Employment Law Update
by
Robert B. Fitzpatrick, Esq.
Robert B. Fitzpatrick, PLLC
Suite 640
Universal Building South
1825 Connecticut Avenue, N.W.
Washington, D.C. 20009-5728
(202) 588-5300 (telephone)
(202) 588-5023 (fax)
fitzpatrick.law@verizon.net (e-mail)
http://www.robertbfitzpatrick.com (website)
Lilly Ledbetter Fair Pay Act of 2009
Pub. L. No. 111-2 (2009)
• “For purposes of this section, an unlawful employment practice occurs,
with respect to discrimination compensation in violation of this title,
when a discriminatory compensation decision or other practice is
adopted, when an individual becomes subject to a discriminatory
compensation decision or other practice, or when an individual is
affected by application of a discriminatory compensation decision or
other practice, including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from such a decision
or other practice” Id. § 3(a)
• “This Act, and the amendments by this Act, take effect as
if enacted on May 28, 2007” Id. § 6
• Bush v. Orange County Corr. Dep’t, 2009 U.S. Dist. LEXIS
7156 (M.D. Fla. Feb. 2, 2009)
• Gilmore v. Macy’s Retail Holdings, 2009 U.S. Dist. LEXIS
4937 (D.N.J. Jan. 20, 2009)
Americans With Disabilities Act
• ADA Amendments Act of 2008, Pub. L. No. 110-325
(2008)
• Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121, 2008
U.S. App. LEXIS 21567 (10th Cir. 2008) (driving is a
major life activity)
• Adams v. Rice, 531 F.3d 936, 2008 U.S. App. LEXIS 15295
(D.C. Cir. 2008) (sexual relations is a major life
activity)
Americans With Disabilities Act
• Desmond v. Mukasey, 530 F.3d 944,
2008 U.S. App. LEXIS 13803 (D.C. Cir.
2008) (sleeping is a major life activity)
• Archive ADA: The Path to Equality,
www.archiveADA.org (last visited
February 27, 2009)
Retaliation Claims: The Tail is
Wagging the Dog
• The number of retaliation charges filed with the EEOC
increased from 1997 at 22.6% to 29.8% of all
charges filed in 2006. Sylvia A. Bier, American Bar
Ass’n, Protect Against the Surge of Employee
Retaliation Claims: Understanding Title VII and Its
Application to Recent EEOC Cases, 36 The Brief 3,
at 15 (Spring 2007)
• Crawford v. Metropolitan Gov’t of Nashville and
Davidson County, 129 S. Ct. 846, 2009 U.S. LEXIS
870 (2009)
• Michael J. Zimmer, A Pro-Employee Supreme Court? –
Retaliation Decisions, 60 S.C. L. Rev. (forthcoming
2009), available at http://ssrn.com/abstract=1333778
Litigation Under New
Whistleblower Laws
• Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314,
15 U.S.C. § 2087 (2008) (CPSIA whistleblower rights to private
sector workers connected with the manufacture, importing,
distribution, labeling, or retail sail of consumer products under the
jurisdiction of the Consumer Product Safety Commission)
• McCaskill Amendment (S.Amdt. 196) to the American Recovery and
Reinvestment Act of 2009, H.R. 1, 111th Cong. (2009)
• See also whistleblower amendment to the Surface Transportation
Assistance Act 49 U.S.C. § 31105, the Federal Rail Safety Act (49
U.S.C. § 20109), the National Transit Systems Security Act (6
U.S.C. § 1142) and section 846 of the National Defense
Authorization Act for Fiscal Year 2008 (10 U.S.C. § 2409)
(amending whistleblower protection for employees of DOD
contractors and grantees)
SOX
•
Platone v. United States Dep’t of Labor, 548 F.3d 322, 2008 U.S.
App. LEXIS 24378 (4th Cir. 2008) (holding that the
plaintiff’s communication to her supervisors that pilots
were misusing a missed-flight reimbursement plan was
merely communicating a “billing discrepancy” and was
not enough information to indicate “possible fraud against
shareholders” within the scope of SOX)
•
Day v. Staples, Inc., 2009 U.S. App. LEXIS 2266 (1st Cir. Feb. 9,
2009) (SOX did not bar the termination of an employee
whose complaints about the company’s product return
practices could not reasonably have been construed to
reflect an objectively reasonable belief that the company
was defrauding shareholders)
Gross v. FBL Financial Servs., Inc.
129 S. Ct. 680, 2008 U.S. LEXIS 8885 (2008), cert. granted,
526 F.3d 356 (8th Cir. 2008)
• Does § 2000(e)-2(m) of the Civil Rights Act of 1991
apply to claims arising under the ADEA?
• Does the Court’s decision in Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003) supersede Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989)?
Ricci v. DeStefano
129 S. Ct. 893, 2009 U.S. LEXIS 394 (2008), cert. granted,
530 F.3d 87 (2d. Cir. 2008)
• Is it “reverse” discrimination to withdraw promotions
because a test had disparate impact?
• Oakley v. City of Memphis, 2008 U.S. App. LEXIS 19377 (6th
Cir. 2008) (When content-valid, civil service
examination and race-neutral selection process yield
unintended racially disproportionate results, does
employer racially discriminate when it rejects results
and successful candidates in order to achieve racial
proportionality in candidates selected?)
Graham County Soil & Water v.
United States ex rel. Wilson
129 S. Ct. 753, 2008 U.S. LEXIS 9031 (2008), cert. granted,
528 F.3d 292 (4th Cir. 2008)
• Does the public disclosure bar of the False Claims Act
apply to administrative audits, reports, hearings
or investigations conducted or issued by a state
or local governmental entity?
14 Penn Plaza LLC v. Pyett
128 S. Ct. 1223, 2008 U.S. LEXIS 1418 (2008), cert. granted sub
nom, Pyett v. Pa. Bldg. Co., 498 F.3d 88 (2d. Cir. N.Y. 2007)
• Whether and arbitration provision in a collective bargaining
agreement (CBA) , which explicitly waives union members’
right to bring statutory discrimination claims in court, I
enforceable so as to deprive the employees of a judicial
forum even where the union has refused to submit the claims
to arbitration.
• See Austin v. Owens-Brockway Glass Container, 78 F.3d 87 (4th Cir.
1996) (individual must pursue discrimination claims through
union-negotiated grievance procedure; provision requiring
arbitration of such claims is enforceable). The Supreme
Court, when presented with a similar question in Wright v.
Universal Maritime Service Corp., 525 U.S. 70 (1990), refused
to resolve the question, holding that it was not clearly
presented because that CBA provision did not explicitly
include statutory claims.
Fitzgerald v. Barnstable School Committee
129 S. Ct. 788, 2009 U.S. LEXIS 592 (2009), rev’d, 504 F.3d 165 (1st Cir. 2007)
• Title IX was not meant to be an exclusive mechanism
for addressing gender discrimination in schools,
or a substitute for §1983 suits as a means of
enforcing constitutional rights
• The implied private right of action under Title IX is “in
stark contrast to the ‘unusually elaborate,’
‘carefully tailored,’ and ‘restrictive’ enforcement
schemes of the statutes in Sea Clammers, Smith
and Rancho Pelos Verdes.”
Hybrid FLSA Cases
•
Under the FLSA, plaintiffs can proceed under the Section 216(b) “optin” collective action procedure, but only state law claims allow for
an “opt-out” class actions under FRCP 23. Combining an FLSA
collective action and a state-law class action claims in one
proceeding has been labeled a “hybrid” wage and hour action.
Some courts have allowed plaintiffs to proceed with a hybrid or
“opt in/opt out” approach under both FLSA Section 216(b) for opt
in notice and FRCP 23 for class notice as to state law claims (on
an opt out basis). See McLaughlin v. Liberty Mutual Ins. Co., 224
F.R.D. 304 (D. Mass. 2004); Ansoumana v. Gristede's Operating
Corp., 201 F.R.D. 81 (S.D.N.Y. 2001); O'Brien v. Encotech
Constructions Servs., Inc., 203 F.R.D. 346 (N.D. Ill. 2001)
•
Lindsay v. Gov’ Employees Ins. Co., 448 F.3d 416, 2006 U.S. App. LEXIS
13166 (D.C. Cir. 2006)
Transgender Discrimination
• Schroer v. Billington, 577 F. Supp. 2d 293, 2008 U.S.
Dist. LEXIS 71358 (D.D.C. 2008); see also Schroer
v. Billington, 424 F. Supp. 2d 203, 2006 U.S. Dist.
LEXIS 14278 (D.D.C. 2006)
• Etsitty v. Utah Transit Auth., 502 F.3d 1215, 2007 U.S.
App. LEXIS 22989 (10th Cir. 2007)
• Zachary A. Kramer, Heterosexuality and Title VII,
103 Nw. U. L. Rev. 205 (2009)
• Elizabeth M. Glazer & Zachary A. Kramer, Transitional
Discrimination, Temp. Pol. & Civ. Rts. L. Rev.
(forthcoming 2009), available at
http://ssrn.com/abstract=1345254
Class Actions
• In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 2008
U.S. App. LEXIS 26871 (3d Cir. 2008) (in a landmark opinion,
Chief Judge Scirica provided extensive guidance to the
district courts in deciding whether to certify a class under
Civil Rule 23, stating that the district court must find, by a
preponderance of the evidence, that each requirement of
Rule 23 is satisfied, that it must “resolve all factual and legal
disputes relevant to class certification even if they overlap
with the merits”, and holding that expert testimony is part of
the relevant evidence that the court must consider)
• Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007), reh’g
granted, 2009 U.S. App. LEXIS 2854 (9th Cir. Feb. 13, 2009)
Class Action Waivers in Arbitration
• In re American Express Merchant’s
Litigation, 2009 U.S. App. LEXIS 1646 (2d
Cir. Jan. 30, 2009)
• Homa v. American Express, 2009 U.S. App.
LEXIS 3688 (3rd Cir. 2009)
• Shannon P. Duffy, 3rd Circuit Deals Blow to
Class-Arbitration Waivers, The Legal
Intelligencer, February 25, 2009, available
at
http://www.law.com/jsp/article.jsp?id=124
28563116
Arbitration Issues Continue to Abound
• Morales v. Sun Constructors, Inc., 541 F.3d 218 (3d Cir. 2008) (the
majority, with Judge Fuentes dissenting, held that an employee
who did not read English nonetheless manifested mutual
assent to the arbitration clause at issue; the panel unanimously
reaffirmed that it would be inconsistent with the FAA to apply a
heightened “knowing and voluntary standard” to arbitration
agreements)
• Guyden v. Aetna Inc., 544 F.3d 376 (2d Cir. 2008) (held that nothing in
the statute prohibits SOX whistleblower claims from being
resolved in arbitration )
• Richard A. Bales, Twenty-Second Annual Carl A. Warns, Jr. Labor &
Employment Law Institute: Contract Formation in Employment
Arbitration, 44 Brandeis L.J. 415 (2006)
Attorney-Client Privilege Waivers When Client Communicates
Using Employer’s Equipment or Email System
• Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver
of Attorney-Client Privilege, 60 Fla. L. Rev. 1190 (2008)
•Suggested language for representation agreements:
“Client agrees and consents to the Firm’s transmission of bills and other materials related to billing
by facsimile and e-mail to Client. Typically, the Firm would communicate by e-mail to Client and the Client
agrees and consents to e-mail transmission to Client of privileged attorney-client communications. While e-mail
provides a fast and efficient medium for communication, there exists some case law which suggests that e-mail
communications between attorney and client may not be confidential and may be discoverable by an adverse
party.
“In addition, most employers consider company-owned computers, as well as all information
contained in them, to be company property. Accordingly, there is generally no right to privacy of any e-mail sent
or received at your place of employment. Your employer has complete access to, and is capable of, retrieving
any e-mail message sent or received by you at your company-owned computer or business e-mail address, even
after you have deleted the message.
“Therefore, you should NEVER communicate by e-mail with your attorney using a company-owned
computer or your business e-mail address. Additionally, you should exercise discretion in e-mailing the Firm
from your home or non-business e-mail address. “
National Origin Discrimination
Claims
• Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 87,
2008 D.C. App. LEXIS 281 (D.C. 2008)
• Stratton & Bergquist, The Contours of National
Origin Discrimination Under Federal Law, National
Employment Lawyers Association 18th Annual
Convention Manual (2007)
Race Prohibited as a Criterion for
Computing Damages
• McMillan v. City of New York, 2008 U.S. Dist. LEXIS 76711 (E.D.N.Y. Sep.
19, 2008) (Weinstein, J.) (Order Excluding “Race” as a Criterion for
Computing Damages)
• “While ‘race’ may be a social construct, many policymakers and courts
insist that it ‘remains a significant predictor of… access to societal goods
and resource.’ Audrey Smedley & Brian D. Smedley, Race as a Biology is
Fiction, Race as a Social Problem is Real, 60:1 Am. Psychologist 16, 22
(2005). ‘Racial’ and ‘ethnic’ disparities in quality of health care, for
example, remain substantial across a broad range of medical services. Id
at 23. But those ‘disparities are associated with socioeconomic difference
and tend to diminish significantly and, in a few cases, to disappear
altogether when socioeconomic factors are controlled.’ Id. By allowing the
use of ‘race’-based life expectancy tables, which are based on historic
data, courts are essentially reinforcing the underlying social inequalities of
our society rather than describing a significant biological difference.”
The Contours of “Protected
Activity”
• Birdyshaw v. Dillard’s Inc., 2009 U.S. App. LEXIS 1737 (11th Cir. Jan. 28,
2009)
• Circuit split about whether a person who rejects a supervisor’s sexual
advances has engaged in a protected activity. Compare LeMaire v.
La. Dep’t of Transp. & Dev., 480 F.3d 383, 389 (5th Cir. 2007)
(holding that a single, express rejection of sexual advances does
not constitute “protected activity” for purposes of a retaliation
claim) with Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir.
2000) (finding that when the plaintiff told her supervisor to stop
harassing her, she engaged in the most “basic form of protected
conduct”).
• Niswander v. The Cincinnati Ins. Co., 529 F.3d 714, 2008 U.S. App. LEXIS
13284 (6th Cir. 2008) (majority sets forth a six-factor balancing test
for determining whether employee’s delivery of confidential
documents to her attorney was reasonable )
Damages Issues
• Eshelman v. Agere, 2009 U.S. App. LEXIS 1947 (3d Cir. Jan. 30, 2009)
(holding that a district court may, pursuant to its broad equitable
powers granted by the ADA, award a prevailing employee an
additional sum of money to compensate for the increased tax
burden a back pay award may create). Contra Fogg v. Gonzales,
492 F.3d 447 (D.C. Cir. 2007) (Court affirmed the award of back
pay and denial of front pay, but reversed as to the extent of the
“gross up”) and Dashnaw v. Pena, 12 F.3d 1112 (D.C. Cir. 1994)
(holding that “absent an arrangement by voluntary settlement of
the parties, the general rule that victims of discrimination should
be made whole does not support ‘gross-ups’ of back pay to
cover tax liability. We know of no authority for such relief.”)
• Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc., 943 A.2d 866, 2008 N.J.
LEXIS 222 (N.J. 2008) (punitive damages awards to focus only on
deterrence of the specific defendant as opposed to general
deterrence of others; consideration of the employer financial
condition both after and at the time of the wrongful conduct is
necessary)
Damages Issues
• Robert H. Wright, Punitive Damages Immunity of Federal
Instrumentalities, 38 The Brief, A.B.A. Sec. Tort Trial & Ins.
Practice 24 (2009), available at
http://www.abanet.org/tips/brief/briefcurrent.html
(appellate courts have split on the fundamental question of
whether the “sue and be sued” language in the statutes
granting federal charters to federal instrumentalities,
including Fannie Mae, Freddie Mac, and the American Red
Cross, waives the federal instrumentality’s immunity from
punitive damages claims. Compare in re Sparkman, 703
F.2d 1097, 1100-01 (9th Cir. 1983) (holding that “[a] federal
instrumentality… retains its immunity from punitive
damages unless Congress explicitly authorizes liability for
such damages”) with McGee v. Tucoemas Federal Credit
Union, 153 Cal. App. 4th 1351 (Cal. Ct. App. 2007) (refusing
to follow in re Sparkman and holding instead that federal
instrumentalities are generally subject to punitive damage
claims))
Application of Faragher-Ellerth
Affirmative Defense to FLSA Cases
• Lisa A. “Lee” Schreter, Whitney M. Ferrer & SoRelle B.
Braun, Adopting the Avoidable Consequences
Affirmative Defense: Applying the Lessons of
Ellerth/Faragher to FLSA Claims, copies available
from the author at LSchreter@littler.com
Attorneys’ Fees for Pre-suit
Work in ERISA Cases
• Cann v. Carpenter’s Pension Trust Fund, 989 F.2d 313 (9th Cir.
1993) (Court interpreted §1132(g)(1)’s language “in any
action” to preclude the award of fees for any efforts
expended on negotiations or administrative proceedings
prior to the action.)
• LaSelle v. Public Service Co. of Colorado Severance Pay Plan,
988 F. Supp. 1348 (D. Colo. 1997) (agreeing with Cann that
ERISA’s attorneys’ fees provision did not permit recovery
for fees incurred in the administrative fee of the
proceedings but held that all time spent by counsel in
interviews, consultation, preliminary research, and various
additional tasks unrelated to the administrative appeal, even
thought performed before the filing of the complaint, is
compensable)
Attorneys’ Fees for Pre-suit Work
in ERISA Cases
•
Hedley-Whyte v. Unum Life Ins. Co. of America, 1996
U.S. Dist. LEXIS 5880 (D. Mass. 1996) (“This
Court find Cann’s strict exclusion of prelitigation
expenses to be a questionable interpretation of
the statutory language… this Court can identify
no sound reason however based on the statutory
language, why a court lacks discretion to award
fees and costs for work appropriately
contributing to the prosecution of the action just
because they were incurred prior to the filing
date”)
USERRA Litigation
• Serricchio v. Wachovia Securities LLC, 556 F. Supp. 2d
99, 2008 U.S. Dist. LEXIS 20043 (D. Conn. 2008)
(Plaintiff was a financial adviser working on
commissions who was called to active duty, and
upon reinstatement, argued that defendant had not
satisfied its reemployment obligations under 38 U.S.C.
4316, contending that defendant had a duty to
preserve his book of business. The Court held that
defendant does not have a duty to provide the
employee with “his exact previous book of business,
so long as what is provided gives him the opportunity
to reenter the workforce with comparable earning
potential and chance for advancement as his own
book of business provided prior to his service,
regardless of whether the same clients are in the
substituted book”)
Cy Pres Power
• Diamond Chemical Co. Inc. v. Akzo Nobel Chemicals B.V., 517
F.Supp.2d 212 (D.D.C. 2007) and 2007 U.S. Dist. LEXIS 49406
(D.D.C. 2007)
• Amanda Bronstad, Cy Pres Awards Under Scrutiny, The
National Law Journal, August 11, 2008, available at
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=120
2423649133
• Theodore Frank, The Federalist Society, Class Action Watch, Cy
Pres Settlements (Apr. 4, 2008), available at http://www.fedsoc.org/doclib/20080404_FrankCAW7.1.pdf
• Adam Liptak, Doling Out Other People’s Money, N.Y. Times, Nov.
26, 2007, available at
http://www.nytimes.com/2007/11/26/washington/26bar.html?
_r=1&oref=slogin
Cy Pres Power
• Another possibility for distribution of unclaimed monies
in class action settlements might be the utilization of
state unclaimed property laws. See John L.
Coalson, Jr. & Ethan D. Millar, The Pot of Gold at the
End of the Class Action Lawsuit: Can States Claim it
as Unclaimed Property? (2008), available at
http://works.bepress.com/ethan_millar/2
Computer Fraud & Abuse Act
• Int’l Airport Centers v. Citrin, 440 F.3d 418 (7th Cir. 2006)
(while the CFAA does not define “transmission” a
“transmission” includes the installation and use of an
erasure program on the computer)
• Patrick Patterson Custom Homes, Inc. v. Bach, 586 F.
Supp.2d 1026, 2008 U.S. Dist. LEXIS 92761 (N.D. Ill.
2008) (opinion discusses whether the defendant
“knowingly cause[d] the transmission of a program,
information, code or command, and as a result of
such conduct intentionally cause[d] damage without
authorization, to a protected computer” )
• L-3 Commc’ns Westwood Corp. v. Robicharux, 2007 U.S.
Dist. LEXIS 16789 (E.D. La. Mar. 8, 2007)
Computer Fraud & Abuse Act
•
•
•
•
•
•
Chas. S. Winner, Inc. v. Polistina, 2007 U.S. Dist.
LEXIS 40741 (D.N.J. June 4, 2007)
Motorola Credit Corp. v. Uzan, 2002 U.S. Dist. LEXIS
19632 (S.D.N.Y. Oct. 16, 2002)
Pearl Invs. LLC v. Standard I/O, Inc., 257 F. Supp. 2d
326, 2003 U.S. Dist. LEXIS 6890 (D. Me. 2003)
United States v. Middleton, 231 F.3d 1207 (9th Cir.
2000)
Spangler, Jennings & Dougherty, P.C. v. Mysliwy,
2006 U.S. Dist. LEXIS 39602 (N.D. Ind. 2006)
Tyco Int’l Inc. v. Does, 2003 U.S. Dist. LEXIS 11800
(S.D.N.Y. July 11, 2003)
Defense Discovery Subpoenas to
Plaintiffs’ Former and Current Employers
•
Barrington v. Mortage IT, Inc., 2007 U.S. Dist. LEXIS 90555 (S.D. Fla. Dec.
10, 2007) (rejecting subpoenas duces tecum which sought “any
and all documents, files and records, reflecting or relating to the
employment” of the plaintiff as “overly broad on their face”)
• Badr v. Liberty Mutual Group, Inc., 2007 U.S. Dist. LEXIS 73437 (D. Conn.
Sept. 28, 2007) (holding that defendant’s subpoena of “any and all”
records relating to plaintiff was overbroad and limiting the
subpoena to documents relating to prior claims or complaints
against plaintiff’s co-workers)
• Richards v. Convergys Corp., 2007 WL 474012 (D. Utah Feb. 7, 2007)
(quashing overbroad subpoena duces tecum directed to plaintiff’s
former employer that sought “all documents in your possession or
control regarding the employment of” the plaintiff)
• Richmond v. UPS Serv. Parts Logistics, 2002 U.S. Dist. LEXIS 7496, at
13, 2002 WL 745588 (S.D. Ind. Apr. 5, 2002) (holding that a
discovery request for the plaintiff's entire personnel file was “on
its face” overbroad)
Compensation Litigation
• Pachter v. Bernard Hodes, 891 N.E. 2d 279 (N.Y. 2008) (deciding certified
questions from the Second Circuit and finding that executives are
covered by the New York Labor Law unless expressly excluded
and holding that “in the absence of a governing written
instrument, when a commission is ‘earned’ and becomes a ‘wage’
for purposes of Labor Law article 6 is regulated by the parties’
express or implied agreement; or if no agreement exists by the
default common-law rule that ties the earnings of a commission to
the employee’s production of a ready, willing and able purchaser
of the services.” See also Pachter v. Bernard Hodes Groups, Inc.,
541 F.3d 461, 2008 U.S. App. LEXIS 18922 (2d Cir. 2007)
• Weems v. Citigroup Inc., 453 Mass. 147, 2009 Mass. LEXIS 19 (Mass. 2009)
forfeiture provision in employee stock plan held not to violate
state wage act)
• In re Citigroup, Inc., 535 F.3d 45, 2008 U.S. App. LEXIS 15645 (1st Cir.
2008) (forfeiture provisions of employer’s capital accumulation
plans were unambiguous and enforceable)
Privacy in the Workplace in the
Electronic Age
• Quon v. Arch Wireless Operating Co., 529 F.3d 892,
2008 U.S. App. LEXIS 12766 (9th Cir. 2008), reh’g
denied, 2009 U.S. App. LEXIS 2259 (9th Cir. Jan.
27, 2009)
• Richard A. Paul & Lisa Hird Chung, Brave New
Cyberworld: The Employer’s Legal Guide to the
Interactive Internet, 24 Lab. Law. 109 (2008)
• Elizabeth C. Lawnicki, Location Surveillance in the
Employment Context and the Right to
Privacy, available at
http://www.laborandemploymentcollege.org/
Contest_Winners/Contest-Lawnicki.pdf
Collaborative Law
• Michael A. Zeytoonian, Pioneers on the Horizon:
Collaborative Law in Employment Disputes, available at
http://www.hutchingsbarsamian.com/pdf/employmentdisputes.pdf
• Collaborative Law Process Agreement for Business and
Employment Cases, available at
http://www.collaborativepractice.com
• R. Paul Faxon & Michael Zeytoonian, Prescription for
Sanity in Resolving Business Disputes: Civil
Collaborative Practice in a Business Restructuring
Case, available at
http://www.collaborativepractice.com/lib/PDFs/Presc
riptionForSanityInResolvingBusinessDisputes.pdf
A New Generation of
Discrimination Claims:
“Unconscious Discrimination”
• Franita Tolson, The Boundaries of Litigating
Unconscious Discrimination, 33 Del. J. Corp. L.
347 (2008)
Bullying Claims in the Workplace
•
Raess v. Doescher, 883 N.E.2d 790, 2008 Ind. LEXIS 313 (Ind. 2008) (The
Indiana Supreme Court, over the dissent of one judge, declined to
decide whether it was error to admit the testimony of a so-called
“bullying expert.” A cardiac surgeon who was accused of being a
workplace bully because he yelled at a co-worker, was sued by
the co-worker for intentional infliction of emotional distress, and
the trial court permitted a so-called “bullying expert” to testify.
The Supreme Court did state as follows: “The phrase ‘workplace
bullying,’ like other general terms used to characterize a person’s
behavior, is an entirely appropriate consideration in determining
the issues before the jury. As evidenced by the trial court’s
questions to counsel during pre-trial proceedings, workplace
bullying could ‘be considered a form of intentional infliction of
emotional distress.’”)
• Tresa Baldas, States Take Aim by Taming “Bully Bosses”, The National
Law Journal, April 9, 2007
Pregnancy Discrimination Act
• Doe v. C.A.R.S. Protection Plus, Inc., 543 F.3d 178,
2008 U.S. App. LEXIS 19544(3d Cir. 2008) (Court
found that a plaintiff’s claim that she was
terminated because she underwent a surgical
abortion states a claim under the Pregnancy
Discrimination Act)
Demise of Prima Facie
Case Analysis
• Brady v. Office of the Sergeant of Arms, U.S. House, 520 F.3d
490 (D.C. Cir. March 28, 2008) (“Lest there be any lingering
uncertainty, we state the rule clearly: In a Title VII
disparate-treatment suit where an employee has suffered
an adverse employment action and an employer has
asserted a legitimate, non-discriminatory reason for the
decision, the district court need not -- and should not -decide whether the plaintiff actually made out a prima facie
case under McDonnell Douglas. Rather, in considering an
employer's motion for summary judgment or judgment as
a matter of law in those circumstances, the district court
must resolve one central question: Has the employee
produced sufficient evidence for a reasonable jury to find
that the employer's asserted non-discriminatory reason
was not the actual reason and that the employer
intentionally discriminated against the employee on the
basis of race, color, religion, sex, or national origin?”)
Additional papers authored by Mr. Fitzpatrick may be
found at FJC online (http://cwn.fjc.dcn), including the
following:
• Employment Law Update
• New Federal Labor and Employment Legislation
• Proposed Federal Employment and Labor
Legislation
• Emerging Employment Law Issues
• Review of the Supreme Court’s Employment Cases
(2007-2008 Term) And A Preview of the Coming
Term (2008-2009 Term)
• Review of the Supreme Court’s Employment Cases
(2001-2006 Terms)
Retaliation – Timing Issues
Brenes v. City of New York, 2009 U.S. App. LEXIS 6270
(2d Cir. Mar. 23, 2009) (the court held that the
timing of an attempt to reject the plaintiff’s
appointment to teach at a school was probative of
retaliatory animous even though the first negative
evaluation of plaintiff occurred nearly ten months
after the protected activity, where a transfer form
prepared less than two months after the protected
activity also attempted to reject his appointment.
The court also found a series of negative
performance evaluations at the start of the next
school year to be suspicious, particularly given
the fact that the plaintiff previously received only
satisfactory evaluations)
Title VII – Adverse Action
Douglas v. Donovan, 2009 U.S. App. LEXIS 5456 (D.C.
Cir. Mar. 17, 2009) (Judge Janice Rogers Brown,
writing for the majority, with Judge Tatel
dissenting, held that a department head’s failure
to recommend a federal employee for a
prestigious award (that includes a substantial
financial benefit) is not an adverse employment
action under Title VII as the harm is too
speculative. The majority found there to be
instances where there is a categorical
presumption of harm and others where the court
imposes a causation requirement. In the latter, the
employee must go the further step of
demonstrating how the decision caused
objectively tangible harm)
Collective Action
Sandoz v. Cingular Wireless, LLC, 553 F.3d 913 (5th Cir.
2008) (plaintiff filed a putative collective action
under the FLSA, and filed a motion to certify her
collective action. The defendant submitted to the
individual plaintiff a Rule 68 offer of judgment for
$1,000 plus her reasonable attorneys’ fees, which
plaintiff did not accept. The defense argued that
its make-whole offer to the named plaintiff alone in
a collective action under the FLSA divests the
court of subject matter jurisdiction. Thereafter,
plaintiff filed her motion for certificaiton of her
collective action. The circuit court, on an
interlocutory appeal, held that “when a FLSA
plaintiff files a timely motion for certification of a
collective action, that motion relates back to the
date the plaintiff filed the initial complaint,
particularly when one of the defendant's first
actions is to make a Rule 68 offer of judgment”)
FMLA
Rasic v. City of North Lake, 563 F.Supp.2d 885 (N.D. Ill.
2008) (the district court, recognizing a split among
the Circuits on the question of whether the FMLA
permits a right of action against individuals who
are public, rather than private, employees, held
that public agency employees may be individual
defendants under the FMLA. Modica v. Taylor, 465
F.3d 174, 186 (5th Cir. 2006) (holding that public
employees may be held individually liable under
FMLA) and Darby v. Bratch, 287 F.3d 673, 681 (8th
Cir. 2002) (same) with Wascura v. Carver, 169 F. 3d
683, 685-7 (11th Cir. 1999) (holding that there is no
individual liability for public employees under
FMLA) and Mitchell v. Chapman, 343 F.3d 811,
829-30 (6th Cir. 2003), cert. denied 542 U.S. 937,
124 S. Ct. 2908, 159 L. Ed. 2d 813 (2004) (same))
Compensable Time
Gatewood v. Koch Foods of Mississippi, LLC, 569
F.Supp.2d 687 (S.D. Miss. 2008) (in this donning
and doffing FLSA case, the district court granted,
in part, defendant’s motion for summary judgment
where the union failed to collectively bargain on
the issue of non-compensation for changing
clothes at the beginning and end of each workday,
finding that thus a workplace practice existed
sufficient to invoke the defense set forth in 29
U.S.C. § 203(o))
Class Actions
Vondriska v. Premier Mortgage Funding, Inc., 564
F.Supp.2d 1330 (M.D. Fla. 2007) (the district court
discussed at some length the process of by which
the district courts are to determine whether or not
to certify a FLSA case as a collective action. The
court noted that typically there is a determination
made at the so-called “notice stage” and if that be
successful, a second determination precipitated
by a motion for “decertification” usually filed by
the defendant after discovery has been completed.
In this case, the court discussed at length the
standards to be used when a court is making the
determination at the “notice stage.” The court
held that it could conditionally certify a class of
FLSA plaintiffs seeking unpaid overtime, upon a
showing by the plaintiffs of “(1) whether there are
other employees who desire to opt in to the
action; and (2) whether the employees who desire
to opt in are ‘similarly situated’”)
EEOC Litigation
Equal Employment Opportunity Comm’n v. Watkins
Motor Lines, 553 F.3d 593 (7th Cir. 2009) (holding
that EEO litigation continues even though the
charging party has settled)
Religious Freedom
Restoration Act of 1993
• Potter v. Dist. of Columbia, 2009 U.S. App. LEXIS
4540 (D.C. Cir. Mar. 6, 2009)
• Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th
Cir. 1993)
•
Dispute Resolution
Gibson v. Neighborhood Health Clinics, Inc.,
121 F.3d 1126 (7th Cir. 1997).
•
•
RICO Claims Against
Employers
Brown v. Cassens Transp. Co., 2008 U.S.
App. LEXIS 21990 (6th Cir. 2008).
•
•
Noerr-Pennington Doctrine
Chalpin v. Snyder, 2008 Ariz. App. LEXIS
156 (2d Cir. 2008).
•
•
“Similarly Situated” Co-Workers
Billue v. Praxair, Inc., 2008 U.S. App. LEXIS
23980 (2d Cir. 2008).
•
•
TITLE
Brown v. Wells Fargo Bank, 168 Cal. App.
4th 938 (Cal. Ct. App. 2008).
•
•
Affirmative Action
• Rothe Dev. Corp. v. Dep’t of Def., Civil Action
No. 2008-1017 (Fed. Cir. Nov. 4, 2008).
• Robert B. Fitzpatrick, Affirmative Action and
Diversity Programs in the Workplace:
Some Questions (2007), available at
http://www.robertbfitzpatrick.com/publisheda
rticles.html.
•
Courtroom Testimony as
Protected Speech
Reilly v. Flipping, 532 F.3d 316 (3rd Cir. N.J.
2008), cert. denied 2009 U.S. LEXIS
1338 (2009).
•
•
Disability Discrimination and
Harassment
Mangano v. Verity, Inc., 84 Cal. Rptr. 3d 526
(Cal. Ct. App. 2008).
•
•
Whistleblowing and the First
Amendment
Thomas v. City of Blanchard, 548 F.3d 1317
(10th Cir. 2008).
•
•
S.E.C. v. Collins & Aikman Corp.
2008 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 2009)
•
•
FMLA Cases Continue to
Proliferate
Brown v. Nutrition Mgmt. Servs. Co., 2009 U.S. Dist.
LEXIS 4199 (E.D. Pa. Jan. 21, 2009)
•
•
TITLE
Opinion and Order, McDonald v. Best Buy
Co., Inc., 2008 U.S. Dist. LEXIS 78524
(C.D.Ill. Aug. 28, 2008)
•
•
Employer Sued for Using Lie
Detector Test
Worden v. Sun Trust Banks, 549 F.3d 334
(4th Cir. 2008).
•
•
Defense Discovery Seeking Access
Plaintiff’s Facebook Account
•
•
Religious Discrimination Issues
Nantiya Ruan, Accommodating Respectful Religious
Expression in the Workplace, 92 Marq. L. Rev. 1
(2008)
•
•
FMLA
Townsend-Taylor v. Ameritech Servs., Inc.,
523 F.3d 815 (7th Cir. 2008)
•
•
Americans with Disabilities Act
Pulver, An Imperfect Fit: Obesity, Public Health,
and Disability Anti-Discrimination Law, 41
Colum. J. L. & Soc. Probs. 365 (2008)
•
Ethical Issues Regarding
Misrepresentations During Investigations
•
•
•
•
•
•
•
In re Pautler, 47 P.3d 1175 (Or. 2002)
Apple Corps. Ltd. v. Int’l Collectors Soc’y, 15 F.Supp.2d 456
(D.N.J. 1998)
Richardson v. Howard, 712 F.2d 319 (7th Cir. 1983)
David B. Isbell & Lucantonio N. Salvi, Ethical Responsibility of
Lawyers for Deception by Undercover Investigators and
Discrimination Testers: an Analysis of the Provisions
Prohibiting Misrepresentation under the Model Rules of
Professional Conduct, 8 Geo. J. L. Eth. 791 (Summer 1995)
Arizona Ethics Opinion No. 99-11 (1999)
Utah State Bar Ethics Advisory Opinion Committee Opinion No.
02-05 (2002)
New York County Lawyer’s Association Committee on Professional
Ethics Formal Opinion 737 (2007)
Passive Discrimination
Jonah Gelbach et al., Passive Discrimination: When
Does it Make Sense to Pay Too Little?, __ Univ.
Chi. L. Rev. __ (forthcoming 2009), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id
=1263931
•
Agri Processor Co., Inc., v. NLRB
129 S. Ct. 594, 2008 U.S. LEXIS 8451 (2008), cert. denied,
514 F.3d 1 (D.C. Cir. 2008)
•
•
ERISA Cash Balance
Brief for the United States as Amicus Curiae, AK Steel
Corp. Ret. Accumulation Pension Plan v. West,
128 S. Ct. 2926 (2008)
•
•
Declaratory Judgments in
Discrimination Cases
Ameritech Benefit Plan Comm. V. Commc’n Workers of
Am., 220 F.3d 814 (7th Cir. 2000)
•
•
Summary Judgment in
Employment Litigation
• Memorandum Granting Summary Judgment, SmithCrockett v. Bullard-Havens Technical High School,
2008 U.S. Dist. LEXIS 96373 (D.Conn. Nov. 26, 2008)
• Ruling on Motion for Summary Judgment, Kwentoh v.
State of Connecticut Dep’t of Children and Families
Juvenile Training School, 2008 U.S. Dist. LEXIS
97727 (D.Conn. Dec. 2, 2008).
•
•
Constructive Termination
Mac’s Shell Serv. V. Shell Oil Products Co.,
524 F.3d 33 (1st Cir. 2008)
•
•
ERISA – Experimental Chemotherapy
Summers v. Touchpoint Health Plan, Inc., 749 N.W.2d
182 (Wis. 2008)
•
•