Particularly if it has a component that provides extra time for employees who become disabled before the regular retirement age, and denies those disability payments to those who work beyond regular retirement age. That's the lesson in today's en banc holding in EEOC v. Jefferson County Sheriff's Department (6th Cir. 10/31/06).
Although at first I thought this might be an application of a disparate impact analysis, instead the finding was based on disparate treatment. Finding the plan facially discriminatory, the majority found the EEOC had made a prima facie case without any other showing of intent and reversed summary judgment for the employer and its plan.
The dissent makes a sensible argument, at least to me, that the plan really provided only an insurance component to ensure that an employee who was disabled and thus prevented from working a full 20 years, would be entitled to what he would have been able to obtain absent the disability. A benefit that will now be lost under the majority's ruling.
Although the argument makes sense to me, it didn't carry the day, so if you have a pension plan that sounds at all like this, and employee's located within the confines of the 6th Circuit, a call to your friendly pension lawyer for a checkup is in order.
Hospital Staffing - Grievance by Grievance
Is the upshot of the 1st Circuit's decision in Massachusetts Nurses Association v. North Adams Regional Hospital (1st Cir. 10/26/06). Having obtained a collective bargaining agreement that contained a provision dealing with staffing, the Union filed grievances that it had been violated on 9 shifts on one floor. Although the violations occurred in 2002, the decision of the arbitrator was not handed down until February, 2005. Finding the hospital in violation, he ordered that hospital cease and desist from future violations of the standard as well as pay additional wages to the nurses who actually worked the shifts, as well as paying the union what an extra nurse on the shifts in question would have earned.
In the spring of 2005, nurses reported additional violations, although only one occurred on the same floor as the previous grievances. Bypassing the grievance procedure, the Union filed a § 301 action in federal court seeking to apply the prior award to the new violations. Unfortunately, it ran into 1st Circuit precedent based on the traditional reluctance of courts to interfere with grievance proceedings. Finding the union could not meet the high standard --"no colorable basis for denying the applicability of the existing award to a dispute at hand" --the Court held the passage of time alone would be enough to give a colorable basis that the award should not be applied.
This has to be one of the more arcane points of labor law, which severely limits the group which will be interested. But what is of much more general significance is the term of the CBA, that the hospital is contractually obligated to -- "only keep and admit the number of patients that registered nurses can safely care for" and to "take measures such as adding nurses [and] stopping admissions . . . to ensure that this occurs." In a world where the future of healthcare is on everyone's mind, the fact that a union has gained that power is significant.
No doubt there will be different viewpoints as to the merits of such power -- but the fact that it is potentially significant, seems hard to argue with.
In the spring of 2005, nurses reported additional violations, although only one occurred on the same floor as the previous grievances. Bypassing the grievance procedure, the Union filed a § 301 action in federal court seeking to apply the prior award to the new violations. Unfortunately, it ran into 1st Circuit precedent based on the traditional reluctance of courts to interfere with grievance proceedings. Finding the union could not meet the high standard --"no colorable basis for denying the applicability of the existing award to a dispute at hand" --the Court held the passage of time alone would be enough to give a colorable basis that the award should not be applied.
This has to be one of the more arcane points of labor law, which severely limits the group which will be interested. But what is of much more general significance is the term of the CBA, that the hospital is contractually obligated to -- "only keep and admit the number of patients that registered nurses can safely care for" and to "take measures such as adding nurses [and] stopping admissions . . . to ensure that this occurs." In a world where the future of healthcare is on everyone's mind, the fact that a union has gained that power is significant.
No doubt there will be different viewpoints as to the merits of such power -- but the fact that it is potentially significant, seems hard to argue with.
6th Cir. Hands EEOC a Setback in Release War
One area of recent contention has been fights over employer's releases -- do they comply with the OWBPA, or worse, are they themselves retaliatory. That's the tact the EEOC took with respect to a severance agreement utilized by an employer that not only asked for a release of claims but also barred the employee from filing any administrative claims, including an EEOC charge. If a charge was filed after signing the release, the employer was entitled to the return of the severance payment.
The trial court granted summary judgment to the EEOC which argued the release was retaliatory on its face, calling it a “preemptive strike against future protected activity.” Disagreeing, the 6th Circuit in a 2-1 decision found while the bar on filing the charge was not enforcible, it was not on its face retaliatory. Probably realizing the complexity of the issues (not to mention the real world impact), the Court emphasized, the narrowness of its ruling:
The dissent thought that the majority opinion was drawing too fine a line:
Given the subject matter and the EEOC's position, I doubt this is the last word on this issue and maybe not even on this case.
The trial court granted summary judgment to the EEOC which argued the release was retaliatory on its face, calling it a “preemptive strike against future protected activity.” Disagreeing, the 6th Circuit in a 2-1 decision found while the bar on filing the charge was not enforcible, it was not on its face retaliatory. Probably realizing the complexity of the issues (not to mention the real world impact), the Court emphasized, the narrowness of its ruling:
EEOC v. Sundance Rehabilitation Corp. (6th Cir. 10/24/06) [pdf].SunDance’s mere offer of the SeparationAgreement does not amount to retaliation under ADA, ADEA, EPA, or Title VII, either as a facialviolation of those statutes’ antiretaliation provisions or under the conventional burden-shiftinganalysis. SunDance has not tried to enforce the Separation Agreement, and the question of theenforceability of the Agreement or any of its provisions is not before us.
The dissent thought that the majority opinion was drawing too fine a line:
Most releases, at least in the 5th Circuit which has long held such requests are void as against public policy, make it clear that they do not bar filing a charge of discrimination with the EEOC. Today's opinion does nothing to change the wisdom of that approach.The majority in effect says that an employee who believes he or she has an EEOC enforceable claim or at a minimum is willing to testify in an EEOC enforcement action should sign the agreement, take the money and then go forward with the EEOC. If SunDance sues for a return of the severance pay, then the defense of retaliation should be raised and may carry the day. Any act by an employer which interferes with or chills a protected right is, I believe, contrary to public policy and in violation of the anti-retaliation provisions of the several statutes involved.
Given the subject matter and the EEOC's position, I doubt this is the last word on this issue and maybe not even on this case.
$15.5 MDV in the Big Apple
Hip hop, welcome to the painful world of employment law. That's no doubt how the founders of Source magazine, the self-described magazine of "hip hop music, culture and politics," must be feeling after finding themselves on the wrong end of a Manhattan jury verdict after being sued by their former editor-in-chief. Kim Osorio, the first woman to hold that position, alleged she was terminated in retaliation for filing a complaint of gender discrimination and then refusing to withdraw it.
The Daily News story during the trial summed it up this way:
"That is the world that the plaintiff chose. She had many choices and she chose to work in hip hop. ... The Source is not Martha Stewart Living."
Nine days of testimony and four hours of deliberation later, the headline tells the story which view the jury bought -- Kim Osorio Wins $15.5 Million Judgement Against The Source.
Osorio summed it up:"Whether it's hip-hop, rock-n-roll, or the post office, there's still laws a company needs to abide by.'"
The Daily News story during the trial summed it up this way:
The defense take was of course different -- using a variation of the "she knew what she was getting into" defense, it argued Osorio knew better than most that the hip-hop world was rife with raunchy language, profane lyrics and scantily clad women. According to its attorney:"They call it the Bible of hip hop, but The Source was a modern-day Sodom and Gomorrah behind the scenes, with executives watching porn movies and workspaces festooned with raunchy photos of topless women, a lawsuit claims.
"That is the world that the plaintiff chose. She had many choices and she chose to work in hip hop. ... The Source is not Martha Stewart Living."
Nine days of testimony and four hours of deliberation later, the headline tells the story which view the jury bought -- Kim Osorio Wins $15.5 Million Judgement Against The Source.
Osorio summed it up:"Whether it's hip-hop, rock-n-roll, or the post office, there's still laws a company needs to abide by.'"
A Border Problem of Different Sorts for Employers
An article with the phrase "employers have a new worry" naturally catches my eye,which is why I picked up the the TP! wire service link to today's NYT story, At U.S. Borders, Laptops Have No Right to Privacy.
The concern - all that confidential information contained on your employees' laptop as they cross borders may well be subject to search and review based merely on the desire of immigration officials -- no reasonable cause for a search required.
At least one group, Association of Corporate Travel Executives, is taking it up with the government to at least get some understanding of what the policies are. How big an issue, well purely anecdotal, but:
The concern - all that confidential information contained on your employees' laptop as they cross borders may well be subject to search and review based merely on the desire of immigration officials -- no reasonable cause for a search required.
At least one group, Association of Corporate Travel Executives, is taking it up with the government to at least get some understanding of what the policies are. How big an issue, well purely anecdotal, but:
One member who responded to our survey said she has been waiting for a year to get her laptop and its contents back,” said Susan Gurley, the group’s executive director. “She said it was randomly seized. And since she hasn’t been arrested, I assume she was just a regular business traveler, not a criminal."
The Real Cost of Litigation
Lord Hoffman, one of the judges on Great Britain's highest court is quoted in the article Making Civil Justice Sane by Philip K. Howard, on the true cost of litigation:
Which does not mean that all consequences of litigation are bad; no one could (at least seriously)argue that the workplace of 2006 is not better than the workplace of 1963, and that the Civil Rights Act of 1964 has played a large part in that difference, and much of what it has accomplished would not have happened but for litigation. But still, what Lord Hoffman says rings very true ... and finding the key to keeping the litigation benefits for society from outbalancing the costs to society is or should be the holy grail of the justice system.
A step, would be the recognition of those who sit on the benches of the wider impact when the focus is primarily (or even solely) on moving their docket.
A hat tip to JD Hull at What About Clients? for the link to the article.
Anyway who has been involved daily in litigation will have a hard time disputing those words.The problem was that judges had come to view litigation merely as a way of resolving private disputes and no longer appreciated that the proliferation of lawsuits affects the behavior of everyone in society. If judges don’t act as gatekeepers, drawing the boundaries of claims on behalf of broader society, then the mere possibility of a lawsuit will end up “diverting resources from activities where they are most needed and . . . restricting the liberty of individuals to enjoy their lives in their own way.
Which does not mean that all consequences of litigation are bad; no one could (at least seriously)argue that the workplace of 2006 is not better than the workplace of 1963, and that the Civil Rights Act of 1964 has played a large part in that difference, and much of what it has accomplished would not have happened but for litigation. But still, what Lord Hoffman says rings very true ... and finding the key to keeping the litigation benefits for society from outbalancing the costs to society is or should be the holy grail of the justice system.
A step, would be the recognition of those who sit on the benches of the wider impact when the focus is primarily (or even solely) on moving their docket.
A hat tip to JD Hull at What About Clients? for the link to the article.
Major Change in Texas Non-compete Law
In a long awaited decision, the Texas Supreme Court today drastically alters the landscape for the enforcement of covenants not to compete. In Sheshunoff Management Services, Inc. v. Kenneth Johnson and Strunk & Associates, (Tx. 10/20/06) [pdf] , the Court modifies its earlier holding in Light v. Centel Cellular, to now permit a unilateral contract to support a covenant not to compete. This means employers who promise to provide confidential information in return for a covenant not to compete can enforce the agreement so long as they provide the confidential information to the employee before he departs.
Judge Don Willett in his opening paragraph lays out the change:
Hiring employers and departing employees are now in a whole new ballgame.
Judge Don Willett in his opening paragraph lays out the change:
There will be tons of ink written about the decision (including more by me), but cutting to the chase -- the central question about non-compete covenants in Texas law is no longer whether it is enforceable, but whether it is reasonable.In this case we revisit the Court’s 1994 decision in Light v. Centel Cellular Co. and again consider the enforceability of covenants not to compete in the context of at-will employment. The question today is whether an at-will employee who signs a non-compete covenant is bound by that greement if, at the time the agreement is made, the employer has no corresponding enforceable obligation. Under Light, the answer to that question was always “no.” Today we modify our holding in Light and hold that an at-will employee’s non-compete covenant becomes enforceable when the employer performs the promises it made in exchange for the covenant. In so holding, we disagree with language in Light stating that the Covenants Not to Compete Act requires the agreement containing the covenant to be enforceable the instant the agreement is made.
Hiring employers and departing employees are now in a whole new ballgame.
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