2008 EMPLOYMENT LAW UPDATE

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					2008 EMPLOYMENT
   LAW UPDATE


  Keith M. Weddington
      May 7, 2008
       U.S. SUPREME COURT

Preston v. Ferrer (Feb. 20, 2008)
•   Under FAA, arbitrator designated in
    agreement determines validity of the
    agreement, regardless of whether state
    law would vest that decision in some
    other forum.
•   FAA preempts state law
            Employees’ ability to challenge
    arbitration agreements in court is
         U.S. SUPREME COURT

Hall Street Associates, LLC v. Mattel, Inc. (March 25,
   2008)
•   FAA’s provisions for vacating and reviewing
    arbitration awards are exclusive and cannot be
    expanded by parties’ contract.
       Limited to corruption, fraud, undue means and if arbitrators
        guilty of misconduct or exceeding their powers.
    If your agreement provides for broader court review,
    issue remains as to severability vs. enforceability
    Be prepared to live with the results
    Choice of knowledgeable and experienced arbitrators
    is increasingly important
       U.S. SUPREME COURT

Sprint/United Mgmt. Co. v. Mendelsohn
(February 26, 2008)
•   Admissibility of “me too” testimony by
    non-party witnesses to be determined by
    district court on a case-by-case basis. No
    per se rule.
    H.R. 101 – policies, preventative actions,
    consistency and thorough documentation
    are essential to help contradict “me too”
    evidence.
         U.S. SUPREME COURT

Fed Ex v. Holowecki (February 27, 2008)
•   Under ADEA, no civil action may be filed until
    60 days after a charge alleging unlawful
    discrimination has been filed with EEOC.
•   What is a charge?
       EEOC intake questionnaire sufficient
       Information filed with EEOC that contains a
        request for EEOC to take remedial action
        U.S. SUPREME COURT
LaRue v. DeWolff, Boberg & Associates, Inc. (February
   20, 2008)
•   Individual plan participants can recover under ERISA
    § 502 (a)(2) for losses to their individual plan account
    where there has been a breach of fiduciary duty –
    relief need not inure to the plan as a whole.
    Look for increased number of lawsuits
    Monitor daily plan administration
    Check your fiduciary insurance policies, renegotiate
    if necessary
    Require participants to deal directly with TPA’s
    Review TPA contracts
    PENDING U.S. SUPREME
       COURT CASES

Kentucky Retirement Systems v.
 EEOC (Argued January 9, 2008)
• Whether any use of age as a
 factor in a retirement plan is
 “arbitrary” and thus renders the
 plan facially discriminatory in
 violation of ADEA?
    PENDING U.S. SUPREME
       COURT CASES

CBOCS West, Inc. v. Humphries
 (Argued February 20, 2008)
• Whether a race retaliation claim
 is cognizable under 42 U.S.C. §
 1981?
      PENDING U.S. SUPREME
         COURT CASES
Meacham v. Knolls Atomic Power
 Laboratory (Argued April 23, 2008)
•   Whether an employee alleging
    disparate impact under ADEA
    bears the burden of persuasion on
    the “reasonable factors other than
    age” defense?
       PENDING U.S. SUPREME
          COURT CASES
Metlife v. Glenn (Argued April 23, 2008)
•   Whether the fact that a claim
    administrator of an ERISA plan also
    funds the plan benefits, without more,
    constitutes a “conflict of interest” that
    must be weighed in the judicial review
    of the administrator’s benefit
    determination?
•   If such an administrator is deemed to
    be operating under a conflict of interest,
    how should such conflict be taken into
    account on judicial review?
      PENDING U.S. SUPREME
          COURT CASES
Crawford v. Metropolitan Govt. of
  Nashville & Davidson County, TN
  (cert. granted January 18, 2008 –
  argument Fall 2008)
•   Does the anti-retaliation provision
    of section 704(a) of Title VII protect
    a worker from being dismissed
    because she cooperated with her
    employer’s internal investigation of
    sexual harassment?
       PENDING U.S. SUPREME
           COURT CASES
14 Penn Plaza LLC v. Pyett (cert.
  granted February 19, 2008,
  argument Fall 2008)
•   Whether an arbitration clause in a
    CBA that was freely negotiated and
    that clearly waives union members’
    right to judicial forum for statutory
    discrimination claims is
    enforceable?
U.S. SUPERME COURT – PETITION
       FOR CERT. PENDING
Taylor v. Progress Energy
•   Fourth Circuit, en banc, ruled in
    July 2007 that any waiver or
    release of FMLA rights must be
    approved by a court or DOL to be
    enforceable.
•   Petition for cert pending. U.S.
    Solicitor General invited by
    Supreme Court to file brief.
              4TH   CIRCUIT
Holland v. Washington Homes, Inc. (May
  2007)
•   Employer barely sustains summary
    judgment victory on former employee’s
    discrimination claim due to employer’s
    inconsistent documentation regarding
    reason for discharge.
    No good deed goes unpunished.
    Documentation should be truthful and
    accurate – despite desire to be
    charitable to employees.
               4TH   CIRCUIT
EEOC v. Firestone Fibers & Textiles, Co.
  (February 2008)
•   Reasonable accommodation of religious
    beliefs and practices does not require
    complete accommodation.
•   Employer may consider impact of potential
    accommodation on both the employer and co-
    workers
    Employers must still make reasonable
    accommodation analysis; but, threshold for
    undue hardship is lower than in ADA analysis
    and employer can consider effect on
    coworkers.
              4TH   CIRCUIT
Wilson v. Phoenix Specialty (January
  2008)
•   Employee, whose Parkinson Disease
    was controlled by medication, was
    regarded as disabled by employer.
•   Employer’s use of its company M.D. to
    provide a second opinion after
    employee was cleared to return to work
    by his own M.D. was held to show that
    employee was “regarded as” disabled.
    Careful what you ask for…
             4TH   CIRCUIT

EEOC v. Fed Ex (January 2008)
•   Managers’ awareness of and
    disregard of company’s ADA policy
    held to be malice or reckless
    indifference sufficient to support
    punitive damages award.
    TRAIN SUPERVISORS!!!
            4TH   CIRCUIT

Darveau v. Detecon, Inc. (January
  2008)
•   Scope of FLSA’s anti-retaliation
    provision extends beyond
    workplace-related or employment-
    related retaliatory acts.
•   Both former and current employees
    are protected from retaliation.
              4TH   CIRCUIT
Long v. Dunlap Sports Group America
  (October 2007)
•   While WARN Act requires 60 days
    notice of plant closing or mass layoff,
    employer may provide pay and benefits
    in lieu of notice and continued work.
•   Employees who voluntarily accept other
    employment prior to the end of 60 day
    period suffer no “employment loss”
    under WARN.
             4TH   CIRCUIT

Meson v. GATX Technology Services
 Corp. (November 2007)
•   For purposes of determining
    threshold requirements for notice
    of a plant closing or mass layoff,
    the fixed worksite/home base of
    traveling employees is the relevant
    site of employment
    NORTH CAROLINA CASES
Better Business Forms & Products, Inc. v. Craver
   (November 2007 – N.C. Bus. Ct.)
•   Assignment of an employee’s covenant not to
    compete in connection with an asset sale triggers the
    running of the restricted period.
•   Failure to renegotiate a new covenant will leave new
    employer unprotected after term of assigned covenant
    expires.
    Determine what employees you “acquired” via asset
    purchase and consider negotiating a new noncompete.
    When acquiring assets, be alert to need for new
    agreements and price being paid for assignment of
    noncompetes.
    NORTH CAROLINA CASES

Clark v. United Emergency Services
  (April 15, 2008
•   No public policy wrongful discharge
    claim for constructive discharge.
    Public policy exception to at will
    employment doctrine remains
    narrow.
             LEGISLATION

Family and Medical Leave Act
•   Spouses, parents and children can take
    12 weeks of FMLA leave for issues
    arising from relative’s activation for
    National Guard or reservist duty –
    (effective upon DOL issuing regulations).
•   Relatives of injured service members
    can take a one time 26 week FMLA leave
    to provide care (currently effective).
    Update FMLA policies and forms.
             LEGISLATION

Genetic Information Nondiscrimination
  Act
•   Health insurance companies may not
    use genetic information to set
    premiums or determine enrollment
    eligibility.
•   Employers may not use genetic
    information in hiring, firing, promotion
    and job assignment decisions.
•   House & Senate have passed, awaiting
               LEGISLATION
Ledbetter Fair Pay Act of 2007
•   Legislative effort to overturn U.S. Supreme
    Court’s decision in Ledbetter v. Goodyear
    Tire & Rubber Co., requiring filing of charge
    under Title VII 180 days after discriminatory
    pay decisions.
•   Act would treat each payday as an act of
    discriminatory conduct.
•   Act would allow employees to recover
    damages for the two year period preceding
    the filing of a charge.
•   Passed in House, failed in Senate. Watch for
    revised version next year.
             LEGISLATION
Trade and Globalization Act of 2007
•   Goal: assist workers laid off as a result
    of international trade
•   Increases WARN notice to 90 days
    where layoffs occur because of
    globalization
•   30 months of COBRA benefits
•   Passed by House; awaiting Senate
    action
                        Three Wachovia Center
                        401 South Tryon Street
                        Suite 3000
                        Charlotte, NC 28202

                      Direct Dial 704-335-9035
Keith M. Weddington   Facsimile 704-335-9697
  Attorney at Law     Main 704-372-9000
                      keithweddington@parkerpoe.com
                      www.parkerpoe.com