Employer Law Report is pleased to share with you the launching of Porter Wright’s latest blog – Employee Benefits Law Report – which we have created as a resource to help guide employers of all sizes through the complex administrative and legal challenges facing their employee benefit plans.
This blog – edited by my partners
In earlier posts, we discussed the best time to mediate different types of employment or ERISA matters. Although some disagree, selecting a mediator to facilitate a settlement based on a meeting of the minds may be the most important part of the mediation process. Even though mediation is a party-driven process, the mediator’s knowledge, skill, experience, style and ability to handle the type of individuals involved in the dispute has a substantial impact on the resolution of the dispute. With apologies to Kyra Sedgwick, the goal is to find The Closer.
In most private mediations, the parties and their counsel select the mediator, and bear the burden of selecting an appropriate person to mediate the dispute. In making a selection, there are a number of issues the parties may want to consider.Continue Reading Looking for The Closer for your dispute. . .
Those of you have been reading Employer Law Report over the past six months may have noted an addition to our home page recently in the lower portion of the left column. There, you will find my most recent tweets on Twitter from @BrianDHallEsq. Sounds a bit pretentious, I know, but every usable combination
On April 25, 2011, the Department of Labor’s Office of Federal Contract Compliance Programs announced a proposed rule to increase the affirmative action obligations federal contractors and subcontractors owe to veterans.
Continue Reading OFCCP Proposes New Affirmative-Action Rules for Veterans
Several days ago, I read the New York Times article reporting that the NLRB’s Manhattan Regional Director was threatening to file a complaint against Thomson-Reuters for allegedly reprimanding an employee who had criticized management on Twitter.
Continue Reading An Appeal for Cooler Heads on NLRB’s Social Media Policy Enforcement
On Tuesday, the U.S. Supreme Court heard oral argument on Wal-Mart’s appeal of the Ninth Circuit’s en banc decision upholding the certification of a class action gender discrimination lawsuit in Dukes v. Wal-Mart Stores, Inc. As noted by a number of commentators (among them The Wall Street Journal, Forbes, The Christian Science Monitor, and CNN), the tone of the Court’s questioning indicates that the Court is likely to rule in Wal-Mart’s favor.
This appeal stemmed from a federal court’s certification of a nationwide class of female employees of Wal-Mart who were allegedly subjected to discriminatory pay and promotion policies. The class seeks injunctive relief and money damages (back pay) for all women employed since December 1998 in positions ranging from entry-level hourly employees to salaried managers. The class certified in 2004 included 1.5 million women; it currently is estimated to include 3 million women. The district court and Ninth Circuit certified the class after concluding that statistics and sociological expert testimony could allow Plaintiffs to show that Wal-Mart’s culture, when combined with its decentralized decision-making structure, resulted in discrimination against Wal-Mart’s female employees. Those courts approved class certification despite (1) Wal-Mart’s written policy of anti-discrimination, (2) evidence that there was no gender-based pay disparity at 90% of Wal-Mart’s stores, (3) an admission by plaintiff’s expert that he could not say whether discrimination was happening .05% or 95% of the time, and (4) a class that included at least 544 female store managers who would have been both victim and discriminator, under the plaintiffs’ theory.Continue Reading A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit
Yesterday, a panel of the Sixth Circuit announced its decision in Lewis v. Humboldt Acquisition Corp, an ADA case in which the court upheld the position of prior panels requiring an ADA plaintiff to establish that his or her disability was the “sole reason” motivating an adverse employment action. As Mark J. Chumley of the excellent Management Rights Blog noted yesterday, this puts the Sixth Circuit in the distinct minority of the appellate courts to consider the standard of proof on causation in an ADA case:
“Of the ten circuits to consider the causation issue, eight apply a ‘motivating factor’ (or ‘substantial cause’) test, under which a plaintiff must only show that a disability was a motivating factor of the adverse employment action.
However, the current law in the Sixth Circuit is that a plaintiff must show that his or her disability was the ‘sole reason’ for the adverse employment action; this is sometimes referred to as the ‘solely’ standard.”Continue Reading Cat’s Paw Declawed In Sixth Circuit ADA Cases?
In a scenario that frequently occurs in workplaces across the country, Linda Buck, the vice president of human resources at Proctor Hospital, was asked to terminate Vincent Staub based on information contained in a report from his supervisors that accused him of violating the terms of a “corrective action” disciplinary warning. Relying on this accusation and her own review of Mr. Staub’s personnel file, Ms. Buck decided to terminate Mr. Staub’s employment. Mr. Staub protested to Ms. Buck that his supervisors were hostile to his military obligations as a member of the U.S. Army reserves, but rather than follow up on Mr. Staub’s concern with his supervisors, Ms. Buck simply conferred with another human resources staff member and adhered to her termination decision. Mr. Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Ms. Buck had any such hostility but that his supervisors did, and that their actions influenced Ms. Buck’s ultimate employment decision. (This type of case has been referred to as a "Cat’s Paw" case, based on an Aesop’s fable involving a cat, a monkey, chestnuts and fire. Justice Scalia provides more information at footnote 1 of his majority opinion.)
A jury found that Mr. Staub’s “military status was a motivating factor in [Proctor’s] decision to discharge him,” and awarded $57,640 in damages. The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law because Ms. Buck had relied on more than just the supervisors’ advice in making her termination decision.Continue Reading Supreme Court Upholds “Cat’s Paw” Liability
After a week of significant media attention and almost unprecedented levels of protest at the Ohio Statehouse, the Ohio Senate passed Senate Bill 5 by a one-vote margin – 17 to 16. The Bill will now go to the House of Representatives where it is expected to pass quickly, paving the way for the Governor
Ohio Employment Practices Law:
Highlights from latest edition of "The" Book on Employment Law in Ohio
Wednesday, March 16, 2011
2:00 – 3:00 p.m. EST
Ohio Employment Practices Law – published by West – has become "the" important reference for Ohio employers. On Wednesday, March 16, 2011, editors Bradd Siegel and John Stephen will review highlights from the recently released 2010-2011 edition of this treatise that are most relevant for human resource professionals and in-house counsel, including the continued evolution of public policy claims; the clarification of pregnancy related obligations; and the practical impact of the ADAA upon employers.
Register Now!
Wednesday, March 16, 2011 from 2:00 p.m. – 3:00 p.m. ESTContinue Reading Join Porter Wright for Our Upcoming Webinar Featuring Highlights of Ohio Employment Practices Law – Wednesday, March 16