Friday, August 30, 2013
Monday, August 26, 2013
News broke on Friday that Paula Deen settled her discrimination lawsuit. Farewell, Paula Deen lawsuit, and thanks for the memories. Of course, there's always a chance that someone else will sue Ms. Deen . . . .
Posted by Philip Miles at 7:55 AM
Friday, August 23, 2013
In the teacher's appeal from her own termination decision, the Pennsylvania Commonwealth Court in DiBattista v. McKeesport Area School District (opinion here) noted:
At Co-worker’s arbitration hearing on March 8, 2005, upon learning that District intended to raise this issue during [the teacher's] testimony, [the teacher's] attorney questioned District solicitor, “But what about [the teacher]?” District’s solicitors responded, “[h]ow many times have I got to tell you? I’m not interested in [the teacher].” Moreover, District’s solicitors had already told [the teacher's] attorney at the meeting on March 4, 2005 that this “wasn’t a proceeding that was going to involve filing charges against [the teacher].”Do you see where this is going?
Applying contract principles, the Pennsylvania Commonwealth Court held that the solicitor entered into an "implied agreement" for immunity in exchange for the teacher's testimony. Therefore, the Commonwealth Court reversed an earlier decision upholding the teacher's termination.
For more on this story, check out the Patriot-News: Commonwealth Court Voids Teacher Firing Over Sex in School.
Thursday, August 22, 2013
On appeal, the Third Circuit noted that the FLSA claims existed independently of the CBA. The workers did not seek interpretation of the CBA, but merely payment for time spent working as required by the FLSA. The Third Circuit contrasted this with prior precedent holding:
[I]f a FLSA claim depends on the disputed interpretation of a CBA provision, an employee must first go to arbitration—through the representative union—before vindicating his or her rights in federal court under the FLSA.The Court vacated the dismissal of the FLSA claims and sent them back to the district court where they can proceed without exhausting the CBA's grievance arbitration procedure.
Image: Third Circuit logo used in commentary on Third Circuit. Not official use.
Tuesday, August 20, 2013
An attractive face is always a great first impression for any business.In fact, that's their actual tagline.
But, be careful - there are a lot of weirdos on the Internet. So, the company includes a disclaimer:
BeautifulPeople has initiated a cursory screening of businesses and individuals who have posted submissions. We strongly advise that you thoroughly research the company/individual before submitting an application.While this post has largely been a joke - as far as I can tell, the Beautiful People website is 100% serious.
Are there legal risks? Sure - off the top of my head: the objectification of the "beautiful" recruits could lead to harassment; I'm guessing (without researching this at all) that the site trends toward certain protected classes (potential disparate impact claims), and some employers might only demand "beautiful" employees of a certain gender (disparate treatment).
Friday, August 16, 2013
In January, Senior U.S. District Judge William T. Moore Jr. denied without explanation a motion to postpone discovery in the race discrimination and sex harassment case brought against Deen and her brother by one of their restaurant managers. That motion to stay discovery—which, if granted, would have postponed the deposition in which Deen admitted using a racial epithet—was made by lawyers representing both the defendants and the plaintiff.This strikes me as odd - discovery, and in particular depositions, can be extraordinarily expensive. Think about all the time the parties, their attorneys, and a paid reporter spent in depositions addressing claims that were dismissed at the pleading stage (of course, the primary cost for Paula Deen came from the content of her testimony).
Had the deposition taken place after the race discrimination claims were dismissed, the racially charged questions probably would have been off the table . . . . contrary to the quote in the linked article from an attorney:
It's probably a permissible question in a deposition . . . . You are trying to determine the atmosphere. If you use the N word, you probably have greasy paws on women.Sorry. Not buying it. I invite my readers to weigh in by dropping a comment. But seriously, did anybody read Paula Deen's "n-word" testimony and think, "yeah, she probably has her 'greasy paws' on women"? I'm guessing no.
Wednesday, August 14, 2013
Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.This is hardly surprising given that the FMLA regulations already defined spouse as:
[A] husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized. 29 C.F.R. 825.102.Of course, before the Supreme Court's ruling in U.S. v. Windsor, DOMA limited this to only opposite-sex marriages. After Windsor, the regulation presumably encompassed same-sex marriages as well. The DOL guidance merely affirms what we thought we already knew.
HT: Janine Gismondi via email.
Image: DOL seal used in commentary on DOL. Not official use.
Tuesday, August 13, 2013
You can read the opinion here (HT: Eric Meyer for posting it on Scribd):
In this case, the Court concludes that Plaintiff is not an aggrieved party under Title VII because her interests are not those arguably sought to be protected by that statute. At best, Plaintiff is an accidental victim of the alleged racial discrimination. There are no allegations that Defendant Hiers's racially offensive comments were either directed toward Plaintiff or made with the intent to harass her.Plaintiff's two bi-racial nieces and a single comment that her Sicilian father looked like a "n*****" were not enough to save her claims.
Now, to be clear, Title VII certainly protects white people - but this judge concluded that it does not protect them from race discrimination against African-Americans. In theory, had she opposed the race discrimination, she may have been able to raise a retaliation claim.
The Court dismissed the race discrimination claims, but reserved ruling on the other claims, including sexual harassment. Of course, the damage is already done for Paula Deen after her disastrous deposition. Am I the only one wondering why Paula Deen was deposed before the motion to dismiss was resolved? If you have an explanation, drop a comment.
Friday, August 9, 2013
The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.Whatever happened to the class action? Well, they scaled it down to about 150,000 members and tried again. Unfortunately for them, and contrary to popular belief, the problem was never the size of the class. In a recent ruling from the Northern District of California:
Two themes emerge in the analysis that follows. First, though they have cut down the raw number of proposed class members significantly, Plaintiffs continue to challenge four different kinds of decisions across hundreds of decision makers, inviting failures of proof at multiple points in each region. Second, though Plaintiffs insist that they have presented an entirely different case from the one the Supreme Court rejected, in fact it is essentially a scaled-down version of the same case with new labels on old arguments.The Court therefore denied the motion for class certification. We'll see whether they go back to the drawing board or appeal the ruling.
One note of interest: the judge in this case is Justice Breyer's brother, Judge Charles Breyer. If this case comes back to the Supreme Court, this could lead to recusal of a likely plaintiff-side vote.
HT: SCOTUSBlog - Wal-Mart Bias Challenge Fails Again.
Tuesday, August 6, 2013
Monday, August 5, 2013
One of the topics we discussed was the impact of the Supreme Court's ruling in U.S. v. Windsor, striking down portions of DOMA, on Pennsylvania employers. As luck would have it, we got a great illustration earlier in the week from the Eastern District of Pennsylvania in Cozen O'Connor v. Tobits (opinion here via c2essentials).
The case provides a great illustration of how complicated things can get in this post-Windsor world. The case involved a woman who participated in a Pennsylvania law firm's plan that provided for a survivorship annuity to her beneficiary upon her death. Sadly, she passed away. The issue was whether she has a "spouse," who would be the default beneficiary (if not, the survivor benefits go to her parents). Whether ERISA recognized her same-sex partner as her spouse should give us our winner.