good Deed Goes Unpunished.
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Denise Howell leaving Reed Smith
July 16, 2006 by Ross Runkel at LawMemo
Denise Howell, a beacon to law bloggers, says her law firm fired her.
Her story: Have Aeron Will Travel
Comment by Dennis Kennedy: Must-read (and Must-Think-About) Blogging from Denise Howell
Comment by Jeneane Sessum: Cluelessness Reigns as Denise Is Unboomed
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"Kentucky River" cases and the breakdown of the system
July 16, 2006 by Ross Runkel at LawMemo
I have harsh words for the President, the Senate, and the NLRB.
The "Kentucky River" cases have been awaiting decision for a long time. Three cases will determine how one decides which workers are classified as "employees" entitled to the protections of the National Labor Relations Act, and which ones are "supervisors."
It was May 2001 when the US Supreme Court decided NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001), and told the NLRB that the Board's test for determining supervisory status was "inconsistent" with the statute. Three pending cases are called "Kentucky River" cases, in honor of that Supreme Court decision.
It's more than five years later, and the Board has not fixed things.
In part, it's because the Board has had lots of vacancies, and for a lot of the time has not been at its full five-Member strength. The Board dislikes issuing "big" decisions without having five voting Members.
The blame for the vacancies rests at the feet of the President and the Senate, who, simply put, have not carried out their responsibilities to appoint and confirm NLRB Members. That has been irresponsible.
The Board must take blame for some of the delay. Although the Board has been at full strength for seven months, and the cases are fully briefed, the cases remain undecided.
Employers and employees deserve better.
For more on these cases, see NLRB - "Kentucky River" Cases.
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Direct versus circumstantial evidence
July 13, 2006 by Ross Runkel at LawMemo
I've thought for a long time that courts place too much emphasis on a supposed distinction between "direct" evidence and "circumstantial" evidence.
Now Judge Posner takes on this distinction in Sylvester v. SOS Children's Villages (07/12/2006).
He says it's "vague."
He says it's "irrelevant to assessing the strength of a party's case."
Take heed, all ye who practice in the 7th Circuit.
Take heed, all ye who practice anywhere.
Jottings By An Employer's Lawyer has a nice discussion of this case: If You've Ever Been Taken to Task By Judge Posner ...
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Whistleblower Protection Act triggered by canceling vacancy
July 12, 2006 by Ross Runkel at LawMemo
If an alleged whistleblower applies for a job, and then the job vacancy is cancelled, can the applicant claim foul?
Yes. Ruggieri v. MSPB (Fed Cir 07/11/2006)
Ruggieri appealed from an order of the Merit Systems Protection Board (MSPB) dismissing his Individual Right of Action appeal under the Whistleblower Protection Act (WPA). The Federal Circuit reversed.
Ruggieri was not selected for a federal position because the agency that posted the vacancy announcement decided to cancel the announcement and not hire anybody.
The question for the court:
Whether an agency triggers the Whistleblower Protection Act by 'fail[ing] to take ... a personnel action.' 5 USC Section 2302(b)(8), when the agency declines to hire an applicant pursuant to a vacancy announcement, but instead of hiring a different person cancels the vacancy announcement and hires no one for the position at that time."
The answer: Yes.
A contrary conclusion "would immunize an agency's decision not to hire a whistleblower, so long as the agency was willing simply not to fill the position for which the whistleblower had applied, even if the agency's conduct was plainly motivated by whistleblowing activity."
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California sex harassment training in New York?
July 11, 2006 by Ross Runkel at LawMemo
California's Fair Employment and Housing Commission put out new proposed regs on June 20 dealing with required sex harassment training for supervisors.
One interesting proposal is that when counting employees (the regs apply only to employers with 50 or more employees), you count employees at all locations, including locations outside of California.
Also, the regs cover all supervisors that supervise California employees, whether or not the supervisors work in California.
See The Commission’s Modified, June 20, 2006 Proposed Regulations (pdf)
More details on the FEHC web site.
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Family Responsibility Discrimination (FRD)
July 11, 2006 by Ross Runkel at LawMemo
At Hastings College of The Law there's a program called Center for Worklaw Life. Elsewhere, I mentioned an article they published: Litigating the Maternal Wall.
They've coined a new phrase, so listen up.
Family Responsibility Discrimination (FRD)
What is it?
This quote from the Center's web site:
Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses/partners may find themselves discriminated against. They may be rejected for employment, demoted, harassed, passed over for promotion, or terminated – despite good performance evaluations – simply because their employers make personnel decisions based on stereotypical notions of how they will or should act.
Here are some examples of Family Responsibilities Discrimination:
- firing pregnant employees or telling them to get an abortion if they wish to remain employed;
- giving promotions to less qualified fathers or women without children rather than to highly qualified mothers;
- developed hiring profiles that expressly excluded women with young children;
- terminating employees without a valid business reason when they return from maternity or paternity leave;
- giving parents work schedules that they cannot meet for childcare reasons while giving nonparents different schedules; and
- fabricating work infractions or performance deficiencies to justify dismissal of employees with family responsibilities.
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"Discharge" includes normal end of one-day assignment
July 10, 2006 by Ross Runkel at LawMemo
A model worked for one day as agreed, and got paid two months later. She should have been paid immediately, and now might get $15,000 in penalties under California's wage and hour statute.
The statute imposes a penalty for delay in payment of wages. Wages are due immediately when an employer "discharges" an employee.
The issue for the California Supreme Court was whether it's a "discharge" when the original agreement between the company and the model was that the model would work for only one day.
Yes, that's a "discharge," triggering a duty of immediate payment of wages. Smith v. Superior Court (L'Oreal) (California 07/10/2006).
Quoting the unanimous decision:
A discharge is commonly understood as referring both to an involuntary termination from an ongoing termination relationship and to a release of an employee after completion of a specified job assignment or duration of time.
As a footnote, the penalty sought by the employee kicks in only if the company "willfully" failed to pay the wages in a timely manner, and the California Supreme Court expressed no opinion on that. Seems to me that at some point during a two-month delay it becomes "willful."
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US Supreme Court Docket # 06-1
July 09, 2006 by Ross Runkel at LawMemo
The first US Supreme Court certiorari petition of the 2006-2007 session is an employment law case: Averill Park Central School District v. Cioffi, Docket number 06-1.
I don't see the Court being interested in this one. They decide only about 75 cases each year, out of thousands of petitions, and there needs to be a good reason to pick one case out of the many.
The case involves a public school teacher (and athletic director) who spoke out about a serious hazing incident to his employer - the school board. He claims his job was abolished because of this, so he sued claiming retaliation in violation of the 1st amendment.
The 2nd Circuit looked at the case (Cioffi v. Averill Park Central School District (2nd Cir 04/04/2006)) and concluded that the teacher was speaking out on a matter of public concern, and that he had 1st amendment protection. In passing, the 2nd Circuit distinguished the case from Garcetti v. Ceballos (US Supreme Court 05/30/2006), even though Garcetti had not yet been decided.
The Supreme Court might summarily remand for reconsideration in light of the Garcetti decision, but don't expect to see a full-blown decision on this one.
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Jottings By An Employer's Lawyer - a good four years
July 08, 2006 by Ross Runkel at LawMemo
Jottings By An Employer's Lawyer turns four years old this month.
I follow a number of blogs dealing with employment law and human resources, using a newsreader that automatically notifies me when there's something new. If more than one has something, I always read Jottings first. Always.
It's written by Michael Fox of Ogletree Deakins - a management-side employment lawyer.
Jottings By An Employer's Lawyer is consistently accurate, timely, relevant, and devoid of extraneous meanderings. You can tell Mike represents employers, yet his writing is useful for professionals on both sides of the table.
Here's what I said a year ago. Still true.
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Conservative judge issues seriously pro-employee decision
July 08, 2006 by Ross Runkel at LawMemo
When a conservative judge issues a seriously pro-employee decision, I take notice.
The judge: Diarmuid O'Scannlain, 9th Circuit.
The case: Dark v. Curry County (9th Cir 07/06/2006).
Robert Dark, an epileptic, drove heavy equipment for the County. After having a seizure while driving, the County fired him.
Dark sued under the Americans with Disabilities Act (ADA) and the Oregon counterpart. The trial court threw it out, and the 9th Circuit reversed, writing a roadmap for lawyers dealing with disability discrimination.
Bottom line: There were genuine issues of material fact that need to be decided by a jury.
Fact One: Did the County demonstrate a legitimate, non-discriminatory reason for discharging Dark?
The employer gave two reasons for the discharge. The initial letter of discharge said that his "condition ... prevents you from performing your duties." Later, the County Board issued an order saying that Dark acted irresponsibly and recklessly. Even the second reason would not fly because "conduct resulting from a disability is considered to be part of the disability." Plus, Dark filed an affidavit saying that six other employees were not disciplined when they had accidents.
Fact Two: Pretext. Was "misconduct" just a pretext?
The record was "replete with evidence suggesting 'misconduct' was a pretext" for disability discrimination. Instead of being fired immediately, he was sent for a medical exam. Documentation showed the County was more worried about Dark's general condition than the single incident, and worried about his future ability to perform. Other workers were not disciplined for similar accidents.
Fact Three: Was Dark qualified?
The County did not engage in an interactive process to see whether any of the following accommodations were reasonable and available: (1) Temporary change of duties; (2) Reassignment to a new position; (3) Use of accumulated sick leave or medical leave without pay.
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Establishment of religion - in the Navy
July 07, 2006 by Ross Runkel at LawMemo
Navy chaplains are of four types: Catholic, liturgical Protestant, non-liturgical Protestant, and "special worship."
Catholics are allowed to stay on duty beyond normal age limits. Others are not. That's the complaint made by a group of non-liturgical Protestant chaplains who sought a preliminary injunction against the Navy.
The DC Circuit faced the question of whether the plaintiffs could show the "irreparable harm" that is always necessary in order to get a preliminary injunction.
It's easy. Plaintiffs alleged an "establishment of religion" by the Navy, in violation of the 1st amendment. The court says that automatically makes up irreparable harm.
It took the court a lot of pages to figure it out, but in the end the rule was simple. Violation of the Establishment Clause is per se irreparable harm.
Now the case goes back to the trial court to sort out all the rest of the requirements for a preliminary injunction.
Chaplaincy of Full Gospel Churches v. England (DC Cir 07/07/2006).
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Redefining "disability"
July 07, 2006 by Ross Runkel at LawMemo
It was a long road. Among cries of judicial legislation, the Washington Supreme Court adopted a new definition of "disability" - the same definition used by the federal Americans with Disabilities Act (ADA). The court split 5-4.
The past:
Washington courts have struggled to define "disability" under the Washington Law Against Discrimination (WLAD). The Washington State Human Rights Commission provided a definition in Washington Administrative Code (WAC) 162-22-020, which defines "disability" as "the presence of any sensory, mental, or physical disability .... " Under WAC 162-22-020, "[a] condition is a 'sensory, mental, or physical disability' if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question ... or [was] discriminated against .... "
A circular and confusing definition.
In Doe v. Boeing Co., 846 P.2d 531 (1993), the court noted that this definition is circular because it requires a factual finding that the employee was discriminated against "because of the condition in order to determine whether the condition is a [disability]." Similarly, the court has noted that "WAC 162-22-020 ... conflicts with much of our antidiscrimination jurisprudence because the regulation would require a disability discrimination plaintiff to prove that he has been discriminated against because of his condition to prove that he is 'disabled' in the first place."
The court sees the light. McClarty v. Totem Electric (Washington 07/06/2006) (5-4).
The court adopted a new definition of "disability" under WLAD, stating
"We adopt the definition of disability set forth in the federal ADA [(Americans with Disabilities Act )]."
"We hold that a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment."
The dissent sees darkness.
In a DISSENTING opinion Judge Alexander accused the majority of "legislating from the bench," and noted that the majority adopted a definition of "disability" not advocated by either party.
In a separate DISSENTING opinion Judge Owens leveled similar criticisms, observing "[r]ather than answering the narrow question before us, the majority has usurped the authority of the legislature and enacted a new law...."
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D. Michael Reilly - Employment lawyer interview
July 06, 2006 by Ross Runkel at LawMemo
Ross' Employment Law Blog interviewed D. Michael Reilly, shareholder at Lane Powell.
Q: You are the Director of Lane Powell's Labor and Employment Group, and also the Employee Benefits Practice Group. What are your main challenges?
Reilly: We strive to get the younger associates into client meetings early on. In reality, we're in the people business, and we need to understand the law and communicate it in a way that is helpful to the client. So one of our challenges is to get younger associates up to speed on the legal side, and to make sure they can listen and communicate effectively with clients.
The other challenge for us at Lane Powell is our "sundown" rule. We try to return all calls by sundown, and we constantly strive to have a team ready to respond if a new problem develops quickly. We're very good at doing this, but it sometimes takes a team effort.
Q: You have a varied employment law practice. What do you like about practicing employment law?
Reilly: Whether it is advice on an employee discipline or termination issue, the terms of the employee handbook or training, the effect of a collective bargaining agreement, or the terms of an ERISA plan, I enjoy advising and representing large and small businesses. With over 20 years litigating the issues, I think I'm pretty good at communicating with clients, using real world trial and litigation examples, to drive home with clients how to prevent employment issues from turning into lawsuits, and how to resolve lawsuits to their advantage, whether in early mediation or through trials or arbitrations. Very early on I like to give the client the good news . . . and the bad news, so that the client can make savvy business decisions quickly. Employers I represent are becoming much more sophisticated in how to handle employment issues in the workplace. That makes my job more satisfying, and easier.
Q: Is there a down side to it?
Reilly: Sure. Sometimes even the best intentioned employer can get snagged by a procedural technicality, resulting in a claim. It's hard to explain to them that if they had consulted earlier on, even with a quick phone call, the issue would not have festered.
I like to tell clients that I do not tend to bill for shorter phone calls. I find this helps develop a real partnership with the client. I have this policy based on my father's experience with employment lawyers when he ran a chain of drug stores. He avoided calling his attorney because he didn't want to pay for a short phone call. But the later cost was higher than the time he would have spent on the call.
Q: ERISA is an important part of your work. What do you like about dealing with ERISA?
Reilly: ERISA is the federal statute governing employee benefits. It provides huge legal advantages to employers to encourage employers to provide more employee benefits to employees. Many smaller employers haven't tapped into these legal advantages, and they should. We help them do that here, and they are much appreciative at the end of the process.
Q: What advice do you have for a beginning lawyer or law student who is interested in an employment law practice?
Reilly: Attend employment CLEs and become indoctrinated in the law, because it is very specialized. Younger lawyers should do whatever they can to get into the courtroom, even if that means going and watching employment cases being tried. I think I advise my clients better because I have tried the cases in the courtroom. That perspective really helps when advising clients, and preparing to resolve a case, or trying it.
Q: If you could change one thing in the law of employment, what would it be?
Reilly: Some of the Ninth Circuit law governing employment issues. Cases like last week's United States Supreme Court opinion in Burlington Northern and Santa Fe Railway Co. v. White present some newer challenges to employers in Title VII retaliation cases. But the good news is that the decision in White should have the affect of trimming back some very employee friendly Ninth Circuit law on the issue of what constitutes "adverse employment action."
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Cal Ag interest arbitration is constitutional
July 05, 2006 by Ross Runkel at LawMemo
When a California agricultural employer and a union fail to agree on a collective bargaining agreement, they are required to engage in interest arbitration to write a contract.
After an arbitrator [actually improperly called a mediator] wrote a contract for The Hess Collection Winery and United Food and Commercial Workers, the employer tried to get out of it. A petition to the California Agricultural Labor Relations Board (resulting in a decision in favor of the union) was followed by a court challenge.
The California Court of Appeal ruled for the union. It was 2-1. Hess Collection Winery v. California Agricultural Labor Relations Board (California Ct App 07/05/2006).
The court said:
"Hess [the employer] seeks an order setting aside the Board’s decision. Hess contends the statutory scheme (§ 1164 et seq.) violates principles of due process in that it unreasonably interferes with the right of contract, denies the right of judicial review, and is aimed at protectionism. Hess also contends that the scheme violates equal protection, invalidly delegates legislative authority, and is vague and overbroad."
"We shall conclude Hess’s contentions are without merit."
The dissent argued that the statute delegated legislative power unconstitutionally, and violated the equal protection guarantees of both the state and federal constitutions.
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Supreme Court roundup
July 05, 2006 by Ross Runkel at LawMemo
The US Supreme Court is in recess. Here are the Court's employment law cases for the 2005-2006 Term:
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Retaliation - "Could well dissuade a reasonable worker" definition of retaliation.
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Comparing qualifications - "Slap you in the face" test is rejected.
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FLSA - Pre-shift waiting time not compensable, all other time is compensable.
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1st amendment - Statements made pursuant to employee's official duties are not protected.
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1st amendment - Schools cannot exclude military recruiters without losing federal funds
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ERISA - ERISA Plan can get reimbursement after participant recovers a settlement from a third-party.
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Jurisdiction - No federal court jurisdiction for health plan's reimbursement case (5-4).
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Bankruptcy - Workers comp premiums have no bankruptcy priority (6-3).
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RICO - Employee v. employer RICO case sent back to 11th Circuit.
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Federal Employees - Civil Service Reform Act jurisdiction case sent back to the 9th Circuit.
*** Cases Decided ***
Retaliation - "Could well dissuade a reasonable worker" definition of retaliation.
Burlington Northern v. White
(06/22/2006)
http://www.lawmemo.com/docs/us/white/
The issue was whether two employer actions were of the type forbidden by Title VII's anti-retaliation section. (a) White was working as a fork lift operator, and the employer changed her duties to standard track laborer. (b) 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 Court held: (1) Title VII's anti-retaliation provision [Section 704] "does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace." (2) The anti-retaliation provision "covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."
Title VII - 15-employee threshold is not jurisdictional.
Arbaugh v. Y & H Corp
(02/22/2006)
http://www.lawmemo.com/docs/us/arbaugh/
Title VII defines an "employer" as an employer that has 15 or more employees. The Court held that Title VII's 15-employee threshold does not determine federal court subject matter jurisdiction. It is a matter going to the merits of a Title VII claim, so it must be raised by the defendant no later than the end of the trial.
Proof of bias - "Boy" can be probative of racial bias.
Comparing qualifications - "Slap you in the face" test is rejected.
Ash v. Tyson Foods (02/21/2006)
http://www.lawmemo.com/docs/us/ash/
Two African-Americans claimed they were denied promotions because of their race. (1) 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 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." (2) 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 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.'" The 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.
FLSA - Pre-shift waiting time not compensable, all other time is compensable.
IBP, Inc v. Alvarez; Tum v. Barber
Foods (11/08/2005)
http://www.lawmemo.com/docs/us/ibp/
In the meat cutting industry employees must wear special protective clothing. The daily pattern is that employees (1) wait to pick up and don the clothing, (2) don the clothing, (3) walk to the individual work station, (4) work, (5) walk back to where they started, (6) wait to doff the clothing, (7) doff the clothing. The issue was whether the walking and waiting time was compensable time under the Fair Labor Standards Act (FLSA) and the Portal-to Portal Act. The Court held that the pre-shift waiting-to-don time was not compensable, and that all other time was compensable.
1st amendment - Statements made pursuant to employee's official duties are not protected.
Garcetti v. Ceballos (05/30/2006)
(5-4)
http://www.lawmemo.com/docs/us/garcetti/
Ceballos, a deputy DA, sued his employer claiming retaliation 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 Court held that Ceballos was not speaking "as a citizen," and his statement has no constitutional protection. "The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties." "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
1st amendment - Schools cannot exclude military recruiters without losing federal funds
Rumsfeld v. Forum for Academic and
Institutional Rights (03/06/2006)
http://www.lawmemo.com/docs/us/forum/
The Solomon Amendment requires that colleges and universities that receive federal funds must treat military recruiters no differently than they treat other recruiters. Most law schools have policies against discrimination on the basis of sexual preference, and many prohibit military recruiters because of the military's position on gay and lesbian personnel. In response, the government threatens to cut off federal funds for the entire university of which the law school is part. The Court held that the Solomon Amendment does not violate the 1st amendment.
ERISA - ERISA Plan can get reimbursement after participant recovers a settlement from a third-party.
Sereboff v. Mid Atlantic Medical
Services (05/15/2006)
http://www.lawmemo.com/docs/us/sereboff/
After an ERISA Plan paid about $75,000 to the Sereboffs to cover medical expenses connected to accident-related injuries, the Sereboffs recovered $750,000 in a settlement with a third-party tortfeasor, and placed those funds into an investment account. The Plan sued the Sereboffs to get reimbursed for the benefits it had paid. The Plan sued under ERISA Section 502(a)(3) which allows a Plan to recover "other equitable relief." The Court held that the Plan could recover because there was a constructive trust or equitable lien on a specifically identifiable fund, and the type of relief sought by the plan administrator was "equitable" in nature.
Jurisdiction - No federal court jurisdiction for health plan's reimbursement case (5-4).
Empire HealthChoice v. McVeigh
(06/15/2006)
http://www.lawmemo.com/docs/us/empire/
Under the Federal Employees Health Benefits Act, the US Office of Personnel Management (OPM) negotiates health benefit plans for federal employees. OPM contracts with Blue Cross to provide a nationwide health plan, and Empire administers the plan in New York. McVeigh's decedent was injured and received medical benefits under the plan, and later McVeigh recovered a settlement against third parties who allegedly caused the injuries. Empire sued McVeigh in federal court seeking reimbursement, and asserting jurisdiction under 28 USC Section 1331 (actions arising under the laws of the United States). The Court held that federal courts do not have jurisdiction under Section 1331. Empire's claim was based on provisions in the contract between OPM and Blue Cross, and is governed by state law. Empire's claim is not a creature of federal law.
42 USC Section 1981 - Individual who was not a contracting party has no standing to sue under 42 USC 1981.
Domino's Pizza v. McDonald
(02/22/2006)
http://www.lawmemo.com/docs/us/dominos/
McDonald's wholly-owned corporation entered into contracts with Domino's, and McDonald claimed that Domino's terminated its contracts because of McDonald's race. The suit was brought under 42 USC Section 1981. The Court held 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.
Bankruptcy - Workers comp premiums have no bankruptcy priority (6-3).
Howard Delivery Service v. Zurich
American Ins (06/15/2006)
http://www.law.cornell.edu/supct/html/05-128.ZS.html
An employer went bankrupt, owing unpaid workers compensation insurance premiums to its insurer. The Court held that workers compensation premiums were not unpaid "contributions to an employee benefit plan" under 11 USC Section 507(a)(4), and thus were not entitled to a priority in bankruptcy.
RICO - Employee v. employer RICO case sent back to 11th Circuit.
Mohawk Industries v. Williams
(06/05/2006)
http://www.lawmemo.com/docs/us/mohawk/
The Court did not decide this case, and remanded it to the 11th Circuit for reconsideration in light of Anza v. Ideal Steel Supply Corp (US Supreme Court 06/05/2006) - http://supct.law.cornell.edu/supct/html/04-433.ZS.html.
Federal Employees - Civil Service Reform Act jurisdiction case sent back to the 9th Circuit.
Whitman v. Department of
Transportation (06/05/2006)
http://www.lawmemo.com/docs/us/whitman/
The Supreme Court said that the 9th Circuit was correct in saying that the Civil Service Reform Act does not confer federal court jurisdiction. However, 28 USC Section 1331 confers jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Therefore, the question is not whether the Civil Service Reform Act confers jurisdiction, but whether it removes the jurisdiction granted by Section 1331. This, in turn, may require findings as to whether Whitman's allegations state a "prohibited personnel practice." The Court remanded for consideration of this issue, and suggested several other issues that may be addressed on remand.
*** Case Pending ***
Title VII statute of limitations - How does Title VII's 180-days statute of limitations apply to periodic paychecks alleged to be discriminatory?
Ledbetter v. Goodyear Tire &
Rubber (No. 05-1074)
Decision below: Ledbetter v. Goodyear Tire & Rubber (11th Cir
08/23/2005)
http://caselaw.lp.findlaw.com/data2/circs/11th/0315264p.pdf
Ledbetter claimed her employer paid her a smaller salary than it paid male co-workers because of her sex. Her periodic paychecks were based on annual salary reviews over a period of several years. The 11th Circuit held that her claim was time barred because she could not prove intentional discrimination in the one decision during the limitations period or the last decision preceding the limitation period. The US Supreme Court will review the 11th Circuit decision during its 2006 Term which begins in October.
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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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