We Have Moved!

President Bush will most likely soon sign into law the first extension of benefits under the FMLA since its 1993 enactment.

The story is in an article this week at Workforce.com:

The FMLA expansion would enable spouses, children, parents or next of kin to wounded military service personnel to take 26 weeks of unpaid leave to care for their loved one. That’s more than double the 12 weeks of time off for the birth or adoption of a child or the sickness of a close relative provided currently under the Family and Medical Leave Act.

Resistance from corporate America made passage of the extension provision difficult, adding a further frustration for families who already face sometimes horrific recovery journeys, according to an advocate for broader leave laws.

“This was significant and historic,” says Kate Kahan, director of work and family programs at the National Partnership for Women and Families. “On the other hand, it’s only an extra three months of leave. This is just a small step in the right direction.”

UPDATE: President Bush is planning a pocket veto of the bill for reasons unrelated to the FMLA provision. The consensus appears to be, however, that a bill with the FMLA expansion will be signed in the near future.

Scotus Blog reports that the U.S. Solicitor General has recommended the Supreme Court grant certiorari in case No. 06-1505, Meacham v. Knolls Atomic Power Lab, et al., limited to the question asking whether, under the Court’s 2005 decision in Smith v. City of Jackson, an employee alleging disparate impact under the ADEA has the burden of persuasion in establishing “reasonable factors other than age.”

Just came across a good article at Law.com dealing with the implementation of new e-discovery rules that are forcing companies to turn over damning evidence that has been stored electronically.

General Counsels are pulling their hair out trying to educate their managers and others that email often lasts forever and that they should not opine as to the reason an employee was fired, etc. using email.

The article features several types of emails that cause the most trouble. Some of my favorite opening lines from emails:

“Don’t put this in writing, but … ”

“This is off the record,” started the e-mail that in fact put it all on the record; and

“We may be in breach of contract, and here’s why.”

And of course there are the HR-related emails:

“I can’t believe she’s pregnant at such an inconvenient time at work.” and

“we need to get rid of the dead wood.”

The message is clear: Employers must continue to train and retrain employees on what is an is not appropriate subject matter for an email. And for Plaintiffs, be diligent about seeking production of emails in discovery. There’s gold in them there hills.

Ellen Mendelsohn sued her employer under the Age Discrimination in Employment Act (ADEA), alleging she was terminated by her employer, Sprint, on the basis of age during a reduction in force (RIF). Individual supervisors made the termination decisions. In support of her claim of intentional age discrimination, Mendelsohn proposed to present five witnesses to testified that they also were subjected to age discrimination by the employer during the RIF. The witnesses worked at the same location, and were terminated during the same RIF, but they were terminated by different supervisors. The district court held that the testimony of the five witnesses was inadmissible. The jury eventually returned a verdict for Sprint and Mendelsohn appealed.

On appeal, a divided Tenth Circuit panel held that the exclusion of the witness testimony was an abuse of discretion. The majority rejected Sprint’s contention that the witness’s testimony was irrelevant as a matter of law because the witnesses were not terminated by the same supervisor as Mendelsohn. While the plaintiff had not brought a “pattern and practice” claim, the court concluded that Mendelsohn was still entitled to show that there was an unwritten “company-wide policy” of age discrimination, in which Mendelsohn’s and the others’ supervisors were participating. The court noted that evidence of prior discriminatory conduct had long been considered relevant to prove discriminatory motive and concluded that a jury could reasonably find the alleged discrimination was made more likely by proof of “an atmosphere of age discrimination” and “Sprint’s selection of other older employees to the RIF.”

Sprint petitioned for certiorari, asserting that the Tenth Circuit had established a per se rule requiring the admission of what Sprint called “me, too” evidence, in conflict with the decisions of the Supreme Court and several other courts of appeals. The petition alleged that four circuits – the Second, Third, Fifth, and Sixth – have adopted per se rules holding that evidence that another employee has been subject to discrimination must be excluded as irrelevant unless the witness and the plaintiff were subject to adverse employment actions at the direction of the same supervisor.

The transcript of the oral argument shows a Court predictably split, with Scalia, Thomas, Alito and Roberts appearing to support a more restrictive view of evidence regarding similar treatment against proffered by other employees and Breyer, Ginsburg, Souter and Stevens arguing that such evidence is relevant and should be admissible. Justice Souter put it this way:

“Well, if you have three supervisors, and one is discriminating and another is discriminating, isn’t that some evidence that you’re in an industrial situation in which discrimination goes on, and therefore doesn’t it have the tendency that amounts to relevance under 401?”

So the case really appears to come down to a question of what Justice Kennedy thinks. And, if his questions during oral argument are any indication, he is inclined to hold that such evidence is inadmissible unless a nexus foundation is shown to exist between the decision at issue in the case at bar and that at issue by the other employee that would testify to similar treatment.

Frankly, after reading the transcript I’m left wondering whether this was a good case for the Court to take to address this issue. It remains unclear whether the trial court analyzed this evidentiary under Rule 401 or 403. This is an important question given the differing thresholds between the two. Justice Scalia spends a considerable amount of time on this issue in his questioning. Also of note is the fact that this case was not tried or argued on appeal as a “pattern and practice” case in which the conduct of the company as to other employees is clearly relevant.

Prediction: Close call but the company is likely to win this case. Because of the issues noted above, however, I have difficulty seeing in creating much of a change in existing law.

Related Links:

- Transcript of the Oral Argument

- American Constitution Society Guest Analysis of Case

Source for procedural history: Paul Secunda of the University of Mississippi School of Law and Workplace Prof Blog

According to a recent article in the Wall Street Journal, our brains seem to be wired for optimism. That is, unless you are a lawyer. Robert Lee Hotz writes that two research teams exploring the anatomy of expectations offer a new perspective on the power of a positive outlook. For the first time, scientists at New York University have mapped the upbeat brain — finding in a cluster of neurons the size of a martini olive the seed of a sunny outlook on life. At its core, the brain is built for optimism, their work suggests. Except in lawyers.

Surveying law students at the University of Virginia, he found that pessimists got better grades, were more likely to make law review and, upon graduation, received better job offers. There was no scientific reason. “In law,” he said, “pessimism is considered prudence.”

You can read the article here.

Hat tip to Labor Prof Blog

Both the Developments in EEO Law Blog and Jottings of an Employer’s Lawyer had coverage last week of a recent Fifth Circuit decision finally putting a steak through the heart of the tired old “sole cause” standard of causation in cases under the ADA and the Rehabilitation Act. The case is Pinkerton v. Paige and in holding that the standard is the same in both cases, the court stated:

“[u]nder a plain reading of the statute, and in accord with the position of other circuits, we conclude that the “sole causation” standard is not the appropriate standard for ADA claims. We hold that under a straightforward reading of the statute, the “motivating factor” test should be applied to ADA claims.”

While the court’s ultimate opinion is not surprising, it is nice to have it set forth in black and white. As the case itself illustrated, trial judges were still forcing litigants to go to trial with what was clearly the wrong standard and defense lawyers felt the need to argue it in every case as long as there was any question at all remaining in the circuit’s jurisprudence.

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ADA

“The age discrimination case that was argued before the Supreme Court on Tuesday turned on a hyper-technical issue that only an employment lawyer could love.” - New York Times

Lot’s of great coverage out on the web regarding the oral argument conducted this week at the Supreme Court in Federal Express Corporation v. Holowecki. This case presents the question of what may constitute a “charge” of discrimination that a potential plaintiff must submit to the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) before bringing a private lawsuit.

Sounds simple right? A Charge is a Charge, Right? Well yes and no.

The problems lies in the fact that the statute does not mandate a particular form for a Charge and in the fact that is not an uncommon occurrence for the EEOC to accept intake documents from a charging party and then lose them or, for whatever reason, fail or refuse to issue a formal Charge document in the case. It is so common in fact that I doubt you could find an employment law attorney that has not dealt with this issue. So the question is who should bear the burden of the government’s failure to properly process a party’s Charge.

Here is what went on in this case: Patricia Kennedy was a courier for petitioner Federal Express (Fed Ex). On December 3, 2001, Kennedy filed an EEOC Form 283 Intake Questionnaire and accompanying affidavit alleging that Fed Ex had instituted a number of policies and practices that discriminated based on age. She did not file an EEOC Form 5 Charge of Discrimination at this point. The EEOC did not assign a charge number to Kennedy’s submission, it did not inform Fed Ex that it had received Kennedy’s Form 283, and it made no attempt at informal conciliation. On April 30, 2002, Kennedy filed a class-action ADEA suit on behalf of herself and others similarly situated. Exactly one month later, she submitted a Form 5 Charge of Discrimination to the EEOC.

The district court granted Fed Ex’s motion to dismiss the suit on the ground that the December 2001 submission did not constitute a “charge” under the ADEA. The Second Circuit, however, reversed. It held that the standard for what constitutes a charge is twofold. First, the court held that a charge must comport with the EEOC regulations, which state that a charge is sufficient when the person making the charge names the employer and generally describes the discriminatory acts. Second, the court held that the EEOC filing must manifest the employee’s intent to file a charge as viewed through the lens of a reasonable person. The Second Circuit found that Kennedy’s December 3 submission clearly had all of the required information and indicated her intention to “activate the . . . machinery” of the EEOC. Her filing therefore met the requirements of the ADEA, and the Second Circuit permitted her suit to go forward. FedEx appealed and the Supreme Court accepted the case.

My reading of the Court’s oral argument transcript indicates to me that FedEx is most likely going to take it on the chin in this one. The company’s argument that a Charge is not a Charge until the respondent company receives notice of it appeared to fall flat with the Court. Even Justice Scalia (no known as a rabid anti-corporate jurist) made it clear that he wasn’t accepting FedEx’s argument, analogizing Fed Ex’s position to the Rules of Civil Procedure. “My goodness,” he said, “It’s like saying there’s not a complaint until an answer is filed.”

Regardless of how this case turns out it really illuminated ongoing issues at the EEOC. In fact, it has stirred a conversation in some circles of the employment bar about whether we should at least start discussing whether the EEOC is still a viable entity. Honestly, I could find lawyers on both sides of the bar that would vote to abolish it and simply allow employees to go straight to Court with their claims, just like is done with every other type of claim. Just something to consider I guess.

Here are some background links:

FedEx’s Petition for Writ of Certiorari

Petitioner’s Brief on the Merits

Respodents’ Brief on the Merits

Petitioner’s Reply Brief

Law.com: Supreme Court Argument Report

The Washington Post: Justices Scold EEOC for Lapses in Age Discrimination Lawsuit

NY Times: Job Bias Case Turns on Filing Right Forms

Women are a powerful and valuable force in today’s workplace. They represent some of the best and brightest that industry has to offer, but many organizations aren’t set up to properly attract and retain them. The HR World Editors have put together a list of 100 resources designed to help your organization recruit and retain talented female employees.

Source: HR World Editors

It is hard to keep up with all of the excellent employment law and HR-related materials on the web these days. Seems like each week brings a new blog or web resource. So, after too much delay, I have finally managed to update the blogroll with links to many of the other fine sources of HR-related information on the web. Give it a look. And, if I have missed your site, drop me a comment and we will get the link up.

On a related note, I want to announce an upcoming feature here at the HR Lawyer’s Blog. Within the next couple of weeks we will begin providing regular spotlights of the excellent websites that link to this humble blog. My hope is to let our readers know about other fine blogs and websites that they may not be aware of. I figure it makes sense to begin with those sites that link to us because (1) we mush share a similar audience; and (2) the publishers of these sites obviously have excellent taste.

The sites will be chosen at random from the pool links that our web statistics engine provides. If you have recently linked to us, drop a comment to this post and I’ll make sure your site goes in the hat for the HR Web Spotlight.

Happy Blogging!

Peter Mullison over at the Colorado Employment Law Blog has a good article on employee privacy in the workplace, or more specifically, the lack thereof. Peter discusses the Court’s opinion in United States v. Barrows, a 10th Circuit Court of Appeals decision finding that an employee did not have a protected privacy interest in the child pornography files found by a co-worker on this personal computer that he brought to work.

The analysis in this case is slightly more involved because the employer in question was a government entity and therefore state action was at issue. In cases involving employees of private employers, the employee’s positions would be even weaker.

Mullison points out two rules to live by:

1) Stay away from kiddie porn; and

2) Recognize that your privacy rights in the workplace are less than you might think.

Good rules.

Source: Colorado Employment Law Blog