New State Law Prohibits Discrimination Based On Military Status

Posted on January 18, 2008 by Rob Stalter

On December 20, 2007, Governor Strickland signed into law the “Ohio Veterans Package” (Sub. H.B. 372), which is intended to support members and veterans of the armed services. Among other things, the Act exempts the estates of service men and women who die in active service from certain probate fees, exempts retired military personnel pay for military service from the Ohio income tax, and designates Interstate Routes 70 and 71 in Ohio as the “Purple Heart Trail.”  Continue reading . . .

Equal Opportunity Spanking Nets New Trial

Posted on January 18, 2008 by Brian Hall

This case exemplifies our reason for creating the Employment Outtakes category. 

A California (where else?)appellate court (see Orlando v. Alarm One) has overturned a jury award of $500,000 in compensatory and $1 million in punitive damages to a 52 year old female on sexual battery and sex harassment claims that  arose out of spankings that she received during the course of "motivational meetings" to encourage the sale of security systems. Apparently, the spankings, among other rather unique motivational techniques, were administered to both male and female employees who performed poorly (for instance, by arriving at work late or not selling enough product) in front of their peers to motivate them  — and all other employees —  to perform better. According to testimony, the spankings of females typically were accompanied by sexual comments, while male spankings were not. 

Therefore, with respect to the sex harassment claim, the appellate court, noting that males and females were both spankers and spankees, so to speak, held that the trial court’s jury instructions were misguided because the jury was not instructed that one of the elements of sexual harassment was that plaintiff was harassed "because she was female." As a result, the court stated that the jury, in reaching its verdict, may have considered all offensive conduct, including conduct that was not gender-related. According to the court, if the jury had considered only conduct that occurred because the plaintiff was female, it might have concluded that that conduct was not “sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.” So, this case heads back to the trial court, hopefully to provide us with additional amusement.

Now you know where "The Office" gets its inspiration.

Employers Can Plan Now to File H-1B Petitions for Next Federal Fiscal Year

Posted on January 17, 2008 by Kyle Knapp

With the April 1, 2008 filing opportunity for “new” H-1B petitions looming, employers can begin planning now to try to obtain one of the limited number of H-1B visas available for the next federal fiscal year, which runs from October 1, 2008 to September 30, 2009.

A “new” H-1B petition refers only to individuals acquiring the H-1B visa or status for the first time, such as F-1 students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa. These cases often are referred to as “cap-subject” cases because they require one of the 85,000 allotted visas (65,000 for bachelor-level candidates and 20,000 for U.S. masters graduates). It does not apply to one who already has an H-1B visa or status. An exception that private sector employers should note, however, is that an H-1B foreign national currently working for a university in most cases will be subject to the cap. Universities are exempt from the H-1B cap, and when a foreign national leaves a university for the private sector, he/she then becomes cap-subject. Continue Reading…

The Hidden Costs of "Independent Contractors"

Posted on January 17, 2008 by Brian Hall

If your business model includes extensive use of independent contractors, you’re going to want to pay attention to the Ninth Circuit’s decision in NLRB v. Friendly Cab Company, Inc., Case No. No. 05-73813 (9th Cir., January 8, 2008). In the latest attack on the independent-contractor business model, the Ninth Circuit upheld an NLRB finding that the taxi drivers who leased cabs from Friendly Cab were not independent contractors but, in fact, were employees. The NLRB reached this conclusion despite the fact that, after making lease payments, the drivers kept all of their fares. Ordinarily, this factor – that the risk of profit or loss falls on the worker — creates a "strong inference" of independent contractor status because the purported employer would have no incentive to control the means and manner of the drivers’ performance. Nevertheless, the court deferred to the NLRB’s conclusion that this inference was rebutted by other evidence that Friendly Cab, in fact, exerted significant control over the drivers and, as a result, found that Friendly Cab was obligated to meet and bargain with the drivers’ union. Continue Reading…

Supreme Court Considers Weighing In On Key FMLA Waiver Issue

Posted on January 17, 2008 by Jamie LaPlante

In July 2007, the Fourth Circuit Court of Appeals held in Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), that, under the Department of Labor’s (DOL’s) regulations and the Family and Medical Leave Act (FMLA), employees cannot waive their rights under the FMLA in a private agreement, such as a severance agreement.  To waive FMLA rights, the Fourth Circuit held that the agreement must first be court- or DOL-approved.  Progress Energy, supported by several other business groups, appealed the decision to the U.S. Supreme Court, citing a split between the Fourth and Fifth Circuits.  On January 14, 2008, the Supreme Court asked the DOL to submit its view on the issue.  This type of request is often a signal that the Supreme Court will review the decision. 

The background of the case is relatively simple.  Taylor, the employee, was terminated by Progress Energy as part of a reduction in force in which past performance evaluations were used to determine which employees to terminate.  Taylor received poor performance evaluations after several health-related absences that Progress Energy determined were not FMLA protected.  Although Taylor tried to have the evaluations changed, she was unsuccessful.  Upon her termination, Taylor and Progress Energy entered into a severance agreement where Taylor received $12,000 in exchange for waiving all rights to litigate.  The agreement did not specifically mention Taylor’s rights under FMLA, but it referenced rights under “other federal laws.” Continue Reading…