With the Obama administration set to take office, the most significant change in employment law on the horizon is the Employee Free Choice Act (EFCA), a bill that passed in the House of Representatives in 2007 but was filibustered in the Senate. The EFCA would make it possible to unionize without an employee election. Incoming President Obama supports the EFCA, and the Republican minority is thought to be unlikely—or
On September 25, 2008, new federal legislation was signed that expands the scope of the Americans with Disabilities Act. Known as the ADA Amendments Act of 2008 (the “ADAAA”), the amendments reverse or nullify several Supreme Court rulings that significantly narrowed the scope of protection under the ADA. The basic definition of a disability under the ADA is a “physical or mental impairment that substantially limits one or more
Have you ever been frustrated by the length of time it takes for your computer to boot up? In light of recent lawsuits, some employers may be, as well. According to an article in the National Law Journal there has been a recent surge in litigation over whether employees should be compensated for time spent booting up their computers and logging out at the end of the day. Workers
In view of the rapidly deteriorating economy, a brief primer on unemployment benefits seems timely. Unemployment insurance provides partial wage replacement to unemployed workers while they look for new work. Unemployment insurance is administered by each of the fifty states, but is governed by federal guidelines. Generally, benefits are based on a percentage of an individual’s earnings over a recent 52-week period, up to a maximum amount. In most states,
The EEOC’s update to its guidance entitled “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities” makes clear that employees with disabilities must meet job-related qualifications standards that are consistent with business necessity, and must be able to perform the essential functions of the position, with or without reasonable accommodation. The guidance provides the following examples of performance standards that employers may apply to
A new law quietly passed as part of the recent economic bailout package that requires insurance coverage to be equal for mental and physical illnesses. Health plans commonly provide less, or different, coverage for mental illness and addiction disorders than for physical illnesses. In particular, health plans have regularly set higher co-payments for treatment of mental illnesses and have put greater restrictions on treatment. Mental health advocates have long
There has been a great deal of discussion recently on the need to address the widely-perceived problem of executive overcompensation. The recent financial meltdown on Wall Street has intensified this discussion. The federal government recently indicated that banks that accept cash infusions as part of the current financial bailout will be expected to comply with executive compensation provisions, including a “clawback” provision and prohibition on “golden parachutes.” However, a
A Seattle area contractor to Alaska Airlines recently settled a whistleblower case related to airline safety concerns for $30 thousand. American Power, based in Auburn, WA, settled with a former employee who was laid off after accusing the company of ignoring federal air safety standards. The plaintiff, Melodee Nixon, alleged that she had complained to company officials that false data was being provided to Alaska Airlines regarding oxygen and
With his father looking on, President George W. Bush today signed into law a bill expanding protection under the Americans With Disabilities Act. The ADA was originally signed into law by the first President Bush in 1990, and he considered the law one of his proudest accomplishments. In a series of decisions, however, the United States Supreme Court has construed the law narrowly, ruling that workers with disabilities who
Legal decisions issued by the federal courts, and particularly the U.S. Supreme Court, frequently have a political dimension. With each election, one or both major political parties frequently invoke such cases for political purposes. In this election cycle, one case that appears to be getting significant attention is the Supreme Court’s recent decision in Ledbetter v. Goodyear Tire, 550 S. Ct ___ (2007) a case of statutory interpretation of
A former prosecutor for Pierce County, Washington was awarded over $3 million last week, after a jury found that she had been wrongfully terminated in January 2004. The prosecutor, Barbara Corey, was a 20-year veteran of the prosecutor’s office. After she announced that she might run for county prosecutor, Corey alleged that County Prosecutor Gerry Horne engaged in repeated discriminatory acts against her, including allegedly “manufacturing” a criminal investigation
In a recent Six Circuit case, the employer-appellant’s contention that the Family Medical Leave Act does not prohibit retaliation against an employee who takes FMLA leave was rejected by the court. Plaintiff-Appellee Martha Bryant prevailed in a jury trial on her claim that Defendant-Appellant Dollar General Corporation (“Dollar General”) fired her in retaliation for her exercise of leave guaranteed by the Family and Medical Leave Act (“FMLA”). Dollar General
VERDICTS IN FAVOR OF EMPLOYEES A jury in Ohio awarded a whopping $47 million to an employee in an age discrimination case. The employee alleged that he was fired after he refused to fire three older workers because of concerns about age discrimination and disability discrimination. The verdict included $3.5 million as compensation for lost wages and $43.1 million in punitive damages. A jury in New Jersey returned a
Washington’s public lands commissioner, Doug Sutherland, is in political hot water after documents recently surfaced showing that he inappropriately touched a new female employee in his own department. Public records show that in January 2005, Sutherland touched the young woman’s back and made comments that she and at least one other individual overheard and found to be inappropriate. An internal investigation occurred as a result of the incident, which resulted
The Washington State Department of Corrections has been sued by the U.S. Department of Labor for widespread violations of the Fair Labor Standards Act. According to published reports, the damages in the case will likely be millions of dollars. After a three-year investigation, the Department of Labor believes that the state violated the rights of approximately 800 workers. The suit alleges that probation officers, community corrections specialists, and office assistants
Longview Fibre has agreed to settle a charge of disability discrimination for $175,000 according the EEOC. An article about the case appears here. According to published reports, the company rescinded a job offer made to the claimant, Scott Harshbarger, after he suffered a spinal injury that required pain medication, even though the condition did not affect his ability to work. In addition to the financial payment, Longview FIbre also will
The Washington Department of Labor and Industries has adopted new rules for employees who work outdoors. The rules take effect on July 5 and are designed to address health hazards created by working outdoors in hot weather. According to the Department, three workers have died in the past three years from working outdoors on hot days, and the Department has received some 582 workers’ compensation claims in the last 12 years
Below are some recent reported verdicts in employment law cases. Verdicts in Favor of Employees Three white police officers were awarded a $10 million verdict against the City of Philadelphia in a retaliation case. The officers alleged that they were retaliated against after the broke the “blue code of silence” and spoke out about racism against black officers. > A jury awarded $4.5 million to an employee of the City of Cambridge
Internet technology now makes it possible to interview an employee “in-person” anywhere in the world. The benefit to employers is obvious. No longer do employers need to pay expensive travel expenses to facilitate an in-person interview. At the same time, by viewing a candidate on video, the employer can readily discern things about candidates that could make for illegal employment decisions, such as age, disability, and race. A recent webinar
An employment law issue generated controversy yesterday at a company’s annual shareholder meeting in Seattle. The company is Expeditors International, a Fortune 500 global logistics company based in Seattle. It trades in the NASDAQ 100 and generates $5 billion in annual revenue. A shareholder proposal requested adoption of a written policy banning sexual orientation discrimination. The resolution failed after it was unanimously opposed by the board of directors, but
How do you turn a run-of-the-mill termination for poor performance into an $800,000 liability? We find the answer in the Sears Roebuck catalog. Former Sears employee Gunnar Steward sued for age discrimination after his termination for performance reasons. The facts of the case are relatively unremarkable. In fact, the evidence supporting Steward’s discrimination claim was weak enough that a judge dismissed the case once, before it was reinstated by the
The U.S. Supreme Court yesterday heard oral argument in the MetLife v. Glenn case. This is an important case that could affect all future lawsuits to collect benefits under an employee benefit plan. Where an employee benefits lawsuit is governed by ERISA, the lawyers in nearly every case argue over the standard of review. Those seeking benefits (usually employees or beneficiaries) argue that the court should determine whether the best
We reported on the decision by the 7th Circuit Court of Appeals in Dewitt v. Proctor Hospital in which the court allowed a claim by a plaintiff who contended that she was fired because of her husband’s high medical bills. In a similar case decided this week, the 8th Circuit Court of Appeals has allowed a claim for “interference with employee benefits.” In Fitzgerald v. Action, Inc., Danny Fitzgerald told
Here is an article about an interesting case filed recently in the United States District Court for the Western District of Washington. A counselor for a mental health agency alleges he was fired because of testimony he gave on the witness stand in a domestic violence case. A copy of the lawsuit complaint can be read here.
Boeing this week added itself to the list of companies that are phasing out defined benefit pension plans. In negotiations with its unions, Boeing is proposing that all new employees be enrolled in a 401(k) type plan supplemented with contributions by Boeing. The proposal is not surprising. Many companies are working to replace their pension plans with defined contribution plans as the only form of retirement security for many workers.
Candace Wahl worked for a few months as a dental assistant in a small dental clinic. A dentist who co-owned the clinic commented about her breasts and the bodies of other employees and female patients, made sexual explicit comments about his sex life, and at one point allegedly masturbated while the two of them were in a darkroom. After the darkroom incident, Wahl worked the rest of the week and
A recent published decision by the Washington Court of Appeals, Kitsap County v. Smith, raises interesting questions under the Washington Privacy Act: Can conversations with or among public employees be considered “private”? Under RCW 9.73.030, it is unlawful to record “private” conversations without obtaining consent of all persons engaged in the conversation. Anyone who violates this statute is subject to criminal prosecution for a gross misdemeanor and a civil action
Substitute House Bill 2602 became effective April 1, 2008. The new leave law in Washington State permits victims of domestic violence, sexual assault, or stalking to take reasonable leave, including intermittent leave, for counseling, medical care, and for legal and law enforcement matters. The employee is permitted to choose vacation, sick leave, personal time off, or leave without pay, at the option of the employee. In addition, a victim’s family
Effective June 12, 2008, military families in Washington will have new leave rights under legislation passed by the legislature and signed by Governor Gregoire. During periods of military conflict, employees can take up to up to 15 days of unpaid leave before their spouse is deployed or while their spouse is on leave from deployment. Senate Bill 6447 also raises the the number of days each year a state
There was an article about an interesting age discrimination case against the University of Washington. The case was filed by Warren Guntheroth, an 80 year old doctor at the UW Medical Center. In 2004, the UW paid $35 million for overbilling Medicare and Medicaid. At the time, Guntheroth blamed the dean of the medical school. He now claims that the school retaliated against him by questioning his competence, hiring people
Recent court cases have highlighted the thorny issues that arise when a benefit plan enforces its subrogation rights or seeks reimbursement of overpaid employee benefits. Plan administrators have faced uncertainty about subrogation and reimbursement claims in the wake of the Supreme Court rulings in Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006) and Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002). In Sereboff
Trev Kiser was the women’s basketball coach at Clark College in Vancouver, Washington. Kisar complained to school officials about a pattern of inequality between the men’s and women’s basketball programs, such as in the quality of the officiating assigned to women’s games, the team budgets, and travel accommodations, and that the college’s athletic director was hostile toward the women’s team. Kisar testified that, after he complained about the inequity in
A criminal case filed in King County Superior Court demonstrates the consequences faced by an employee who takes company documents without permission. Gerald Eastman, an 18-year employee and former quality assurance inspector for Boeing, is on trial facing 16 felony counts of “computer trespass.” According to published reports, in 2002, Eastman filed a 400-page complaint with the Federal Aviation Administration alleging quality assurance problems with Boeing aircraft. Starting in 2003,
A recent case in the 6th Circuit Court of Appeals demonstrates how discretionary decision-making can lead to employment discrimination claims. David Dunlap sued his employer for race discrimination under Title VII of the Civil Rights Act of 1964. Dunlap had 20 years of experience as a boilermaker and boilermaker foreman. He was one of 21 people who interviewed for 10 boilermaker positions. Interviews were conducted by a panel comprised of
C.R. Wright of Fisher & Phillips LLP recently posted on Fair Labor Standards Act litigation in retail jobs. The article notes a huge increase in overtime cases under the Fair Labor Standards Act and state wage and hour laws. (Indeed, many such cases have been filed here in Washington) Mr. Wright discusses class action cases against Starbucks, Home Depot, Family Dollar, Radio Shack, and convenience stores challenging whether retail managers are
The City of Colorado Springs agreed to pay police officers $5.25 Million in a wage and hour class action lawsuit. The suit concerned the classification of Sergeants as exempt employees under overtime laws and the time spent by police officers before and after their scheduled shifts — off-the-clock “donning and doffing” activities.
Last week, we wrote about the wage claim class action concerning the tip jar at Starbucks stores in California. A class of an estimated 120,000 Starbucks baristas requested pay for their fair share of money from the tip jar. The court has awarded $105 million. The suit alleged that store managers and supervisors shared in the tip jar in violation of California law. The class plaintiffs argued that Starbucks should
Within 20 years, nearly 20% of Americans, 71 million people, will be age 65 or older. Thanks to the baby boomers, America is getting older and doing so at a rapid rate. Recently, a federal task force published a report addressing the aging of the American workforce. The task force was comprised of representatives from the Departments of Commerce, Education, Health and Human Services, Labor, Transportation, and Treasury; the Equal
We could not pass up an opportunity to mention Britney Spears here on our blog. As reported in this article, UCLA Medical Center is imposing discipline against 13 employees who looked at Britney’s medical records without permission. This seems to be a trend. As reported here, 27 employees at Palisades Medical Center in North Bergen, New Jersey, were suspended back in October for viewing George Clooney’s medical records after a
In November 2007, a jury in Seattle awarded $4.4 million to Melissa Sheffield in a discrimination lawsuit. Sheffield sued her former employer, Goodyear Tire & Rubber Co., for retaliation after she complained of sexual orientation harassment, and she also claimed that Goodyear failed to reasonably accommodate a disability. The jury award included $318,344 in lost pay and benefits, $40,622 in lost future wages and benefits, and a whopping $4,000,000
The Ohio Employer’s Law Blog reports today about an interesting case from the Ohio Supreme Court. The case concerns alleged defamatory statements in an internal investigation report about a police chief. The police chief sued for defamation after the report was made public. The Ohio Supreme Court decided that there was sufficient evidence to submit the defamation claims to a jury.
Today the 9th Circuit Court of Appeals issued an opinion holding that a preemployment drug test on an Oregon public employee was unconstitutional. The plaintiff was offered a job in a city library conditioned on a drug test. She challenged the drug test on Fourth Amendment grounds. The 9th Circuit determined that the city failed to show any special needs for the test because there was no prior evidence of
How much money is there in a coffee house tip jar? A trial is underway in San Diego to find out. The court will be asked to award damages to employees who allegedly were denied a fair share from the tip jar at Starbucks. The class action on behalf of an estimated 120,000 Starbucks baristas alleges that store managers or supervisors shared in the tip jar in violation of California
Yesterday, Division III of the Washington Court of Appeals issued an “unpublished” opinion addressing constructive discharge under Washington law. The decision does not break any new ground in Washington employment law, which why it is unpublished, but it is worthwhile to observe what is not a constructive discharge. The employee argued constructive discharge after he was hired as a human resources director but was reassigned to a sales position. His
As noted below, on February 20, the U.S. Supreme Court clarified a remedy issue under ERISA. Employees can sue under ERISA Section 502(a)(2) for fiduciary breaches that impair the value of assets in a 401(k) account. Last week, the Supreme Court signaled that it may now address the issue of what constitutes “equitable relief” under ERISA Section 502(a)(3). The case under consideration is Amschwand v. Spherion Corp., 505 F.3d 342
ERISA disability benefit plans commonly require objective medical evidence of disability. This can be a difficult hurdle for claimants who believe they are disabled by conditions that cannot be evaluated by objective evidence. In one recent case, for example, the employee argued that she was disabled because of severe debilitating migraines, but that it was impossible to substantiate the severity of the migraines with objective evidence. The employee benefit plan
In a recent case, the 6th Circuit Court of Appeals ruled that Title VII permits claims against an employer for acts of retaliation by coworkers. According to the court, an employer will be liable for a coworker’s actions if: (1) the coworkers’ retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination; (2) supervisors or members of management have actual
In employment lawsuits, plaintiffs’ attorneys frequently request information about employees other than the plaintiff, including address and telephone numbers for current and former employees. When responding to such requests, employers are sometimes concerned that producing employee contact information will (a) lead to other potential plaintiffs who may want sue the company, or (b) violate employee privacy rights. As reported, one court recently rejected company objections on privacy grounds and ordered
A recent decision by the 2nd Circuit Court of Appeals demonstrates that an employer can be liable for overtime pay even if employees have been forbidden to work overtime. The case is Chao v. Gotham Registry, Inc. and can be read here. The court examined whether an employer must pay overtime work where it has prohibited the employee from working overtime and does not want the employee to work. According
A recent decision by the 7th Circuit Court of Appeals addresses “association discrimination” under the Americans with Disabilities Act (“ADA”) in the context of medical insurance expenses. The plaintiff in the case contended that she was fired because of her husband’s high medical bills. The company was self-insured for the first $250,000 of annual covered medical costs, and the medical bills for the plaintiff’s husband had been over $316,000 in
In most states, including Washington, an employee who wins a lawsuit for unpaid wages is entitled to reasonable attorney’s fees. As most employers know, a getting sued for unpaid wages brings additional risks that the company must pay the unpaid wages plus substantial attorney fees, which fees could in many cases be more than the wages owed. In addition, in Washington, an employer can be liable for double damages (double
I wrote a few words below about non-compete agreements and their proliferation. Now comes a story about a company that must pay $4 Million for denying compensation to an executive who refused to sign a non-compete agreement. In this particular situation, the employer (H&R Block) attempted to force its Chief Operating Office to sign a non-compete. When the executive refused, the company denied payment of stock options and refused to
The U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against a Lowe’s store in Longview, Washington for sex discrimination and sexual harassment. There is an article about the case here. According to the media reports, two heterosexual employees allege that they were repeatedly called “gay” by store managers, and a female employee alleges that a store manager told her she could advance in the company if she had
Here is an interesting article in today’s Chicago Tribune about the proliferation of non-compete agreements. I thought this was a good opportunity to say a few words here about non-compete agreements. As the article observes, more and more employers are using non-compete agreements for more and more employees, but the article also notes that such agreements can be difficult to enforce. Indeed, whether to enforce a non-compete agreement is a
The U.S. Supreme Court is busy with an unusually large number of employment cases this term, and today the Court issued its opinion in one closely watched case. By many accounts, the decision is somewhat of a letdown for employment attorneys because the Supreme Court did not really decide much of anything, and certainly did not change the law or the way that employment discrimination cases will be litigated. The
A new published case from the Washington Court of Appeals addresses the proper remedy when an employer fails to pay under a settlement agreement. In this case, Rosen sued Ascentry for breach of contract and unpaid wages. Ascentry agreed to settle the case for $50,000. For some reason, Ascentry did not pay Rosen. One year later, Rosen sent a letter revoking the settlement agreement. The issue for the court
Today the Supreme Court said that a 401(k) participant can sue for losses when a plan fiduciary fails to follow investment directions. In the case, James LaRue of Southlake,Texas, contends that his stock market holdings plunged $150,000 because administrators of his 401(k) retirement plan failed to follow his instructions to switch to safer investments. The opinion clarified a remedy issue left open by a 1985 case, Massachusetts Mutual Life Insurance
Those following employee benefits litigation know that there have been hundreds of cases filed over the trend by companies to convert their traditional, defined benefit pension plans to cash balance plans. Another ruling was issued late last week in a class action case involving a plan conversion by CIGNA. The judge summarized the background the case as follows: Since the mid-1980s, hundreds of U.S.employers have converted their traditional defined benefit
Legislation has been introduced in 13 states, including Washington, to allow employee lawsuits against employers for bullying or offensive behavior even when the conduct is not illegal harassment under discrimination laws. For an interesting article on these bills see “No Putting Up With Putdowns”. No state has enacted one of these so-called workplace bullying laws. Employers for good reason are concerned with the “flood gates” being opened to employment lawsuits
This interesting case is in the federal district court in Massachusetts. The employee was discharged for smoking while off-duty under an employer policy prohibiting all smoking, even outside of the workplace. A copy of the opinion can be found here, and an article about the case is here. The ruling states merely that discovery should proceed on an ERISA Section 510 claim and a state privacy law claim before a
The plaintiffs in this wage and hour class action challenged a practice whereby overtime earned during one month would be paid at the end the following month. In this case, corrections officers in Thurston County would submit time sheets for overtime at the end of the month and the wages were paid on the last day of the following month. The court held that the practice did not violate the
In a timely article for this Valentine’s Day, see this article from Nixon Peabody and this article from Human Resources Executive Online on romance in the workplace and so-called "love contracts."
The Department of Labor has issued an interesting advisory opinion holding that a Kentucky wage deduction withholding statute is preempted by ERISA to the extent it limits placement of employees into default health care plans. In this situation, employees who fail to choose a plan are placed into one by default and the employee’s share of coverage is collected through payroll deductions. Like many states, a Kentucky statute allows a
Daniel Schwartz of the Connecticut Employment Law Blog today published a Blog post on Employment Practices Liability Insurance (EPLI) called Insurance for Employers (EPLI) – The Good, the Bad, the Unknown. The post can be read here. It builds on some points by Michael Moore, of the Pennsylvania Employment Law Blog (posted here), and identifies some of the issues employers should look at and what employers should know. I wonder
In a recent ruling, the NLRB tweaked its views on whether and how employers may restrict the use of workplace email systems.
In addition to the MetLife case reported below, the U.S. Supreme Court is set to hear several employment law issues this term. Look for more information as these rulings are handed down. Crawford v. Metropolitan Government of Nashville and CBOCS West Inc. v. Humphries The court will address the scope of protections against retaliation under discrimination laws, and specifically whether employees are protected if they participate in an internal investigation.
The Washington Court of Appeals recently affirmed the dismissal of an interesting case involving allegations of sexual harassment, retaliation, and disability discrimination. Briefly, the plaintiff, Moon, was allegedly asked for sex and sexually assaulted by a supervisor at her home after a party with other coworkers. She complained about the incident 8 months later. The supervisor was then instructed to have no contact with Moon. Some time later, Moon’s psychiatrist
On January 28, 2008, President Bush signed the National Defense Authorization Act of 2008. The Act includes significant revisions to the Family Medical Leave Act of 1993 (FMLA). FMLA coverage is expanded to employees who care for family members injured while on active military duty or for other exigent circumstances caused by active military service. Under the new law, up to twelve weeks of leave can be taken during any
The U.S. Department of Labor has issued its new proposed regulations for the Family and Medical Leave Act. They are published here. The DOL will accept comments until April 11 before issuing final regulations.
On April 23, 2008, the U.S. Supreme Court will hear arguments in MetLife v. Glenn. This is an important case that may affect all future lawsuits to collect benefits under an employee benefit plan. Where a benefits case is subject to ERISA, the lawyers in nearly every case argue over the standard of review. Employees argue that the court should review the eligibility decision de novo while employers and plan
The Washington Supreme Court ruled on October 18, 2007, that time spent driving to and from work in a company vehicle should be considered as hours worked and included in calculations of overtime pay. The case, Stevens v. Brink’s Home Security, Inc., No. 79815-0 (Oct. 18, 2007), is an important ruling under wage and hour laws. The case involved a class action filed on behalf of workers who drove company
Superior Court Judge Sally F. Olsen dismissed a lawsuit filed in Kitsap County Superior Court alleging that an employee was wrongfully discharged for using marijuana. The employee alleged a claim for wrongful discharge in violation of public policy arguing she was using legally using medicinal marijuana under Washington law. The dismissal of the case follows a similar ruling by the California Supreme Court on January 24, 2008. The case now
