Posted on February 29, 2008 by Franck Wobst
The National Labor Relations Board (“NLRB”) modified its election procedures earlier this month to incorporate the display of an American flag at all Agency-conducted elections. According to the NLRB’s announcement of the new protocol, the display of the national flag “will impress upon all of the participants to elections – employers, unions, and, most importantly, voters – the solemnity and importance of the Agency’s election process,” particularly for “new immigrants to our country [who] may be participating in free and fair elections for the first time.” Field personnel conducting Agency elections will supply the flags and will be trained in flag etiquette.
Not everyone is pleased with the NLRB’s new policy – or at least with the rationale behind the policy. For example, a posting on the website of the pro-union organization American Rights At Work states: “In reality, NLRB elections bear no resemblance to political elections, and fall alarmingly short of the democratic process Americans envision when we use the term ‘election.’” Advocates for pro-union and union-free groups both typically argue about the fairness of the NLRB’s election procedures. Too bad they cannot at least agree on the NLRB’s new flag policy.
Posted on February 28, 2008 by Franck Wobst
The Age Discrimination in Employment Act (“ADEA”) expressly states that a civil action cannot be filed until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC. A primary rationale behind the charge-filing requirement is to allow the EEOC an opportunity to resolve the dispute by informal methods. To that end, the EEOC has developed a specific form, labeled “Charge of Discrimination.” In a decision issued yesterday, though, the U.S. Supreme Court held that a plaintiff should have been allowed to pursue her ADEA claim even though she did not file a formal charge with the EEOC until after she filed her court complaint. In Federal Express v. Holowecki, the Court ruled that plaintiff’s “Intake Questionnaire, and attached six-page affidavit was sufficient to satisfy the ADEA’s charge-filing requirement. The Court reached this conclusion even though the EEOC neither assigned a charge number nor informed Federal Express that a charge had been filed. Continue Reading…
Posted on February 27, 2008 by Kathy Krisher
The Supreme Court of the United States ruled in an age discrimination case that testimony by nonparties alleging discrimination at the hands of supervisors who played no role in the discriminatory acts challenged in the lawsuit was neither per se admissible nor per se inadmissible. Instead, the Supreme Court held that admissibility must be determined on a case-by-case basis and is within the discretion of the District Court. Sprint/United Management Co. v. Mendelsohn, No. 06-1221, February 26, 2008.
Ellen Mendelsohn sued Sprint under the Age Discrimination and Employment Act of 1967 (ADEA). In support of her claim, she sought to introduce testimony by five former Sprint employees who also claimed age discrimination even though none worked in Mendelsohn’s group or under the supervisors in her chain of command. Moreover, none of those witnesses heard any discriminatory remarks from Mendelsohn’s supervisors. Before the trial, Sprint moved to exclude the testimony, arguing that it was irrelevant to the central issues in the case because the employees were not similarly situated to Mendelsohn and the testimony would cause unfair prejudice. The District Court excluded the evidence and ruled that Mendelsohn could offer only evidence of discrimination against employees who were similarly situated to her, meaning that those employees had the same decision maker/supervisor and that there was temporal proximity.
Posted on February 27, 2008 by Brian Hall
In Ohio, courts have the discretion to redraw an overly broad non-competition agreement so that its restrictions are no greater than are needed to protect the employer’s legitimate business interests. As a result, Ohio employers often cavalierly draft the terms of their employee non-competition agreements as broadly as possible, believing the worst case scenario is that a court will rein in and “re-draft” the terms if necessary to make them reasonable and enforceable. Unfortunately, a federal district court in Illinois and the Seventh Circuit court of appeals clearly were unwilling to endorse this somewhat common Ohio employment practice despite analyzing a non-competition agreement’s enforceability under Ohio law pursuant to the agreement’s choice of law provision. Continue Reading…
Posted on February 26, 2008 by Robert Cohen
The Government can file enforcement actions for hiring unauthorized employees in either criminal or civil proceedings. Criminal proceedings may result in either fines or prison sentences while civil proceedings result in administrative fines. Attorney General Mukasey announced on Friday, February 22, 2008, that the administrative fines would increase effective March 29, 2008 to adjust for inflation. The minimum fine for the first offense of the knowing hire of an unauthorized individual will increase by $100 to $375. The maximum civil penalty for the first violation increases to $3,200. For multiple offenses, the maximum penalty increases from $11,000 to $16,000.
The Attorney General announced these increases as routine adjustments for inflation, but noted that the increases were also part of the initiative announced last August as part of enhanced effort to improve interior and worksite enforcement. Current efforts, however, remain focused on the criminal prosecution of employers for the hiring of unauthorized immigrants. In one recent press release, Immigration and Customs Enforcement noted that 57 undocumented workers were arrested in Utah, and many of the workers as well as the employer would be indicted for various criminal charges. The press release also noted that the Department of Labor participated in the investigation and processing of the arrested workers to be sure the proper wages had been paid for work before the arrest. The workers were then processed for criminal charges and deportation.
Posted on February 25, 2008 by Nicole J. Quathamer
The Ohio Supreme Court just paved the way for employers to recoup workers’ compensation benefits paid to employees who later recover money damages for their injuries from other sources. By endorsing such so-called subrogation rights, the Court provides employers with an important cost-control tool. Employers should, therefore, keep their eyes open for subrogation opportunities and act quickly to take advantage of them.
In its latest review of the Ohio legislature’s effort to provide subrogation rights to those who pay workers’ compensation benefits, the Ohio Supreme Court held that the subrogation statute finally passes constitutional muster. The Court reached its finding in Groch v. Gen. Motors Corp., after questions about the constitutionality of R.C. 4123.93 and 4123.931 were raised. The Groch Court held that the statutorily-authorized right of recovery by the administrator of workers’ compensation (in a state fund claim), a self-insuring employer or a direct-payor employer for payments to workers’ compensation claimants does not violate the Takings, Due Process, Remedies, or Equal Protection Clauses of the Ohio Constitution. Continue Reading…