Tuesday, July 28, 2009
Monday, July 27, 2009
Lawffice Space readers,
I am proud to present special guest blogger, Kristina Duncan! She will provide a few guest posts for Lawffice Space next week. She has kindly provided me with a brief bio:
Kristina Duncan is President and Owner of Paralegal Associates, providing freelance and virtual paralegal services to law firms. Previously, Ms. Duncan worked as the sole assistant for two attorneys in personal injury and employment law. While working full-time, Ms. Duncan attended the
A Southern California native, Ms. Duncan attended the
Wednesday, July 22, 2009
"As a safeguard, every employer should have a provision in its vacation policy to the effect that the employer can schedule employees' vacations."I've heard of "use-it-or-lose-it" vacation time, but this is "use-it-or-USE-IT!" As an employee, I'd be slightly offended if my employer deemed it necessary to dictate when I need a time out. It's all a little babysitter-ish for my taste.
Monday, July 20, 2009
"Q: How can colleges protect themselves from discrimination claims?
A: The college's general counsel or another employment expert should examine a list of all the employees who may be laid off to make sure that a disproportionate number of affected workers are not racial minorities [or other protected class]."Wait a second, I think I've heard this one... isn't this Ricci v. DeStefano? The New Haven Fire Department identified individuals to promote but then never followed through with the promotions because the racial statistics were "disproportionate." The result? Title VII disparate treatment liability.
Saturday, July 18, 2009
"By far, the most economically destructive provision in EFCA is one that imposes binding arbitration if the parties fail to reach a contract agreement within 90 days.There are also enhanced penalty provisions for employers retaliating against employees attempting to organize.
This, in effect, means unions have zero incentive to bargain in good faith. They do have an incentive to make over-the-top demands, knowing they would be the starting point in arbitration hearings."
Thursday, July 16, 2009
Wednesday, July 15, 2009
"Perhaps the biggest culprits... are male bosses who are sending scandalous text messages to female employees, asking them out on dates or promising promotions in exchange for sexual favors. These texts are explosive evidence in lawsuits... and pretty tough to dispute."Once again: old problems, new medium. We all know managers can't condition promotions on sexual favors. It doesn't matter if he whispers in her ear, hands her a note, calls her, emails her, IMs her, text messages her, or dispatches his droid R2-D2 to display a holographic image of himself explaining sexual favors are her "only hope."
"[T]here are privacy issues that employers need to consider before reviewing text messages. For example, if the employer owns the device, it has the right to review it. But, if the employee owns the device and is reimbursed for the service, 'the employer doesn't have an unfettered right to review,' [David Walton - Cozen O'Connor] said."Ahh yes, employee privacy in our increasingly gadget-driven world is a new frontier for another day.
Tuesday, July 14, 2009
- Anyone can publish
- Anyone can read (barring some privacy settings on some sites)
- There's a permanent record
Monday, July 13, 2009
(1) how the documents were obtained,
(2) to whom the documents were produced,
(3) the contents of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claim of unlawful conduct,
(4) why the documents were produced, including whether the production was in direct response to a discovery request,
Sunday, July 12, 2009
"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court...."I don't know about the "consent" part but it appears the Republicans are poised to provide plenty of advice!
Expect employment law to figure prominently in the hearings (although the Republicans have lined up several Second Amendment heavyweights as well). The media coverage of the Ricci case (white New Haven firefighters case) has been everywhere.
On top of the media blitz, none other than Frank Ricci himself is listed as a witness to testify at the hearings. Mr. Ricci (in case this wasn't obvious from the name) is the lead Plaintiff (aka a white New Haven firefighter) in the Ricci case. To quote a friend of mine upon hearing the news: "Wow! A real person!"
I would also like to note that two professors from my beloved alma mater, George Mason, are also set to testify: Neomi Rao (teaches Constitutional Law... not sure what she's testifying on), and Ilya Somin (I suspect he'll discuss property rights/eminent domain).
CBS News has published the full list of the witnesses released by the Senate Judiciary Committee (Democrats and Republicans).
Friday, July 10, 2009
"Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation."Alito takes particular aim at the "influential community leader," Reverend Boise Kimber.
"[T]he decision below, which sustained the entry of summary judgment for respondents, cannot be affirmed unless no reasonable jury could find that the City’s asserted reason for scrapping its test... was a pretext and that the City’s real reason was illegitimate..."In short, Alito's detailed discussion of the facts is really meant to show that the "decision below" was wrong... whether you use the Supreme Court majority's test or Justice Ginsburg's dissent's test.
"The dissent grants that petitioners’ situation... 'understandably attract[s] this Court’s sympathy.' But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law.... And that is what, until today’s decision, has been denied them."OK, I get that "sympathy" and "empathy" are different words... but given the controversy surrounding "empathy" it seems believable that Alito was trying to weigh in without being too obvious. Or maybe I'm searching for hidden messages that aren't really there. That's for you to decide.
Wednesday, July 8, 2009
- I don't know the person who wrote this, why should I trust her?
- If this employee's so great (or a "self-motivated proactive joy to work with" in flowery LinkedIn terms) then why is the manager recommending him to other employers?
- He must be awful and she's just trying to pawn her problem employee off on me!
- Or maybe she's recommending him so he sounds more attractive to potential customers... she's just making him sound great to drum up business!
- Nah, I know, she's just being nice or avoiding conflict by writing him a recommendation in response to his request.
Tuesday, July 7, 2009
"Performing work or driving or riding in a company vehicle while under the influence of alcoholic beverages, or being intoxicated or narcotics. A breathalyzer test can be administered by the company personnel. If the employee fails, he will be terminated. If the employee refuses to take the test, he will be terminated."One day Mr. Keay and some of his co-workers went to lunch, and you guessed it... had some beer! So does this violate the rule? The Court found that
"[T]he Employer proved only that Keay had consumed alcoholic beverages during his lunch break; no evidence was introduced to indicate that his ability to perform his duties was in any way impaired. Consequently, the Employer failed to prove that Keay violated the rule against intoxication or working while under the influence."The Court then reversed the Unemployment Compensation Board of Review's finding that Mr. Keay had engaged in willful misconduct. In other words, the employee drank but he was not necessarily drunk. It's a minor distinction but like I said in the title: words matter.
Sunday, July 5, 2009
"We weren't put under pressure. If we wanted to come in clothed or in our underwear, we could."Hmmm, maybe the naked office would be safe from a Title VII quid pro quo claim in America.
Saturday, July 4, 2009
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."The historic significance and the importance of the ideals cannot be overstated. A new country was born on the principle of freedom.
While the language of the declaration is sweeping, I would like to call attention to what I believe to be America's first employment law. First, the declaration emphasizes equality, the notion that individuals are born with equal opportunity under the law. Second, and more directly on point in the employment context, is the enumeration of a natural right to the "pursuit of happiness."
"Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment."To this day we recognize America as the land of opportunity where individuals have the ability, the right, to pursue their occupational goals. We tell our children, "when you grow up you can be whatever you want." This inherent right, as described in the Declaration that gave birth to our nation, is America's very first employment law.
Thursday, July 2, 2009
"Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?"The underlying inherent conflict is similar to that presented by competing provisions of Title VII: If equal treatment yields different outcomes, requiring an equal outcome necessitates unequal treatment.
"But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them."Thus concludes Scalia's brief (3-page) but extremely important opinion.
"Look, we compromised and let disparate impact prevail in very limited circumstances. If you try to cram this down our throats by enacting legislation to expand those circumstances... we still have the nuclear option: the equal protection clause. Once the disparate impact provision is ruled unconstitutional, the game's over. You can't legislate around that."Maybe I'm reading too much into it. Maybe he just meant to say, "boy, I guess we're gonna have to do that equal protection analysis someday." I think, however, there's more to his opinion than that.