K&S Quick Clips

The U.S. Department of Labor has announced a new "elaws Advisor" tool called the FirstStep Recordkeeping, Reporting and Notices elaws Advisor. This free interactive website is designed to help employers determine what recordkeeping, reporting and notice requirements apply to them under the DOL enforced laws. By responding to a series of questions, you can simulate a conversation with a DOL expert and obtain information on the requirements of each law.

According to the DOL, this new elaws Advisor has been integrated with the revised and expanded FirstStep Poster and FirstStep Employment Law Overview Advisors. The FirstStep Poster Advisor can be used to download and print DOL for free and has been revised to include information on where the posters must be displayed in the workplace and what size and language requirements apply to each.

The link to the DOL site is www.dol.gov/elaws/firststep.

The Grueling Burden Of Paperwork

30 Apr 2008 16:19:32 GMT

The Grueling Burden Of Paperwork, April 29, 2008

Fire Inspectors for New York City are required to carry the paperwork for the following day's inspections home with them, and to carry it to their first job each morning from home. That efficiency, according to several of them, made the "burden" of traveling to and from home work time. The dispute went to federal court where it recently was determined that the carrying of a briefcase full of paperwork did not turn travel to and from home into work time. The NYFD aura of 9/11 only carries over so far.

Super Sleuth School Principal May Be Liable For Videotaping Teachers In Locker Room

25 Apr 2008 17:30:24 GMT

Super Sleuth School Principal May Be Liable For Videotaping Teachers In Locker Room, April 25, 2008

by Kelly C. Hoelzer

Here is a good example of why you should always talk to HR before conducting an investigation into possible employee misconduct.

Dearborn High School in Dearborn, Michigan, employs three male physical education teachers. These teachers share an office, which also serves as their locker room and changing area. The only way to access their locker room is through the boys' locker room.

School administrators suspected one of the physical education teachers of stealing from the student locker rooms. The principal and school police liaison agreed to install two hidden video cameras in the teachers' office/locker room, hoping to catch the alleged perpetrator in the act of putting stolen items into his desk. The images from the hidden cameras were not displayed live, but were recorded and stored for 30 days on the school's video security system.

After two of the teachers discovered the hidden cameras, they complained to the principal. After finally conferring with the school district's human resources director, the principal removed the cameras.

The teachers sued the school district and the principal in federal court alleging violations of their constitutional right to privacy guaranteed by the Fourth Amendment, as well as various state tort and statutory claims, including one for invasion of privacy. The court determined that as public employees, the teachers had a constitutional right to be free from unreasonable searches by their public employer. Given that their office also served as a locker room where they changed clothes, and was accessible only by going through the students' locker room, the court found that the teachers had a reasonable expectation of privacy in that area.

The court ruled, however, that the school district was not liable because it did not have a policy of installing video cameras in staff offices and because it was immune from liability under Michigan law. The school principal, on the other hand, was not entitled to summary judgment and could be held personally liable for her violation of the teachers' constitutional rights and for violations of Michigan tort law and a statute prohibiting video surveillance in private places. Perhaps the principal could have avoided her legal troubles if she had simply contacted the human resources director before investigating. See Helisek v. Dearborn Public Schools, No. 06- CV-12369-DT (E.D. Mich. Mar. 31, 2008).

Unions Still Don�t Get Along: TRO Issued Against SEIU

18 Apr 2008 14:08:20 GMT

Unions Still Don�t Get Along: TRO Issued Against SEIU, April 18, 2008

The heated battle between rival unions SEIU and the California Nurses Association/National Nurses Organizing Committee (CAN/NNOC) found its way to a California courtroom on Wednesday, April 16, where a judge issued a temporary restraining order against SEIU President Andrew Stern and all SEIU staff. CAN/NNOC v. Stern, No. RG08381780 (Cal. Super. Ct. April 16, 2008). The Court ordered SEIU and Stern to cease and desist from stalking and harassing officers, directors, and staff of the nurses' union. Stern was also ordered to instruct his employees not to attempt to enter any CNA/NNOC offices or private property of any CNA/NNOC officers, directors, or employees. A May 1 hearing has been scheduled on the CAN/NNOC�s request for a preliminary injunction. Despite recent events at a Michigan Conference, where a number of people were injured when SEIU members attempted to push and shove their way in to a banquet hall (See our April 15 Quick Clip), SEIU President Stern has stated that "under no circumstances have SEIU members or staff harassed CNA members or leadership."

New Fmla Poster On Military FMLA Issued By DOL

16 Apr 2008 15:02:51 GMT

New Fmla Poster On Military FMLA Issued By DOL, April 16, 2008

The Department of Labor (DOL) has issued a poster on Military FMLA. This is a mandatory posting for FMLA covered employers and should be placed next to the current FMLA poster advising employees of their FMLA rights. The poster provides general information on military FMLA, which was signed into law by the President in January. The DOL has not yet issued regulations on military FMLA, but employers are still required to follow the law, which provides for: (a) up to 26 weeks of FMLA leave to care for a spouse, son, daughter, parent, or next of kin of a servicemember who has suffered a serious illness or injury in military combat; and (b) up to 12 weeks of FMLA leave due to a "qualifying exigency" related to active military duty in support of a contingency operation. Get your copy of the new DOL poster at: http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.

Aren�t Unions Supposed to Bring People Together?

15 Apr 2008 16:51:09 GMT

Aren�t Unions Supposed to Bring People Together? April 15, 2008

Do you think that unions only accuse employers of union busting and that all unions get along? Think again. A dispute between the SEIU and the California Nurses Association/National Nurses Organizing Committee (CAN/NNOC) has turned very, very ugly. The latest conflagration involves an SEIU demonstration on April 12 during a national labor conference in Michigan organized by a labor friendly non-profit that publishes Labor Notes. The theme of this year's conference: “Rebuilding Labor's Power." But a tussle between the two unions over the representation of nurses in Ohio and Nevada turned into an actual tussle, with the CNA/NNOC accusing the members of the SEIU of physically assaulting members of other unions attending the conference who stood in their path as they tried to enter a banquet hall.

The SEIU claimed that there was a “peaceful protest� at the conference to voice the SEIU�s disapproval of rival union CNA/NNOCs “anti-union campaign in Ohio.� This peaceful protest included pushing and shoving as SEIU members tried to get into the banquet and other conference attendees tried to keep them out. Several people got hurt and one person died from a heart attack. A statement issued by the SEIU�s Executive Vice President said that: "Open debate serves an important role as we work to strengthen our movement. The Labor Notes conference is the right time and place to discuss our differences." It sure is an interesting definition of discussion.

Transgendered Job Applicant Has Title VII Claim

14 Apr 2008 21:05:57 GMT

Transgendered Job Applicant Has Title VII Claim, April 14, 2008

The development of the law holding that Title VII protect transgendered individuals, not because they are transgendered, but because they are not meeting an employer�s gender stereotype continues. Recently, in Lopez v. River Oaks Imaging & Diagnostic Group Inc., No. 4:06-cv-03999 (S.D. Tex. April 3, 2008), the court denied a company�s motion for summary judgment where a biological male who presented himself publicly as a female, identified himself with both his male and female names, and listed personal references who knew of his transgendered status had a job offer withdrawn by a medical clinic that claimed he had “misrepresented his sex� during the application process. Adopting a view taken primarily by the Sixth Circuit, the court held that "Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer."

In an interesting twist, the court denied the motions for summary judgment filed by both parties, explaining that the clinic's withdrawal of the job offer could be interpreted either as evidence of "animus" against an individual who presents himself "in a manner inconsistent with hiring managers' preconceived notions of what a male should look and act like," or as evidence of its enforcement of its policy forbidding misrepresentation by job applicants.

Browies Laced With Pot Not Enough For Arbitrator

10 Apr 2008 19:31:46 GMT

Browies Laced With Pot Not Enough For Arbitrator, April 10, 2008

Most labor arbitration awards are relatively fair, taking into account all of the evidence and balancing the equities of the parties� positions. Recently, however, an arbitrator in Alabama may have crossed that threshold by ruling that a school bus driver who was fired for testing positive for marijuana should be reinstated with full back pay because the driver claimed she was at a party and unknowingly ate brownies laced with pot, despite her former relatives� testimony that they had observed the grievant smoke marijuana on numerous occasions.

The case began when the bus driver was given a random drug test and tested positive for marijuana. When confronted with the test results, the driver offered no explanation except to state that she attended a party the previous day. She was also offered an opportunity to explain to the Board of Education why she tested positive and why she should not be terminated but failed to do so.

At the hearing before the arbitrator, the driver�s former sister-in-law and former mother-in-law both testified that they had personally observed the grievant smoke marijuana while employed as a bus driver and prior to her employment. The driver, however, claimed that she had never knowingly used pot in her life. She also claimed that she had been to a party the day before the test and had eaten some brownies served there. Her boyfriend, who claimed to have accompanied her to the party, testified that he heard someone at the party say that “somebody had put marijuana in some of the brownies.�

The arbitrator ruled that the termination was improper and upheld the grievance, under the following rationale:

“No expert testimony was offered to show that the grievant would still be under the influence of marijuana ingested the previous day or that her driving skills would be impaired.�
“The grievant's employment history and testimony established that she was a good bus driver, had never received a citation or been written up for failure to perform all functions expected of her as a bus driver.�
“Testimony established grievant was well liked by coworkers and the parent's of her students.�
“After a thorough review of all the evidence and much soul searching I find that I have a nagging doubt and I think a reasonable one, that the grievant knew the brownies contained marijuana prior to eating one. In this situation I could not in good conscience uphold the extreme penalty of termination. I therefore hold that the Washington County Board of Education has not established that the grievant knowingly ingested marijuana into her system.�

It seems that the arbitrator in this case went too far, especially considering that the driver was awarded full backpay. Nonetheless, it remains as an arbitration award on the books. Washington Board of Education, 124 LA (BNA) 1317 (J. Donovan, 2007).

FMLA Does Not Require Reasonable Accommodation

9 Apr 2008 16:37:14 GMT

FMLA Does Not Require Reasonable Accommodation, April 9, 2008

A federal appeals court in Philadelphia has stated that the Family and Medical Leave Act does not require an employer to accommodate a returning employee's inability to work full time. There was no dispute that the employee was unable to work full time, which was an essential function of the job. Baker v. Hunter Douglas, Inc., No 06-5149 (3rd Cir., March 19, 2008).

Teamsters Ratify Ups National Agreement

8 Apr 2008 21:37:36 GMT

Teamsters Ratify Ups National Agreement, April 9, 2008

The Teamsters Union announced yesterday that its membership ratified a 64-month national agreement with UPS Freight.

According to the union, the agreement provides for general wage increases for city drivers totaling about $4.35 per hour over the term of the agreement. City drivers previously earned about $21 per hour.

Similar wage increases will be provided to dockworkers employed on terminal sites and to long-haul freight drivers. For example, the wage rate of a full-time dockworker will increase by $3.78 per hour over the life of the contract, and long haul drivers will receive a mileage rate increase of 11 cents per mile, an amount intended to equate to the increase provided to city drivers.

The ratified agreement establishes a new self-insured health care plan which will have benefits similar to those provided under the previous health care plan, according to the union. The employees� share of monthly benefits, which remain fixed during the term of the agreement, will be $50 for single coverage, $100 for couples coverage, and $150 for family coverage.

The new contract, which expires July 31, 2013, covers an estimated 9,900 drivers and dockworkers at 136 UPS Freight terminals nationwide.

UFCW Membership Ratifies Agreements With Grocers

8 Apr 2008 21:37:35 GMT

UFCW Membership Ratifies Agreements With Grocers, April 9, 2008

Four separate contracts were ratified last week by members of the United Food and Commercial Workers Union who work for Giant Food and Safeway in the Washington, D.C. and Baltimore areas. The agreements raise wage rates and maintain most benefits. However, they also impose a new requirement that new hires pay a portion of the companies� health insurance premiums.

According to reports, most current full-time and part-time employees will receive general wage increases totaling $1.50 per hour over term of the agreements, all of which run for four years. Service clerks and courtesy clerks will receive wage increases of $ 1.00 and 70 cents per hour, respectively, over the duration of the agreements. In addition, the starting wage rates for food clerks, dairy/deli clerks, and some other positions will be increased by 16 percent (from $6.60 to $7.60 per hour).

Health care benefits under the new agreements are maintained with little change for current employees, who do not make contributions toward health care premiums. However, most new hires will pay between $5 and $15 per week depending on their selected coverage levels. In addition, the parties agreed to moderate pension contribution increases without improving pension benefits.

The agreements cover about 15,000 Giant and 8,000 Safeway employees.

Calling Your Prospective Employer a Bad Name Protected

8 Apr 2008 18:00:45 GMT

Calling Your Prospective Employer a Bad Name Protected, April 8, 2008

by Frank L. Kollman

A federal court has affirmed a decision of the National Labor Relations Board finding that a bus company's failure to hire 6 drivers was illegal. The six drivers, who had been employed by the prior bus company, opposed the award of the bus contract to the new company. When it came time to hire drivers, the new company remembered the uncomplimentary letters those drivers wrote to the school district opposing the award of the contract.

The NLRB and the court found that the letter writing campaign, suggested by the union the drivers were affiliated with, was protected concerted activity. The reasoning was that the drivers had an interest in retaining their wages and benefits if the new company got the contract. Five Star Transportation, Inc., No. 07-1316 (1st Cir., March 31, 2008).

This is another instance where the law distorts the employer-employee relationship. If a prospective employee says he does not want a new employer, the new employer ought to be able to say it does not want the prospective employee.

Lunch and On-Call Time Not Compensable

7 Apr 2008 14:41:46 GMT

Lunch and On-Call Time Not Compensable, April 7, 2008

A federal appeals court in Chicago has ruled that employees are not entitled to be paid for lunch breaks, even though they were on call for emergencies and required to be within a two-hour drive of their normal duty station. The court found that the employees were not working during this time, even though there were minor restrictions on their activities, and they were required to wear beepers. Jonites v. Exelon Corp., No. 07-3053 (7th Cir., April 3, 2008).

Louisiana Appellate Court Holds that Fear of Public Speaking Is Not a Disability

14 Mar 2008 17:47:02 GMT

In a Louisiana lawsuit, an employee with a ten year history of generalized anxiety disorder and depression, who was discharged from her job because she had a phobia against public speaking, failed to prove that she had a disability under the Louisiana Employment Discrimination Law (“LED�). The Louisiana Court of Appeal held that the employee was not disabled under Louisiana law, even though she was taking anxiety medication and her physician testified that public speaking on personal matters would be detrimental to her emotional health.

Like the federal American with Disabilities Act, the LED defines a disabled person as one who has “a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such impairment, or is regarded as having such an impairment.� In this case, the employee refused to fully participate in a required Toastmaster program because she experienced performance anxiety and was fearful of being judged and critiqued by her co-workers. When informed at work that she had to participate in the program, the employee presented one of her supervisors with a “Notice of Disability� stating that she suffered from a medical condition that made it difficult, if not impossible, for her to participate in the Toastmaster program. The employee also produced a letter from her physician verifying her “disability.�

The employee was terminated for her refusal to participate in the Toastmaster program. She then sued in state court, alleging disability discrimination under Louisiana law. After a bench trial, the lower court rendered judgment in her favor. The judgment was reversed on appeal.

The appellate court noted that public speaking is not for everyone but that fear of public speaking is not the type of serious disability that the Louisiana legislature intended to address when it enacted the LED. The plaintiff failed to establish that she was substantially limited in a major life activity, such as walking, seeing, or hearing, under Louisiana law. The case is Pierce v. State of Louisiana.

Tenacious pro se Litigant Pursues Grievance to the Eleventh Circuit

13 Mar 2008 14:47:25 GMT

These are the facts of a case filed by a pro se litigant that made it to the U. S. Court of Appeals for the Eleventh Circuit. Never let it be said that the courts are not engaged in deciding important issues in labor and employment law.

Barbara Barrington was discharged from employment with Lockheed after she cut co-worker Rickey Wilson�s hair without permission (how she pulled off the clandestine cut remains a mystery). Apparently Wilson had no issue with the haircut, but he filed a complaint at Lockheed against Barrington anyway.

Barrington believed that two female co-workers bullied Wilson into making the complaint. Perhaps she surmised that someone who would sit through an unwanted haircut lacked the gumption to file a complaint. Anyway, Barrington confronted the two female co-workers in the restroom in an attempt to straighten things (or them) out. A scuffle ensued. Still dissatisfied, Barrington filed a defamation suit in state court against them. In the interim, Lockheed terminated Barrington for violating rules against violent behavior (the tiff in the restroom?), inappropriate contact (the haircut?), and horseplay.

Barrington filed a union grievance challenging her termination and defending the haircut. The grievance went to arbitration. The union representative, believing that the company had not met its burden to show cause for Barrington�s termination, at first convinced Barrington not to testify at the arbitration. The union representative thought (correctly) that Barrington might not make a good witness on her own behalf.

During the arbitration, Barrington decided that she wished to testify and requested a continuance. Barrington then accused the arbitrator of improprieties, including bias and fraud, and requested that the union remove him. The union declined.

The arbitrator decided the haircut was not cause for termination but found other cause based on Barrington�s testimony, including the filing of a frivolous lawsuit. The union did not appeal. In keeping with her propensity to file frivolous lawsuits, Barrington, acting pro se, filed a motion to vacate an arbitration award with the federal district court under Section 301 of the Labor Relations Management Act and the Federal Arbitration Act. The court granted summary judgment in favor of the defendants, Lockheed and the union. Not one to be deterred, Barrington appealed. The appellate court affirmed.

The case is Barrington v. Lockheed Martin.

Prompt Management Action Called For in Same-Sex Harassment Claim

10 Mar 2008 14:37:21 GMT

The EEOC and a Pennsylvania dairy reached a $75,000.00 settlement in an EEOC lawsuit claiming that the dairy violated Title VII of the Civil Rights Act of 1964 by firing a male employee who complained of persistent same-sex sexual harassment in the workplace. Under the terms of the settlement, all dairy managers and supervisors must undergo equal employment opportunity training and the company must post a notice describing the settlement and employees� rights under Title VII. The notice must remain posted for four years.

The employee was allegedly subjected to offensive, sexually charged comments and gestures by other male co-workers. He objected to the unwelcome behavior and complained to management on multiple occasions but nothing was done about the problem. One month after the employee�s latest complaint, he was fired. He then filed a charge with the EEOC.

The dairy denied the charges but settled the case as a practical business decision. The problem was not that the workplace harassment occurred, but that the company allegedly did not investigate and take prompt action after the employee complained. The case is EEOC v. Turkey Hill Dairy, Inc.

A Little Light Shed on Retaliation Claims

5 Mar 2008 14:41:29 GMT

Employees have the right to file claims against employers without fear of retaliation, even if the claims turn out to be baseless. Many employees, however, file these claims knowing that they have not been the victims of discrimination. In a whistle blower case, a federal court in the District of Columbia has ruled that the employee must reasonably believe that a violation took place. In other words, even if the employee genuinely believes that a violation took place, the belief must be reasonable. That is a good step forward. Hoyte v. American National Red Cross, No. 06-53200 (D.C. Cir., March 4, 2008).

Court Allows Unsuccessful Applicant to Sue Company Doing Background Check

3 Mar 2008 12:56:58 GMT

A federal appeals court in the nation�s capital has made it easier for job applicants to sue companies hired to do background checks. The trial court had ruled against the applicant because he did not show, through expert testimony, that the company used by the employer did not conduct a complete and timely background check. The appeals court said that if the applicant can present “some evidence� from which a reasonable judge or jury can infer that the background check company failed to follow reasonable procedures, he does not need expert testimony. Wilson v. CARCO Group Inc., No. 07-7053 (D.C. Cir., February 29, 2008.

An ADEA Charge Is Whatever The EEOC Says It Is

28 Feb 2008 23:36:47 GMT

by Clifford B. Geiger

The Age Discrimination in Employment Act (ADEA) requires that an employee file with the EEOC “a charge alleging unlawful discrimination� at least 60 days before filing a lawsuit. The EEOC is then supposed to notify all persons named in the charge and attempt to eliminate any unlawful practice by informal means. On February 27, 2008, the U.S. Supreme Court ruled (7-2) that a “charge� of discrimination is any document that can reasonably be construed as a request by an employee for the EEOC to take action to vindicate his or her rights. Federal Express Corp. v. Holowecki, U.S., No. 06-1322, 2/27/08). This ruling is consistent with the EEOC�s internal directives (but not necessarily its practice) since 2002. In this case, an EEOC intake questionnaire accompanied by a six page affidavit constituted an ADEA charge, even though the EEOC never acted on the filing or even notified FedEx.

Workplace Rules v. Religious Practices

28 Feb 2008 23:36:45 GMT

by Clifford B. Geiger

In a Title VII religious accommodation case, the U.S. Court of Appeals for the Fourth Circuit explained that a duty of reasonable accommodation “cannot be read as an invariable duty to eliminate the conflict between workplace rules and religious practice.� EEOC v. Firestone Fibers & Textiles Co., - F.3d � (4th Cir. February 11, 2008).

David Wise worked at a Firestone plant that operates a treating unit and testing laboratories for tire cord fabric. In 2001, Wise became a member of the Living Church of God. His religion prohibited him from working during the faith�s Sabbath, which takes place from sundown on Friday to sundown on Saturday. In addition, Wise could not work on 7 sets of religious holidays, which typically totaled 20 days that did not already coincide with the Sabbath.

In February 2002, pursuant to a collective bargaining agreement, Wise was bumped to a position where he was required to work 3:00 p.m. to 11:00 p.m. Monday through Friday, as well as most Saturdays. Wise sought a reasonable accommodation, because he was now regularly scheduled to work on his Sabbath. Firestone considered several special accommodations, such as changing his shift or position or leaving portions of his shift uncovered, but none of them were feasible based on the collective bargaining agreement or other legitimate reasons.

Wise was informed that he would have to use the various leave devices available under the collective bargaining agreement. Employees with Wise�s seniority were entitled to 15, 8-hour vacation days and 3 floating holidays. He could also swap shifts with coworkers 2 times every calendar quarter, and he could take up to 60 hours of unpaid leave for any reason. If Wise took less than 36 hours of unpaid leave, he also had the option of using 3 of his vacation days in half-day increments, for a total of 6 half-day vacation days. Additionally, while Firestone could not permanently change his shift, the Company allowed Wise to work a day shift on Fridays when a day shift worker in his position was absent.

By September 2002, Wise had used all of his vacation days, floating holidays, and almost all of his unpaid leave, to avoid working on his Sabbath or religious holidays. He requested an unpaid leave of absence of 11 days to observe 2 religious holidays. His request was denied. Wise was terminated when he did not report to work on the religious holidays. The Court held that Firestone provided a reasonable accommodation to Wise based on the application of existing company policies and the specific accommodations made for his particular situation.

Hold That Line!

21 Feb 2008 20:07:10 GMT

Charles Weisberg, an employee of the Riverside, New Jersey, school system, complained that because of sensitivity to sound, he needs a quiet working environment. He sued his employer for not affording him perfect silence at work. During litigation, Weisberg testified that he had spent Monday, October 29, watching football on television. He added that because of his disability, there is no way he could have gone to the game. Except, Weisberg had gone to the New York Giants game that evening and the employer had videotape of him at the stadium. When the school system moved for relief from the court, Weisberg said he had "false memory syndrome" which caused him to concoct a story then believe it. No relief was granted to the employer, because the court found that Weisberg's story was not frivolous, unreasonable, or without foundation. No word on whether Weisberg went to the Superbowl parade, or concocted a memory about it.

Sauce For The Government Goose

20 Feb 2008 15:52:02 GMT

In a pair of cases heard on consecutive days this week the Solicitor General of the United States argued that employment discrimination statutes include an implied prohibition against retaliation, unless the employer is the United States government. At oral argument, Justice Samuel Alito found it curious "that the government's position seems to be that a general ban on discrimination includes a ban on retaliation except when the government is being sued." The Constitution contains guarantee of consistent government.

They Shoot Horses, Don't They?

18 Feb 2008 15:58:55 GMT

While working as en employee of the business, Evelyn Benders carried on a five year sexual relationship with Joel Bellows of the Chicago law firm Bellows & Bellows. The second Bellows in the firm is Laurel Bellows, who is married to Joel. After the sexual relationship ended, Ms. Bellows apparently found the presence of Ms. Benders discomfiting. After some interim dealings that included advancement of money to Ms. Bender under the cover of working as an independent contractor, the law firm ended the employment of Ms. Benders. Benders sued, contending that the termination represented retaliation because of a complaint of age and race discrimination. One of the more interesting pieces of evidence produced by Benders was an email that referred to her as Seabiscuit, and said that she "should have been put down" long ago. Of course, the law firm asserts that Ms. Bellows had adequate non-discriminatory reason to want Benders fired. Still, the federal court that considered the matter has determined that the case should go to trial on the retaliation charge.

Former Employee Liable For Memorizing Trade Secrets

15 Feb 2008 17:15:04 GMT

by Kelly C. Hoelzer

Robert Martin worked for five years as a pension analyst for Al Minor & Associates ("AMA"), a Columbus, Ohio, actuarial firm that implements retirement plans for about 500 clients. While he still worked for AMA, in 2002, Martin set up his own competing actuarial company. He quit his job at AMA a year later and solicited and obtained business from several AMA clients.

When AMA learned of Martin's misdeeds, it filed a lawsuit for injunctive relief and monetary damages, claiming that Martin had violated the Ohio Uniform Trade Secrets Act by using AMA's confidential client information to get clients for his new business. The trial court denied injunctive relief, but awarded AMA over $25,000, representing the fees AMA would have earned from the clients stolen by Martin.

Martin's argument at trial, and upon appeal, was that he never took any documents from AMA, but only used the confidential information � AMA's client list � that he had learned while working for AMA. The court disagreed, finding that just because Martin memorized AMA's client list, rather than physically removing it, did not prevent the information from being considered a trade secret. While simple information learned during the course of employment would not be protected as a trade secret, the court stated that an employee could still violate the law by memorizing trade secrets. In its ruling, the court noted that it joined a majority of states considering this issue in finding that the unauthorized taking of information by memorization is just as wrongful as taking it on paper or by electronic means. Al Minor & Assocs., Inc. v. Martin, No. 2006-2340 (Ohio Feb. 6, 2008).

Finally! DOL to Publish Changes to FMLA Regulations

8 Feb 2008 19:48:35 GMT

Department of Labor immediately promised revisions to the regulations. It looks like we are on the verge of seeing hat promise kept.

The DOL has announced that it will publish proposed changes to the FMLA regulations in the Federal Register on Monday, February 11. The changes to the regulations will include revisions to the rules on what constitutes a serious health condition and use of the medical certification process

According to those who have seen the proposal, there will be more employer notice requirements regarding employee qualification for leave and designation of leave. There will also be a clarification in the rules relating to substitution of paid leave. The proposal will not change the period of time an employee can take incremental leave of less than a day, but the proposal does include a change requiring employees to comply with the employer's call-in procedures before taking unscheduled, intermittent leave.

Stay tuned for the changes, and if you want to check the Federal Register directly, go to http://www.gpoaccess.gov/fr/index.html.

Court Rejects Title VII �Familial Status' Discrimination Claim

6 Feb 2008 22:55:26 GMT

The Tenth Circuit recently held that "familial status" discrimination, by itself, does not violate Title VII, rejecting a claim by a husband and wife who were fired by the same company on the same day. Adamson v. Multi Cmty. Diversified Servs. Inc., No. 05-3478 (10th Cir. February 1, 2008). The husband alleged that the employer had an "anti-male" bias, with the wife and daughter claiming an "anti-female" bias.

The district court found it 'peculiar' for a husband and wife to be arguing simultaneously that their respective terminations by a single employer were the result of anti-male discriminatory animus on the one hand and anti-female discriminatory animus on the other. But, as is sometimes the case, the court presumed both plaintiffs had made out a prima facie case of sex-discrimination and ruled against them on the issue of pretext.

The Tenth Circuit agreed that the case was properly dismissed, but found that the district court should have addressed the prima facie case issue directly, suggesting that its decision not to do so was an ill-applied approach in the context of reverse discrimination claims, "where heightened standards are necessary." And, said the court, the Adamsons' claims failed under Title VII because "'[f]amilial status' is not a classification based on sex any more than is being a 'sibling' or �relative' generally."

Aren�t Unions Supposed to Bring People Together?

6 Jan 2008 22:55:23 GMT

Richard Lott, a UAW shop steward at the Daimler Chrysler plant in Toledo had a romantic relationship with a co-worker, Mee Sanders, for two years. When she ended the relationship, Lott harassed Sanders and arranged for her to lose her job temporarily and delayed her return to work for six months. Sanders sued, and a federal court has ruled that the UAW Local violated not only Title VII and Ohio law but it�s NLRA duty of fair representation to Sanders for permitting Lott to engage in this behavior. Sanders v. United Auto Workers Local 12, No. 3:04-CV-7751 (N.D. Ohio January 24, 2008). Sanders's separate sexual harassment suit against the company is pending.

N.Y. Giant Fan Escapes Attorney�s Fees Award For Lawsuit

31 Jan 2008 21:37:33 GMT

Charles Weisberg, an employee of the Riverside Township Board of Education, sustained a head and shoulder injury when a wooden speaker weighing approximately four pounds fell on his head and shoulders. Thereafter, Weisberg claimed to have a “post-concussion syndrome,� which caused him extreme fatigue, difficulty focusing, headaches, and sensitivity to loud noises. Weisberg asked Riverside for a number of accommodations that included placing all directives in writing, limiting his workday to a maximum of eight hours, and providing a quiet, distraction-free working environment. Because of his sensitivity to loud noises, Weisberg also claimed that he could no longer chaperone other school events, such as basketball games and school dances. Conflict with Riverside over these and other “accommodations� ultimately prompted Weisberg to file a lawsuit under the Americans with Disabilities Act (“ADA�), alleging that due to his condition, he was disabled under the Act.

At Weisberg�s deposition, Riverside asked him questions regarding his whereabouts on the Monday night prior to the deposition, when the New York Giants hosted the Philadelphia Eagles. In response, Weisberg testified that he had watched the Giants game at home alone. Weisberg went on to state that because of his “disability� he could not have attended the game; and had he done so, he would have been so fatigued afterwards that he would have been forced to take the next day off from work, which he did not do. Contrary to his testimony, a private investigator had videotaped Weisberg that night, meeting with a group of fans, driving to Giants Stadium, tailgating in the parking lot, entering the stadium, attending the full game, exiting after midnight and returning home shortly before 2:00 a.m. When confronted with this discrepancy, Weisberg attributed his erroneous testimony to “false memory syndrome,� a condition for which individuals with brain injuries sometimes “concoct� stories that they sincerely believe to be true when placed under stressful conditions.

The District Court ultimately found that Weisberg had produced insufficient evidence that he was “disabled� under the ADA, and dismissed the case. Riverside then filed a request for the Court to find that Weisberg�s lawsuit was “frivolous, unreasonable or without foundation� so as to require Weisberg to pay for its attorneys� fees which may be awarded to a “prevailing party� in civil rights cases. The District Court found that although Weisberg had not presented evidence of a disability sufficient to pursue his claim, he had presented “some evidence� that he was impaired by “post-concussion syndrome,� and therefore his claim could not be found to be frivolous, unreasonable, or without foundation.

The case is Weisberg v. Riverside Twp. Bd. of Educ., No. Civ. 01-758 (RBK), 2005 WL 2000182, at *1 (D.N.J. Aug. 18, 2005) (unreported), aff�d, No. 05-4190 (3rd Cir. Jan. 18, 2008).

The Eagles beat the Giants that night; the final score was 10-9.

FMLA Will Likely Be Expanded To Cover Military Leave

25 Jan 2008 16:56:50 GMT

by Eric Paltell

On January16, 2008, the United States House fo Representatives passed legislation that will expand the Family and Medical Leave Act ("FMLA") to provide leave rights to employees who need time off to care for a family member injured while on active duty. The FMLA will also be expanded to provide employees with the right to take leave to assist a family member in the reserves who is called up for active duty. The legislation is expected to be signed by President Bush after it passes both Houses of Congress, perhaps as soon as the end of January.

Once the legislation is signed into law, employees who are currently eligible for leave under the Family and Medical Leave Act (i.e., they have worked for an employer for at least 12 months and have worked 1,250 hours in the 12 months preceding the request for leave) will be entitled to "active duty leave" and "caregiver leave." As is the case with leave taken for a "serious health condition" under the FMLA, employees can use the leave on an intermittent basis.

"Active duty leave" will provide 12 weeks of FMLA leave during a 12 month period to a spouse, son, daughter, or parent of an individual who has received a call up notice or has experienced some other "qualifying exigency" (that term will be defined in regulations eventually). "Caregiver leave" will provide 26 weeks of FMLA leave during a single twelve month period for a spouse, son, daughter, parent, or "nearest blood relative"to provide care to a "recovering service member." A "recovering service member" is defined as a member of the Armed Forces who suffered an injury or illness while on active duty that may render the service person unable to perform the duties of their office, grade, rank, or rating.

Employers covered by the FMLA should prepare to extend coverage to these situations as soon as possible. We expect there will be a host of compliance issues, ranging from deciding if something is a "qualifying exigency" to determining if an employee who says he needs 26 weeks of leave immediately to care for wounded relative really is the service member's "nearest blood relative." While this law is certainly well intentioned, it could be very difficult for employers to accommodate these new rights.

Plaintiffs Run Wild

11 Jan 2008 19:40:18 GMT

It is often said that plaintiffs have the power to choose the forum in a dispute. Having said that, they need to make up their collective minds. In Parler v. KFC Corporation, the United States District Court for the District of Minnesota recently held that plaintiffs may waive the right to arbitrate by preemptively proceeding to litigation.

In the case, current and former assistant managers at Kentucky Fried Chicken contended that the company violated the Fair Labor Standards Act by classifying them as salaried employees rather than as hourly workers. Hourly employees are entitled to overtime pay and salaried employees are not. The assistant managers filed suit in federal court as a single national class under the Fair Labor Standards Act.

The plaintiffs then decided they were not happy with the suit and sought to decertify the national class into multiple state-level classes and to transfer multiple class action suits to a federal district court in the appropriate state. Some of the plaintiffs wanted to forego litigation altogether and sought to arbitrate the dispute after the fact.

Kentucky Fried Chicken declared that the now arbitration-inclined group of plaintiffs had waived the right to arbitrate by filing suit. Plaintiffs naturally disagreed. Besides, the issue of waiver was for an arbitrator, not the court, to decide. How is that for an end run around the court system!

The court stated in response that claims of waiver through pursuit of litigation are to be decided by courts, not arbitrators. The court noted that the plaintiffs knew of the right to arbitrate and acted inconsistently with that right. The plaintiff�s inconsistent acts also prejudiced Kentucky Fried Chicken because it assumed the considerable time and expense involved in discovery and motion practice, neither of which is part of an arbitration proceeding. The costs of arbitration had also increased since the action was originally filed. The plaintiffs had therefore waived their rights to arbitration.

The court basically informed the plaintiffs that they needed to get the case together at the outset. Plaintiffs do not have the right to run wild through the system.

Federal Court Encourages Arbitration

8 Jan 2008 19:11:12 GMT

In asserting jurisdiction over a labor dispute involving an arbitration award, the U.S. District Court for the District of New Jersey recently encouraged the resolution of labor disputes through arbitration rather than by court action. By asserting jurisdiction, the court may actually discourage future court action in labor arbitration disputes involving transportation workers subject to collective bargaining agreements. How so? Here is how.

John King was a driver for the Philadelphia Coca-Cola Bottling Company. He was fired in 2006, after company doctors found that a work-related injury no longer allowed him to perform his driving duties. The International Brotherhood of Teamsters represented his bargaining unit and filed a grievance on his behalf. The grievance went to arbitration, and the arbitrator ordered King�s reinstatement.

The company refused to comply with the award, arguing that the Federal Arbitration Act excludes transportation workers from coverage as a “class of workers engaged in foreign or interstate commerce.� Hence, the court lacked jurisdiction over the dispute as well. Not so fast, said the court, because the Taft-Hartley Act provides that any labor organization representing employees in an industry affecting commerce may file suit on their behalf. The court found that the Federal Arbitration Act and the Taft-Hartley Act are complementary, and the latter conferred jurisdiction in the case, even if the former denied it. The court added that without court jurisdiction over the dispute, an entire class of workers, in this case transportation workers whose arbitration awards were contested, would be left without a remedy.

The court encourages resolution through arbitration by defining the remedy in a contested arbitration case. Without a remedy in a contested case, there is little reason to abide by an arbitration decision.

The case is Teamsters Local 331 v. Coca-Cola Bottling Company, decided in the District of New Jersey on December 20, 2007.

Avoid the Bus in St Louis

7 Jan 2008 21:44:16 GMT

How many of us have memories of a seemingly endless wait at a bus stop? Maybe the memory dates from a time when we had no automobile. Or we wished to support the use of public transportation. Perhaps we are dependant on local bus service and wonder why waiting at a bus stop is like waiting for Godot.

We may be the victims of “short-looping.� In Bi-State Development Agency v. Amalgamated Transit Union, a labor arbitrator had “considerable difficulty� in deciding the fate of a St. Louis bus driver who was discharged after he repeatedly short-looped his route, meaning that he skipped stops to make up time. What is so difficult about that decision? The bus driver, whose job was transporting people from one bus stop to another, decided not to bother stopping at all the stops on his route because it took too much time and made him late. So he skipped some of his stops and proceeded to the end of the line.

The bus driver was a repeated short-looper, and management investigated after a customer complained that the bus never arrived at her stop. A management investigator trailed the bus and caught the short-looper in the act. The bus driver was discharged but later reinstated by the arbitrator. Go figure and take a taxi in St. Louis.

Wage and Hour Collections Reach Record in 2007

31 Dec 2007 10:54:11 GMT

In 2007, the Department of Labor recovered over $220 million in back wages for violations of the Fair Labor Standards Act, the Davis-Bacon Act, and other wage and hour laws administered by the agency. That is a record. The amount of private civil litigation is also up. It might be a good idea to audit your wage and hour practices early in 2008.

National Labor Relations Board Down to Two Members

31 Dec 2007 10:53:05 GMT