Category Archives: Employment Law

Illinois Pension Law Ruled Unconstitutional.

22 Saturday Nov 2014

Posted by in Bankruptcy Law, Employment Law, Illinois Supreme Court, Pension Rights

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Judge Rules Illinois Pension Law Unconstitutional, by Elizabeth LaForgia, JURIST (Supported by the University of Pittsburg School of Law)

http://tinyurl.com/oppjhg8

An Illinois judge on Friday ruled [opinion, PDF] a law intended to fix the pension crisis in the state violates the Illinois constitution. Sangamon Country Circuit [official website] Judge John Belz ruled in favor of state employees and retirees who sued to block the law. Last December, state lawmakers passed [JURIST report] the bill [text, PDF], which amended the state’s pension plan in an effort to cut spending and lower the state’s debt. The law would raise the retirement age and lower annual increases in pensions to retired employees, which would be based on the number of years worked. Public employee unions challenged the measure under the Pension Protection Clause of the Illinois Constitution [materials], arguing that the constitution prohibits reducing benefits or compensation. In response, the state argued that pensions can be modified in times of fiscal emergency. ‘The state of Illinois made a constitutionally protected promise to its employees concerning their pension benefits,’ wrote Judge Belz. ‘Under established and uncontroverted Illinois law, the state of Illinois cannot break this promise. Illinois Attorney General Lisa Madigan [official website] announced [statement] that they “plan to immediately appeal the decision to the Illinois Supreme Court.’

Pension rights have been a controversial issue recently. In December, a judge for the US Bankruptcy Court for the Eastern District of Michigan [official website] ruled [JURIST report] that the city of Detroit is eligible for bankruptcy [JURIST op-ed]. The insolvent city’s debt [JURIST op-ed] includes 3.5 billion dollars in pension funds. The bankruptcy was allowed to go forward despite a Michigan state court ruling [JURIST report] last year which held that the city’s filing for bankruptcy violated the Michigan Constitution. The bankruptcy court held that the pension funds could not be treated any differently than other unsecured debt. In March 2013 the US District Court for the Southern District of New York [official website] denied [JURIST report] a motion to dismiss a lawsuit brought by a pension plan holder against JPMorgan (JPM) [corporate website; JURIST news archive]. The court found that sufficient allegations were raised to support a claim for breaches of both the duty of care and the duty of loyalty.

Employees’ Privacy Rights, Social Media, And The Stored Communications Act.

26 Sunday Oct 2014

Posted by in Employment Law, Social Media

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Federal Court Allows Plaintiff’s Stored Communications Act to Proceed Highlighting Role of Social Media in the Workplace, by Randy Enochs, Wisconsin Employment & Labor Law Blog

http://tinyurl.com/l5d3l9z

A federal district court in Northern Illinois, in a rather interesting case given the widespread use of Facebook and Twitter in the workplace by employees who are looking to advance both their careers with an employer as well as market themselves better, has denied an employer’s motion for summary judgment on the plaintiff’s Stored Communication Act (SCA) claim.  The case is super fact-specific and may not apply in every case, but highlights an important message to employers in the social media arena, which continues to present new and interesting issues every year. . . .

“Employee” or “Independent Contractor” Drilled Through The Hand At Bada Bing Club? Why It Makes A Difference.

25 Saturday Oct 2014

Posted by in Employment Law, Independent Contractors

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Drilling Home the Difference Between an Independent Contractor and Employee, by Jason Shinn, Michigan Employment Law Advisor Blog

http://tinyurl.com/qypgowu

A common question that business owners raise involves the use of employees versus independent contractors. The use and classification of an individual as an employee or independent contractor is one of the more complicated employment law issues that business owners will deal with and resolving such issues will depend upon circumstances.

Consider one test, the economic reality test, is used for determining employment status when it comes to social legislation such as worker’s disability compensation. However, another test, the ‘control test,’ is used when it comes to tort actions. And both of these tests have multi-faceted factors that need to be considered under the specific circumstances).

But a recent Michigan Court of Appeals decision (Cole v. The Bada Bing Club, 2014) involving an employee/independent contractor issue drills home the point (quite literally) one of the significant differences between the two statuses and why it matters to employers.

The Beating at the Bada Bing Club

Specifically, Dennis Cole was severely beaten in the basement of the Bada Bing Club by the club’s manager, Henry Ramirez and three other individuals. The following is taken directly from the Court of Appeals opinion:

‘Plaintiff was taped to a chair, beaten with a gun, punched and kicked, and drilled through the hand with an electric drill. The men were all convicted of criminal charges for their involvement.’

Plaintiff sued the Bada Bing Club and Atlantis Lounge Inc. Atlantis Lounge was the sole Owner of the Bada Bing Club, which was an assumed name filed by Atlantis. Atlantis Lounge, however, verbally contracted with Henry Ramirez (the guy involved in beating Plaintiff) who solely managed and operated the Bada Bing Club.

Lawsuit Turns on Employee or Independent Contractor Status

A central issue on appeal was whether Ramirez was an employee or an independent contractor. If Ramirez was an employee of Atlantis Lounge, then Atlantis could be held directly liable for negligently hiring, training, or supervising Ramirez. In contrast, under Michigan law there is no comparable cause of action for the negligent hiring or retention of an independent contractor. In other words, if Ramirez was an independent contractor then Atlantis Lounge was off the hook. . . .

Ignore Duty For Litigation Holds At Your Peril.

15 Wednesday Oct 2014

Posted by in Discovery, E-Discovery, Employment Law, Litigation Hold, Preservation, Race Discrimination, Sanctions, U.S. District Court for the Southern District of New York

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Don’t Hit That Delete Button: An Update On Litigation Holds For Employment Claims, by Andrew P. Sherrod, Inside Counsel Magazine

http://tinyurl.com/ka6thgo

By now, most companies are — or at least should be — well aware of their obligation to preserve relevant documents and electronic information when they reasonably anticipate litigation. This duty can arise in many contexts, but employment complaints are a prime example. Despite the multitude of judicial decisions and articles on the subject, companies continue to hinder their defense of employment claims by failing to undertake appropriate preservation measures.

The consequences of failing to implement and monitor a litigation hold in response to an employment claim were reinforced in a recent decision from the United States District Court for the Southern District of New York in Hawley v. Mphasis Corp.

In Hawley, an employee of the defendant company claimed that he was discriminated against on the basis of his ethnicity in a number of ways during the course of his employment. The employee filed an EEOC charge of race and national origin discrimination in September 2009. The company terminated the employee in November 2009, and he thereafter filed a second EEOC charge, which was mailed to the company in December 2009. The employee then filed a discrimination suit in January 2012 against the company under 42 U.S.C. § 1981 and state civil rights laws.

During his employment, the plaintiff received a company-issued laptop computer on which he was required to perform his work. After his termination, the employee returned the computer to the company in December 2009. The next month, the company reassigned the computer to another employee, permanently deleting all of the plaintiff’s data.

The company also waited until April 2012 — almost three months after the filing of the plaintiff employee’s lawsuit and more than two years after his EEOC charges — to instruct the plaintiff’s supervisor and several other employees to preserve all documents and communications related to the plaintiff. . . .

Insurers Using Generic Drugs To Shift Costs To Sick?

17 Wednesday Sep 2014

Posted by in Affordable Care Act, Drug Promotion, Health Care Benefits, Health Law, Health Reform

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A New Way Insurers are Shifting Costs to the Sick, by Charles Ornstein, ProPublica (This story was co-published with The New York Times’ The Upshot.)

http://tinyurl.com/kaaelvg

By charging higher prices for generic drugs that treat certain illness, health insurers may be violating the spirit of the Affordable Care Act, which bans discrimination against those with pre-existing conditions.

Health insurance companies are no longer allowed to turn away patients because of their pre-existing conditions or charge them more because of those conditions. But some health policy experts say insurers may be doing so in a more subtle way: by forcing people with a variety of illnesses — including Parkinson’s disease, diabetes and epilepsy — to pay more for their drugs.

Insurers have long tried to steer their members away from more expensive brand name drugs, labeling them as ‘non-preferred’ and charging higher co-payments. But according to an editorial published Wednesday in the American Journal of Managed Care, several prominent health plans have taken it a step further, applying that same concept even to generic drugs.

The Affordable Care Act bans insurance companies from discriminating against patients with health problems, but that hasn’t stopped them from seeking new and creative ways to shift costs to consumers. In the process, the plans effectively may be rendering a variety of ailments ‘non-preferred,’ according to the editorial.

‘It is sometimes argued that patients should have ‘skin in the game’ to motivate them to become more prudent consumers,’ the editorial says. ‘One must ask, however, what sort of consumer behavior is encouraged when all generic medicines for particular diseases are ‘non-preferred’ and subject to higher co-pays.’ . . .

Fifth Circuit Reiterates ERISA Standard of Review.

20 Wednesday Aug 2014

Posted by in 5th Circuit Court of Appeals, ERISA

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ERISA Standard Of Review, by Raymond Ward, Louisiana Civil Appeals

http://tinyurl.com/mqhn2mq

In case anyone needed a reminder about the district court’s standard of review in an ERISA case, the U.S. Fifth Circuit recently drove the message home, with some harsh words for the district judge:

It apparently bears repeating here that district courts hearing complaints from disappointed ERISA plan members or their beneficiaries for the administrative denial of benefits are not sitting, as they usually are, as courts of first impression. Rather, they are serving in an appellate role. And, their latitude in that capacity is very narrowly restricted by ERISA and its regulations, as interpreted by the courts of appeals and the Supreme Court, including the oft-repeated admonition to affirm the determination of the plan administrator unless it is “arbitrary” or is not supported by at least “substantial evidence”—even if that determination is not supported by a preponderance. We had thought that by now this was understood and accepted by all district judges of this circuit. But, as this case demonstrates that we were wrong, at least as to one of them, we try yet again to drive that message home.

McCorkle v. Metropolitan Life Ins. Co., No. 13-30745, slip op. at 6–7 (5th Cir. July 3, 2014) (footnotes omitted, emphasis by the court). The opinion goes on to articulate the abuse-of-discretion standard of review applicable in ERISA cases. For anyone who practices in this area, it’s a must-read.

This Time, Employer’s Social Media Policy Does Not Violate Employee’s Rights.

06 Sunday Jul 2014

Posted by in Administrative Law, Employment Law, Social Media

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Employer’s Social Media Policy Found Not To Violate Employees’ Rights, by Jason Shinn of Shinn Legal, PLC, Michigan Employment Law Advisor

http://tinyurl.com/q8pogjs

A recent social media case involving the NLRB should be cause for celebration for employers. Specifically, in Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB administrative law judge (ALJ) had found a social media policy concerning its subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., did not violate the National Labor Relations Act (NLRA).

Initially, the General Counsel argued that Bubba Gump’s social media policy infringed on employee’s rights under the NLRA because it would tend to prohibit employees from discussing terms and conditions of employment with coworkers or third parties. That social media stated as follows:

‘While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.’

The ALJ agreed that without ‘more,’ the first sentence could violate the NLRA. But the ALJ noted that the social media policy did not outright restrict speech on job related issues – job related subject matters – but, instead, the manner in which such issues are being discussed and debated, i.e., being civil to others and their opinions:

‘Without more, it would be reasonable for employees reading this language to conclude that the Respondent generally frowns upon all job-related postings of any type. However, the cautionary language is modified by the language in the next sentences which may be understood to clarify that the 40 avoidance of morale problems may be ‘accomplished’ by simply being civil to others and their opinions.’

Employer Take-Aways

From an employer’s perspective this case is a good result. But it is also a reminder that the NLRB’s General Counsel continues to closely scrutinize employers’ social media policies. For this reason, it continues to be important to carefully draft social media policies that will give ALJs the opportunity to sensibly read the policies so as to not find a violation of employees’ rights under the NLRA. . . .

Why Defendant Former Employers Do Not Get Mirror-Image of Plaintiff’s Personal Computer.

30 Monday Jun 2014

Posted by in Computer Forensics, Discovery, E-Discovery, Emails, Employment Law, Evidence, Forensic Evidence, Law Office Management, Legal Technology, Requests for Production, Technology

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Proportionality Prevents Mirror Imaging of Family Computers, by Joshua Gilliland, Bow Tie Law’s Blog

http://tinyurl.com/osvw3ws

The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).

Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case,proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:

(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;

(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.

Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (D. Md. Apr. 9, 2013). . . .

 

Amazon And Other Firms Cited By OSHA For Worker’s Death.

22 Sunday Jun 2014

Posted by in Anti-Retaliation, Bullying, Employment Law, Government, Harassment, Hostile Work Environment, OSHA

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OSHA Cites Five Firms After Temporary Worker Dies at Amazon Fulfillment Center, by Josh Cable, ESH Today

http://tinyurl.com/pcdgyuh

Please note the related article at http://tinyurl.com/mwj773o, Amazon Makes Shopping Easy … But at What Cost to Workers? by Laura Walter, ESH Today. -CCE

 

An OSHA investigation into the death of a temporary worker at an Amazon fulfillment center in Avenel, N.J., has prompted the agency to cite five firms for safety violations.

On Dec. 4, 2013, temporary worker Ronald Smith died after he was caught in between a conveyor system and crushed while performing sorting operations at the Amazon facility.

Based on its investigation into the fatality, OSHA has cited five companies for serious violations, including the contractor responsible for operating the facility, and four temporary staffing agencies. . . .

Note Limited Time to File Employment Discrimination Charge!

14 Saturday Jun 2014

Posted by in Anti-Retaliation, Bullying, Disabilities, EEOC, Employment Law, Fair Labor Standards Act, Gender Discrimination, Harassment, Hostile Work Environment, Minimum Wage, Overtime, Pregnancy Discrimination, Race Discrimination, Sexual Harassment, Wrongful Termination

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Time Limits For Filing A Charge, U.S. Equal Employment Commission

http://www.eeoc.gov/employees/timeliness.cfm

The anti-discrimination laws give you a limited amount of time to file a charge of discrimination. In general, you need to file a charge within 180 calendar days from the day the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. The rules are slightly different for age discrimination charges. For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination.

Note: Federal employees and job applicants have a different complaint process, and generally must contact an agency EEO Counselor within 45 days. The time limit can be extended under certain circumstances.

Regardless of how much time you have to file, it is best to file as soon as you have decided that is what you would like to do.

Time limits for filing a charge with EEOC generally will not be extended while you attempt to resolve a dispute through another forum such as an internal grievance procedure, a union grievance, arbitration or mediation before filing a charge with EEOC. Other forums for resolution may be pursued at the same time as the processing of the EEOC charge. . . .

Breach of Contract Claims Against Allstate by Its Employees.

01 Thursday May 2014

Posted by in Contract Law, EEOC, Employment Contracts, Employment Law, Intentional Misrepresentation

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New York Times Report on Litigation Challenging an Allstate Waiver Agreement, by Jeremy Telman, Contracts Prof Blog

http://bit.ly/1kwF7GI

According to this article in today’s New York Times, 6,200 Allstate employees, who joined its Neighborhood Agents Program in the 1980s and 1990s, were called into meetings in 1999 at which they were told that they would now proceed as independent contractors, forfeiting health insurance, their retirement accounts or profit-sharing, and terminating the accrual of their pension benefits.   If they wanted to continue to sell Allstate insurance, they had to sign waivers in which they agreed not to sue the insurer.  Thirty-one agents signed but have now sued nonetheless, alleging age discrimination and breach of contract.

They sued thirteen years ago, but the case is still far from over.  They are still seeking class certification.  The Times article indicates that cases such as this one are hard to win, but the judge in this case has already stated that those that signed the waivers were made substantially worse off, that Allstate’s claimed corporate reorganization was actually a disguised staff reduction, and that Allstate’s conduct was ‘self-serving and, from most perspectives, underhanded.’  In addition, Allstate seems to have misrepresented to the agents the consequences of not signing the waiver, having told the agents that they would be barred for life from soliciting business from their former customers.  Allstate has already paid $4.5 million to settle an age-discrimination claim brought by the EEOC on behalf of 90 of the agents.

New Standard for Proving Sexual Harassment.

27 Sunday Apr 2014

Posted by in Appellate Law, Employment Law, Gender Discrimination, Harassment, Hostile Work Environment, Sexual Harassment

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Two New Cases Demonstrate High Bar For Proving Sexual Harassment, by Parker Poe Adams & Bernstein LLP, Lexology®, in cooperation with Association of Corporate Counsel

http://tinyurl.com/luwkehs

Not all sex-related behavior in the workplace gives rise to an actionable claim for sexual harassment. In order to violate Title VII, the actions complained of must be unwelcomed, and must create a hostile and offensive working environment based on the victim’s gender. Two new federal appellate cases show how alleged workplace behavior can be obnoxious and unwelcomed, and yet still fail to reach this threshold. . . .

Korean Samsung Workers Dying of Leukemia and Other Rare Cancers.

12 Saturday Apr 2014

Posted by in Android Phones, Employment Law, International Law, Legal Technology, Workers' Compensation

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Samsung’s War at Home, by Cam Simpson, Technology, Bloomberg’s Week

http://tinyurl.com/nltoss3

Just inside his single-story home, built of concrete blocks and coated in turquoise paint, Hwang Sang-ki, a 58-year-old Korean taxi driver, sits on a floor mat. He’s clasping a small handbag, once bright white and now dull after years on a shelf. He pulls out a snapshot of 13 smiling young women, all co-workers at Samsung Electronics (005930:KS), off-duty and posing in three rows, each embracing or leaning into the other. The leaves of a tree behind them are turning golden in the autumn chill.

‘Here,’ says Hwang, pointing to two women in the center of the group. Both had the same job at the same semiconductor factory, on the same line, standing side by side at the same workstation, dipping computer chips into the same vat of chemicals. Both got a particularly aggressive form of the blood cancer known as acute myeloid leukemia. One was his daughter, Yu-mi. In South Korea, only about 3 out of every 100,000 people die of leukemia. ‘They worked together, and they died,’ says Hwang. The snapshot is among a few private memories Hwang keeps of his late daughter.

The story of the two women, and dozens of Samsung workers with leukemia and other rare cancers, is now a very public one in South Korea. In February and March, Koreans could see two movies depicting the seven-year battle led by the Hwangs and other families against Korea’s biggest and most influential corporation. . . .

Duty to Arbitrate Survives End of Employment Contracts.

05 Saturday Apr 2014

Posted by in Arbitration, Arbitration, Collective Bargaining, Employment Contracts, Employment Law, Fair Labor Standards Act, United States Supreme Court

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Sixth Circuit Holds That Duty To Arbitrate Survives Expiration Of Employment Contract, Requires Individual Arbitration, by Gregory V. Mersol, Baker & Hostetler

http://tinyurl.com/q7yg9s5

With the Supreme Court having issued a series of decisions overruling many of the roadblocks to the enforcement of arbitration agreements in the class context, we are now seeing more courts fill in the gaps as to whether and when employers may rely on such agreements.

The latest of these is the case of Huffman v. The Hilltop Companies, LLC, Case No. 13-3938 (6th Cir. Mar. 27, 2014), which concerned the question of whether the duty to arbitrate and limits to class arbitration extend beyond termination.  In one respect, the decision was obvious, but in another, it represents the growing, if at time reluctant, acceptance by courts of the enforceability of arbitration agreements. . . .

OSHA’s Interim Final Rule for Whistleblowers.

05 Saturday Apr 2014

Posted by in Dodd-Frank’s Consumer Financial Protection Act, Employment Law, Government, OSHA, Whistleblower

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OSHA Issues Its Interim Final Rule On Whistleblowers Procedures Under Dodd-Frank’s Consumer Financial Protection Act, by Seyfarth Shaw LLP, Environmental & Safety Law Update

http://tinyurl.com/kn23fwt

You may have to go to the post to access its internal hyperlinks. -CCE

OSHA yesterday announced its interim final rule for “Procedures for Handling Retaliation Complaints Under the Employee Protection Provision of the Consumer Financial Protection Act of 2010,” 79 Fed. Reg. 18630 (April 3, 2014).  These rules are in effect immediately, but could be revised by OSHA after the comment period.

James Curtis, Ada Dolph, and Craig Simonsen have prepared a Workplace Whistleblower Perspective that reviews and provides analysis of the new interim final rule. Check it out here.

The interim final rule is effective on April 3, 2014, with comments submitted to Docket No. OSHA–2011–0540 due by June 2, 2014.

Twenty-Five Years Ago, How Sexual Harassment Went Mainstream.

23 Sunday Mar 2014

Posted by in Appellate Law, Employment Law, Sexual Harassment, United States Supreme Court

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New Anita Hill Film Recalls When Sexual Harassment Went Mainstream, by Claire Suddath, Bloomberg Businessweek

http://tinyurl.com/o62jkwl

Twenty-five years ago, a University of Oklahoma Law School professor told the U.S. Senate Judiciary committee about the time her former boss put pubic hair on a Coke can. She talked about the kind of pornography he told her he watched, how he bragged about his penis size, and the 10 or so times he asked her on dates even though he was her boss. At one point, the nickname “Long Dong Silver” came up. For three days in October 1991, all anyone could talk about was Anita Hill, Clarence Thomas, and which one of them was lying.

There was a salacious absurdity to the Anita Hill hearings that, when we look back on them now, makes us cringe. Did we really listen to Senator Howell Heflin, Democrat from Alabama, ask a 35-year-old tenured law professor if she was “a scorned woman?” But sometimes it takes outrageous acts to force us to examine uncomfortable truths. For better or worse, Anita Hill forced America to start thinking about sexual harassment. On March 21, Anita: Speaking Truth to Power, a documentary by Academy Award–winning filmmaker Freida Lee Mock, will make us think about it again. . . .

Negative Emotions At Work – You Don’t Have To Say A Word.

21 Friday Mar 2014

Posted by in Bullying, Employment Law, Harassment, Hostile Work Environment, Law Office Management, Management

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Managing Emotions on the Job: The Best Reaction is Usually No Reaction, by Crystal Spraggins, TLNT, The Business of HR

http://tinyurl.com/p744kn9

My Mom used to say that you can be part of the answer or part of the problem. Here is some good advice on how to part of the answer, regardless of whether you are at work or in any other group environment. -CCE

Back in the days when I made my living as an editor, I used to go to a good number of conventions.

One afternoon, while on the phone with an author (let’s call her Jane), the conversation veered to one of these upcoming meetings.

Without warning, Jane said, “I guess Pierre [my boss at the time—not his real name], will be dragging out that ratty black jacket he always wears. God that thing is awful. I wonder where he got it? He’s the worst dresser I’ve ever met.” Then she was silent.

And I was dumbstruck.

An important work lesson

I didn’t know what to say. Should I disagree and defend my boss? (“I don’t think the jacket’s that bad, Jane. Plus, it’s not nice to gossip.”)

Or should I agree with her? (“Oh boy, you hit the nail on the head with that one, Jane! And he’s French, too? I thought good taste in clothing was de rigueur.” Tee hee.)

Either way, this was an important client relationship, I liked my boss and I didn’t want to get into it.

And then it hit me: I didn’t have to say a word. . . .

Does Document Review Qualify As The Practice of Law?

16 Sunday Mar 2014

Posted by in Discovery, Document Review, E-Discovery, Employment Law, Fair Labor Standards Act, Overtime

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The Contract Attorney Overtime Case Against Skadden, Arps/Tower Legal Has A New Twist, posted by mrposse, The Posse List Bog

http://perma.cc/BQB7-NU7W

This is a legal question that has not yet been completely resolved. As noted in the post, bar examiners have stated that document review is not the practice of law. Contract attorneys who often perform this work want to know whether it qualifies for overtime. This will be one to watch. -CCE

Whistleblower Comes Clean About Fake Classes for College Athletes.

04 Tuesday Mar 2014

Posted by in College Sport Research Institute, Employment Law, Intercollegiate Athletics, NCAA, Race Discrimination, Sports Law, Whistleblower

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In Fake Classes Scandal, UNC Fails Its Athletes—and Whistle-Blower, by Paul M. Barrett, Politics and Policy, BloombergBusinessweek

Sitting in Memorial Hall at the heart of the Chapel Hill campus of the University of North Carolina, Mary Willingham wondered what William Friday would want her to do. . . .

*     *     *

In his last decades he’d [William Friday] tried to stir discussion about whether commercialized intercollegiate athletics was distorting higher education. That’s why Willingham had approached Friday in his 92nd and final year. In private conversations, she’d told him about her mounting anxiety that rather than educating its recruited athletes, UNC was playing a shell game to keep them from needing to study at all. She’d told him about basketball and football stars who read at a grade school level. She confessed that she’d helped steer some of these young men—many of them black—into lecture classes that never met. Worst of all, given Carolina’s racial history, the phony courses were offered in the black studies department. . . .

Skype For Video Depositions?

02 Sunday Mar 2014

Posted by in Court Rules, Depositions, Discovery, Employment Law, Federal District Court Rules, Federal Rules of Discovery, Video Deposition

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“Stop and Think” About Skype for Depositions, by Joshua Gilliland, Bow Tie Law’s Blog

http://bowtielaw.wordpress.com/2014/02/03/another-skyping-judge/

Judge G.R. Smith issued a great reminder that lawyers must ‘stop and think’ when dealing with discovery disputes. This duty is imposed by Rule 26(g) and is ‘an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through Rule 37, and obligates each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.’ Hernandez v. Hendrix Produce, Inc., 2014 U.S. Dist. LEXIS 4837 (S.D. Ga. Jan. 9, 2014) citing Bottoms v. Liberty Life Assur. Co. of Boston, 2011 U.S. Dist. LEXIS 143251, 2011 WL 6181423 at * 4 (D. Colo. Dec. 13, 2011). 

The case at issue requiring lawyers to ‘stop and think’ involved the plaintiffs in a farmworker rights lawsuit. Three of the plaintiffs were in Mexico and unable to return to Georgia for their depositions. The Defendants wanted the depositions to be held in Georgia. . . .

Arizona Anti-Gay Bill Vetoed.

26 Wednesday Feb 2014

Posted by in Employment Law, Fourteenth Amendment Equal Protection, Gender Discrimination, Government, Hostile Work Environment

≈ 1 Comment

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Arizona Governor Vetoes  Anti-Gay Bill, by Dan Nowicki, Yvonne Wingett Sanchez, and Alia Beard Rau, The Arizona Republic, USA Today

http://www.usatoday.com/story/news/nation/2014/02/26/arizona-governor-vetoes-anti-gay-bill/5849187/

It will be interesting to see how Arizona Governor Jan Brewer’s veto will affect similar legislation in other states, such as Oklahoma, Idaho, and Kansas, and if the pressure from businesses and the public have not already done so. -CCE

Facing intense pressure from political and business interests and a growing public outcry, Arizona Gov. Jan Brewer announced Wednesday that she had vetoed a bill that would have allowed businesses to refuse service to gays and others based on religious beliefs.

Brewer said the bill was unnecessary legislation that threatened the state’s recovering economy by driving away high-profile events such as next year’s Super Bowl and corporations looking to relocate to Arizona.

“Religious liberty is a core American and Arizona value — so is non-discrimination,” Brewer said at a news conference announcing the veto.  She said the proposed law, known as Senate Bill 1062, was too broadly worded and could have resulted in “unintended and negative consequences.” . . .

DOJ Warns Louisiana Supreme Court To Stop Civil Rights Abuse of Bar Applicants.

17 Monday Feb 2014

Posted by in Disabilities, Legal Ethics, Louisiana Supreme Court

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DOJ Sends Critical Letter to Louisiana Supreme Court re its Bar Admission Process, by Alan Childress, Legal Profession Prof, Legal Profession Prof Blog

http://tinyurl.com/qhryrrf

Dane Ciolino (Loyola-New Orleans, Law) has blogged on the recent letter of warning the DOJ sent the state’s supreme court and chief disciplinary counsel about the civil and disability rights of its applicants. . . .

Beautiful Young, Dead Paralegal Found in Bathtub of Attorney Boss Who Has Possible Mob Connections.

17 Monday Feb 2014

Posted by in Criminal Law, Employment Law, Ethics, Grand Jury, Law Office Management, Legal Ethics, Management, Paralegals/Legal Assistants, Social Media, Supervising Support Staff, Using Social Media

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Paralegal’s Death In Boss/Boyfriend’s Bathtub Declared Accidental, by David Lat, Above the Law Blog

http://tinyurl.com/k6fafzo

 Last May, a 26-year-old paralegal by the name of Julia Papazian Law was found dead in the bathtub of her boss and boyfriend, prominent Philadelphia defense attorney A. Charles Peruto Jr. The news set tongues wagging in Philly. It had all the elements of a tabloid tale: a beautiful young woman, a wealthy and successful lawyer, and possible organized-crime connections. (Peruto has represented such prominent alleged Mob figures as Joey Merlino and Nicodemo Scarfo.) . . .

A grand jury was convened, conducted an investigation, and concluded there was no evidence that the paralegal’s death was anything but accidental. I saw no discussion or evidence of an investigation of any ethical or employment violations concerning the employer/employee relationship.

After the grand jury’s investigation, the paralegal’s boss used Facebook to reply to the District Attorney in a direct and explicit statement. -CCE  

http://tinyurl.com/lnbb9gh

 

 

$17 Million – Likely Largest Ever Wrongful Workplace Death Settlement.

13 Thursday Feb 2014

Posted by in Damages, Employment Law, Evidence, Government, Litigation, Negligence, OSHA, Settlement, Wrongful Death

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Philadelphia Electrician’s Widow to Receive Record $17 Million in Wrongful-Death Settlement, by Josh Cable, EHS Today

http://tinyurl.com/mx9kqq5

The widow of an electrician who died in a crane accident at Veolia Energy’s Schuylkill steam plant in Grays Ferry, Pa., will receive $17 million, in what is believed to be the largest wrongful-workplace-death settlement in Philadelphia County history. . . .

U.S. Supreme Court’s “Instruction Manual” on Class Action Litigation.

11 Tuesday Feb 2014

Posted by in Appellate Law, Arbitration, Class Actions, Class Certification, Consumer Contracts, Contract Law, Credit Repair, Employment Law, Litigation, United States Supreme Court

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Recent Developments For Litigation Risk Mitigation: The U.S. Supreme Court’s Prescription, by Daniel P. Shapiro, Katten Muchin Rosenman LLP  

(This piece is adapted from Daniel P. Shapiro’s article published in the November 2013, issue of AHLA Connections. © 2013 American Health Lawyers Association.)

Read Mr. Shapiro’s analysis of recent U.S. Supreme Court cases that have created an instruction manual of sorts for reducing litigation risks for American businesses, as stated below in the excerpt to his post.

There is a hyperlink at the end of the article that will take you to the original article. -CCE

 http://tinyurl.com/ldd7s2o

Over the past three years, since mid-2010, the Supreme Court has handed down a series of related decisions that, taken together, constitute an instruction manual for American business on how to reduce litigation risk. As the world has ‘flattened’ and trade has increasingly globalized and become borderless, it has been impossible to ignore that only in the U.S. economy is litigation such a prominent line item for business. This is particularly true with regard to class action litigation. No other country has the sort of class—or collective—action rules that the United States does. Perhaps in response to these facts, the Supreme Court has made it clear that through a combination of arbitration (as opposed to litigation) and class action waiver clauses properly used, businesses can contract out from under a great deal of litigation risk for the future and fundamentally change their litigation environment.

The new Supreme Court decisions offer instruction on how, exactly, to use arbitration clauses and class action waivers to mitigate litigation risk.