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The Researching Paralegal

~ Articles and Research for Legal Professionals

The Researching Paralegal

Category Archives: Employment Law

An Update on the New DOL Overtime Rule.

21 Wednesday Sep 2016

Posted by Celia C. Elwell, RP in Employment Law, Exempt Employees, Law Office Management, Lawyer Supervision, Non-Exempt Employees, Paralegals/Legal Assistants

≈ Comments Off on An Update on the New DOL Overtime Rule.

Tags

Exempt vs. Non-Exempt, Jason Linn, Michigan Employment Law Advisor Blog, NFPA, Overtime, U.S. Dept. of Labor

Michigan Joins Quest to Block New Overtime Rule, by Jason Shinn, Michigan Employment Law Advisor Blog

http://bit.ly/2d5Bpto

The new overtime rule proposed by the Department of Labor is definitely one to watch. Its impact on employee and employer alike is significant.

How will it impact paralegals? As a profession, we began as exempt professionals, and not eligible for overtime. The Department of Labor eventually determined that paralegals were non-exempt because we work under the direct supervision of lawyers, and do not make independent decisions. Personally, I prefer being considered as an exempt professional, but not all paralegals share my opinion.

 A more detailed explanation of the history of the Department of Labor and the paralegal professional can be found here: https://www.paralegals.org/i4a/pages/index.cfm?pageid=3304. -CCE

On September 20, 2016, Michigan joined 20 other states in filing a lawsuit against the U.S. Department of Labor (DOL) to block a new overtime rule that goes into effect on December 1, 2016. Here is a link to the complaint Nevada v. Labor Dept., (9/20/16).

*     *     *

DOL’s Rule Expands Eligibility for Overtime Pay

The DOL’s overtime rule would more than double the salary threshold, up to about $47,500, under which workers are automatically entitled to overtime pay. This rule focuses on shrinking what is referred to as the ‘white collar exemption,’ which exempts employees who perform ‘executive, administrative or professional’ duties from overtime and minimum wage requirements.

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There’s Positive Stress and Then There’s the Other Kind.

11 Thursday Aug 2016

Posted by Celia C. Elwell, RP in Bullying, Employment Law, Harassment, Law Office Management, Marketing, Office Procedures

≈ Comments Off on There’s Positive Stress and Then There’s the Other Kind.

Tags

Celeste Duke, Diversity Insight Blog, Law Office Management, Workplace Bullying

Stress at Work: Defining the Line Between Motivation and an Abusive Workplace, by Celeste Duke, Diversity Insight Blog

http://bit.ly/29Nja5b

Regardless of whether you are a lawyer or legal professional, if you have been out there for a while, you have run into a “bad” boss. They are described in different ways – bully, perfectionist, bi-polar, belittling, and just plain unpleasant – but they are all accomplish at least one thing. They chase off good employees, and make an associates’ and staff’s miserable.

Many rules in a law office may not make sense to the uninitiated. Usually strict rules accompanied with micro-management are a red flag. New hires will likely inherit left over residue from a former employee who abused the rules so badly and frequently that management adopted more restrictive rules. It doesn’t matter that the bad apple is no longer there. New employees are stuck with jumping through the hoop actually designed for a former employee.

If you are interviewing and the office manager asks whether you mind working with difficult people, that is clearly a red flag. Ask why a position is open. Often, when all other things are equal, someone who works for a good boss rarely leaves a job.

If you have a boss who is truly making you miserable or has made it clear you are as far up the ladder as you will go, it doesn’t hurt to polish up your resume and stick your toe in the water. As a good friend once said that, when it comes to job hunting, you can always shop but you don’t have to buy.

If you have found that the nice prospective boss in the interview has turned into an extremely difficult tyrant, of course you have options. But, to be on the safe side, you may want to polish your resume and start putting out feelers. There is a difference between positive stress and the extremely destructive kind. Before this boss has destroyed any self-confidence you have left, get out of there.

Happily, not all attorney supervisors believe that intimidation and abusive behavior is the best way to encourage quality work and employees. Some people even thing that positive reinforcement, team work, and mutual respect and consideration actually improve employee performance and enhance the firm’s overall quality. What a concept! – CCE

In the movie Glengarry Glen Ross, Blake is a trainer sent by corporate to motivate a sales team. In addition to offering helpful gems like the acronym ABC to remind the salesmen that they should ‘always be closing,’ he repeatedly berates them and calls them names while bragging about his own success. He tells the team about a new sales competition that week: First place gets a Cadillac, second place gets a set of steak knives, and third place gets fired.

We hope you have never had a boss like Blake, but it’s likely that you recognize shades of his character in past managers, coworkers, or even a current manager in your organization. You want managers to push employees to do good work and get the best results for the company, but it can be hard to know how far is too far. During his ‘motivational’ speech, Blake asks one salesman, ‘You think this is abuse?’ As it turns out, it just might be, and this could be a new frontier in employee claims.

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Employer’s Religious Beliefs vs. Employee Discriminatory Termination. Who Wins?

14 Thursday Apr 2016

Posted by Celia C. Elwell, RP in EEOC, Employment Law, Gender Discrimination, Religious Discrimination

≈ Comments Off on Employer’s Religious Beliefs vs. Employee Discriminatory Termination. Who Wins?

Tags

EEOC, Employment Law, Gender Discrimination, Jason Shinn, Michigan Employment Law Advisor, Religious Beliefs

Can an Employer’s Religious Belief Defeat a Discriminatory Firing? By Jason Shinn, Michigan Employment Law Advisor

http://bit.ly/1RXE7gy

Can an employer’s religious beliefs defeat an otherwise discriminatory termination? Employers in Michigan may soon have much-needed guidance on this issue based on an employment discrimination case filed by the Equal Employment Opportunity Commission (EEOC) in Federal District Court in Michigan.

Specifically, the EEOC filed a lawsuit against RG & GR Harris Funeral Homes, Inc. In 2013 over its decision to fire a transgender funeral director (EEOC v RG & GR Harris Funeral Homes Complaint).

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Want The Jury to Pay Attention? Use Good Storytelling Skills.

17 Thursday Mar 2016

Posted by Celia C. Elwell, RP in Employment Law, Jury Persuasion, Litigation, Race Discrimination, Trial Tips and Techniques

≈ Comments Off on Want The Jury to Pay Attention? Use Good Storytelling Skills.

Tags

John Hyman, Jury Persuasion, Ohio Employer’s Law Blog, Storytelling

25 Million Reasons To Tell A Good Story, by John Hyman, Ohio Employer’s Law Blog

http://www.ohioemployerlawblog.com/2012/06/25-million-reasons-to-tell-good-story.html

Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in. . . .

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Sixth Circuit Takes a Look at Employee’s Age, Race, and Sex Discrimination Claim.

27 Saturday Feb 2016

Posted by Celia C. Elwell, RP in 6th Circuit Court of Appeals, Employment Law, Gender Discrimination, Race Discrimination, Wrongful Termination

≈ Comments Off on Sixth Circuit Takes a Look at Employee’s Age, Race, and Sex Discrimination Claim.

Tags

Alexis B. Kasacavage, Discrimination, EEOC, Employment Law, Wrongful Termination Claim

Dis-Orderly Conduct: Hospital Security Guard Fired After Incident With Psychiatric Patient Cannot Advance Discrimination Claims, by Alexis B. Kasacavage, Bingham Greenebaum Doll, LLP Blog  

http://www.lexology.com/library/detail.aspx?g=729cc33f-832f-49e3-97f6-7a1c3c8f1997

Interesting analysis on how the courts came to the same conclusion but for different reasons. -CCE

 In Loyd v. Saint Joseph Mercy Oakland, et al., the Sixth Circuit recently upheld a Michigan district court’s decision to dismiss a 52-year-old African-American female security guard’s age, race and sex discrimination claims arising from her discharge following an incident with a combative psychiatric patient at the hospital where she worked.

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Employer’s Motion for Preliminary Injunction is Denied in Non-Compete Agreement Case.

05 Tuesday Jan 2016

Posted by Celia C. Elwell, RP in Employment Law

≈ Comments Off on Employer’s Motion for Preliminary Injunction is Denied in Non-Compete Agreement Case.

Tags

Employment Law, Injunctive Relief, Jason Shinn, Michigan Employment Law Advisor Blog, Non-Compete Agreements

Dissecting an Injunction Hearing for Enforcing a Non-Compete Agreement, by Jason Shinn, Michigan Employment Law Advisor

http://bit.ly/1OJ90Wo

In non-compete lawsuits, whether a preliminary injunction should be issued is a critical battle that in large part determines the direction of the lawsuit. For this reason, a recent decision denying a former employer’s motion for injunctive relief in a non-compete enforcement action provides critical insight for companies and individuals. . . .

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Houston Law Firm Fires Pregnant Employees.

18 Friday Sep 2015

Posted by Celia C. Elwell, RP in Arbitration, EEOC, Employment Contracts, Employment Law, Gender Discrimination, Law Office Management, Pregnancy Discrimination

≈ Comments Off on Houston Law Firm Fires Pregnant Employees.

Tags

Arbitration, EEOC, Employment Law, Pregnancy Discrimination, San Antonio Employment Law Blog, Thomas J. Crane

Wayne Wright Fired Another Pregnant Worker, by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/q57966e

A law firm in Houston, Texas, fired a female employee because she became pregnant. The employee filed a charge against the firm with the EEOC, and then sued the firm. You would think that, if the firm somehow missed that this was an employment no-no, this experience educated management at the firm.

Unfortunately, that was not the case. The firm, which has offices in several locations, fired a paralegal from its El Paso firm when she became pregnant. The paralegal sued the firm, but this one has a twist. The firm invoked an arbitration agreement.

The matter went up to the El Paso Court of Appeals, which reversed the trial court. The paralegal’s case will go to arbitration. Why wasn’t this a slam dunk against the firm? -CCE

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Will New DOL Rules Create Overtime Pay for Contract Lawyers?

09 Wednesday Sep 2015

Posted by Celia C. Elwell, RP in At-Will Employment, Contract Law, Employment Contracts, Employment Law, Overtime, Overtime Exemption

≈ Comments Off on Will New DOL Rules Create Overtime Pay for Contract Lawyers?

Tags

Contract Attorneys, Department of Labor, Document Review, Fair Labor Standards Act, Overtime Exemption

Feds Could Change OT Pay Rules for Attorneys, by Gabe Friedman, Big Law Business, Bloomberg BNA (with hat tip to William P. Statsky!)

https://bol.bna.com/feds-could-change-ot-pay-rules-for-attorneys/

 

Dozens of contract attorneys voiced concerns about the health of their profession in letters and comments sent to the U.S. Department of Labor during the past two months as the federal agency weighs a change to overtime pay rules.

The DOL is considering its first revisions since 2004 to the Fair Labor Standards Act section 13(a)(1), which, as currently written, creates an overtime exemption for licensed attorneys, as well as other professionals. A comment period closed on Friday. Specifically, the DOL is contemplating whether to change which primary job duties trigger an exemption and whether to increase the standard salary threshold that triggers an exemption, currently set at $455 per week. It is also considering whether to create a mechanism to automatically increase this amount over time.

Taken together, the letters paint a picture of the contract attorneys, who review documents as part of the discovery phase of litigation, as a struggling group whose wages have fallen in recent years, particularly after the recession as the market for legal services has slumped. . . .

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A Different Kind of Employment Contract.

09 Wednesday Sep 2015

Posted by Celia C. Elwell, RP in Boilerplate Forms, Contract Law, Employment Contracts, Employment Law

≈ Comments Off on A Different Kind of Employment Contract.

Tags

Contract Writing, Employment Law, Hobbit, Legal Skills Blog, Louis J. Sirico Jr.

The Employment Contract Between Bilbo Baggins and the Dwarves, by Louis J. Sirico, Jr., Legal Skills Blog

http://tinyurl.com/qdt9krl

Louis J. Sirico, Jr., posted this interesting observation about employment contract law. If you have not read the book or seen the movie, The Hobbit, by J.R.R. Tolkien, this example is going to sound a bit odd.

Before Bilbo Baggins is hired by dwarves to join a quest to conquer a dragon and take back a mountain full of gold, he must sign an unique employment contract. In the book, Mr. Tolkien wrote a fifty-three word employment contract. It is easy to read and understand.

In the movie, the director wanted something more dramatic. The writer took on the challenge and looked to real contracts including his own. The result is a doozy. -CCE

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Fifth Circuit Reverses District Court On Termination of Temporary Employees.

24 Monday Aug 2015

Posted by Celia C. Elwell, RP in 5th Circuit Court of Appeals, Employment Law, Litigation, Summary judgment, Workers' Compensation, Wrongful Termination

≈ Comments Off on Fifth Circuit Reverses District Court On Termination of Temporary Employees.

Tags

EEOC, Employment Law, Manpower, San Antonio Employment Law Blog, Summary judgment, Thomas J. Crane

Fifth Circuit Reverses Western District for Making Credibility Determinations, by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/nk7tmln

In Burton v. Freescale Semiconductor Inc. and Manpower of Texas, LP, No. 14-50944 (5th Cir. 8/10/2015), the Fifth Circuit overruled the district court’s summary judgment. The court addressed a frequent issue, who is responsible for the termination of temporary employees? But, in so doing, the higher court also addressed a more frequent issue, how to apply the summary judgment standard. . . .

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When Is An Offer of Employment Letter The Same As A Contract?

13 Thursday Aug 2015

Posted by Celia C. Elwell, RP in Breach, Contract Law, Employment Contracts, Employment Law, Intentional Promise, Religious Discrimination

≈ Comments Off on When Is An Offer of Employment Letter The Same As A Contract?

Tags

Breach of Contract, Contract Law, ContractsProf Blog, Employment Law, Jeremy Telman, Motion to Dismiss

Federal Judge Allows Stephen Salaita’s Suit Against the University of Illinois to Proceed, by Jeremy Telman, ContractsProf Blog

http://tinyurl.com/o7flplx

In a case we have been following for a year (here, here, and here, for example), Stephen Salaita is suing the University of Illinois for withdrawing its offer to hire him to teach in its American Indian Studies Program after discovering some intemperate anti-Zionist tweets Mr. Salaita had posted. . . .

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Wrongful Termination for Religious Discrimination – Spoiler Alert! The Employer Wins.

22 Wednesday Jul 2015

Posted by Celia C. Elwell, RP in Employment Law, Religious Discrimination, Wrongful Termination

≈ Comments Off on Wrongful Termination for Religious Discrimination – Spoiler Alert! The Employer Wins.

Tags

Employment Law, Jason Shinn, Michigan Employment Law Advisor, Religious Discrimination, Title VII

Oy Vey! No Religious Discrimination in Jewish Nurse’s Termination, by Jason Shinn, Michigan Employment Law Advisor

http://tinyurl.com/q8ddaj8

A recent religious discrimination claim dismissed in favor of an employer offers a number important take-aways for both employers and employees. . . .

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Employment Law Fallacies – How Many Will You Get Right?

01 Monday Jun 2015

Posted by Celia C. Elwell, RP in At-Will Employment, Employee Manuals, Employment Law, Whistleblower, Wrongful Termination

≈ Comments Off on Employment Law Fallacies – How Many Will You Get Right?

Tags

At-Will Employment, Employment Law, Free Speech, Privacy, Rest Breaks, San Antonio Employment Law Blog, Thomas J. Crane

Nine Employment Law Myths, by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/o2xdkpa

Many potential clients, friends and some folks I barely know share their knowledge with me about employment law.  Unfortunately, many of them are flat wrong. Here are a few of the more common employment law myths I encounter. . . .

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How Much Is Your Arm Worth?

13 Wednesday May 2015

Posted by Celia C. Elwell, RP in Disabilities, Employment Law, Workers' Compensation

≈ Comments Off on How Much Is Your Arm Worth?

Tags

ProPublica, Workers' Compensation

How Much Is Your Arm Worth? Depends On Where You Work, by Michael Grabell, ProPublica, and Howard Berkes, NPR, ProPublica Blog

http://www.propublica.org/article/how-much-is-your-arm-worth-depends-where-you-work

Each state determines its own workers’ compensation benefits, which means workers in neighboring states can end up with dramatically different compensation for identical injuries.

At the time of their accidents, Jeremy Lewis was 27, Josh Potter 25.

The men lived within 75 miles of each other. Both were married with two children about the same age. Both even had tattoos of their children’s names.

Their injuries, suffered on the job at Southern industrial plants, were remarkably similar, too. Each man lost a portion of his left arm in a machinery accident.

After that, though, their paths couldn’t have diverged more sharply: Lewis received just $45,000 in workers’ compensation for the loss of his arm. Potter was awarded benefits that could surpass $740,000 over his lifetime.

The reason: Lewis lived and worked in Alabama, which has the nation’s lowest workers’ comp benefits for amputations. Potter had the comparative good fortune of losing his arm across the border in Georgia, which is far more generous when it comes to such catastrophic injuries.

This disparity grimly illustrates the geographic lottery that governs compensation for workplace injuries in America. Congress allows each state to determine its own benefits, with no federal minimums, so workers who live across state lines from each other can experience entirely different outcomes for identical injuries.

Nearly every state has what’s known as a ‘schedule of benefits’ that divides up the body like an Angus beef chart. . . .

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An Employee Manual Predicament.

07 Thursday May 2015

Posted by Celia C. Elwell, RP in 6th Circuit Court of Appeals, Employee Manuals, Employment Law, FMLA Leave, Health Care Benefits

≈ Comments Off on An Employee Manual Predicament.

Tags

Elliott-Larsen Civil Rights Act, Employee Manual, FMLA, Jason Shinn, Michigan Employment Law Advisor

Flag on the Play: Court Takes Away Employer’s Victory Because of Mistake in the Employee Manual, by Jason Shinn, Michigan Employment Law Advisor [originally published February 5, 2015]

http://tinyurl.com/pkld6yo

This past week saw the Seattle Seahawks skillfully avoid winning back-to-back Super Bowls because of (arguably) bad decision-making (all the Seahawks had to do was move the ball 36 inches into the end-zone – the only other decision worse than passing in that situation was having Katy Perry perform at half-time, but I digress).

An employer found itself in a similar situation and after further review its victory in an employment-related discrimination claim was reversed because of poor decision-making in relation to its employee manual.

Specifically, the Sixth Circuit Court of Appeals (the federal circuit that covers Michigan employers) reversed a trial decision in favor of an employer in Tilley v. Kalamazoo Cnty. Rd.Comm’n (1/26/2015). The employer was sued for claims under the Family Medical Leave Act (FMLA) (29 USC § 2601 et seq.) and under Michigan’s Elliott-Larsen Civil Rights Act.

The FMLA and Eligibility

For background purposes, the FMLA provides employees ‘a total of 12 workweeks of leave during any 12-month period for . . . a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ 29 U.S.C. § 2612(a)(1)(D). Importantly, these FMLA benefits are not available to all employees. Only an ‘eligible employee’ who works for an ‘employer’ – as both terms are defined under Act – may obtain such benefits.

The Court of Appeals agreed with the district court that the plaintiff employee was not FMLA eligible pursuant to what is called the FMLA’s 50/75 Employee Threshold (to be FMLA eligible, an employer must employ at least 50 employees at, or within 75 miles of, the employee’s worksite at the time the FMLA leave was requested). Again, it was undisputed that the Road Commission did not employ at least 50 employees at, or within 75 miles of, his worksite at the time the plaintiff sought FMLA leave.

At this point, the employer should have been well into its touchdown dance. But there was a flag on the play – an incorrectly drafted employee manual. . . .

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Pregnant Manager Fired For Refusing To Pay Back Money Taken In Robbery.

27 Monday Apr 2015

Posted by Celia C. Elwell, RP in At-Will Employment, Employment Law

≈ Comments Off on Pregnant Manager Fired For Refusing To Pay Back Money Taken In Robbery.

Tags

At-Will Employment, Employee Termination, Employment Law, Popeye Franchise, San Antonio Employment Law Blog, Thomas J. Crane

Popeye’s Manager Fired after Refusing to Pay for Robbery,  by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/nn48we6

This is the ugly side of at-will employment. Under at-will employment, a worker can be fired for any reason, so long as the reason does not involve discrimination and a few other rare exceptions. Marissa Holcomb was fired from her job as manager at the Popeye’s in Channel View, a Houston suburb after the place was robbed. The robber took $400 from the cash register. Ms. Holcomb was told to pay back the $400 or be fired. The pregnant mother of three chose to be fired. She could not afford to pay $400, especially after risking her life for her employer. The robber pointed a pistol at her and others during the incident.

Ms. Holcomb was fired less than 36 hours after the robbery. A franchise spokeman said she was fired because she left too much money in the register. . . .

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Updated Your Employee Manual And Policies Lately? Maybe You Should.

13 Monday Apr 2015

Posted by Celia C. Elwell, RP in Employee Manuals, Employment Law, National Labor Relations Act

≈ Comments Off on Updated Your Employee Manual And Policies Lately? Maybe You Should.

Tags

Employee Handbooks, Employee Policy Manual, Jason Shinn, Michigan Employment Law Advisor Blog, National Labor Relations Act, T-Mobile

Employer Charged with Unfair Labor Practice Because Employee Manual and Agreements Were Unlawful, by Jason Shinn of Shinn Legal, PLC, Michigan Employment Law Advisor Blog

http://tinyurl.com/l9pw82d

Two annoyances in life often involve cliches and living out a cliche. This is especially true when the cliche is ‘shooting yourself in the foot.’ But T-Mobile got to experience both last week when the National Labor Relations Board (NLRB) ruled that it engaged in unfair labor policies.

The ruling arose out of T-Mobile’s employee handbook, code of conduct, and a confidentiality form that all employees are required to sign. However, because of the manner in which T-Mobile drafted these documents, the NLRB found they obligated T-Mobile employees to comply with unlawful labor rules. The full NLRB opinion is available here (NLRB_T_Mobile_Opinion_2015_3_18).

We previously explained that employers need to be mindful that the NLRB would be focusing on employee manuals, sometimes called employee handbooks, and other employee agreements that violate employee rights under the National Labor Relations Act (NLRA) (an act that applies to union and non-union employees). See Employee Manuals Need Spring Cleaning Thanks to the NLRB. We also expressed our concern that many provisions in employee manuals and agreements could violate the NLRA and, therefore, subject companies to an unfair labor practice charge similar to what T-Mobile got hit with.

A review of the T-Mobile opinion substantiates these concerns in that the offending provisions were construed or otherwise interpreted to prevent workers from communicating with one another about wages, from speaking to the news media about workplace conditions and from speaking with co-workers to marshal evidence against disciplinary charges. Over all, administrative law judge found that 11 of the 13 policies subject to the litigation were illegal. . . .

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Latest Supreme Court Opinion on Pregnancy Discrimination Claims.

28 Saturday Mar 2015

Posted by Celia C. Elwell, RP in Employment Law, Pregnancy Discrimination, United States Supreme Court

≈ Comments Off on Latest Supreme Court Opinion on Pregnancy Discrimination Claims.

Tags

Civil Rights, Employment Law, Jason Shinn, Michigan Employment Law Advisor Blog, Pregnancy Discrimination Act, Title VII

A New Day for Pregnant Employee Workplace Accommodations – Understanding the New Framework, by Jason Shinn, Michigan Employment Law Advisor Blog

http://www.michiganemploymentlawadvisor.com/category/pregnancy-discrimination-act/

Yesterday [March 26, 2015] the U.S. Supreme Court issued the much anticipated opinion in a pregnancy discrimination claim, Young v . United Parcel Service.

For context, the claim in Young v UPS arose under the Pregnancy Discrimination Act (PDA). The PDA was added to Title VII (the gold-standard in terms of civil rights law prohibiting workplace discrimination) to overcome a prior Supreme Court ruling that allowed employers to treat pregnant female workers less favorably based on being pregnant.

There are two anti-discrimination provisions under the PDA: the first prohibits pregnancy bias as a form of discrimination based on sex; the second prohibits employers from treating female employees who become pregnant different than other employees who perform the same sort of work. . . .

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Is Claustophobia A Viable ADA Lawsuit?

04 Wednesday Mar 2015

Posted by Celia C. Elwell, RP in Americans With Disabilities, Disabilities, Employment Law, Wrongful Termination

≈ Comments Off on Is Claustophobia A Viable ADA Lawsuit?

Tags

ADA, Claustrophobia, Debra Cassens Weiss, Employment Law, Motion to Dismiss, U.S. District Judge Berle Schiller, Undisputed Legal Inc., Wrongful Termination

Lawyer’s Claustrophobia ADA Suit Survives Motion To Dismiss, by Debra Cassens Weiss, Undisputed Legal Inc.

https://undisputedlegal.wordpress.com/2015/03/02/lawyers-claustrophobia-ada-suit-survives-motion-to-dismiss/

A Philadelphia lawyer who claimed her law firm failed to accommodate her claustrophobia may proceed with her lawsuit, a federal judge has ruled. E refused to dismiss the disability suit against the law firm Marshall Dennehey Warner Coleman & Goggin, the Legal Intelligencer (sub. req.) reports. The plaintiff, former law firm associate Erica Serine, had claimed the law firm refused to accommodate her disability and then fired her.

According to Schiller’s Feb. 25 opinion (PDF), Serine had requested a transfer in 2012 from a Marshall Dennehey office in Moosic, Pennsylvania, to an office in Philadelphia or Cherry Hill, New Jersey, to be close to family in the area. The firm allowed a transfer to the Philadelphia office.

But Serine says she experienced anxiety and other symptoms of claustrophobia beginning with her elevator ride to the 24th floor of the Philadelphia office on Oct. 1, 2012. She ‘obsessively researched evacuation plans’ and had trouble sleeping and eating, the opinion said. She was extremely nervous at work, particularly when in the elevator or when away from a window.

The law firm allowed Serine to work from home while she sought treatment with a psychologist, but turned down her request to work at the Cherry Hill office or Pennsylvania offices in King of Prussia or Doylestown.

In December 2012, Serine was advised she could work in Philadelphia or Moosic, but she could not continue to work from home. She was fired the next month. . . .

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Valentine’s Day Regrettable Bad Influence at The Workplace.

14 Saturday Feb 2015

Posted by Celia C. Elwell, RP in EEOC, Employment Law, Harassment, Sexual Harassment

≈ Comments Off on Valentine’s Day Regrettable Bad Influence at The Workplace.

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Connecticut Employment Law Blog, Daniel Schwartz, Employment Law, Sexual harassment, Valentine's Day

More Examples of Why Valentine’s Day is a Bad Day for Employers, by Daniel Schwartz, Connecticut Employment Law Blog

http://tinyurl.com/pnzmh49

A little something for Valentine’s Day. -CCE

Two years ago, I wrote of the perils of Valentine’s Day.  While it may be a day for lovers, it is also a day where people do crazy (read: stupid) things.

I am not talking about Crazy. Stupid. Love. (Good movie, silly name.)

I’m talking about things that can lead to a sexual harassment lawsuit.

Not convinced? Well, since 2011, there are still more cases that have arisen where Valentine’s Day figures prominently. Here are two prime examples. . . .

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Why Is Workers’ Compensation An Exclusive Remedy In Employee’s Death Case?

25 Sunday Jan 2015

Posted by Celia C. Elwell, RP in Damages, Employment Law, Litigation, Torts, Workers' Compensation

≈ Comments Off on Why Is Workers’ Compensation An Exclusive Remedy In Employee’s Death Case?

Tags

Breach of Contract, Employer Liability, Employment Law, Remedy, Torts, Workers' Compensation, Wrongful Death, Zalma on Insurance Blog

Workers’ Compensation Is Exclusive Remedy, by Barry Zalma, Zalma On Insurance Blog

http://zalma.com/blog/workers-compensation-is-exclusive-remedy/

Tort Judgment Against Employer Is Only Good for Wallpaper

The workers’ compensation system across the United States provides benefits to injured workers without regard to fault. When the injury is serious or results in death the workers’ compensation benefits do not feel sufficient to indemnify the injured worker or his or her estate for the loss incurred. As a result, the injured worker or his estate will attempt a tort action and then try to collect that judgment by means of a suit against the employer’s insurer.

Employers and employees make a bargain: the employer will not require proof of negligence if the employee is injured and the employee agrees that he or his estate will accept the statutory benefits provided by state law and give up the right to sue the employer for tort damages.

In Morales v. Zenith Ins. Co., — F.3d —-, 2015 WL 265445 (C.A.11 (Fla.) 1/22/15) the estate of an injured worker successfully sued an employer and sought to recover by means of a breach of contract claim filed by plaintiff-appellant Leticia Morales, on behalf of herself, the Estate of Santana Morales, Jr., and two minor children against Zenith Insurance Company (‘Zenith’).

FACTS
Santana Morales, Jr. was crushed to death by a palm tree while working as a landscaper for Lawns Nursery and Irrigation Designs, Inc. (‘Lawns’). At the time of Morales’s death, his employer Lawns maintained a ‘Workers’ Compensation and Employers Liability Insurance Policy’ with Zenith. The policy contained two types of coverage: (1) workers’ compensation insurance under Part I and (2) employer liability insurance under Part II. After Morales’s death, Zenith began paying workers’ compensation benefits to the Estate in accordance with its obligation under Part I of the policy.

Under Part II, Zenith was obligated: (1) to ‘pay all sums [Lawns] legally must pay as damages because of bodily injury to [its] employees, provided the bodily injury is covered by this Employers Liability Insurance’; and (2) to defend lawsuits for such damages. In relevant part, Part II contained an exclusion barring employer liability insurance coverage for ‘any obligation imposed by a workers compensation … law’ (the ‘workers’ compensation exclusion’).

On December 3, 1999, the Estate filed a wrongful death action against Lawns in Florida circuit court and obtained a default jury award to the Estate of $9.525 million in damages against Lawns. . . .

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Abusive Bosses Learn by Playing Follow The Leader. Is It That Simple?

17 Saturday Jan 2015

Posted by Celia C. Elwell, RP in Bullying, Employment Law, Harassment, Hostile Work Environment, Law Office Management, Management

≈ Comments Off on Abusive Bosses Learn by Playing Follow The Leader. Is It That Simple?

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Bullying, Child Abuse Syndrome, Employment Law, HBR Blog, Hostile Work Environment, Law Office Management, the careerist blog, Vivia Chen

My Boss / My Self, by Vivia Chen, the careerist blog

http://thecareerist.typepad.com/thecareerist/2013/01/are-you-mean-and-nasty-at-work-.html

I’ve heard bosses give this reason before. “I used to be a nice person.” At least they see it. Some don’t or won’t. So what happened? -CCE

Do you ever feel like wringing the necks of underlings who seem incapable of following your directives? Okay, so who hasn’t? But do you go one step further—like berating or humiliating them?

If you are becoming short-tempered, mean, or just nasty at work, don’t blame it on your crushing workload. According to a study described in the Harvard Business Review Blog, you might be modeling your behavior after your own boss.

It’s the child abuse syndrome: Those who were abused end up as abusers themselves.

The study, which was conducted by Christine Porath of Georgetown University and Christine Pearson of the Thunderbird School of Global Management, finds that 60 percent of employees ‘blame their bad behavior on being overloaded at work.’ But the research indicates other dyanamics in play, writes the authors in HBR Blog:

In one of our surveys, 25 percent of managers who admitted to having behaved badly said they were uncivil because their leaders—their own role models—were rude. If employees see that those who have climbed the corporate ladder tolerate or embrace uncivil behavior, they’re likely to follow suit.

Of course, it doesn’t take a management genius to figure out that having an office full of bullies and victims doesn’t make for a productive workplace. The report finds:

– 48 percent of employees intentionally decreased their work effort.

– 47 percent intentionally decreased their work time.

– 80 percent lost work time worrying about their treatment.

– 66 percent said that their performance declined.

So what can businesses do to eradicate workplace incivility? . . .

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New Law For Paid Sick Leave?

16 Friday Jan 2015

Posted by Celia C. Elwell, RP in Employment Law, Health Care Benefits, Pregnancy Discrimination

≈ Comments Off on New Law For Paid Sick Leave?

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Employment Law, Eric B. Meyer, Healthy Families Act, Paid Sick Leave, President Obama, The Employer Handbook

President Obama To Push For Paid Sick Leave For American Workers, by Eric B. Meyer, The Employer Handbook

http://tinyurl.com/kyyw5te

In an announcement made late in the day yesterday on LinkedIn [January 14, 2015], Valerie Jarrett, Senior Advisor to President Barack Obama, posted that President Obama will call upon Congress today to pass the Healthy Families Act.

More on this push from the President and what it will mean for American business, after the jump…

* * *

I’ve blogged about the Healthy Families Act before here. Essentially, the Healthy Families Act would require companies with 15 or more employees to permit each employee to earn at least 1 hour of paid sick time for every 30 hours worked.

Employees could then use this accrued sick time to: (1) meet their own medical needs; (2) care for the medical needs of certain family members (including a domestic partner or the domestic partner’s parent or child); or (3) seek medical attention, assist a related person, take legal action, or engage in other specified activities relating to domestic violence, sexual assault, or stalking.

Many states and cities have already paid sick leave laws. And, of course, many companies provide paid sick leave voluntarily. The Act would not be cumulative. Rather, it would set a floor for qualifying American businesses. . . .

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NLRB “Likes” Facebook.

10 Wednesday Dec 2014

Posted by Celia C. Elwell, RP in Civil Rights, Employment Law, First Amendment, Social Media

≈ Comments Off on NLRB “Likes” Facebook.

Tags

Employment Law, Facebook, First Amendment Right, John R. Martin, NLRB, Rhoads & Sinon LLP, Social media

Social Media Update: Recent Developments from the Land of Facebook…, by John R. Martin, Rhoads & Sinon LLP

http://tinyurl.com/ky45qvf

I think we can all agree that, as a general rule, employers and social media are not Facebook friends. They don’t follow each other on Twitter. Or Instagram. And they would never (ever) be caught dead sending the other a Snapchat. (Mind out of the gutter, people. Not that kind of Snapchat.)

While employment relationships, for the most part, remain ‘at-will,’ social media has slapped the handcuffs on employers in many respects when it comes to the issue of employee discipline. Most notably, the National Labor Relations Board (“NLRB”) has come down hard on an employer’s ability to discipline an employee for social media-related conduct that has even a passing relationship to the terms and conditions of employment (e.g., complaining about wages, benefits, hours worked, etc.). The NLRB has also frowned on many social media policies and has declared nearly all of the ones it has reviewed to be unlawfully overbroad in restricting an employee’s right to engage in protected activity online.

Sorry employers… things aren’t getting any better just yet, as two recent cases have made clear.

An Employee’s First Amendment Right to ‘Like’

A federal appellate court recently ruled that clicking Facebook’s ‘Like’ button can be considered speech protected by the First Amendment. In the case, several deputies were not reappointed by the sheriff after winning his reelection campaign. What was the alleged reason for this decision? The deputies had (horror!) ‘liked’ the Facebook page of one of the sheriff’s opponents during the election….

The (now unemployed) deputies sued, citing a violation of their First Amendment rights. (A viable legal claim, as this is a public, i.e., government, employer. As discussed in a previous blog post, private employers need not concern themselves with such issues. However, when politics are at play, there’s always cause for concern, whether public or private, as was discussed in another prior post.) And guess what? The deputies won….

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Contracts Must Be Drafted With Specific Language To Enforce Arbitration.

01 Monday Dec 2014

Posted by Celia C. Elwell, RP in 5th Circuit Court of Appeals, 8th Circuit Court of Appeals, Appellate Law, Arbitration, Arbitration, Breach, Contract Law, Employment Law, Legal Analysis, Legal Writing, Precedent

≈ Comments Off on Contracts Must Be Drafted With Specific Language To Enforce Arbitration.

Tags

Arbitration, Breach of Contract, Contract Law, Legal Writing, Lexology, Liz Kramer, Stinson Leonard Street LLP

“Harmonizing” Contract Language Leads Two Circuit Courts To Deny Arbitration, by Arbitration Nation Blog, posted at Lexology Blog

http://tinyurl.com/mh3y6z3

Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts ‘harmonize’ language from different parts of an agreement or from multiple agreements.

The decision from the Eighth Circuit was a pretty easy one. The parties’ contract required them to mediate any dispute. Then it said: ‘if the dispute is not resolved through mediation, the parties may submit the controversy or claim to Arbitration. If the parties agree to arbitration, the following will apply…’ The party fighting arbitration (a city in South Dakota) argued the quoted language does not mandate arbitration, it makes arbitration an option for the parties, so the case should remain in court. [Emphasis in original.]

The party seeking arbitration emphasized a sentence at the end of the arbitration paragraph saying that the arbitrator’s ‘decision shall be a condition precedent to any right of legal action.’ It argued that the only way to harmonize that language is to conclude that arbitration is required. The court disagreed, finding that a reasonable interpretation is simply that if the parties decided to arbitrate, the arbitration decision is a condition precedent to further legal action. Quam Construction Co., Inc. v. City of Redfield, ___ F.3d___, 2014 WL 5334781 (8th Cir. Oct. 21, 2014). Therefore, the Eighth Circuit affirmed the district court’s denial of the motion to compel arbitration.

The Fifth Circuit had a harder case in Sharpe v. AmeriPlan Corp., __ F.3d__, 2014 WL 5293707 (5th Cir. Oct. 16, 2014). In that case, three former sales directors of a company sued for breach of contract after they were terminated. The company moved to compel arbitration and the district court granted the motion.

Their original employment agreements with the company did not call for arbitration, in fact they set the venue for legal proceedings exclusively in Texas courts. The employment agreements also incorporated a ‘Policies and Procedures Manual.’ The employment agreements could only be modified with written consent of all parties, but the Manual could be unilaterally modified by the company. Years later, the company amended its Manual to provide for mandatory arbitration.

The Fifth Circuit reversed the district court, finding that the new arbitration clause was unenforceable. First, the court concluded that the jurisdiction and venue clauses in the original employment agreements survived the amendment to the Manual, because there was no written and signed change to the employment agreements themselves and because the company had affirmatively relied on the venue clause (calling for Texas courts) when it transferred the case from California to Texas. And second, the court found that the old and new provisions “cannot be harmonized” without rendering the original agreement meaningless.

There are drafting lessons from these cases: if you want to have mandatory arbitration of disputes, the contract must consistently say that, and if you want to modify existing agreements to add arbitration, make sure to honor any language in the original agreement about how that agreement can be amended or modified and be clear what clauses are replaced or superseded.

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