Employment Law Update by Robert B. Fitzpatrick, Esq. Robert B. Fitzpatrick, PLLC Suite 640 Universal Building South 1825 Connecticut Avenue, N.W. Washington,

Employment Law UpdateEmployment Law Updatebyby

Robert B. Fitzpatrick, Esq.Robert B. Fitzpatrick, Esq.Robert B. Fitzpatrick, PLLCRobert B. Fitzpatrick, PLLC

Suite 640Suite 640Universal Building SouthUniversal Building South

1825 Connecticut Avenue, N.W.1825 Connecticut Avenue, N.W.Washington, D.C. 20009-5728Washington, D.C. 20009-5728

(202) 588-5300 (telephone)(202) 588-5300 (telephone)(202) 588-5023 (fax)(202) 588-5023 (fax)

[email protected] (e-mail)[email protected] (e-mail)http://www.robertbfitzpatrick.com (website)http://www.robertbfitzpatrick.com (website)

Lilly Ledbetter Fair Pay Act of 2009Lilly Ledbetter Fair Pay Act of 2009Pub. L. No. 111-2 (2009)Pub. L. No. 111-2 (2009)

• ““For purposes of this section, an unlawful employment practice occurs, For purposes of this section, an unlawful employment practice occurs, with respect to discrimination compensation in violation of this title, with respect to discrimination compensation in violation of this title, when a discriminatory compensation decision or other practice is when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision compensation is paid, resulting in whole or in part from such a decision or other practice” or other practice” Id.Id. § 3(a) § 3(a)

• ““This Act, and the amendments by this Act, take effect as This Act, and the amendments by this Act, take effect as if enacted on May 28, 2007” if enacted on May 28, 2007” Id.Id. § 6 § 6

• Bush v. Orange County Corr. Dep’tBush v. Orange County Corr. Dep’t, 2009 U.S. Dist. LEXIS , 2009 U.S. Dist. LEXIS 7156 (M.D. Fla. Feb. 2, 2009)7156 (M.D. Fla. Feb. 2, 2009)

• Gilmore v. Macy’s Retail HoldingsGilmore v. Macy’s Retail Holdings, 2009 U.S. Dist. LEXIS , 2009 U.S. Dist. LEXIS 4937 (D.N.J. Jan. 20, 2009)4937 (D.N.J. Jan. 20, 2009)

Americans With Disabilities ActAmericans With Disabilities Act

• ADA Amendments Act of 2008, Pub. L. No. 110-325 ADA Amendments Act of 2008, Pub. L. No. 110-325 (2008) (2008)

• Kellogg v. Energy Safety Servs. Inc.Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121, 2008 , 544 F.3d 1121, 2008 U.S. App. LEXIS 21567 (10th Cir. 2008) (driving is a U.S. App. LEXIS 21567 (10th Cir. 2008) (driving is a major life activity)major life activity)

• Adams v. RiceAdams v. Rice, 531 F.3d 936, 2008 U.S. App. LEXIS 15295 , 531 F.3d 936, 2008 U.S. App. LEXIS 15295 (D.C. Cir. 2008) (sexual relations is a major life (D.C. Cir. 2008) (sexual relations is a major life

activity)activity)

Americans With Disabilities ActAmericans With Disabilities Act

• Desmond v. MukaseyDesmond v. Mukasey, 530 F.3d 944, , 530 F.3d 944, 2008 2008 U.S. App. LEXIS 13803 (D.C. Cir. U.S. App. LEXIS 13803 (D.C. Cir. 2008) 2008) (sleeping is a major life activity)(sleeping is a major life activity)

• Archive ADA: The Path to Equality, Archive ADA: The Path to Equality, www.archiveADA.org (last visited www.archiveADA.org (last visited February 27, 2009)February 27, 2009)

Retaliation Claims: The Tail is Retaliation Claims: The Tail is Wagging the DogWagging the Dog

• The number of retaliation charges filed with the EEOC The number of retaliation charges filed with the EEOC increased from 1997 at 22.6% to 29.8% of all increased from 1997 at 22.6% to 29.8% of all

charges filed in 2006. Sylvia A. Bier, American Bar charges filed in 2006. Sylvia A. Bier, American Bar Ass’n, Ass’n, Protect Against the Surge of Employee Protect Against the Surge of Employee Retaliation Retaliation Claims: Understanding Title VII and Its Claims: Understanding Title VII and Its Application to Application to Recent EEOC CasesRecent EEOC Cases, 36 The Brief 3, , 36 The Brief 3, at 15 (Spring 2007) at 15 (Spring 2007)

• Crawford v. Metropolitan Gov’t of Nashville and Crawford v. Metropolitan Gov’t of Nashville and Davidson CountyDavidson County, 129 S. Ct. 846, 2009 U.S. LEXIS , 129 S. Ct. 846, 2009 U.S. LEXIS 870 870 (2009)(2009)

• Michael J. Zimmer, Michael J. Zimmer, A Pro-Employee Supreme Court? – A Pro-Employee Supreme Court? – Retaliation DecisionsRetaliation Decisions, 60 S.C. L. Rev. (forthcoming , 60 S.C. L. Rev. (forthcoming 2009), 2009), available atavailable at http://ssrn.com/abstract=1333778 http://ssrn.com/abstract=1333778

Litigation Under New Litigation Under New Whistleblower LawsWhistleblower Laws

• Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, 15 U.S.C. § 2087 (2008) (CPSIA whistleblower rights to private 15 U.S.C. § 2087 (2008) (CPSIA whistleblower rights to private sector workers connected with the manufacture, importing, sector workers connected with the manufacture, importing, distribution, labeling, or retail sail of consumer products under the distribution, labeling, or retail sail of consumer products under the jurisdiction of the Consumer Product Safety Commission) jurisdiction of the Consumer Product Safety Commission)

• McCaskill Amendment (S.Amdt. 196) to the American Recovery and McCaskill Amendment (S.Amdt. 196) to the American Recovery and Reinvestment Act of 2009, H.R. 1, 111th Cong. (2009)Reinvestment Act of 2009, H.R. 1, 111th Cong. (2009)

• See also whistleblower amendment to the Surface Transportation See also whistleblower amendment to the Surface Transportation Assistance Act 49 U.S.C. §Assistance Act 49 U.S.C. § 31105, the Federal Rail Safety Act (49 31105, the Federal Rail Safety Act (49 U.S.C. §U.S.C. § 20109), the National Transit Systems Security Act (6 20109), the National Transit Systems Security Act (6 U.S.C. §U.S.C. § 1142) and section 846 of the National Defense 1142) and section 846 of the National Defense

Authorization Act for Fiscal Year 2008 (10 U.S.C. §Authorization Act for Fiscal Year 2008 (10 U.S.C. § 2409) 2409) (amending (amending whistleblower protection for employees of DOD whistleblower protection for employees of DOD contractors and contractors and grantees)grantees)

SOXSOX• Platone v. United States Dep’t of LaborPlatone v. United States Dep’t of Labor, 548 F.3d 322, 2008 U.S. , 548 F.3d 322, 2008 U.S.

App. LEXIS 24378 (4th Cir. 2008) (holding that the App. LEXIS 24378 (4th Cir. 2008) (holding that the plaintiff’s communication to her supervisors that pilots plaintiff’s communication to her supervisors that pilots were misusing a missed-flight reimbursement plan was were misusing a missed-flight reimbursement plan was merely communicating a “billing discrepancy” and was merely communicating a “billing discrepancy” and was not enough information to indicate “possible fraud against not enough information to indicate “possible fraud against shareholders” within the scope of SOXshareholders” within the scope of SOX)

• Day v. Staples, Inc.Day v. Staples, Inc., 2009 U.S. App. LEXIS 2266 (1st Cir. Feb. 9, , 2009 U.S. App. LEXIS 2266 (1st Cir. Feb. 9, 2009) (SOX did not bar the termination of an employee 2009) (SOX did not bar the termination of an employee whose complaints about the company’s product return whose complaints about the company’s product return practices could not reasonably have been construed to practices could not reasonably have been construed to reflect an objectively reasonable belief that the reflect an objectively reasonable belief that the

company company was defrauding shareholders)was defrauding shareholders)

Gross v. FBL Financial Servs., Inc.Gross v. FBL Financial Servs., Inc.129 S. Ct. 680, 2008 U.S. LEXIS 8885 (2008), 129 S. Ct. 680, 2008 U.S. LEXIS 8885 (2008), cert. grantedcert. granted,,

526 F.3d 356 (8th Cir. 2008)526 F.3d 356 (8th Cir. 2008)

• Does § 2000(e)-2(m) of the Civil Rights Act of 1991 Does § 2000(e)-2(m) of the Civil Rights Act of 1991 apply apply to claims arising under the ADEA? to claims arising under the ADEA?

• Does the Court’s decision in Does the Court’s decision in Desert Palace, Inc. v. Desert Palace, Inc. v.

CostaCosta, 539 U.S. 90 , 539 U.S. 90 (2003) supersede (2003) supersede Price Price Waterhouse v. HopkinsWaterhouse v. Hopkins, 490 U.S. 228 (1989)?, 490 U.S. 228 (1989)?

Ricci v. DeStefanoRicci v. DeStefano129 S. Ct. 893, 2009 U.S. LEXIS 394 (2008), 129 S. Ct. 893, 2009 U.S. LEXIS 394 (2008), cert. grantedcert. granted, ,

530 F.3d 87 (2d. Cir. 2008)530 F.3d 87 (2d. Cir. 2008)

• Is it “reverse” discrimination to withdraw promotions Is it “reverse” discrimination to withdraw promotions because a test had disparate impact?because a test had disparate impact?

• Oakley v. City of MemphisOakley v. City of Memphis, 2008 U.S. App. LEXIS 19377 (6th , 2008 U.S. App. LEXIS 19377 (6th Cir. 2008) (When content-valid, civil service Cir. 2008) (When content-valid, civil service

examination and race-neutral selection process yield examination and race-neutral selection process yield unintended racially disproportionate results, does unintended racially disproportionate results, does employer racially discriminate when it rejects results employer racially discriminate when it rejects results and and successful candidates in order to achieve racial successful candidates in order to achieve racial proportionality in candidates selected?) proportionality in candidates selected?)

Graham County Soil & Water v. Graham County Soil & Water v. United States ex rel. WilsonUnited States ex rel. Wilson

129 S. Ct. 753, 2008 U.S. LEXIS 9031 (2008),129 S. Ct. 753, 2008 U.S. LEXIS 9031 (2008), cert. granted cert. granted,, 528 F.3d 292 (4th Cir. 2008)528 F.3d 292 (4th Cir. 2008)

• Does the public disclosure bar of the False Claims Act Does the public disclosure bar of the False Claims Act apply to administrative audits, reports, hearings apply to administrative audits, reports, hearings or investigations conducted or issued by a state or investigations conducted or issued by a state or local governmental entity?or local governmental entity?

14 Penn Plaza LLC v. Pyett14 Penn Plaza LLC v. Pyett128 S. Ct. 1223, 2008 U.S. LEXIS 1418 (2008), 128 S. Ct. 1223, 2008 U.S. LEXIS 1418 (2008), cert. grantedcert. granted sub sub

nomnom,, Pyett v. Pa. Bldg. Co., Pyett v. Pa. Bldg. Co., 498 F.3d 88 (2d. Cir. N.Y. 2007)498 F.3d 88 (2d. Cir. N.Y. 2007)

• Whether and arbitration provision in a collective bargaining Whether and arbitration provision in a collective bargaining agreement (CBA) , which explicitly waives union members’ agreement (CBA) , which explicitly waives union members’ right to right to bring statutory discrimination claims in court, I bring statutory discrimination claims in court, I enforceable so enforceable so as to deprive the employees of a judicial as to deprive the employees of a judicial forum even where the forum even where the union has refused to submit the claims union has refused to submit the claims to arbitration.to arbitration.

• See Austin v. Owens-Brockway Glass ContainerSee Austin v. Owens-Brockway Glass Container, 78 F.3d 87 (4, 78 F.3d 87 (4thth Cir. Cir. 1996) (individual must pursue discrimination claims through 1996) (individual must pursue discrimination claims through union-negotiated grievance procedure; provision requiring union-negotiated grievance procedure; provision requiring

arbitration of such claims is enforceable). The Supreme arbitration of such claims is enforceable). The Supreme Court, Court, when presented with a similar question in when presented with a similar question in Wright v. Wright v. Universal Universal Maritime Service Corp.Maritime Service Corp., 525 U.S. 70 (1990), refused , 525 U.S. 70 (1990), refused to resolve the to resolve the question, holding that it was not clearly question, holding that it was not clearly presented because that presented because that CBA provision did not explicitly CBA provision did not explicitly include statutory claims.include statutory claims.

Fitzgerald v. Barnstable School CommitteeFitzgerald v. Barnstable School Committee

129 S. Ct. 788, 2009 U.S. LEXIS 592 (2009), 129 S. Ct. 788, 2009 U.S. LEXIS 592 (2009), rev’drev’d, 504 F.3d 165 (1st Cir. 2007), 504 F.3d 165 (1st Cir. 2007)

• Title IX was not meant to be an exclusive mechanism Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, for addressing gender discrimination in schools, or a substitute for §1983 suits as a means of or a substitute for §1983 suits as a means of enforcing constitutional rightsenforcing constitutional rights

• The implied private right of action under Title IX is “in The implied private right of action under Title IX is “in stark contrast to the ‘unusually elaborate,’ stark contrast to the ‘unusually elaborate,’

‘carefully tailored,’ and ‘restrictive’ enforcement ‘carefully tailored,’ and ‘restrictive’ enforcement schemes of the statutes in schemes of the statutes in Sea Clammers, Smith Sea Clammers, Smith andand Rancho Pelos VerdesRancho Pelos Verdes.”.”

Hybrid FLSA CasesHybrid FLSA Cases

• Under the FLSA, plaintiffs can proceed under the Section 216(b) “opt-Under the FLSA, plaintiffs can proceed under the Section 216(b) “opt-in” collective action procedure, but only state law claims allow for in” collective action procedure, but only state law claims allow for an “opt-out” class actions under FRCP 23. Combining an FLSA an “opt-out” class actions under FRCP 23. Combining an FLSA collective action and a state-law class action claims in one collective action and a state-law class action claims in one proceeding has been labeled a “hybrid” wage and hour action. proceeding has been labeled a “hybrid” wage and hour action. Some courts have allowed plaintiffs to proceed with a hybrid or Some courts have allowed plaintiffs to proceed with a hybrid or “opt in/opt out” approach under both FLSA Section 216(b) for opt “opt in/opt out” approach under both FLSA Section 216(b) for opt in notice and FRCP 23 for class notice as to state law claims (on in notice and FRCP 23 for class notice as to state law claims (on an opt out basis). an opt out basis). See McLaughlin v. Liberty Mutual Ins. Co.See McLaughlin v. Liberty Mutual Ins. Co., 224 , 224 F.R.D. 304 (D. Mass. 2004); F.R.D. 304 (D. Mass. 2004); Ansoumana v.Ansoumana v. Gristede's Operating Gristede's Operating Corp.Corp., 201 F.R.D. 81 (S.D.N.Y. 2001); , 201 F.R.D. 81 (S.D.N.Y. 2001); O'Brien v. Encotech O'Brien v. Encotech

Constructions Servs., Inc.Constructions Servs., Inc., 203 F.R.D. 346 (N.D. Ill. , 203 F.R.D. 346 (N.D. Ill. 2001)2001)

• Lindsay v. Gov’ Employees Ins. Co.Lindsay v. Gov’ Employees Ins. Co., 448 F.3d 416, 2006 U.S. App. LEXIS , 448 F.3d 416, 2006 U.S. App. LEXIS 13166 (D.C. Cir. 2006)13166 (D.C. Cir. 2006)

Transgender DiscriminationTransgender Discrimination

• Schroer v. BillingtonSchroer v. Billington, 577 F. Supp. 2d 293, 2008 U.S. , 577 F. Supp. 2d 293, 2008 U.S. Dist. LEXIS 71358 (D.D.C. 2008); see also Dist. LEXIS 71358 (D.D.C. 2008); see also Schroer Schroer v. Billingtonv. Billington, 424 F. Supp. 2d 203, 2006 U.S. Dist. , 424 F. Supp. 2d 203, 2006 U.S. Dist. LEXIS 14278 (D.D.C. 2006)LEXIS 14278 (D.D.C. 2006)

• Etsitty v. Utah Transit Auth.Etsitty v. Utah Transit Auth., 502 F.3d 1215, 2007 U.S. , 502 F.3d 1215, 2007 U.S. App. LEXIS 22989 (10th Cir. 2007)App. LEXIS 22989 (10th Cir. 2007)

• Zachary A. Kramer, Zachary A. Kramer, Heterosexuality and Title VIIHeterosexuality and Title VII, , 103 Nw. U. L. Rev. 205 (2009)103 Nw. U. L. Rev. 205 (2009)

• Elizabeth M. Glazer & Zachary A. Kramer, Elizabeth M. Glazer & Zachary A. Kramer, Transitional Transitional DiscriminationDiscrimination, Temp. Pol. & Civ. Rts. L. Rev. , Temp. Pol. & Civ. Rts. L. Rev. (forthcoming 2009), (forthcoming 2009), available atavailable at

http://ssrn.com/abstract=1345254http://ssrn.com/abstract=1345254

Class ActionsClass Actions

• In re Hydrogen Peroxide Antitrust LitigationIn re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 2008 , 552 F.3d 305, 2008 U.S. App. LEXIS 26871 (3d Cir. 2008) (in a landmark opinion, U.S. App. LEXIS 26871 (3d Cir. 2008) (in a landmark opinion, Chief Judge Scirica provided extensive guidance to the Chief Judge Scirica provided extensive guidance to the district courts in deciding whether to certify a class under district courts in deciding whether to certify a class under Civil Rule 23, stating that the district court must find, by a Civil Rule 23, stating that the district court must find, by a preponderance of the evidence, that each requirement of preponderance of the evidence, that each requirement of Rule 23 is satisfied, that it must “resolve all factual and Rule 23 is satisfied, that it must “resolve all factual and

legal legal disputes relevant to class certification even if they overlap disputes relevant to class certification even if they overlap with the merits”, and holding that expert testimony is part with the merits”, and holding that expert testimony is part

of of the relevant evidence that the court must consider)the relevant evidence that the court must consider)

• Dukes v. Wal-Mart, Inc.Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007), , 509 F.3d 1168 (9th Cir. 2007), reh’g reh’g grantedgranted, 2009 U.S. App. LEXIS 2854 (9th Cir. Feb. 13, 2009), 2009 U.S. App. LEXIS 2854 (9th Cir. Feb. 13, 2009)

Class Action Waivers in ArbitrationClass Action Waivers in Arbitration

• In re American Express Merchant’s In re American Express Merchant’s LitigationLitigation, 2009 U.S. App. LEXIS 1646 (2d , 2009 U.S. App. LEXIS 1646 (2d Cir. Jan. 30, 2009)Cir. Jan. 30, 2009)

• Homa v. American ExpressHoma v. American Express, 2009 U.S. App. , 2009 U.S. App. LEXIS 3688 (3rd Cir. 2009)LEXIS 3688 (3rd Cir. 2009)

• Shannon P. Duffy, Shannon P. Duffy, 3rd Circuit Deals Blow to 3rd Circuit Deals Blow to Class-Arbitration WaiversClass-Arbitration Waivers, The Legal , The Legal

Intelligencer, February 25, 2009, Intelligencer, February 25, 2009, available available at at http://www.law.com/jsp/article.jsp?http://www.law.com/jsp/article.jsp?

id=124id=124 2856311628563116

Arbitration Issues Continue to AboundArbitration Issues Continue to Abound

• Morales v. Sun Constructors, Inc.Morales v. Sun Constructors, Inc., 541 F.3d 218 (3d Cir. 2008) (the , 541 F.3d 218 (3d Cir. 2008) (the majority, with Judge Fuentes dissenting, held that an employee majority, with Judge Fuentes dissenting, held that an employee who did not read English nonetheless manifested mutual who did not read English nonetheless manifested mutual assent to assent to the arbitration clause at issue; the panel unanimously the arbitration clause at issue; the panel unanimously reaffirmed reaffirmed that it would be inconsistent with the FAA to apply a that it would be inconsistent with the FAA to apply a heightened heightened “knowing and voluntary standard” to arbitration “knowing and voluntary standard” to arbitration agreements)agreements)

• Guyden v. Aetna Inc., Guyden v. Aetna Inc., 544 F.3d 376 (2d Cir. 2008) (held that nothing in 544 F.3d 376 (2d Cir. 2008) (held that nothing in the statute prohibits SOX whistleblower claims from being the statute prohibits SOX whistleblower claims from being

resolved in arbitration )resolved in arbitration )

• Richard A. Bales, Richard A. Bales, Twenty-Second Annual Carl A. Warns, Jr. Labor & Twenty-Second Annual Carl A. Warns, Jr. Labor & Employment Law Institute: Contract Formation in Employment Employment Law Institute: Contract Formation in Employment ArbitrationArbitration, 44 , 44 Brandeis L.J. 415 (2006)Brandeis L.J. 415 (2006)

Attorney-Client Privilege Waivers When Client Communicates Attorney-Client Privilege Waivers When Client Communicates Using Employer’s Equipment or Email SystemUsing Employer’s Equipment or Email System

• Adam C. Losey, Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilegeof Attorney-Client Privilege, 60 Fla. L. Rev. 1190 (2008), 60 Fla. L. Rev. 1190 (2008)

•Suggested language for representation agreements:Suggested language for representation agreements:““Client agrees and consents to the Firm’s transmission of bills and other materials related to billing Client agrees and consents to the Firm’s transmission of bills and other materials related to billing

by facsimile and e-mail to Client. Typically, the Firm would communicate by e-mail to Client and the Client by facsimile and e-mail to Client. Typically, the Firm would communicate by e-mail to Client and the Client agrees and consents to e-mail transmission to Client of privileged attorney-client communications. While e-mail agrees and consents to e-mail transmission to Client of privileged attorney-client communications. While e-mail provides a fast and efficient medium for communication, there exists some case law which suggests that e-mail provides a fast and efficient medium for communication, there exists some case law which suggests that e-mail communications between attorney and client may not be confidential and may be discoverable by an adverse communications between attorney and client may not be confidential and may be discoverable by an adverse party.party.

““In addition, most employers consider company-owned computers, as well as all information In addition, most employers consider company-owned computers, as well as all information contained in them, to be company property. Accordingly, there is generally no right to privacy of any e-mail sent contained in them, to be company property. Accordingly, there is generally no right to privacy of any e-mail sent or received at your place of employment. Your employer has complete access to, and is capable of, retrieving or received at your place of employment. Your employer has complete access to, and is capable of, retrieving any e-mail message sent or received by you at your company-owned computer or business e-mail address, even any e-mail message sent or received by you at your company-owned computer or business e-mail address, even after you have deleted the message.after you have deleted the message.

““Therefore, you should Therefore, you should NEVERNEVER communicate by e-mail with your attorney using a company-owned communicate by e-mail with your attorney using a company-owned computer or your business e-mail address. Additionally, you should exercise discretion in e-mailing the Firm computer or your business e-mail address. Additionally, you should exercise discretion in e-mailing the Firm from your home or non-business e-mail address.from your home or non-business e-mail address. “

National Origin Discrimination National Origin Discrimination ClaimsClaims

• Estenos v. PAHO/WHO Fed. Credit UnionEstenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 87, , 952 A.2d 87, 2008 D.C. App. LEXIS 281 (D.C. 2008)2008 D.C. App. LEXIS 281 (D.C. 2008)

• Stratton & Bergquist, Stratton & Bergquist, The Contours of National The Contours of National Origin Discrimination Under Federal LawOrigin Discrimination Under Federal Law, National , National

Employment Lawyers Association 18th Annual Employment Lawyers Association 18th Annual Convention Manual (2007) Convention Manual (2007)

Race Prohibited as a Criterion for Race Prohibited as a Criterion for Computing DamagesComputing Damages

• McMillan v. City of New YorkMcMillan v. City of New York, 2008 U.S. Dist. LEXIS 76711 (E.D.N.Y. Sep. , 2008 U.S. Dist. LEXIS 76711 (E.D.N.Y. Sep. 19, 2008) (Weinstein, J.) (Order Excluding “Race” as a Criterion for 19, 2008) (Weinstein, J.) (Order Excluding “Race” as a Criterion for Computing Damages)Computing Damages)

• “ “While ‘race’ may be a social construct, many policymakers and courts While ‘race’ may be a social construct, many policymakers and courts insist that it ‘remains a significant predictor of… access to societal goods insist that it ‘remains a significant predictor of… access to societal goods and resource.’ Audrey Smedley & Brian D. Smedley, and resource.’ Audrey Smedley & Brian D. Smedley, Race as a Biology is Race as a Biology is Fiction, Race as a Social Problem is RealFiction, Race as a Social Problem is Real, 60:1 Am. Psychologist 16, 22 , 60:1 Am. Psychologist 16, 22 (2005). ‘Racial’ and ‘ethnic’ disparities in quality of health care, for (2005). ‘Racial’ and ‘ethnic’ disparities in quality of health care, for example, remain substantial across a broad range of medical services. example, remain substantial across a broad range of medical services. IdId at 23. But those ‘disparities are associated with socioeconomic difference at 23. But those ‘disparities are associated with socioeconomic difference and tend to diminish significantly and, in a few cases, to disappear and tend to diminish significantly and, in a few cases, to disappear altogether when socioeconomic factors are controlled.’ altogether when socioeconomic factors are controlled.’ IdId. By allowing the . By allowing the use of ‘race’-based life expectancy tables, which are based on historic use of ‘race’-based life expectancy tables, which are based on historic data, courts are essentially reinforcing the underlying social inequalities of data, courts are essentially reinforcing the underlying social inequalities of our society rather than describing a significant biological difference.”our society rather than describing a significant biological difference.”

The Contours of “Protected The Contours of “Protected Activity”Activity”

• Birdyshaw v. Dillard’s Inc., 2009 U.S. App. LEXIS 1737 (11th Cir. Jan. 28, 2009)

• Circuit split about whether a person who rejects a supervisor’s sexual advances has engaged in a protected activity. Compare LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 389 (5th Cir. 2007) (holding that a single, express rejection of sexual advances does not constitute “protected activity” for purposes of a retaliation claim) with Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (finding that when the plaintiff told her supervisor to stop harassing her, she engaged in the most “basic form of protected conduct”).

• Niswander v. The Cincinnati Ins. Co., 529 F.3d 714, 2008 U.S. App. LEXIS 13284 (6th Cir. 2008) (majority sets forth a six-factor balancing test for determining whether employee’s delivery of confidential documents to her attorney was reasonable )

Damages IssuesDamages Issues• Eshelman v. Agere, Eshelman v. Agere, 2009 U.S. App. LEXIS 1947 (3d Cir. Jan. 30, 2009) 2009 U.S. App. LEXIS 1947 (3d Cir. Jan. 30, 2009)

(holding that a district court may, pursuant to its broad equitable (holding that a district court may, pursuant to its broad equitable powers granted by the ADA, award a prevailing employee an powers granted by the ADA, award a prevailing employee an additional sum of money to compensate for the increased tax additional sum of money to compensate for the increased tax burden a back pay award may create). burden a back pay award may create). Contra Fogg v. GonzalesContra Fogg v. Gonzales, , 492 F.3d 447 (D.C. Cir. 2007) (Court affirmed the award of back 492 F.3d 447 (D.C. Cir. 2007) (Court affirmed the award of back pay and denial of front pay, but reversed as to the extent of the pay and denial of front pay, but reversed as to the extent of the “gross up”) and “gross up”) and Dashnaw v. PenaDashnaw v. Pena, 12 F.3d 1112 (D.C. Cir. 1994) , 12 F.3d 1112 (D.C. Cir. 1994) (holding that “absent an arrangement by voluntary settlement of (holding that “absent an arrangement by voluntary settlement of the parties, the general rule that victims of discrimination should the parties, the general rule that victims of discrimination should be made whole does not support ‘gross-ups’ of back pay to be made whole does not support ‘gross-ups’ of back pay to

cover tax liability. We know of no authority for such relief.”) cover tax liability. We know of no authority for such relief.”)

• Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc., Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc., 943 A.2d 866, 2008 N.J. 943 A.2d 866, 2008 N.J. LEXIS 222 (N.J. 2008) (punitive damages awards to focus only on LEXIS 222 (N.J. 2008) (punitive damages awards to focus only on deterrence of the specific defendant as opposed to general deterrence of the specific defendant as opposed to general deterrence deterrence of others; consideration of the employer financial of others; consideration of the employer financial condition both after condition both after and at the time of the wrongful conduct is and at the time of the wrongful conduct is necessary)necessary)

Damages IssuesDamages Issues• Robert H. Wright, Robert H. Wright, Punitive Damages Immunity of Federal Punitive Damages Immunity of Federal

InstrumentalitiesInstrumentalities, 38 The Brief, A.B.A. Sec. Tort Trial & Ins. , 38 The Brief, A.B.A. Sec. Tort Trial & Ins. Practice 24 (2009), Practice 24 (2009), available atavailable at http://www.abanet.org/tips/brief/briefcurrent.html (appellate (appellate courts have split on the fundamental question of courts have split on the fundamental question of whether whether the “sue and be sued” language in the statutes the “sue and be sued” language in the statutes granting granting federal charters to federal instrumentalities, federal charters to federal instrumentalities, including Fannie including Fannie Mae, Freddie Mac, and the American Red Mae, Freddie Mac, and the American Red Cross, waives the Cross, waives the federal instrumentality’s immunity from federal instrumentality’s immunity from punitive damages punitive damages claims. Compare in re Sparkman, 703 claims. Compare in re Sparkman, 703 F.2d 1097, 1100-F.2d 1097, 1100-01 (9th Cir. 1983) (holding that “[a] federal 01 (9th Cir. 1983) (holding that “[a] federal instrumentality… instrumentality… retains its immunity from punitive retains its immunity from punitive damages unless damages unless Congress explicitly authorizes liability for Congress explicitly authorizes liability for such damages”) such damages”) with McGee v. Tucoemas Federal Credit with McGee v. Tucoemas Federal Credit Union, 153 Cal. Union, 153 Cal. App. 4th 1351 (Cal. Ct. App. 2007) (refusing App. 4th 1351 (Cal. Ct. App. 2007) (refusing to follow in re to follow in re Sparkman and holding instead that federal Sparkman and holding instead that federal instrumentalities instrumentalities are generally subject to punitive damage are generally subject to punitive damage claims))claims))

Application of Faragher-Ellerth Application of Faragher-Ellerth Affirmative Defense to FLSA CasesAffirmative Defense to FLSA Cases

• Lisa A. “Lee” Schreter, Whitney M. Ferrer & SoRelle B. Lisa A. “Lee” Schreter, Whitney M. Ferrer & SoRelle B. Braun, Braun, Adopting the Avoidable Consequences Adopting the Avoidable Consequences Affirmative Defense: Applying the Lessons of Affirmative Defense: Applying the Lessons of Ellerth/Faragher to FLSA ClaimsEllerth/Faragher to FLSA Claims, copies available , copies available from the author at [email protected] the author at [email protected]

Attorneys’ Fees for Pre-suit Attorneys’ Fees for Pre-suit Work in ERISA CasesWork in ERISA Cases

• Cann v. Carpenter’s Pension Trust FundCann v. Carpenter’s Pension Trust Fund, 989 F.2d , 989 F.2d 313 (9th Cir. 313 (9th Cir. 1993) (1993) (Court interpreted §1132(g)(1)’s language “in any Court interpreted §1132(g)(1)’s language “in any action” to preclude the award of fees for any efforts action” to preclude the award of fees for any efforts

expended on negotiations or administrative proceedings expended on negotiations or administrative proceedings prior prior to the action.to the action.))

• LaSelle v. Public Service Co. of Colorado Severance Pay PlanLaSelle v. Public Service Co. of Colorado Severance Pay Plan, , 988 F. Supp. 1348 (D. Colo. 1997) (988 F. Supp. 1348 (D. Colo. 1997) (agreeing with agreeing with CannCann that that ERISA’s attorneys’ fees provision did not permit recovery ERISA’s attorneys’ fees provision did not permit recovery for fees incurred in the administrative fee of the for fees incurred in the administrative fee of the

proceedings but held that all time spent by counsel in proceedings but held that all time spent by counsel in interviews, consultation, preliminary research, and various interviews, consultation, preliminary research, and various additional tasks unrelated to the administrative appeal, even additional tasks unrelated to the administrative appeal, even

thought performed before the filing of the complaint, is thought performed before the filing of the complaint, is compensablecompensable))

Attorneys’ Fees for Pre-suit Attorneys’ Fees for Pre-suit Work in ERISA CasesWork in ERISA Cases

• Hedley-Whyte v. Unum Life Ins. Co. of AmericaHedley-Whyte v. Unum Life Ins. Co. of America, , 1996 1996 U.S. Dist. LEXIS 5880 (D. Mass. 1996) U.S. Dist. LEXIS 5880 (D. Mass. 1996) (“This (“This

Court find Court find Cann’sCann’s strict exclusion of strict exclusion of prelitigation prelitigation expenses to be a questionable expenses to be a questionable interpretation of interpretation of the statutory language… this the statutory language… this Court can identify Court can identify no sound reason however based no sound reason however based on the statutory on the statutory language, why a court lacks language, why a court lacks discretion to award discretion to award fees and costs for work fees and costs for work appropriately appropriately contributing to the prosecution of contributing to the prosecution of the action just the action just because they were incurred prior because they were incurred prior to the filing to the filing date”)date”)

USERRA LitigationUSERRA Litigation• Serricchio v. Wachovia Securities LLCSerricchio v. Wachovia Securities LLC, 556 F. Supp. 2d , 556 F. Supp. 2d

99, 2008 U.S. Dist. LEXIS 20043 (D. Conn. 2008) 99, 2008 U.S. Dist. LEXIS 20043 (D. Conn. 2008) (Plaintiff was a financial adviser working on (Plaintiff was a financial adviser working on commissions commissions who was called to active duty, and who was called to active duty, and upon reinstatement, upon reinstatement, argued that defendant had argued that defendant had not not satisfied its reemployment satisfied its reemployment obligations under 38 U.S.C. obligations under 38 U.S.C. 4316, contending that 4316, contending that defendant had a duty to defendant had a duty to preserve his book of business. preserve his book of business. The Court held that The Court held that defendant does not have a duty to defendant does not have a duty to provide the provide the employee with “his exact previous book of employee with “his exact previous book of business, business, so long as what is provided gives him the so long as what is provided gives him the opportunity opportunity to reenter the workforce with comparable to reenter the workforce with comparable earning earning potential and potential and chance for advancement as his chance for advancement as his own own book of business provided prior to his service, book of business provided prior to his service, regardless of whether the same clients are in the regardless of whether the same clients are in the substituted book”)substituted book”)

Cy Pres PowerCy Pres Power

• Diamond Chemical Co. Inc. v. Akzo Nobel Chemicals B.V.Diamond Chemical Co. Inc. v. Akzo Nobel Chemicals B.V. , 517 , 517 F.Supp.2d 212 (D.D.C. 2007) and 2007 U.S. Dist. LEXIS 49406 F.Supp.2d 212 (D.D.C. 2007) and 2007 U.S. Dist. LEXIS 49406 (D.D.C. 2007)(D.D.C. 2007)

• Amanda Bronstad, Amanda Bronstad, Cy Pres Awards Under Cy Pres Awards Under Scrutiny, The Scrutiny, The National Law Journal, August 11, 2008, National Law Journal, August 11, 2008, available at available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=120http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=12024236491332423649133

• Theodore Frank, The Federalist Society, Class Action Watch, Cy Theodore Frank, The Federalist Society, Class Action Watch, Cy Pres Pres SettlementsSettlements (Apr. 4, 2008), (Apr. 4, 2008), available atavailable at http://www.fed- http://www.fed-soc.org/doclib/20080404_FrankCAW7.1.pdfsoc.org/doclib/20080404_FrankCAW7.1.pdf

• Adam Liptak, Adam Liptak, Doling Out Other People’s MoneyDoling Out Other People’s Money, N.Y. Times, Nov. , N.Y. Times, Nov. 26, 2007, 26, 2007, available atavailable at

http://www.nytimes.com/2007/11/26/washington/26bar.html?http://www.nytimes.com/2007/11/26/washington/26bar.html?_r=1&oref=slogin_r=1&oref=slogin

Cy Pres PowerCy Pres Power

• Another possibility for distribution of unclaimed monies Another possibility for distribution of unclaimed monies in class action settlements might be the utilization of in class action settlements might be the utilization of state unclaimed property laws. state unclaimed property laws. SeeSee John L. John L.

Coalson, Jr. & Ethan D. Millar, Coalson, Jr. & Ethan D. Millar, The Pot of Gold at the The Pot of Gold at the End of the Class Action Lawsuit: Can States Claim it End of the Class Action Lawsuit: Can States Claim it as as Unclaimed Property?Unclaimed Property? (2008), (2008), available atavailable at http://works.bepress.com/ethan_millar/2http://works.bepress.com/ethan_millar/2

Computer Fraud & Abuse ActComputer Fraud & Abuse Act

• Int’l Airport Centers v. Citrin, 440 F.3d 418Int’l Airport Centers v. Citrin, 440 F.3d 418 (7th Cir. 2006) (7th Cir. 2006) (while the CFAA does not define “transmission” a (while the CFAA does not define “transmission” a “transmission” includes the installation and use of an “transmission” includes the installation and use of an erasure program on the computer)erasure program on the computer)

• Patrick Patterson Custom Homes, Inc. v. BachPatrick Patterson Custom Homes, Inc. v. Bach, 586 F. , 586 F. Supp.2d 1026, 2008 Supp.2d 1026, 2008 U.S. Dist. LEXIS 92761 (N.D. Ill. U.S. Dist. LEXIS 92761 (N.D. Ill. 2008) (opinion discusses whether the defendant 2008) (opinion discusses whether the defendant “knowingly cause[d] the transmission of a program, “knowingly cause[d] the transmission of a program, information, code or command, and as a result of information, code or command, and as a result of such conduct intentionally cause[d] damage without such conduct intentionally cause[d] damage without authorization, to a protected computer” )authorization, to a protected computer” )

• L-3 Commc’ns Westwood Corp. v. RobicharuxL-3 Commc’ns Westwood Corp. v. Robicharux, 2007 U.S. , 2007 U.S. Dist. LEXIS 16789 (E.D. La. Mar. 8, 2007)Dist. LEXIS 16789 (E.D. La. Mar. 8, 2007)

Computer Fraud & Abuse ActComputer Fraud & Abuse Act

• Chas. S. Winner, Inc. v. PolistinaChas. S. Winner, Inc. v. Polistina, 2007 U.S. Dist. , 2007 U.S. Dist. LEXIS 40741 (D.N.J. June 4, 2007)LEXIS 40741 (D.N.J. June 4, 2007)

• Motorola Credit Corp. v. UzanMotorola Credit Corp. v. Uzan, 2002 U.S. Dist. LEXIS , 2002 U.S. Dist. LEXIS 19632 (S.D.N.Y. Oct. 16, 2002)19632 (S.D.N.Y. Oct. 16, 2002)

• Pearl Invs. LLC v. Standard I/O, Inc.Pearl Invs. LLC v. Standard I/O, Inc., 257 F. Supp. , 257 F. Supp. 2d 2d 326, 2003 U.S. Dist. LEXIS 6890 (D. Me. 2003)326, 2003 U.S. Dist. LEXIS 6890 (D. Me. 2003)

• United States v. MiddletonUnited States v. Middleton, 231 F.3d 1207 (9th Cir. , 231 F.3d 1207 (9th Cir. 2000)2000)

• Spangler, Jennings & Dougherty, P.C. v. MysliwySpangler, Jennings & Dougherty, P.C. v. Mysliwy, , 2006 U.S. Dist. LEXIS 39602 (N.D. Ind. 2006)2006 U.S. Dist. LEXIS 39602 (N.D. Ind. 2006)

• Tyco Int’l Inc. v. DoesTyco Int’l Inc. v. Does, 2003 U.S. Dist. LEXIS 11800 , 2003 U.S. Dist. LEXIS 11800 (S.D.N.Y. July 11, 2003)(S.D.N.Y. July 11, 2003)

Defense Discovery Subpoenas to Defense Discovery Subpoenas to Plaintiffs’ Former and Current EmployersPlaintiffs’ Former and Current Employers

• Barrington v. Mortage IT, Inc.Barrington v. Mortage IT, Inc., 2007 U.S. Dist. LEXIS 90555 (S.D. Fla. Dec. , 2007 U.S. Dist. LEXIS 90555 (S.D. Fla. Dec. 10, 2007) (rejecting subpoenas duces tecum which sought “any 10, 2007) (rejecting subpoenas duces tecum which sought “any and all documents, files and records, reflecting or relating to the and all documents, files and records, reflecting or relating to the employment” of the plaintiff as “overly broad on their face”) employment” of the plaintiff as “overly broad on their face”)

• Badr v. Liberty Mutual Group, Inc.Badr v. Liberty Mutual Group, Inc., 2007 U.S. Dist. LEXIS 73437 (D. Conn. , 2007 U.S. Dist. LEXIS 73437 (D. Conn. Sept. 28, 2007) (holding that defendant’s subpoena of “any and all” Sept. 28, 2007) (holding that defendant’s subpoena of “any and all” records relating to plaintiff was overbroad and limiting the records relating to plaintiff was overbroad and limiting the

subpoena to documents relating to prior claims or complaints subpoena to documents relating to prior claims or complaints against against plaintiff’s co-workers)plaintiff’s co-workers)

• Richards v. Convergys Corp.Richards v. Convergys Corp., 2007 WL 474012 (D. Utah Feb. 7, 2007) , 2007 WL 474012 (D. Utah Feb. 7, 2007) (quashing overbroad subpoena duces tecum directed to plaintiff’s (quashing overbroad subpoena duces tecum directed to plaintiff’s former employer that sought “all documents in your possession or former employer that sought “all documents in your possession or control regarding the employment of” the plaintiff)control regarding the employment of” the plaintiff)

• Richmond v. UPS Serv. Parts LogisticsRichmond v. UPS Serv. Parts Logistics, 2002 U.S. Dist. LEXIS 7496, at , 2002 U.S. Dist. LEXIS 7496, at 13, 2002 WL 745588 (S.D. Ind. Apr. 5, 2002) (holding that a 13, 2002 WL 745588 (S.D. Ind. Apr. 5, 2002) (holding that a

discovery request for the plaintiff's entire personnel file was “on discovery request for the plaintiff's entire personnel file was “on its its face” overbroad)face” overbroad)

Compensation LitigationCompensation Litigation

• Pachter v. Bernard HodesPachter v. Bernard Hodes, 891 N.E. 2d 279 (N.Y. 2008) (deciding certified , 891 N.E. 2d 279 (N.Y. 2008) (deciding certified questions from the Second Circuit and finding that executives are questions from the Second Circuit and finding that executives are covered by the New York Labor Law unless expressly excluded covered by the New York Labor Law unless expressly excluded and holding that “in the absence of a governing written and holding that “in the absence of a governing written

instrument, when a commission is ‘earned’ and becomes a ‘wage’ instrument, when a commission is ‘earned’ and becomes a ‘wage’ for for purposes of Labor Law article 6 is regulated by the parties’ purposes of Labor Law article 6 is regulated by the parties’ express express or implied agreement; or if no agreement exists by the or implied agreement; or if no agreement exists by the default default common-law rule that ties the earnings of a commission to common-law rule that ties the earnings of a commission to the the employee’s production of a ready, willing and able purchaser employee’s production of a ready, willing and able purchaser of the of the services.” services.” See alsoSee also Pachter v. Bernard Hodes Groups, Inc.Pachter v. Bernard Hodes Groups, Inc., , 541 541 F.3d 461, 2008 U.S. App. LEXIS 18922 (2d Cir. 2007)F.3d 461, 2008 U.S. App. LEXIS 18922 (2d Cir. 2007)

• Weems v. Citigroup Inc.Weems v. Citigroup Inc., 453 Mass. 147, 2009 Mass. LEXIS 19 (Mass. 2009) , 453 Mass. 147, 2009 Mass. LEXIS 19 (Mass. 2009) forfeiture provision in employee stock plan held not to violate forfeiture provision in employee stock plan held not to violate state wage act)state wage act)

• In re Citigroup, Inc.In re Citigroup, Inc.,, 535 F.3d 45, 2008 U.S. App. LEXIS 15645 (1st Cir. 535 F.3d 45, 2008 U.S. App. LEXIS 15645 (1st Cir. 2008) (forfeiture provisions of employer’s capital accumulation 2008) (forfeiture provisions of employer’s capital accumulation plans were unambiguous and enforceable) plans were unambiguous and enforceable)

Privacy in the Workplace in the Privacy in the Workplace in the Electronic AgeElectronic Age

• Quon v. Arch Wireless Operating Co., Quon v. Arch Wireless Operating Co., 529 F.3d 892, 529 F.3d 892, 2008 U.S. App. LEXIS 12766 (9th Cir. 2008), 2008 U.S. App. LEXIS 12766 (9th Cir. 2008), reh’g reh’g denieddenied, 2009 U.S. App. LEXIS 2259 (9th Cir. Jan. , 2009 U.S. App. LEXIS 2259 (9th Cir. Jan. 27, 2009)27, 2009)

• Richard A. Paul & Lisa Hird Chung, Richard A. Paul & Lisa Hird Chung, Brave New Brave New Cyberworld: The Employer’s Legal Guide to the Cyberworld: The Employer’s Legal Guide to the Interactive InternetInteractive Internet, 24 Lab. Law. 109 (2008), 24 Lab. Law. 109 (2008)

• Elizabeth C. Lawnicki, Elizabeth C. Lawnicki, Location Surveillance in the Location Surveillance in the Employment Context and the Right to Employment Context and the Right to

PrivacyPrivacy, , available atavailable at http://www.laborandemploymentcollege.org/http://www.laborandemploymentcollege.org/Contest_Winners/Contest-Lawnicki.pdfContest_Winners/Contest-Lawnicki.pdf

Collaborative LawCollaborative Law• Michael A. Zeytoonian, Michael A. Zeytoonian, Pioneers on the Horizon: Pioneers on the Horizon: Collaborative Law in Employment DisputesCollaborative Law in Employment Disputes, , available at available at http://www.hutchingsbarsamian.com/pdf/employment-http://www.hutchingsbarsamian.com/pdf/employment-disputes.pdfdisputes.pdf

• Collaborative Law Process Agreement for Business and Collaborative Law Process Agreement for Business and Employment Cases, Employment Cases, available at available at http://www.collaborativepractice.comhttp://www.collaborativepractice.com

• R. Paul Faxon & Michael Zeytoonian, R. Paul Faxon & Michael Zeytoonian, Prescription for Prescription for Sanity in Resolving Business Disputes: Civil Sanity in Resolving Business Disputes: Civil Collaborative Collaborative Practice in a Business Restructuring Practice in a Business Restructuring CaseCase, , available atavailable at http://www.collaborativepractice.com/lib/PDFs/Preschttp://www.collaborativepractice.com/lib/PDFs/PrescriptionForSanityInResolvingBusinessDisputes.pdfriptionForSanityInResolvingBusinessDisputes.pdf

A New Generation of A New Generation of Discrimination Claims: Discrimination Claims:

“Unconscious Discrimination”“Unconscious Discrimination”

• Franita Tolson, Franita Tolson, The Boundaries of Litigating The Boundaries of Litigating Unconscious DiscriminationUnconscious Discrimination, 33 Del. J. Corp. L. , 33 Del. J. Corp. L. 347 347 (2008)(2008)

Bullying Claims in the WorkplaceBullying Claims in the Workplace• Raess v. DoescherRaess v. Doescher, 883 N.E.2d 790, 2008 Ind. LEXIS 313 (Ind. 2008) (The , 883 N.E.2d 790, 2008 Ind. LEXIS 313 (Ind. 2008) (The

Indiana Supreme Court, over the dissent of one judge, declined to Indiana Supreme Court, over the dissent of one judge, declined to decide whether it was error to admit the testimony of a so-called decide whether it was error to admit the testimony of a so-called “bullying expert.” A cardiac surgeon who was accused of being a “bullying expert.” A cardiac surgeon who was accused of being a workplace bully workplace bully because he yelled at a co-worker, was sued by because he yelled at a co-worker, was sued by the co-worker for intentional infliction of emotional distress, and the co-worker for intentional infliction of emotional distress, and the trial court permitted a so-called “bullying expert” to testify. the trial court permitted a so-called “bullying expert” to testify. The Supreme Court did state as follows: “The phrase ‘workplace The Supreme Court did state as follows: “The phrase ‘workplace bullying,’ like other general terms used to characterize a person’s bullying,’ like other general terms used to characterize a person’s behavior, is an entirely appropriate consideration in determining behavior, is an entirely appropriate consideration in determining the issues before the jury. As evidenced by the trial court’s the issues before the jury. As evidenced by the trial court’s questions to counsel during pre-trial proceedings, workplace questions to counsel during pre-trial proceedings, workplace bullying could ‘be considered a form of intentional infliction of bullying could ‘be considered a form of intentional infliction of emotional distress.’”)emotional distress.’”)

• Tresa Baldas, Tresa Baldas, States Take Aim by Taming “Bully States Take Aim by Taming “Bully Bosses”, The National Bosses”, The National Law Journal, April 9, 2007Law Journal, April 9, 2007

Pregnancy Discrimination ActPregnancy Discrimination Act

• Doe v. C.A.R.S. Protection Plus, Inc.Doe v. C.A.R.S. Protection Plus, Inc., 543 F.3d 178, , 543 F.3d 178, 2008 U.S. App. LEXIS 19544(3d Cir. 2008) (Court 2008 U.S. App. LEXIS 19544(3d Cir. 2008) (Court foundfound that a plaintiff’s claim that she was that a plaintiff’s claim that she was

terminated because she underwent a surgical terminated because she underwent a surgical abortion states a claim under the Pregnancy abortion states a claim under the Pregnancy Discrimination Act)Discrimination Act)

Demise of Prima FacieDemise of Prima FacieCase AnalysisCase Analysis

• Brady v. Office of the Sergeant of Arms, U.S. HouseBrady v. Office of the Sergeant of Arms, U.S. House, 520 F.3d , 520 F.3d 490 (D.C. Cir. March 28, 2008) (“Lest there be any 490 (D.C. Cir. March 28, 2008) (“Lest there be any

lingering lingering uncertainty, we state the rule clearly: In a Title uncertainty, we state the rule clearly: In a Title VII VII disparate-treatment suit where an employee has disparate-treatment suit where an employee has suffered suffered an adverse employment action and an employer an adverse employment action and an employer has has asserted a legitimate, non-discriminatory reason for the asserted a legitimate, non-discriminatory reason for the

decision, the district court need not -- decision, the district court need not -- and should notand should not -- -- decide whether the plaintiff actually made out a prima decide whether the plaintiff actually made out a prima

facie facie case under case under McDonnell DouglasMcDonnell Douglas. Rather, in considering . Rather, in considering an an employer's motion for summary judgment or judgment employer's motion for summary judgment or judgment as as a matter of law in those circumstances, the district a matter of law in those circumstances, the district court court must resolve one central question:  Has the employee must resolve one central question:  Has the employee

produced sufficient evidence for a reasonable jury to produced sufficient evidence for a reasonable jury to find find that the employer's asserted non-discriminatory reason that the employer's asserted non-discriminatory reason

was not the actual reason and that the employer was not the actual reason and that the employer intentionally discriminated against the employee on the intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?”)basis of race, color, religion, sex, or national origin?”)

Additional papers authored by Mr. Fitzpatrick may be Additional papers authored by Mr. Fitzpatrick may be found at FJC online (found at FJC online (http://cwn.fjc.dcn), including the ), including the following: following:

• Employment Law UpdateEmployment Law Update

• New Federal Labor and Employment LegislationNew Federal Labor and Employment Legislation

• Proposed Federal Employment and Labor Proposed Federal Employment and Labor LegislationLegislation

• Emerging Employment Law IssuesEmerging Employment Law Issues

• Review of the Supreme Court’s Employment Cases Review of the Supreme Court’s Employment Cases (2007-2008 Term) And A Preview of the (2007-2008 Term) And A Preview of the

Coming Coming Term (2008-2009 Term)Term (2008-2009 Term)

• Review of the Supreme Court’s Employment Cases Review of the Supreme Court’s Employment Cases (2001-2006 Terms)(2001-2006 Terms)

Retaliation – Timing IssuesRetaliation – Timing IssuesBrenes v. City of New YorkBrenes v. City of New York, 2009 U.S. App. LEXIS 6270 , 2009 U.S. App. LEXIS 6270 (2d Cir. Mar. 23, 2009) (the court held that the (2d Cir. Mar. 23, 2009) (the court held that the timing timing of an attempt to reject the plaintiff’s of an attempt to reject the plaintiff’s appointment to appointment to teach at a school was probative of teach at a school was probative of retaliatory retaliatory animous even though the first negative animous even though the first negative evaluation evaluation of plaintiff occurred nearly ten months of plaintiff occurred nearly ten months after the after the protected activity, where a transfer form protected activity, where a transfer form prepared prepared less than two months after the protected less than two months after the protected activity also activity also attempted to reject his appointment. attempted to reject his appointment. The court also The court also found a series of negative found a series of negative performance evaluations performance evaluations at the start of the next at the start of the next school year to be suspicious, school year to be suspicious, particularly given particularly given the fact that the plaintiff previously the fact that the plaintiff previously received only received only satisfactory evaluations)satisfactory evaluations)

Title VII – Adverse ActionTitle VII – Adverse Action

Douglas v. DonovanDouglas v. Donovan, 2009 U.S. App. LEXIS 5456 (D.C. , 2009 U.S. App. LEXIS 5456 (D.C. Cir. Mar. 17, 2009) Cir. Mar. 17, 2009) (Judge Janice Rogers Brown, (Judge Janice Rogers Brown, writing for the majority, with Judge Tatel writing for the majority, with Judge Tatel dissenting, dissenting, held that a department head’s failure held that a department head’s failure to recommend a to recommend a federal employee for a federal employee for a prestigious award (that prestigious award (that includes a substantial includes a substantial financial benefit) is not an financial benefit) is not an adverse employment adverse employment action under Title VII as the action under Title VII as the harm is too harm is too speculative. The majority found there to be speculative. The majority found there to be instances where there is a categorical instances where there is a categorical presumption of harm and others where the court presumption of harm and others where the court imposes a causation requirement. In the latter, the imposes a causation requirement. In the latter, the employee must go the further step of employee must go the further step of demonstrating demonstrating how the decision caused how the decision caused objectively tangible objectively tangible harm) harm)

Collective ActionCollective Action

Sandoz v. Cingular Wireless, LLCSandoz v. Cingular Wireless, LLC, 553 F.3d 913 (5th Cir. , 553 F.3d 913 (5th Cir. 2008) (plaintiff filed a putative collective action 2008) (plaintiff filed a putative collective action under under the FLSA, and filed a motion to certify her the FLSA, and filed a motion to certify her collective collective action. The defendant submitted to the action. The defendant submitted to the individual individual plaintiff a Rule 68 offer of judgment for plaintiff a Rule 68 offer of judgment for $1,000 plus $1,000 plus her reasonable attorneys’ fees, which her reasonable attorneys’ fees, which plaintiff did plaintiff did not accept. The defense argued that not accept. The defense argued that its make-whole its make-whole offer to the named plaintiff alone in offer to the named plaintiff alone in a collective action a collective action under the FLSA divests the under the FLSA divests the court of subject matter court of subject matter jurisdiction. Thereafter, jurisdiction. Thereafter, plaintiff filed her motion for plaintiff filed her motion for certificaiton of her certificaiton of her collective action. The circuit collective action. The circuit court, on an court, on an interlocutory appeal, held that “when interlocutory appeal, held that “when a FLSA a FLSA plaintiff files a timely motion for certification plaintiff files a timely motion for certification of a of a collective action, that motion relates back to the collective action, that motion relates back to the date the plaintiff filed the initial complaint, date the plaintiff filed the initial complaint, particularly particularly when one of the defendant's first when one of the defendant's first actions is to make actions is to make a Rule 68 offer of judgment”)a Rule 68 offer of judgment”)

FMLAFMLA

Rasic v. City of North LakeRasic v. City of North Lake, 563 F.Supp.2d 885 (N.D. Ill. , 563 F.Supp.2d 885 (N.D. Ill. 2008) (the district court, recognizing a split among 2008) (the district court, recognizing a split among the Circuits on the question of whether the FMLA the Circuits on the question of whether the FMLA

permits a right of action against individuals who permits a right of action against individuals who are are public, rather than private, employees, held public, rather than private, employees, held that public that public agency employees may be individual agency employees may be individual defendants under defendants under the FMLA. the FMLA. Modica v. Taylor,Modica v. Taylor, 465 465 F.3d 174, 186 (5th F.3d 174, 186 (5th Cir. 2006) (holding that public Cir. 2006) (holding that public employees may be held employees may be held individually liable under individually liable under FMLA) and FMLA) and Darby v. Bratch,Darby v. Bratch, 287 287 F.3d 673, 681 (8th F.3d 673, 681 (8th Cir. 2002) (same) Cir. 2002) (same) with Wascura v. with Wascura v. Carver,Carver, 169 F. 3d 169 F. 3d 683, 685-7 (11th Cir. 1999) (holding 683, 685-7 (11th Cir. 1999) (holding that there is no that there is no individual liability for public individual liability for public employees under employees under FMLA) and FMLA) and Mitchell v. Chapman,Mitchell v. Chapman, 343 343 F.3d 811, F.3d 811, 829-30 (6th Cir. 2003), 829-30 (6th Cir. 2003), cert. deniedcert. denied 542 U.S. 542 U.S. 937, 937, 124 S. Ct. 2908, 159 L. Ed. 2d 813 (2004) (same))124 S. Ct. 2908, 159 L. Ed. 2d 813 (2004) (same))

Compensable TimeCompensable Time

Gatewood v. Koch Foods of Mississippi, LLCGatewood v. Koch Foods of Mississippi, LLC, 569 , 569 F.Supp.2d 687 (S.D. Miss. 2008) (in this donning F.Supp.2d 687 (S.D. Miss. 2008) (in this donning and and doffing FLSA case, the district court granted, doffing FLSA case, the district court granted, in in part, defendant’s motion for summary judgment part, defendant’s motion for summary judgment where where the union failed to collectively bargain on the union failed to collectively bargain on the issue of the issue of non-compensation for changing non-compensation for changing clothes at the clothes at the beginning and end of each workday, beginning and end of each workday, finding that thus a finding that thus a workplace practice existed workplace practice existed sufficient to invoke the sufficient to invoke the defense set forth in 29 defense set forth in 29 U.S.C. § 203(o))U.S.C. § 203(o))

Class ActionsClass ActionsVondriska v. Premier Mortgage Funding, Inc.Vondriska v. Premier Mortgage Funding, Inc., 564 , 564 F.Supp.2d 1330 (M.D. Fla. 2007) (the district court F.Supp.2d 1330 (M.D. Fla. 2007) (the district court discussed at some length the process of by which discussed at some length the process of by which the district courts are to determine whether or not the district courts are to determine whether or not to certify a FLSA case as a collective action. The to certify a FLSA case as a collective action. The court court noted that typically there is a determination noted that typically there is a determination made at the made at the so-called “notice stage” and if that be so-called “notice stage” and if that be successful, successful, a second determination precipitated a second determination precipitated by a motion for by a motion for “decertification” usually filed by “decertification” usually filed by the defendant after the defendant after discovery has been completed. discovery has been completed. In this case, the In this case, the court discussed at length the court discussed at length the standards to be used standards to be used when a court is making the when a court is making the determination at the determination at the “notice stage.” The court “notice stage.” The court held that it could held that it could conditionally certify a class of conditionally certify a class of FLSA plaintiffs seeking FLSA plaintiffs seeking unpaid overtime, upon a unpaid overtime, upon a showing by the plaintiffs showing by the plaintiffs

of “(1) whether there are of “(1) whether there are other employees who other employees who desire to opt in to the desire to opt in to the action; and (2) whether the action; and (2) whether the employees who employees who desire desire to opt in are ‘similarly to opt in are ‘similarly situated’”) situated’”)

EEOC LitigationEEOC Litigation

Equal Employment Opportunity Comm’n v. Watkins Equal Employment Opportunity Comm’n v. Watkins Motor LinesMotor Lines, 553 F.3d 593 (7th Cir. 2009) (holding , 553 F.3d 593 (7th Cir. 2009) (holding that that EEO litigation continues even though the EEO litigation continues even though the charging charging party has settled)party has settled)

Religious Freedom Religious Freedom Restoration Act of 1993Restoration Act of 1993

• Potter v. Dist. of ColumbiaPotter v. Dist. of Columbia, 2009 U.S. App. LEXIS , 2009 U.S. App. LEXIS 4540 (D.C. Cir. Mar. 6, 2009)4540 (D.C. Cir. Mar. 6, 2009)

• Fitzpatrick v. City of AtlantaFitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th , 2 F.3d 1112 (11th Cir. 1993)Cir. 1993)•

Dispute ResolutionDispute Resolution

Gibson v. Neighborhood Health Clinics, Gibson v. Neighborhood Health Clinics, Inc.Inc., , 121 F.3d 1126 (7th Cir. 1997).121 F.3d 1126 (7th Cir. 1997).

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RICO Claims Against RICO Claims Against EmployersEmployers

Brown v. Cassens Transp. Co., Brown v. Cassens Transp. Co., 2008 U.S. 2008 U.S. App. LEXIS 21990 (6th Cir. 2008).App. LEXIS 21990 (6th Cir. 2008).

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Noerr-Pennington Noerr-Pennington DoctrineDoctrine

Chalpin v. Snyder, Chalpin v. Snyder, 2008 Ariz. App. LEXIS 2008 Ariz. App. LEXIS 156 (2d Cir. 2008).156 (2d Cir. 2008).

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““Similarly Situated” Co-WorkersSimilarly Situated” Co-Workers

Billue v. Praxair, Inc., Billue v. Praxair, Inc., 2008 U.S. App. LEXIS 2008 U.S. App. LEXIS 23980 (2d Cir. 2008).23980 (2d Cir. 2008).

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TITLETITLE

Brown v. Wells Fargo Bank, Brown v. Wells Fargo Bank, 168 Cal. App. 168 Cal. App. 4th 938 (Cal. Ct. App. 2008).4th 938 (Cal. Ct. App. 2008).

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Affirmative ActionAffirmative Action

• Rothe Dev. Corp. v. Dep’t of Def.Rothe Dev. Corp. v. Dep’t of Def.,, Civil Action Civil Action No. 2008-1017No. 2008-1017 (Fed. Cir. Nov. 4, 2008).(Fed. Cir. Nov. 4, 2008).

• Robert B. Fitzpatrick, Robert B. Fitzpatrick, Affirmative Action and Affirmative Action and Diversity Programs in the Workplace: Diversity Programs in the Workplace: Some QuestionsSome Questions (2007), (2007), available at available at

http://www.robertbfitzpatrick.com/publishedahttp://www.robertbfitzpatrick.com/publishedarticles.html.rticles.html.

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Courtroom Testimony as Courtroom Testimony as Protected SpeechProtected Speech

Reilly v. Flipping, 532 F.3d 316 (3rd Cir. N.J. Reilly v. Flipping, 532 F.3d 316 (3rd Cir. N.J. 2008), 2008), cert. deniedcert. denied 2009 U.S. LEXIS 2009 U.S. LEXIS

1338 (2009).1338 (2009).

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Disability Discrimination and Disability Discrimination and HarassmentHarassment

Mangano v. Verity, Inc.Mangano v. Verity, Inc., 84 Cal. Rptr. 3d 526 , 84 Cal. Rptr. 3d 526 (Cal. Ct. App. 2008).(Cal. Ct. App. 2008).

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Whistleblowing and the First Whistleblowing and the First AmendmentAmendment

Thomas v. City of BlanchardThomas v. City of Blanchard, 548 F.3d 1317 , 548 F.3d 1317 (10th Cir. 2008).(10th Cir. 2008).

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S.E.C. v. Collins & Aikman Corp.S.E.C. v. Collins & Aikman Corp.2008 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 20092008 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 2009))

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FMLA Cases Continue to FMLA Cases Continue to ProliferateProliferate

Brown v. Nutrition Mgmt. Servs. Co.Brown v. Nutrition Mgmt. Servs. Co., 2009 U.S. Dist. , 2009 U.S. Dist. LEXIS 4199 (E.D. Pa. Jan. 21, 2009)LEXIS 4199 (E.D. Pa. Jan. 21, 2009)

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TITLETITLE

Opinion and Order, Opinion and Order, McDonald v. Best Buy McDonald v. Best Buy Co., Inc.Co., Inc., 2008 U.S. Dist. LEXIS 78524 , 2008 U.S. Dist. LEXIS 78524 (C.D.Ill. Aug. 28, 2008)(C.D.Ill. Aug. 28, 2008)

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Employer Sued for Using Lie Employer Sued for Using Lie Detector TestDetector Test

Worden v. Sun Trust Banks, Worden v. Sun Trust Banks, 549 F.3d 334 549 F.3d 334 (4th Cir. 2008).(4th Cir. 2008).

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Defense Discovery Seeking Access Defense Discovery Seeking Access Plaintiff’s Plaintiff’s FacebookFacebook Account Account

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Religious Discrimination IssuesReligious Discrimination IssuesNantiya Ruan, Nantiya Ruan, Accommodating Respectful Religious Accommodating Respectful Religious

Expression in the WorkplaceExpression in the Workplace, 92 Marq. L. Rev. 1 , 92 Marq. L. Rev. 1 (2008)(2008)

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FMLAFMLATownsend-Taylor v. Ameritech Servs., Inc., Townsend-Taylor v. Ameritech Servs., Inc.,

523 F.3d 815 (7th Cir. 2008)523 F.3d 815 (7th Cir. 2008)

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Americans with Disabilities ActAmericans with Disabilities ActPulver, Pulver, An Imperfect Fit: Obesity, Public Health, An Imperfect Fit: Obesity, Public Health, and Disability Anti-Discrimination Lawand Disability Anti-Discrimination Law, 41 , 41 Colum. Colum. J. L. & Soc. Probs. 365 (2008)J. L. & Soc. Probs. 365 (2008)

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Ethical Issues Regarding Ethical Issues Regarding Misrepresentations During InvestigationsMisrepresentations During Investigations

• In re PautlerIn re Pautler, 47 P.3d 1175 (Or. 2002), 47 P.3d 1175 (Or. 2002)• Apple Corps. Ltd. v. Int’l Collectors Soc’yApple Corps. Ltd. v. Int’l Collectors Soc’y , 15 F.Supp.2d 456 , 15 F.Supp.2d 456 (D.N.J. 1998)(D.N.J. 1998)• Richardson v. HowardRichardson v. Howard, 712 F.2d 319 (7th Cir. 1983), 712 F.2d 319 (7th Cir. 1983)• David B. Isbell & Lucantonio N. Salvi, David B. Isbell & Lucantonio N. Salvi, Ethical Responsibility of Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Lawyers for Deception by Undercover Investigators and Discrimination Testers: an Analysis of the Provisions Discrimination Testers: an Analysis of the Provisions Prohibiting Misrepresentation under the Model Rules of Prohibiting Misrepresentation under the Model Rules of Professional ConductProfessional Conduct, 8 Geo. J. L. Eth. 791 (Summer 1995), 8 Geo. J. L. Eth. 791 (Summer 1995)• Arizona Ethics Opinion No. 99-11 (1999)Arizona Ethics Opinion No. 99-11 (1999)• Utah State Bar Ethics Advisory Opinion Committee Opinion No. Utah State Bar Ethics Advisory Opinion Committee Opinion No. 02-05 (2002)02-05 (2002)• New York County Lawyer’s Association Committee on Professional New York County Lawyer’s Association Committee on Professional

Ethics Formal Ethics Formal Opinion 737 (2007)Opinion 737 (2007)

Passive DiscriminationPassive DiscriminationJonah Gelbach et al., Jonah Gelbach et al., Passive Discrimination: When Passive Discrimination: When

Does it Make Sense to Pay Too Little?Does it Make Sense to Pay Too Little?, __ Univ. , __ Univ. Chi. L. Rev. __ (forthcoming 2009), Chi. L. Rev. __ (forthcoming 2009), available atavailable at http://papers.ssrn.com/sol3/papers.cfm?abstract_idhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263931=1263931

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Agri Processor Co., Inc., v. NLRBAgri Processor Co., Inc., v. NLRB129 S. Ct. 594129 S. Ct. 594, , 2008 U.S. LEXIS 8451 (2008),2008 U.S. LEXIS 8451 (2008), cert. denied cert. denied,,

514 F.3d 1 (D.C. Cir. 2008)514 F.3d 1 (D.C. Cir. 2008)

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ERISA Cash BalanceERISA Cash Balance

Brief for the United States as Amicus Curiae, Brief for the United States as Amicus Curiae, AK Steel AK Steel Corp. Ret. Accumulation Pension Plan v. WestCorp. Ret. Accumulation Pension Plan v. West, , 128 S. Ct. 2926 (2008)128 S. Ct. 2926 (2008)

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Declaratory Judgments in Declaratory Judgments in Discrimination CasesDiscrimination Cases

Ameritech Benefit Plan Comm. V. Commc’n Workers of Ameritech Benefit Plan Comm. V. Commc’n Workers of Am.Am., 220 F.3d 814 (7th Cir. 2000), 220 F.3d 814 (7th Cir. 2000)

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Summary Judgment in Summary Judgment in Employment LitigationEmployment Litigation

• Memorandum Granting Summary Judgment, Memorandum Granting Summary Judgment, Smith-Smith-Crockett v. Bullard-Havens Technical High SchoolCrockett v. Bullard-Havens Technical High School, , 2008 2008 U.S. Dist. LEXIS 96373 (D.Conn. Nov. 26, 2008)U.S. Dist. LEXIS 96373 (D.Conn. Nov. 26, 2008)

• Ruling on Motion for Summary Judgment, Ruling on Motion for Summary Judgment, Kwentoh v. Kwentoh v. State of Connecticut Dep’t of Children and Families State of Connecticut Dep’t of Children and Families Juvenile Training SchoolJuvenile Training School, 2008 U.S. Dist. LEXIS , 2008 U.S. Dist. LEXIS

97727 (D.Conn. Dec. 2, 2008).97727 (D.Conn. Dec. 2, 2008).

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Constructive TerminationConstructive TerminationMac’s Shell Serv. V. Shell Oil Products Co.Mac’s Shell Serv. V. Shell Oil Products Co., ,

524 F.3d 33 (1st Cir. 2008)524 F.3d 33 (1st Cir. 2008)

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ERISA – Experimental ChemotherapyERISA – Experimental Chemotherapy

Summers v. Touchpoint Health Plan, Inc.Summers v. Touchpoint Health Plan, Inc., 749 N.W.2d , 749 N.W.2d 182 (Wis. 2008)182 (Wis. 2008)

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