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CIVIL RIGHTS: Exhaustion of Administrative Remedies for Retaliation Claims

Posted by Dora S. Vivaz on Tue, May 3, 2016 @ 12:05 PM

The Lawletter Vol 41 No 4

Dora Vivaz, Senior Attorney, National Legal Research Group

     It has long been settled law that plaintiffs who seek redress for employment discrimination under Title VII must exhaust the administrative remedies provided under that law before bringing their claims in court. Title VII, of course, not only prohibits the initial unlawful status/class discrimination, but also prohibits retaliation for complaining about such discrimination. The interplay of those two prohibitions has seemingly muddied the waters on the exhaustion issue.

     In a recent case, a federal district court within the Fifth Circuit was faced with the question of that interplay. Mitchell v. Univ. of La. Sys., Civ. Act. No. 13-820-JWD-RLB, 2015 WL 9581823 (M.D. La. signed Dec. 30, 2015). In the case before it, the plaintiff had filed an Equal Employment Opportunity Commission ("EEOC") charge in June 2013, claiming discrimination. She was transferred in July 2013. Although she never filed a second EEOC charge, she included both a claim for unlawful discrimination and a claim for retaliation in her action in the federal court. The defendant argued that the retaliation claim was barred for failure to exhaust administrative remedies, but the court disagreed.

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Topics: employment discrimination, administrative remedies, retaliation claim, civil rights, Dora S. Vivaz

CIVIL RIGHTS: Pregnancy Discrimination Under PDA—Supreme Court's Interpretation of Same-Treatment Clause in Young v. United Parcel Service, Inc.

Posted by John Buckley on Wed, Feb 24, 2016 @ 12:02 PM

The Lawletter Vol. 41, No. 2

John Buckley, Senior Attorney, National Legal Research Group

     Title VII of the Civil Rights Act of 1964 was amended by the Pregnancy Discrimination Act ("PDA") in 1978, which added the following language to Title VII's definitions subsection:

     The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes[.]

42 U.S.C. § 2000e(k). It is generally agreed that the first clause specifies that Title VII's prohibition against sex discrimination also applies to discrimination based on "pregnancy, childbirth, or related medical conditions." The meaning of the second clause, "or related medical conditions," has been the subject of debate and was directly addressed by the Supreme Court in this most recent case.

     In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), the petitioner, Peggy Young, was a part-time driver for the respondent, United Parcel Service ("UPS"). Young became pregnant in 2006 and was placed on a 20-pound lifting restriction by her doctor. (UPS policy required drivers to be able to lift parcels weighing up to 70 pounds.) UPS failed to provide suitable accommodations, and as a result, Young was forced to take an unpaid leave of absence during most of the time she was pregnant, resulting in the loss of her employee medical coverage.

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Topics: John Buckley, civil rights, related medical conditions, pregnancy discrimination

WORKERS' COMPENSATION: Compensability—Employment-Related Travel in Employer-Provided Vehicle

Posted by Matthew T. McDavitt on Mon, Nov 16, 2015 @ 10:11 AM

The Lawletter Vol 40 No 10

Matt McDavitt, Senior Attorney, National Legal Research Group

     It is well settled under workers' compensation law nationally that, generally, worker injuries occurring coming to, or going from, work are not compensable in nature. However, an important exception to this rule exists regarding accidents in which workers are traveling in employer-supplied vehicles, where the worker is off duty but remains on call. For example, given that city police departments receive a benefit by having their police officers on call for duty at a moment's notice while driving their police cruisers, so long as the travel has some relation to employment, injuries received during such travel are compensable.

[W]e are satisfied that the City enjoyed sufficient benefits from Ms. Ross's participation in the take-a-car-home program to affirm the Commission's determination of eligibility. The City does not dispute the Commission's conclusion that the City benefitted from the program by having more officers available for immediate response, from better care of patrol cars, and from increased police visibility. Officers with take-home cars were prepared to respond to emergency calls at any time. These officers always had at hand those items required to be kept in the take-home patrol cars, including their service gun, police radio, identification, flashlight, ticket book, report forms, and flares.

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Topics: workers' compensation, exception to rule, employer-provided vehicle, compensability, employment-related travel

WORKERS' COMPENSATION: Collection and Jurisdiction in Multistate Workers' Compensation Cases

Posted by Anne B. Hemenway on Wed, Jul 8, 2015 @ 13:07 PM

The Lawletter Vol 40 No 5

Anne Hemenway, Senior Attorney, National Legal Research Group

     Workers' compensation claims are often straightforward where the worker has suffered a clear work-related injury in the jurisdiction in which the employer is located. Where a worker has been injured in a work-related accident while traveling in a different state for work, however, different jurisdictions impose specific jurisdictional restrictions notwithstanding the workers' compensation insurance contract. See McIlvaine Trucking, Inc. v. Workers' Comp. Appeal Bd. (States), 810 A.2d 1280 (Pa. 2002) (holding that where a worker who regularly traveled to other states for work was injured in Pennsylvania, the parties' agreement to be bound only by the West Virginia Workers' Compensation Act was unenforceable as against Pennsylvania public policy, which requires in-state workers' injuries to be governed only by the Pennsylvania workers' compensation laws).

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Topics: jurisdiction, workers' compensation, Anne Hemenway, jurisdictional restrictions, claims

CIVIL RIGHTS: Employment Discrimination—Same-Actor Inference

Posted by Dora S. Vivaz on Wed, Mar 18, 2015 @ 15:03 PM

Dora Vivaz, Senior Attorney, National Legal Research Group

     Inferences have always played an important role in the analysis of discrimination cases, because direct evidence of discrimination is rare, and such cases, therefore, most often depend on circumstantial evidence. Accordingly, a plaintiff may establish a prima facie case of discrimination by showing circumstantial evidence sufficient to support an inference of discrimination. By the same token, the evidence may allow inferences that benefit the defendant.

     In the employment discrimination context, one such inference is the "same actor inference," which allows the factfinder to infer that when the person who took the adverse employment action against the plaintiff is the same person who hired the plaintiff, the adverse action was probably not based on unlawful discrimination. As the court noted in a recent case, there is a split amongst the circuits as to whether the inference is mandatory or permissive and as to whether it may be relied upon as a basis for summary judgment. See, e.g., Garrett v. Sw. Med. Clinic PC, No. 1:13-cv-634, 2014 WL 7330947 (W.D. Mich. Dec. 19, 2014) (text available only on Westlaw).

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Topics: employment discrimination, Civil Rights Act, same-actor inference

CONSTITUTIONAL LAW: Supreme Court Holds 2012 Recess Appointments to NLRB Invalid

Posted by Gale Burns on Tue, Aug 12, 2014 @ 13:08 PM

The Lawletter Vol 39 No 6

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Topics: legal research, John Buckley, NLRB, constitutional law, Recess Appointments Clause, NLRB v. Canning, no presidential authority, includes intersession and intrasession recesses

EMPLOYMENT LAW UPDATE: NLRB Proposed Rule for Notice Postings

Posted by Gale Burns on Mon, Feb 3, 2014 @ 12:02 PM

Dora Vivaz, Senior Attorney, National Legal Research Group

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Topics: Dora Vivaz, legal research, employment law, NLRB, posting notice rule, abandoned, board's purpose is dispute resolution, 4th Cir., U.S. Chamber of Commerce v. NLRB, DC Cir., Nat'l Ass'n of Mfrs. v. NLRB

CIVIL RIGHTS: Does Title VII Permit Claims Against Supervisory Individuals in Their Official Capacities?

Posted by Gale Burns on Wed, Nov 6, 2013 @ 12:11 PM

The Lawletter Vol 38 No 8

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Topics: Dora Vivaz, legal research, The Lawletter Vol 38 No 8, civil rights law, Title VII, liability on employers, claims on supervisory employee when government is, Stallone v. Camden County Tech. Schools. Bd. of Ed, DNJ, official capacity when government entity is not a, split in circuits

EMPLOYMENT LAW: Comprehensive Employment Policies: A Necessary Tool to Avoiding Damages and Liability

Posted by Gale Burns on Wed, Sep 4, 2013 @ 11:09 AM

The Lawletter Vol 38 No 6

John Buckley, Senior Attorney, National Legal Research Group

The increasingly complex statutory and regulatory requirements imposed upon employers require that written policies be promulgated and maintained in order to avoid fines for noncompliance, exposure to liability from lawsuits, and punitive damages.  Many federal laws, and an increasing number of state laws, require that employers promulgate and maintain written policies.  Furthermore, it is no longer sufficient to simply pass out cookie‑cutter policies; to be effective, workplace policies must be precisely tailored and contain specific provisions required by the location of the workplace, the type of business involved, the number of individuals employed, and a host of other considerations. 

A properly drafted and implemented written policy can be a valuable tool for employers.  For
example, in EEOC v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013), the court noted the rule that an employer may avoid liability for punitive damages based on the actions of managerial employees by simply showing that it had implemented an antidiscrimination policy.  Because the employer in that case had not made the modest investment in an adequate antidiscrimination policy, the court upheld an award of $200,000 in punitive damages. See also Dunlap v. Spec Pro, Inc., No. 11‑cv‑02451‑PAB‑MJW, 2013 WL 1397294 (D. Colo. Apr. 5, 2013) (to avail itself of the good‑faith compliance standard, and avoid vicarious liability for punitive damages in a Title VII action, an employer must (1) adopt antidiscrimination policies; (2) make a good-faith effort to educate its employees about these policies and the statutory prohibitions; and (3) make good-faith efforts to enforce an antidiscrimination policy).  

In addition to insulating employers from potentially devastating punitive damages, properly drafted policies can help employers avoid liability entirely.  In the following cases, employers were able to avoid liability for discrimination claims:  Zakrzewska v. New School, 598 F. Supp. 2d 426 (S.D.N.Y. 2009); Chaloult v. Interstate Brands Corp., 540 F.3d 64, 74 (1st Cir. 2008); McPherson v. City of Waukegan, 379 F.3d 430 (7th Cir. 2004); Salazar v. U.S. Dep't of Justice, 98 F. App'x 623 (9th Cir. 2004); Talamantes v. Berkeley County Sch. Dist., 340 F. Supp. 2d 684 (D.S.C. 2004).  In each of these cases, the employers had properly drafted, written policies prohibiting discrimination and setting out grievance procedures for resolving discrimination claims.  Although a properly drafted policy can enable an employer, in many cases, to obtain summary judgment in its favor, a deficient policy may negate certain defenses and enable a plaintiff to survive summary judgment.  Smith v. First Union Nat'l Bank, 202 F.3d 234, 245 (4th Cir. 2000).

In addition to policies prohibiting discrimination and harassment, employers should have written policies that include provisions covering wages and hours, benefits, leave, workplace safety, workplace conduct, and discipline.  Most employers should also consider policies covering Internet and email use, recordkeeping, drug and alcohol use, and immigration law compliance.

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Topics: legal research, John Buckley, The Lawletter Vol 38 No 6, written employment policies, tailored with specific provisions, good-faith compliance standard includes antidiscri, antiharassment, and statutory provisions, grievance procedures, wages and hours, benefits, leave, workplace safety and conduct, discipline

EMPLOYMENT LAW: Florida Court Treats Independent Contractor as Employee for Purposes of Enforcing Covenant Not to Compete

Posted by Gale Burns on Tue, Apr 2, 2013 @ 16:04 PM

The Lawletter Vol 38 No 1

Charlene Hicks, Senior Attorney, National Legal Research Group

One of the legal arenas in which individual rights are pitted directly against business interests comes into play when an individual employee signs an employment contract containing a covenant not to compete.  Not surprisingly, state courts are often called upon to referee disputes concerning the enforceability of such contracts.  In a recent proemployer decision, a Florida appellate court ruled that an individual's change in status from an "employee" to an "independent contractor" did not affect the terms of the noncompete agreement that the individual had previously signed.

In Anarkali Boutique, Inc. v. Ortiz, 104 So. 3d 1202 (Fla. Dist. Ct. App. 2012), the Anarkali Boutique ("Boutique") sought a temporary injunction against Nahomi Ortiz for violating a noncompete agreement that Ortiz had signed when she began employment in 2008.  This agreement stated, in relevant part:

In consideration for my at-will employment or continued at-will employment by [the company] and the compensation now and hereafter paid to me, I hereby agree as follows:

. . . .

I will not either during my employment with the Company or for a period of two (2) years after I am no longer employed by the Company, engage, as an employee, independent contractor, officer, director, or shareholder, in any employment, business, or activity that in any way competes with the business of the Company within a one-hundred (100) mile radius of any store, office, or facility of the Company. . . .

. . . .

Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.

Id. at 1203.

In 2009, the Boutique began treating Ortiz as an independent contractor so that she would have the opportunity to earn more money through sales commissions.  In 2011, Ortiz left the Boutique and began operating her own business, performing the same services, within the restricted area.  In response, the Boutique filed a complaint for injunctive relief and a motion for temporary injunction against Ortiz.

As a defense against the motion, Ortiz argued that when the Boutique changed her status from employee to independent contractor in 2009, she ceased to be employed by the Boutique and the two-year restricted period set forth in the covenant not to compete began to run at that time.  The trial court agreed with Ortiz and denied the Boutique's motion for temporary injunction.

On appeal, the appellate court reversed.  In so doing, the appeals court relied upon the principle of contract construction that requires a court to examine the contract as a whole and to attempt to give effect to every provision.  According to the appeals court, the trial court contravened this principle by failing to give effect to the final sentence of the noncompete agreement quoted above.

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Topics: legal research, employment law, The Lawletter Vol 38 No 1, Charlene Hicks, covenant not to compete, balance of interests, employee becomes independent contractor, status does not change terms of initial contract, enforceability, Anarkali Boutique, Inc. v. Ortiz, FL Dist. Ct. App., applying principles of contract construction

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