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Fee Splitting Provision Needs Evidence Not Speculation - 8th Circuit
Unlike the district court which jumped to a conclusion about the impact of requiring a plaintiff to split the costs of arbitration, the 8th Circuit requires proof that it would deprive a potential litigant of his right to have his claim heard. Even on remand, if such evidence should be forthcoming, the Court finds that the offending clause should be severed and the case sent to arbitration. Faber v. Menard, Inc. (8th Cir. 5/21/04) [pdf]. Completing what can only be called a very pro-arbitration decision, the Court found that the provision that each party should bear their own attorneys' fees should first be heard by the arbitrator, to determine "whether Faber has in fact waived his statutory right to recover attorneys’ fees or whether an appropriate remedy may still include them."
Where Title VII Doesn't Make A Difference, But the New §1981 SOL Did
Talking about being bailed out. In Jackson v. Homechoice, Inc. (8th Cir. 5/21/2004), an employer who thought it had dodged a bullet, now gets to address the merits of a 1999 termination. When first brought, the employer prevailed showing that plaintiff did not timely file his charge with Title VII, and although the claim was based on race and thus potentially actionable under §1981, it was barred by the Arkansas one year statute of limitations. And it was, until the Supreme Court's decision earlier this month in Jones v. R.R. Donnelley & Sons Co., 124 S. Ct. 1836 (5/3/04) [pdf]. That makes at least two plaintiffs whose claims have been revived by the R.R. Donnelley decision. For the other see our report here of a similar result in the 9th Circuit.
After the Sale - Looking Back At the Contract Language When It Really Matters
When a company is selling a business, the existence of a union and a collective bargaining agreement complicates things, as the seller found out in Smurfit Newsprint Corp. v. Southeast Paper Manufacturing Co. (7th Cir. 5/21/04) [pdf]. After Smurfit sold one of its plants to Southeast Paper, the purchaser interviewed each current employee for employment, and having hired a majority of employees represented by the union bargained and entered into a contract on very similar terms to the CBA between Smurfit and the union. Including using the same formula for retirement benefits, which was based on most recent hire date. The result was that employees were not given credit for their prior service in determining their pension.
Although not as dire as it sounds, since most now got two pensions, it did economically impact and certainly ired the union and its members who filed a grievance. At arbitration, the arbitrator found that the plant had been "permanently closed" as for as Smurfit was concerned triggering approximately $3.5 million in severance benefits. Something obviously not planned for by Smurfit, since they then initiated an indemnity action to recover the $3.5 million under the sale contract against Southeast Paper. Although they overcame the hurdle of showing they were entitled to bring an indemnity claim, they ultimately failed on the merits.
Under the purchase agreement, Southeast Paper had agreed "to offer employment to substantially all of the employees of the mill who were members of ... Local No. 60 (the “Union”) on terms comparable with those in an existing collective bargaining agreement between Smurfit and the Union." And since the contract it entered into was almost identical to the one that Smurfit had with the union on how pensions would be calculated, Southeast Paper had kept its end of the bargain. Even if it may not have turned out the way Smurfit had envisioned.
Although not as dire as it sounds, since most now got two pensions, it did economically impact and certainly ired the union and its members who filed a grievance. At arbitration, the arbitrator found that the plant had been "permanently closed" as for as Smurfit was concerned triggering approximately $3.5 million in severance benefits. Something obviously not planned for by Smurfit, since they then initiated an indemnity action to recover the $3.5 million under the sale contract against Southeast Paper. Although they overcame the hurdle of showing they were entitled to bring an indemnity claim, they ultimately failed on the merits.
Under the purchase agreement, Southeast Paper had agreed "to offer employment to substantially all of the employees of the mill who were members of ... Local No. 60 (the “Union”) on terms comparable with those in an existing collective bargaining agreement between Smurfit and the Union." And since the contract it entered into was almost identical to the one that Smurfit had with the union on how pensions would be calculated, Southeast Paper had kept its end of the bargain. Even if it may not have turned out the way Smurfit had envisioned.
Good Discussion on Various Aspects of a "Typical" ADA Case by 7th Circuit
Although calling anything a typical ADA case is probably stretching the point, it is at least not uncommon to have an employee who following an injury can no longer work at the physical level he or she could before. In Ammons v. Aramark Uniform Services, Inc. (7th Cir. 5/21/04) [pdf] the Court dealt with just such a case. After almost 40 years as a boiler engineer and lead mechanic, Clyde Ammons injured his right knee. The result:
Although both parties agreed that Ammons was disabled, there was a dispute as to whether he was qualified. In upholding the summary judgment granted by the district court, the appeals court also upheld striking an expert's testimony that he could perform the job, in large part because it was speculative. Most telling was the expert's inability to give an opinion as to whether or not Ammons could perform work on a number of specific machines given his physical condition. The court also rejected the argument that the company had not engaged in the interactive process because it would not hold a meeting with plaintiff's attorney and his vocational counselor, holding instead that the face to face meeting with the plaintiff was sufficient. Finally, while it agreed that plaintiff had identified two jobs he could perform, it also agreed with the employer that such duties would only fulfill half a day, and thus did not show that he could perform the essential functions of the job. Employers should be especially thankful that the court did not accede to the argument that would have required a meeting with plaintiff's counsel. This is not an atypical case and particularly as the work force ages, one would expect to be played out many more times.
Dr. Krieger also concluded that Ammons could not return to his normal duties at Aramark and that he was limited to a light-medium level of work with the following restrictions: minimal kneeling (no longer than five minutes at a time); a limited period of “static standing” (no longer than eight minutes at a time); a maximum of one hour of “dynamic standing”; limited climbing; and restricted walking on “pain-level basis.” Dr. Krieger also concluded that Ammons could not resume a heavy level of work activity. Such a level would include occasional lifting of 100 pounds, frequent lifting of 35 pounds or less, and constant lifting of 15 pounds.When his condition did not improve prior to the passage of the 18 month maximum leave of absence permitted under the collective bargaining agreement, Ammons was terminated.
Although both parties agreed that Ammons was disabled, there was a dispute as to whether he was qualified. In upholding the summary judgment granted by the district court, the appeals court also upheld striking an expert's testimony that he could perform the job, in large part because it was speculative. Most telling was the expert's inability to give an opinion as to whether or not Ammons could perform work on a number of specific machines given his physical condition. The court also rejected the argument that the company had not engaged in the interactive process because it would not hold a meeting with plaintiff's attorney and his vocational counselor, holding instead that the face to face meeting with the plaintiff was sufficient. Finally, while it agreed that plaintiff had identified two jobs he could perform, it also agreed with the employer that such duties would only fulfill half a day, and thus did not show that he could perform the essential functions of the job. Employers should be especially thankful that the court did not accede to the argument that would have required a meeting with plaintiff's counsel. This is not an atypical case and particularly as the work force ages, one would expect to be played out many more times.
Licensing Agency Not An Employer for ADEA Purposes
Deciding what it called an "important question", the First Circuit reverses a district court's determination that the Puerto Rico Ports Authority, which has the power to license harbor pilots was an employer for purposes of the ADEA. Camacho v. Puerto Rico Ports Authority (5/21/04) [pdf]. The issue arose following Hector Camacho's 70th birthday which was celebrated by the revocation of his pilot's license by the Authority, under its rule. Checking the indicia of what it takes to be an employer, the Court found the Authority fell far short of what is required. And did so with definitive language: "The sockdolager here is that the statutory power to license and regulate harbor pilots does not imbue the Authority with the level of control necessary to make it their employer for ADEA purposes."
Timing Is Everything - New Statute of Limitations Saves Corporate Plaintiff Under § 1981
A case from the 9th Circuit reflects the benefit of timing as well as addressing the question of whether a corporation with a distinct racial identity can bring a claim under §1981. The district court had dismissed a number of §1981 claims as time barred by a one year statute of limitations. It was a correct decision at the time, but had been overtaken by the Supreme Court's decision earlier this month finding a federal four year statute of limitations. Thinket Ink Information Resources, Inc. v. Sun Microsystems, Inc. (9th Cir. 5/17/04) [pdf]. The Court also aligned itself with other circuit courts in finding that a corporation which has acquired a racial identity, done here because the plaintiff had been certified by the SBA as a minority owned business, has standing to bring a §1981 claim.
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