Washington Labor, Employment & Employee Benefits Law Blog

Eighth Circuit Enforces “But For” Burden of Proof in ADEA Case

2009-06-18T13:37:06-07:00

In an Age Discrimination in Employment Act (ADEA) action claiming a wrongful demotion, the lower court had instructed the jury to enter a verdict for the plaintiff if he proved, by a preponderance of the evidence, that he was demoted and his age was a motivating factor in the demotion decision.

The Eighth Circuit Court of Appeals reversed the jury verdict holding that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. Read more...

FMLA Protection for Part-timers?

2009-05-22T11:50:28-07:00

This week the Indiana Supreme Court held that an employee f illing multiple positions with the same employer is eligible for leave under the federal Family and Medical Leave Act if that employee’s total service is sufficient to qualify - even if service in either position alone does not qualify.

Tom Powell taught math at Lew Wallace High School in Gary, Indiana, since 1987. From 1987 to 1999, Powell served as an assistant football coach, and in 2000, he was promoted to head football coach. Beginning in 1995, Powell also served as assistant basketball coach at Lew Wallace. For the 2001–2002 school year, Powell was under contract as a math teacher, night school teacher, and head football coach.

After injuring his leg twice and taking seven weeks leave as a result, the board of Gary Community School Corporation (GCSC) fired him from his head football coaching position and replaced him with the assistant coach. After unsuccessfully reapplying for the head coach position twice in 2002 and 2003, Powell brought an action alleging that GCSC violated the Family and Medical Leave Act by failing to restore him as coach for the 2001 season and by retaliating against him for taking FMLA leave by rejecting him as head football coach in subsequent years. Powell and GCSC both moved for summary judgment on several issues, including whether Powell’s leave was covered by the FMLA. The trial court granted summary judgment for Powell on this issue and concluded that GCSC had violated the FMLA by failing to reinstate Powell as head football coach in 2001. Damages for failure to reinstate remained for trial along with Powell’s separate claim that GCSC had retaliated for taking FMLA leave. The trial resulted in an award of damages totaling $280,200.20 for the failure to reinstate and the 3 retaliation claims. The trial court reduced the award to $188,919.29 and added prejudgment interest of $18,274 and attorneys fees of $125,000. The Court of Appeals reversed, concluding that Powell was not eligible for FMLA leave.

Jurors’ Use of the Web Causing Problems at Trial

2009-03-31T11:49:41-07:00

A major rise in the use of handheld devices such as the Blackberry and iPhone is becoming a problem in courtrooms across the country. A mistrial was recently declared in a major criminal drug trial in federal district court in Florida, after the judge learned that nine of the jurors had used their handheld devices to improperly conduct research on the case on the Internet. In another case in Arkansas, a $12.6 million judgment was put into question after the losing party learned that a juror had sent updates via Twitter during the trial.

The use of handheld devices by jurors to conduct research or engage in improper communications via handheld devices poses serious concerns to the well-established and time-tested methods used at trial, where jurors are provided with specific legal instructions on the case by the judge and are generally prohibited from communicating or deliberating about the case with outside persons. This concern has received extensive media treatment in recent weeks.

One good article on the issue can be found here.

Surge in Age Discrimination Claims

2009-03-12T12:37:05-07:00

The federal Equal Employment Opportunity Commission (“EEOC”) is set to release information shortly that will reveal a sharp rise in the number of age-discrimination claims filed with the agency. According to the EEOC, the number of age-discrimination allegations made by employees has jumped 29%, from 19,103 complaints filed in 2007 to 24,600 in the most recent year ending on September 30, 2008. The EEOC indicates that while there has been a rise in the overall number of discrimination complaints (including other allegations such as sex and race discrimination), the increase in claims of age discrimination has been the most dramatic.

What is the cause for the increase? One explanation may simply be the demographic fact of more older workers in today’s workplace. A recent Wall Street Journal blog article on the subject also discusses other plausible reasons for the increase, including that in 2005, the U.S. Supreme Court helped to broaden the interpretation of age discrimination to include cases in which there is no evidence of intentional discrimination. Researchers also speculate that older workers may be more motivated to pursue such claims because it is more difficult for them to find replacement jobs than it is for younger workers. A link to the Wall Street Journal blog article appears here.

Supreme Court Affirms Primacy of ERISA Plan Documents

2009-01-30T11:10:36-08:00

In a unanimous decision, the U.S. Supreme Court that an ERISA plan’s specific procedure for designating beneficiaries controls over other instruments that may conflict with it. In the case, Kennedy v. Plan Administrator for the DuPont Savings & Investment Plan, an employee designated his wife as the beneficiary for his pension plan and his savings plan. They later divorced. The employee then executed a new beneficiary form for his pension plan naming his daughter as beneficiary, but did not do the same for his savings plan. When the employee died, the plan’s administrator strictly followed its procedures under the Plan and deemed the employee’s ex-wife to be the beneficiary of the savings plan.

This case is significant because it helps to resolve a surprisingly frequent dilemma that confronts plan administrators when they encounter a deceased plan participant who failed to remove a former spouse as beneficiary. In these cases, the beneficiary’s apparent intent often appears to be in conflict with the designation reflected in the plan documents. The lesson of the case, ultimately, is that where a plan contains a specific procedure for revoking or otherwise changing a beneficiary designation, a plan participant should be careful to follow those procedures, as plan administrators are bound to follow the procedures of the plan. This is true even if, as in this case, the designated beneficiary had waived those benefits in a divorce decree.

More on the case can be found at this link:

CONGRESS NULLIFIES SUPREME COURT RULING BY EXTENDING TIME TO SUE FOR EQUAL PAY

2009-01-29T13:39:47-08:00

President Barack Obama signed an equal-pay bill into law Thursday before cheering labor and women leaders who fought hard for it and the woman whose history-making lawsuit gave impetus to the cause.

Obama, choosing the Lilly Ledbetter Fair Pay Act as the first bill to sign as president, called it a "wonderful day" and declared that ending pay disparities between men and woman an issue not just for women, but for all workers.
With Ledbetter standing by his side, Obama said she lost more than $200,000 in salary, and even more in pension and Social Security benefits that she "still feels today." He then signed the measure that effectively nullifies a 2007 Supreme Court decision and makes it easier for workers to sue for discrimination by allowing them more time to do so.
"Making our economy work means making sure it works for everyone," Obama said. "That there are no second-class citizens in our workplaces, and that it's not just unfair and illegal — but bad for business — to pay someone less because of their gender, age, race, ethnicity, religion or disability."

Ledbetter said she didn't become aware of the large discrepancy in her pay until she neared the end of her 19-year career at a Goodyear Tire & Rubber Co. plant in Gadsden, Ala, and she filed a lawsuit. But the high court held in a 5-4 decision that she missed her chance to bring the action.
First lady Michelle Obama, in a separate reception with Ledbetter in the State Dining Room, praised her courage and principles. "She knew unfairness when she saw it, and was willing to do something about it because it was the right thing to do — plain and simple," Mrs. Obama said.

Ledbetter said the richest reward is that because of the new law, the nation's daughters and granddaughters will have a better deal.

"That's what makes this fight worth fighting," Ledbetter said. "That's what made this fight one we had to win."
Earlier, the president appeared in a jammed East Room, and his entrance and many lines of his brief remarks were met with happy applause and yells.

He paid special tribute to Ledbetter, who fought for the bill even though it won't allow her to recover any money for herself.

And in the room were the living symbols of this fight: Nancy Pelosi, first woman speaker of the House, and Secretary of State Hillary Rodham Clinton, who took her pursuit of the presidency further than any other woman, even though she ultimately lost to Obama in the Democratic primary.
Of Ledbetter, Obama exclaimed: "This grandmother from Alabama kept on fighting, because she was thinking about the next generation."

Ledbetter became a regular feature in Obama's campaign for the White House, addressing the Democratic National Convention in Denver last year and traveling to Washington aboard Obama's train for the inauguration ceremonies. Obama spoke strongly in support of legislation to change the Supreme Court decision during his campaign and the Democratic-controlled Congress moved it to the top of the agenda for the new session that opened this month.
The high court said a person must file a claim of discrimination within 180 days of a company's initial decision to pay a worker less than it pays another worker doing the same job. Under the new bill, given final passage in Congress this week, every new discriminatory paycheck would extend the statute of limitations for another 180 days.
Congress attempted to update the law to extend the time, but the Bush White House and Senate Republicans blocked the legislation in the last session of Congress

Obama cited Census Bureau figures that women still receive only about 78 cents for every dollar that men get for doing equivalent jobs — "women of color even less," he said.
The measure, which amends the 1964 Civil Rights Act, also applies to discrimination based on factors such as race, religion, national origin, disability or age.

Supreme Court Ruling Protects Employees Against Retaliation For Assisting Internal Sexual Harassment Investigations

2009-01-27T13:31:46-08:00

An employee is protected from being fired in retaliation for answering questions during an employer's investigation of suspected sexual harassment, the Supreme Court ruled on Monday, January 26, 2009.

The unanimous court ruled the federal civil rights law's anti-retaliation provision for employees who report workplace sex or race discrimination also extended to an internal investigation of a supervisor or another worker.

"Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question," Justice David Souter wrote in the opinion.

The ruling decided an important workplace issue. Federal government lawyers said witnesses and victims would be unwilling to cooperate in employer sexual harassment investigations if they faced potential punishment like the loss of their jobs.

The decision followed the position taken by the Equal Employment Opportunity Commission, the federal agency that enforces laws against workplace discrimination and harassment.

The ruling was a victory for Vicky Crawford, who had been a payroll coordinator for more than 30 years for the public school system in Nashville and Davidson County in Tennessee.

In late 2001, Gene Hughes was hired as the school district's employee relations director, a job that made him responsible for investigating all claims of discrimination and harassment.

In 2002, after several female employees complained of sexual harassment by Hughes, the assistant director of human resources began an investigation and interviewed several employees who worked with Hughes, including Crawford.

Crawford told the assistant human resources director that Hughes asked to see her breasts on numerous occasions, grabbed his genitals in front of her and once pulled her head toward his crotch.

The investigation did not result in any disciplinary action against Hughes. A few months after taking part in the investigation, Crawford was suspended and then fired. Two other women who complained about sexual harassment by Hughes also were fired.

The school system fired Crawford after accusing her of drug use and embezzlement but Crawford called the accusations unfounded.

She sued on the grounds that the district had violated the federal civil rights law by firing her because she had disclosed the sexual harassment by Hughes.

Souter said Crawford was covered by the law because she had actively opposed the sexually obnoxious behavior by Hughes toward her, a decision that allows her lawsuit to go forward.

Court Hears Breach of Contract Case

2009-01-16T09:15:27-08:00

In Duncan v. Alaska USA Federal Credit Union, Inc., Division I of the Washington Court of Appeals reversed the lower court’s granting of summary judgment and ruled that genuine issues of material fact existed regarding Duncan’s breach of contract and wage claim statute claims. Specifically, the Court held that Alaska’s employee handbook contained language that arguably limited Alaska’s ability to review and amend Duncan’s compensation plan to once a year even though Alaska had been doing so every six months. Because of this, the Court also held that summary judgment on plaintiff’s exemplary damages claim was premature in part. The Court did state, however, that “it is beyond dispute that Washington law provides that “a terminable-at-will contract may be unilaterally modified” thereby affirming the lower trial court’s ruling on that issue.

The Employee Free Choice Act

2009-01-15T06:49:24-08:00

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 unable—to oppose it.

Under the current law, organizers of a collective bargaining unit must obtain sufficient employee signatures to trigger an election overseen by the National Labor Relations Board. If a majority of the proposed unit approves, the employees become unionized. The EFCA would eliminate this election phase, and instead would merely require that a majority of employees sign union cards for the employees to become unionized. Critics of this new approach argue that employers could effectively be “blindsided” by unions, and would not have a chance to present their case against unionization before it occurs. Critics also contend that the proposed law would be unfair to workers opposing a union because it would not provide them with a secret ballot and, thus, an opportunity to privately vote their non-support for a union.

The EFCA is opposed by many business groups, including the U.S. Chamber of Commerce, but it has received significant support from organized labor.

Legal Update: ADA Amendments Act of 2008

2009-01-13T08:29:27-08:00

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 major life activities.” In past cases, the Supreme Court has interpreted the “substantially limits” language of the definition very narrowly, but the ADAAA clarifies that the “substantially limits” language is to be construed more broadly. In the ADAAA, Congress expressly repudiates the holdings of the Supreme Court and other federal courts in this issue, and vests the Equal Employment Opportunity Commission (“EEOC”) with authority to promulgate interpretive standards for the new legislation.

The ADAAA includes other changes as well. It broadens the definition of “major life activity” and provides examples, such as seeing, hearing, eating, sleeping, breathing, learning, reading, concentrating, thinking, communicating, working, caring for oneself, and performing manual tasks. The new legislation also specifies that an impairment that is episodic or in remission may still qualify as a disability under the Act, as long as it would substantially limit a major life activity when active.
For further information on the ADAAA and its impact, a detailed article on the ADAAA from the law firm of Bond, Schoeneck & King is available here:

Is “Boot-Up” Time Compensable?

2009-01-05T08:59:33-08:00

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 at companies such as AT&T, UnitedHealth Group, Inc., and Cigna Corp., have all sued claiming they should be compensated for the time, which they allege can be 15 to 30 minutes, where their computers are booting up or logging out. Underlying these lawsuits appears to be a disputed factual issue: whether the affected workers are performing work-related tasks when they are waiting for their computers, or whether they are engaged in non-work related tasks such as smoking or talking with co-workers. A link can be found here to the article.

A Primer on Unemployment Benefits

2008-12-01T17:05:39-08:00

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, unemployment insurance can be collected for up to 26 weeks. However, the federal government recently extended that amount due to the current economic conditions. Unemployment insurance is subject to federal income taxes. The program was created in 1935, in the middle of the Great Depression. The unemployment rate is currently at a 14-year high, and over 10 million workers are currently unemployed.

A link to an article providing tips on collecting unemployment appears here.

Full Disclosure

2008-11-14T15:51:19-08:00

The incoming administration of President-Elect Obama is exercising unprecedented—and some say unwarranted—scrutiny on job applicants. Individuals applying for jobs in the Obama administration are being asked to complete a seven-page questionnaire that asks a wide variety of questions, covering topics such as personal and professional records, applicants’ families, electronic communications including personal blogs and Facebook pages, and “handles” used on the Internet. The questionnaire also focuses on the applicants’ previous work history including, in particular, whether the applicant has worked for companies implicated in the current economic crisis, such as Fannie Mae, Freddie Mac, AIG, and Washington Mutual Bank. The incoming administration’s hiring practices, as evidenced by the questionnaire, underscore that both public and private employers can and often do inquire about a wide range of issues when screening applicants for employment, and serve as a helpful reminder to job-seekers that their personal activities (including Internet use) are not necessarily “private” in the sense that future employers have the right to make it a source of inquiry. For more information on this issue, click here:

Trade Secrets in the NFL?

2008-10-24T15:25:05-07:00

The intersection of law and professional athletics is often an interesting topic (e.g., why doesn’t Major League Baseball violate the Sherman Act?). Employment law is no exception. In recent days, former Green Bay Packer quarterback Brett Favre has come under intense media scrutiny after he had a telephone conversation with the Detroit Lions’ General Manager, Matt Millen. Favre spoke with Millen before a game between the Lions and Packers, and allegedly offered inside information to the Lions on the Packers’ play calling and strategy. Under federal and state laws, it is unlawful to transfer “trade secrets” which are defined (under federal law) as “patterns, plans . . . prototypes . . . techniques, processes [and] procedures” which derive independent economic value from not generally being known to the public. Trade secret violations are more frequently litigated in, for example, the computer industry than in athletics. Nevertheless, a sports team’s playbook is as much a trade secret as a software program. Thus, if Favre did indeed provide detailed information that he obtained with the Packers, it is conceivable that his infamous telephone call was also illegal.

But don’t expect a lawsuit anytime soon. An article discussing Favre’s actions appears here:

EEOC Update guidance to conform with Americans with Disabilities Act Amendments of 2008

2008-10-22T15:22:36-07:00

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 persons with disabilities:

Employers may apply the same quantitative and qualitative requirements for performance of essential functions to employees with disabilities that they apply to employees without disabilities, such as production standards.
Employees may use the same evaluation criteria for employees with disabilities as for employees without disabilities, such as annual performance reviews.
An employer may give an employee a lower performance rating even if the employee responds by revealing that a disability is causing the performance problem.

But the following may not be permissible:

An employer cannot necessarily require that an employee with a disability perform a job in the same manner as a non-disabled employee. Reasonable accommodation may be required.
An employer cannot withdraw a reasonable accommodation because an employee is given an unsatisfactory performance rating.

The guidance also instructs employers on how to properly apply conduct standards:

Employers may discipline employees with disabilities for violating a conduct standard.
As long as the conduct rule is job-related and consistent with business necessity, an employer may discipline an employee even if the employee's disability caused violation of the conduct rule.

Regarding attendance, the guidance says:

Employers must grant employees with disabilities the same access to an employer's existing leave program as all other employees.
Employers must modify attendance policies as a reasonable accommodation, absent undue hardship.
However, employers need not completely exempt employees with disabilities from time and attendance requirements. For example, an employer may be able to demonstrate that an employee's chronic, frequent, and unpredictable absences preclude the employee from performing one or more essential functions of the job.

As seen above, the ADA requires employers to navigate a myriad of requirements in enforcing their performance, conduct, and other standards. Employers, and their supervisors, must become intimately familiar with the ADA's requirements to make sure they do so lawfully. Also, keep in mind that although courts generally adopt the EEOC's guidance on the laws it enforces, they are not legally bound to do so. Some courts, therefore, may interpret the ADA differently than the EEOC.

If you have any questions about these issues or other ADA or employment-related issues, please contact The Law Offices of Donald W. Heyrich.

New Federal Law Requires Equal Coverage for Mental Illnesses

2008-10-16T14:31:01-07:00

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 criticized the difference in coverage, claiming that it is based on stigma and lack of understanding of mental illnesses. Many health plans will now be required to adjust their coverage policies to comply with the new law. A recent article on the legislation appears here.

Confusion Surrounds Government Curbs on Executive Compensation

2008-10-14T15:49:32-07:00

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 closer look at those restrictions indicates that they are vague in language, and likely limited in scope. The clawback provision, for example, only takes requires a corporate board not to pay a severance benefit if the benefit was based on “materially inaccurate” information. Also, the provisions are not retroactive in scope. A recent article on the government’s handling of executive compensation in its bailout appears here.

Aviation Company Settles Whistleblower Suit on Air Safety Concerns

2008-10-13T15:07:16-07:00

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 nitrogen regulators used in Alaska’s aircraft. Nixon claimed that American Power was effectively cutting corners by coping and pasting old reports, rather than inputting new information for each new job. That lack of proper paperwork violated the stringent paperwork standards that are mandated by the Federal Aviation Administration, which is relied upon to catch errors and in investigations. The settlement follows a finding by the federal Occupational Safety and Health Administration (OSHA) that American Power retaliated against Nixon. American Power agreed to post information about whistleblower rights in the workplace following the settlement, but did not admit to any wrongdoing. An article on the whistleblower claim can be found here:

PRO SE PLAINTIFF MAY NOT PURSUE CLAIMS IN A REPRESENTATIVE CAPACITY ON BEHALF OF AN ERISA PLAN

2008-10-10T15:34:29-07:00

In an ERISA case alleging breach of fiduciary duty by a plan administrator, motion to dismiss is affirmed by the Ninth Circuit where even a plan's sole beneficiary cannot, on behalf of an ERISA plan, bring a pro se action for breach of fiduciary duty under 29 U.S.C. section 1109(a). Read more here

New Law Expands Protection Under the ADA

2008-09-25T16:34:38-07:00

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 can mitigate their impairment should not be considered disabled. Thus, for example, diabetics, epileptics, and other individuals who are able to control their condition with medication do not qualify as “disabled” and, thus, are not protected under the ADA. Many legislators, legal commentators, and disabled advocates had argued for years that this Supreme Court interpretation was not consistent with the original intent of the Act. The new amendment to the law, enacted today, is designed to “restore the intent and protections” of the original measure, and overturns the Supreme Court’s decisions regarding the impact of corrective measures. The amendment was passed with bipartisan support. An article on the amendment appears here:

Transsexual Wins Sex Discrimination Lawsuit Against Federal Government

2008-09-24T14:13:40-07:00

A former Army Special Forces commander who was denied a job as a terrorism analyst won a sex discrimination lawsuit against the federal government last week because he was in the process of changing genders. U.S. District Judge James Robinson found that the Library of Congress discriminated against Diane (formerly David) Schroer “because of . . . sex” after it learned Schroer was undergoing a sex change. The judge ruled that the evidence showed that the Library of Congress was initially enthusiastic about Schroer, but revoked its offer of employment after learning of the sex change. Advocates for the transgendered hailed the victory as a groundbreaking ruling that clearly establishes discrimination against the transgendered as sex discrimination under federal law. A link to an article on the case appears here:

Former Vice Principal at Seattle High School Prevails in Sexual Harassment Suit

2008-09-12T16:15:43-07:00

A former vice principal at Ballard High School in Seattle, WA was awarded over $600 thousand in damages following a jury trial in King County Superior Court based on allegations that she was subjected to sexual harassment. The former vice principal, Glenda Williams, claimed that she was subjected to repeated overtures by Ballard High School’s then-principal, Method Odoemene. Williams alleged that she was on track to becoming a principal herself until Odoemene started his sexual overtures. In its defense, the Seattle Public Schools argued that Odoemene had been reprimanded for inappropriate behavior, and was ultimately removed from his position, following Williams’ complaint to the district about him. Nonetheless, the jury awarded substantial damages to Williams, agreeing with her contention that her career suffered as a result of the events.

An article discussing the case can be found here:

ADEA Permits Retaliation Claims Against a Federal Employer

2008-09-12T13:49:16-07:00

Terry Whitman was employed by the Federal Aviation Administration as a Flight Data Specialist. He sued the FAA for violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a et seq. when it promoted a student intern to a full-time salaried position which he sought, and when it denied his request for an extension of a work detail. Whitman also alleged that his employer retaliated against him when he filed a formal complaint of age discrimination. The Ninth Circuit reversed the district court’s holding that the ADEA does not permit retaliation claims against a federal employer. A link to the article can be found here:

Ledbetter Speaks at the Democratic National Convention

2008-08-29T13:29:30-07:00

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 the Equal Pay Act. In Ledbetter, the Supreme Court held by a five-justice majority that employers are protected from lawsuits over race or gender pay discrimination if the claims are based on decisions made by the employer 180 days ago or more. The decision attracted a substantial amount of press and criticism, on its substantially limiting effect on claims of discrimination in pay.

On Tuesday, the plaintiff in the case, Lilly Ledbetter, spoke at the Democratic National Convention. An article on the speech can be found here. Ledbetter received a standing ovation at the convention, and the Democratic party has taken on the issue and has proposed legislation to effectively override the decision.

Former Pierce County Prosecutor Wins Jury Award

2008-08-20T08:38:49-07:00

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 and leaking information to the media that suggested Corey was fired for mishandling public money. After a four-week trial, the jury awarded Corey $125,000 for lost wages and approximately $3 million in noneconomic damages including defamation-related damages and damage to her reputation.

Prosecutors are largely immune from civil lawsuits, but this decision shows that they can be sued successfully if they are found to be acting outside the scope of their official duties.

A link to an article discussing the award can be found here.

Retaliation is not OK under FMLA

2008-08-18T14:37:49-07:00

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 appealed contending that the FMLA does not prohibit retaliation against an employee who takes FMLA leave. The court affirmed holding that both the FMLA and its implementing regulations prohibit employers from retaliating against employees who have exercised FMLA leave. You can find the link here

Here is a report on recent jury verdicts in employment lawsuits

2008-07-29T15:53:24-07:00

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. An article about the case appears here.

A jury in New Jersey returned a verdict of nearly $11 million in favor of an employee in an age discrimination case. The award included $325,500 in back pay, $167,500 in front pay, $250,000 in emotional distress damages, and $10 million in punitive damages. The employee who filed the lawsuit was earning about $87,000 a year when he was fired, and the company reportedly offered only $80,000 to settle the case before trial. An article about the case can be found here.

A Connecticut jury awarded $4 million to an employee in an employment retaliation case under Title VII of the Civil Rights Act. A description of the case and links to documents can be found here.

A Colorado jury returned a verdict for $1.4 million in favor an employee in a whistle-blower lawsuit. The employee was driving to the intensive care unit to see her sister, who was dying of kidney and liver failure, when the company called her to tell her she was being terminated. She sued for wrongful discharge and alleged that she was fired for blowing the whistle on fraud and illegal sales practices. An article about the case can be found here.

A jury in Mississippi awarded nearly $1.2 million to three college athletic coaches who alleged that they were discriminated against based on sex and retaliated against. An article about the case appears here.

A jury in Massachusetts awarded a verdict of $770,000 in favor of a former police chief who filed an employment discrimination lawsuit alleging that he was discriminated against because he served in the National Guard. An article about the case appears here.

A jury in Missouri awarded a verdict of $337,000 to an Arab-American who alleged that he was subjected to harassment and a hostile work environment after the September 11, 2001 terrorist attacks and the U.S. invasion of Iraq. An article about the case appears here.

A Massachusetts jury awarded a verdict of $150,000 to a female employee who alleged that she was retaliated against at work because she filed a sex discrimination complaint. An article about the case appears here.

VERDICTS IN FAVOR OF EMPLOYERS

A jury in Lincoln, California, deliberated for less than three hours before delivering a verdict in favor of a school district in a wrongful termination and employment discrimination suit filed by former special education teacher. A link the article appears here.

A jury in Indiana returned a verdict in favor of an employer in a case involving allegations of race discrimination. The employee, who was Caucasian, sued over a promotion and argued that the job was given to a black applicant because of discriminatory motives. The jury deliberated for only 30 minutes. An article about the case appears here.

Compensatory Damages For Pain and Suffering Not Available Under ADEA

2008-07-28T16:38:45-07:00

In a recent case, the 10th Circuit Court of Appeals reaffirmed that damages for emotional distress are not available to an employee suing under the Age Discrimination in Employment Act. In this particular case, the court held that the employee failed to state a claim under the ADEA because he made no claim for pecuniary benefits related to his job or for any equitable relief; instead, his claim was limited to compensatory damages for pain and suffering which are not available under the statute. A link the case can be found here.

Washington Public Lands Commissioner Addresses Sexual Harassment Allegations

2008-07-17T09:14:55-07:00

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 in Sutherland meeting with the young woman, apologizing to her, and agreeing that he had violated departmental policy on appropriate behavior although he claims to have not initially thought his behavior was improper. The incident illustrates that harassing behavior can result in not only legal problems, but also in various other problems with business, employee morale or, in Sutherland’s case, possibly his prospects for reelection. A link to an article on the topic can be found here.

COURT: Pregnancy Discrimination Act Protects Employee Who Had Abortion

2008-06-12T15:58:58-07:00

The Third Circuit Court of Appeals in the first case of its kind has ruled that the Pregnancy Discrimination Act protects an employee who has had an abortion. The Pregnancy Discrimination Act states that it prohibits discrimination because of “pregnancy, childbirth, or related medical conditions.” The court reasoned that the language “related medical conditions” may include abortions. The case was allowed to go forward because the employee was fired almost immediately after her supervisor learned she had an abortion, creating an inference that the abortion motivated the termination. In addition, one employee said that the manager had been overheard saying that the employee “could not handle it,” which likewise created the appearance of improper motives. The employer argued that the employee was fired because she did not call in as all employees are required to do for medical conditions, but the employee produced evidence showing that this rule was not followed consistently. The case is Doe vs. C.A.R.S. Protection Plus, Inc. and a copy can be found here.

Department of Labor Sues Washington Prisons for Overtime Violations

2008-06-12T15:40:42-07:00

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 were not paid overtime for working more than 40 hours in a week and that the DOC failed to maintain records of all hours worked.

Longview Fibre Settles EEOC Disability Discrimination Claim for $175k

2008-06-11T11:52:46-07:00

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 train managers and employees on disability discrimination and give reports to the EEOC for two years on the handling of discrimination complaints.

New Outdoor Heat Rules for Washington Workers

2008-06-11T11:38:27-07:00

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 related to heat-related illness. Employers with outdoor workers are required to train employees and supervisors to recognize heat-related illness and on what to do if someone has symptoms of heat-related illness. In addition, employers are required to increase the volume of water available on hot days. As reported here, the new rules are opposed by farmers who have said that the rules are needlessly complicated and that farmers have enough wories. A press release from the Department on the new rules appears here and a copy of the rules appears here.

New Website Lifts the Veil on Employee Salaries and Evaluations

2008-06-11T10:22:02-07:00

The creator of Zillow.com has launched a new website where propective employees can research salaries and employee evaluations at various companies. No doubt the data on this site will grow and become a good resource as more users contribute over time. For the launch, the site has data on salaries and review information for Google, Yahoo, Microsoft, and Cisco Systems. The new site is Glassdoor.com.

On a related note, Will Schendel of the Alaska Employment Law Blog posted this article yesterday. It is a reminder that it is illegal for employers to ban workplace discussions regarding wages. It is worth a read. As Will points out, "[E]mployers employers, big and small, often try to bar their employees from discussing their wages. This practice has been illegal for years (since at least 1992)." More discussion of this rule can be found here at George's Employment Blawg.

Non-Compete Agreements and Protecting Trade Secrets

2008-05-28T09:20:14-07:00

Employers concerned about protecting trade secrets or hiring an employee from a competitor may find this article informative. Employees also may find the information useful if they are weighing their options under a non-compete agreement or if they are considering jumping ship to a competitor. This “roundtable transcript” includes comments from six different employment attorneys on trade secret and noncompete agreements including:

How to define a trade secret and why trade secrets can be valuable to a company.

How a company can legally obtain information about its competitors.

How a company should form and implement a trade secret protection policy, including protective measures such as the use of restrictive covenants for vendors and employees.

What steps a company should take when hiring an employee from a competitor when trade secrets are involved.

How a company can enforce its trade secret rights and ultimately recover damages.

The article is: Defining, Protecting and Litigating Trade Secrets: A Roundtable Discussion.

Recent Employment Law Verdicts

2008-05-27T12:46:16-07:00

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

, Massachusetts in a race discrimination and retaliation case.

The 9^th Circuit Court of Appeals upheld a verdict of $1.8 million against Sybase in a race discrimination case. The plaintiff, a Filipina-American, was the former director of human resources who alleged that she was fired because the HR department had “diversity problems” and had “too many women.”
The 9^th Circuit Court of Appeals upheld an award of $1 million to a farm worker who claimed sexual harassment, retaliation, and constructive discharge. The award included $53,000 in back pay, $91,000 for front pay, $350,000 in compensatory damages for emotional pain and distress and $500,000 in punitive damages (later reduced to $300,000 because of limits set by federal discrimination laws).
A jury in Pittsburgh awarded $1.2 million to teachers who alleged age and gender discrimination.
An appeals court upheld a $1.25 million verdict against a city police department filed by a former police detective who claimed sex discrimination, harassment, and retaliation.
A jury in Texas awarded $600,000 to a black state trooper who claimed that he was removed from the governor’s protective detail due to race.
A jury in Washington D.C. awarded $488,000 to an employee of U.S. Department of Housing and Urban Development who claimed age, sex, and race discrimination.
A postal worker in Des Moines, Iowa, was awarded $382,500 in a race discrimination and racial harassment case. The verdict included $82,500 in back wages, $200,000 in emotional distress damages, and $100,000 in future emotional distress damages.
A postal worker in Boulder, Colorado, was awarded $200k for race discrimination, retaliation, and harassment. The employee argued that he was moved to a windowless office in retaliation for filing a disability complaint.

Verdicts in Favor of Employers

The 5^th Circuit Court of Appeals upheld a verdict in favor of the City of Columbus, Mississippi, in a case filed by an employee who alleged race discrimination in a promotion decision. The plaintiff was acting police chief when the city hired a white police chief based on the vote of a mayor who cast the deciding vote after the city council was deadlocked along racial lines.
A jury in New Jersey ruled in favor of a county sheriff in a claim for sex discrimination and sexual harassment.

Video Interviews: Are They Legal?

2008-05-09T14:51:24-07:00

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 addressed whether video interviews are problematic from an EEO perspective: To Video or Not to Video: Social and Legal Considerations of Video Interviews and Video Resumes for Employers and Recruiters. One of the presenters was Carol Miaskoff, Assistant Legal Counsel for Coordination at the EEOC. Her guidance was less than equivocal but predictable: "As with any recruiting technology . . . it all depends how you use it as to whether or not it would violate the federal EEO laws." Generally speaking, however, Miaskoff and other speakers opine that video interview techniques are perfectly acceptable as long as they are not being used in a discriminatory manner. Attorney John Chun also presents some "best practices" to stay out of trouble in conducting video interviews.

Washington Company Rejects Ban on Sexual Orientation Discrimination

2008-05-08T09:18:39-07:00

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 it came close with 49% of the vote. In an article about the resolution published here, a former Expeditors employee is identified as saying that “he experienced an intolerant corporate culture and heard managers use derogatory terms for gays during his three years at the global logistics company.”

A copy of the shareholder proposal can be found here. Here is the written position statement supporting the resolution:

Employment discrimination on the basis of sexual orientation diminishes employee morale and productivity. Because state and local laws are inconsistent with respect to employment discrimination, our company would benefit from a consistent, corporate wide policy to enhance efforts to prevent discrimination, resolve complaints internally, and ensure a respectful and supportive atmosphere for all employees. Expeditors International will enhance its competitive edge by joining the growing ranks of companies guaranteeing equal opportunity for all employees.

The board of directors published this statement opposing the resolution:

The Board of Directors unanimously recommends voting against this proposal and believes that our current policy and practice more than achieve the objectives of this shareholder proposal.

Our long standing policy is as follows:

Expeditors has a policy of equal opportunity with respect to race, sex, marital status, age, color, religion, creed, national origin, handicapped, veteran or other protected status. The Company is morally and legally committed to give all persons an equal opportunity for employment and promotion based solely on their individual qualifications and the valid requirements of the position. While supervisors and managers are charged with the responsibility of preventing discrimination, the success of the Company's equal opportunity policy really depends on the unbiased attitudes and actions of all employees.
The factors specifically listed in the first sentence of the existing policy are those prohibited by existing federal law. The second sentence of this policy goes beyond these basic legal requirements and obligates the Company to extend equal opportunity in employment and promotion to all persons subject only to classification based upon individual qualifications and valid requirements of the particular position. This shareholder resolution itself implies that some additional action would be necessary to implement the resolution. This is simply not the case. The Company has received no indication from its employees that discrimination on the basis of sexual orientation is practiced within the Company, nor has the Company received notice from its employees, customers or suppliers that the Company's employment policies or practices jeopardize its relationship with any of them.

The debate reflected in these two position statements is reminiscent of the debate that occurred in the Washington Legislature two years ago before sexual orientation discrimination was declared illegal in the State of Washington. Expeditors' employees in Washington are already protected from sexual orientation discrimination by the Washington Law Against Discrimination, Ch. 49.60 RCW.

In the Washington Law Against Discrimination, "sexual orientation" is defined in very broad terms, as follows:

"Sexual orientation" means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, "gender expression or identity" means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.”

RCW 49.60.040(15). No doubt we have not seen the last of this shareholder proposal, at Expeditors or at other companies. In addition, if a sexual orientation lawsuit is ever filed against Expeditors under Washington law, one also wonders whether a plaintiff's attorney at some point may try to argue that the company's position on this issue provides some evidence of discriminatory intent or company-wide policy condoning sexual orientation discrimination.

Age Discrimination Case: $560,000 in Attorneys’ Fees

2008-05-02T08:15:18-07:00

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 Court of Appeals.

Instead of settling the case, Sears decided to take the case to trial and lost. The jury awarded Steward $240,985 ($92,985 in back pay and $148,000 in front pay). Sears then successfully obtained a trial court ruling setting aside the verdict and ordering a new trial. However, on appeal, the Third Circuit Court of Appeals reinstated the verdict. Now, after the dust has settled, Sears must pay not only the $240,000 jury award but also $560,000 in attorney’s fees. Steward’s attorneys were awarded nearly $425,000 for their work in the trial court and an additional $136,000 for the appeal.

This case demonstrates that employment discrimination cases are risky, not only because of the damages a jury might award (consider the recent sexual orientation case in Washington that resulted in a verdict of $4.4 million), but also because a successful employee will almost always collect attorney’s fees, which can be substantial. Employers beware!

An additional article about this case can be found here. The Third Circuit Court of Appeals opinion discusses the evidence in the case and can be read here. The trial court’s recent opinion awarding fees can be read here.

Congress Passes Genetic Information Nondiscrimination Act

2008-05-01T17:41:57-07:00

Congress has passed a new employment discrimination law, the Genetic Information Nondiscrimination Act (GINA). The bill passed the House today by a vote of 414-1. The Senate approved it last week 95-0. It now goes on to President Bush to sign into law. Under GINA, it will be illegal for employers to make decisions to hire, fire, or promote based on genetic information. GINA also prohibits using genetic information in decisions on health care coverage or in setting insurance premiums. A New York Times article about the Act appears here and the full text of the legislation is here.

Turmoil Surrounds Election of Union Officers

2008-05-01T08:34:21-07:00

We do not often hear about the internal turmoil that can surround the election of union officers. But, to borrow a phrase from Donald Rumsfeld, democracy is messy. Here is an article about two campaigns that are competing for the leadership of the International Association of Machinists District 751, a powerful union that represents more that 25,000 Boeing workers in Seattle, Western Washington, Portland, and Wichita, Kansas. In this case, democracy involves allegations of “moles” and surreptitious surveillance photos. The fight sounds more like Clinton vs. Obama than solidarity forever. Interestingly, the election of union officers precedes impending contract talks with Boeing, which appear headed for a rocky start judging from the reaction to Boeing's pension proposal.

Supreme Court Considers Age Discrimination Burdens of Proof

2008-04-24T15:46:50-07:00

The Supreme Court was busy with two employment cases yesterday. We reported below on the employee benefits case. The Court also heard arguments in Meacham v. Knolls Atomic Power Laboratory, which addresses the burdens of proof to be applied in age discrimination cases. Here is a New York Times article about the case. Briefs and documents about the case can be found here.

Supreme Court Hears Important ERISA Case

2008-04-24T07:52:48-07:00

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 decision has been reached (so-called de novo review) while employers and plan sponsors argue that the court should defer to the judgement of the decision-maker, i.e., that the decision should be overturned only if it was arbitrary and capricious. In the Glenn case, the Supreme Court will decide what standard of review should be applied if there is a potential conflict of interest and the same entity that decides whether to pay benefits is also the entity that will pay benefits (e.g., insurance companies or self-insured employers). The circuit courts have reached different views on this.

We previously reported on this case here. A copy of yesterday's oral argument transcript can be read here. Paul Secunda of the Workplace Prof Blog has some good analysis of the oral argument transcript here, and Roy Harmon on the Health Plan Law blog has analysis here and here. Copies of briefs, the lower court decision, and related documents can be found here.

Another Court Allows “Benefits Interference” Claim for Terminated Employee

2008-04-22T08:16:38-07:00

We reported last month on the decision by the 7^th 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 8^th Circuit Court of Appeals has allowed a claim for “interference with employee benefits.”

In Fitzgerald v. Action, Inc., Danny Fitzgerald told his employer that he was scheduled to have surgery. A short time later, he was terminated due to “lack of work.” Fitzgerald contended that he was terminated "to prevent him from receiving his healthcare insurance benefits" in violation of § 510 of ERISA. After Fitzgerald challenged the termination, the employer asserted that Fitzgerald abused restroom privileges and breaks. Fitzgerald argued that this was a change from the stated “lack of work” reason at the time of the termination.

Section 510 of ERISA makes it unlawful for an employer to discharge a participant in an employee benefit plan "for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140. To establish a claim for a violation of § 510, a plaintiff must show that the employer had a specific intent to interfere with the employee’s benefits, which may be shown by circumstantial evidence.

The court analyzed Fitzgerald’s case under the McDonnell Douglas framework and concluded that he produced sufficient evidence to show that misconduct may not have been the true impetus behind his termination, but rather a pretext for interfering with his insurance benefits. The evidence supporting pretext included: (1) the employer's inconsistent explanations for the termination; (2) the employer's failure to follow company policy; (3) more lenient treatment of another employee; and (4) the temporal proximity between when Fitzgerald notified his employer of his surgery and his termination. A copy of the decision can be read here.

"Public Policy" Wrongful Discharge Claim Based on Court Testimony

2008-04-22T07:12:31-07:00

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 Joins List of Companies Seeking Pension Changes

2008-04-19T11:25:45-07:00

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. The Supreme Court addressed that issue in the recent LaRue case. But will the trend create a retirement crisis in the years to come?

Consider this interview with Brooks Hamilton from 2006. Hamilton reports a yield disparity in 401(k) plans in which many individual workers receive very poor investment performance. According to Hamilton, this “destroy[s] the opportunity for ordinary workers to retire in dignity. They couldn't get there from here. There is no way. Number one, they are contributing too little, too late for the most part. They are contributing the least, and then they are getting lousy investment performance.”

Much has been written lately on the need for older workers to work longer because of shortfalls in retirement benefits. Pre-retirees expect to work on average a full decade longer than those already in retirement, with nearly half expecting to work early in retirement and one in three working throughout retirement to bolster their savings. This is not likely to change anytime soon. A majority of employers believe that employees prefer higher salaries instead of better retirement benefits. In addition, for those that do have 401(k) plans, they are tapping their 401(k) account for cash and borrowing and withdrawing funds at a record rate.

Court Permits “Public Policy” Constructive Discharge Claim Based on Sexual Harassment

2008-04-18T20:17:22-07:00

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 quit the following Monday. The dentist denied the incidents and contended that Wahl was a bad employee.

Wahl sued on a claim for “wrongful discharge in violation of public policy.” She had minimal wage loss because she was able to find another job right away, but after a trial she was awarded $20,000 in emotional distress damages. The trial court’s ruling included the following findings:

It is a violation of the common law of the State of Washington to sexually harass an employee. There was sufficient evidence to prove a common law claim of sexual harassment against Dr. Moore.

Furthermore, there was a hostile working environment created by Dr. Moore. When the person you are to report a sexual harassment claim to is the harasser and there is no higher person, there is no requirement to complain. Were Candace Wahl to have complained to either Dr. Moore or Mrs. Moore, it would not have any benefit and thus would have been an exercise in futility.

Candace Wahl was constructively discharged as the working conditions and environment were so intolerable that a reasonable person would have quit. Further Candace Wahl quit in response to Dr. Moore's sexually harassing conduct.

There was sufficient evidence to prove emotional distress damages.

The court concludes that a reasonable award to Plaintiff, Candace Wahl is $20,000.

These findings were challenged in the Washington Court of Appeals. One issue was whether Wahl could pursue a sexual harassment or constructive discharge claim against a small employer. The clinic had less than 8 employees so Wahl could not state a claim under the Washington Law Against Discrimination, RCW 49.60. She alleged a common law claim for wrongful discharge based on the “public policy against gender discrimination.”

The court of appeals permitted Wahl to state a common law claim based on public policy. According to the court,

[W]hile Wahl cannot bring a statutory claim under chapter 49.60 RCW because the clinic has fewer than eight employees, the clear mandate of public policy against sex discrimination set out in that statute remains and supports the policy element of the common law tort of wrongful discharge in violation of public policy.

The court then noted that a “hostile work environment” claim is “a subset of gender discrimination” and that a “public policy” claim could be based on sexual harassment:

Public policy favors rebuffing unwanted sexual advances in the workplace where engaging in sexual activity negatively impacts productivity, employment stability, and client care. Public policy supports Wahl's desire to conduct her work duties without engaging in unwanted sexual activity.

The court also addressed the fact that Wahl was not terminated. Her claim was allowed based on a theory of “constructive discharge.” Constructive discharge can apply when an employer engages in a deliberate act that makes working conditions so intolerable that a reasonable person would have felt compelled to resign. Working conditions can be “intolerable” because of a pattern of conduct or where there are aggravated circumstances. The employee must show that he or she resigned because of the conditions and not for some other reason, like finding a better job.

Wahl’s case was tried before a judge instead of a jury, but in either situation whether working conditions are intolerable is a factual question to be decided after trial. Here, the court of appeals found that Wahl satisfied this element of her claim, stating as follows:

Here, the trial court found that a reasonable person would find Dr. Moore's continuous pattern of making sexually graphic comments was an intolerable working condition. These comments were made a few times a week for at least three months and escalated until, over Wahl's objections, Dr. Moore masturbated in the darkroom while he was supposed to be training her on how to duplicate x-ray film. The trial court found that Wahl's testimony about the sexual episodes was credible. We defer to the trial court evidence regarding witness credibility and conflicting testimony. Under the facts presented here, a rational trier of fact could conclude that Dr. Moore's deliberate sexual harassment behavior created working conditions so intolerable that Wahl reasonably felt compelled to resign. Thus, Wahl was constructively discharged.

Finally, the trial court upheld the award of emotional distress damages, stating as follows:

At trial, Wahl offered proof of emotional distress when she testified that, following the darkroom incident, she felt disgusted, used, and violated; that she could no longer work for another dentist again; that she has become claustrophobic; that she can only work in warehouse-type open spaces; and that, when she sees a car similar to Dr. Moore's, her stomach "clenches." Wahl also testified that she sought counseling but did not feel the process was helpful. In addition, Wahl's mother testified that Wahl's mood changed halfway through her employment with Dr. Moore and that Wahl became withdrawn and began to spend more time in her bedroom. As discussed above, there was sufficient evidence to find that Dr. Moore had wrongfully discharged Wahl in violation of public policy and, thus, damages for the resulting emotional distress proved were recoverable.

The case is Wahl v. Dash Point Family Dental Clinic, Inc. (4/15/2008). A copy of the decision can be read here.

Are Public Employee Conversations Considered “Private”?

2008-04-13T18:47:51-07:00

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 for damages and attorneys' fees.

In this particular case, Smith, a traffic engineer and senior program manager in a county public works department, recorded numerous conversations with employees and citizens without the knowledge and consent of all parties to the conversations. It appears that Smith made the recordings to support a civil rights action filed by another employee and possibly to assist in his own retaliation case. According to the opinion, Smith “recorded these conversations to protect himself because he had been threatened with ‘bodily harm’ and had found that some county employees were ‘illegally undermining and discriminating against other county employees.’” It also states that Smith “made some of the recordings, particularly those related to some citizen contacts, for other purposes, such as keeping a record of what he told others so he could later report this information accurately.”

Upon learning of Smith’s recordings, the county filed a declaratory judgment action "declaring that David Smith recorded private conversations of County employees in violation of RCW 9.73.030." Smith opposed the declaratory judgment arguing that the recorded conversations were not “private conversations” subject to the privacy act because they took place during meetings or when he contacted individuals regarding complaints in his capacity as a public employee. Smith also argued that a declaratory judgment was improper because, by the time the case arrived in court, he had been terminated and thus there was no “justiciable” controversy.

The court of appeals punted on the issue of whether Smith’s actions violated the Privacy Act and whether Smith’s conversations with citizens, coworkers, and managers were “private” conversations under the Act. However, the court of appeals sent the case back to the trial court to rule on those issues, so these questions could end up squarely in front of the appellate court in the future. The court of appeals stated as follows:

Here, the County filed declarations from four county employees as well as declarations from three citizens whose conversations Smith recorded, along with transcripts of those recorded conversations. Each individual stated that they were not aware that Smith recorded their conversations and asserted that, even though others were present during some of these conversations, they believed that these conversations were private. The conversations with the citizens generally involved disputes with neighbors or attempts to limit trespassing. The conversations with the co-workers generally related to private and/or personnel matters.

We conclude that the issue of whether conversations with public employees are subject to the Privacy Act and the broader issue of whether certain types of conversations are always considered private conversations for purposes of the Act are issues of great public importance. Not only should the County be able to advise its employees of the legal limits on their ability to record work-related conversations, but all persons have the right to know whether their conversations with public employees can be surreptitiously recorded. Clarification of these issues will enhance the County's ability to properly advise its employees and establish policies ensuring protection of all persons' privacy rights.

The court went on to state, “Although the County invites us to reach the issue of whether

Smith's actions violated the Privacy Act, we decline to do so because the trial court did not reach these issues and the record related to these issues is not adequately developed." The court of appeals remanded to the trial court for full consideration of the county’s declaratory judgment action. A copy of the case can be found here.

New Leave Law for Victims of Domestic Violence or Sexual Assault

2008-04-09T08:51:14-07:00

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 member (defined as child, spouse, parent, parent in law, grandparent, and person the victim is dating )of a victim of domestic violence or assault is entitled to take time off of work to assist a victim in obtaining help or treatment. An employer is permitted to request verification, such as a police report, court order, or other documentation. More information about the new law can be found here and here.

New Military Family Leave Act in Washington

2008-04-09T00:35:45-07:00

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 or local officer or employee who is a member of the Washington National Guard or Reserves is entitled to a military leave of absence from employment. More information about the legislation can be found here and here.