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					                                             2009
                                       Employment Law
                                        Year in Review1
                              Compiled and presented by Bob Gans for
                             WMACCA’s Employment and Labor Forum
                                         January 13, 2010




1
    Legal disclaimer – All opinions/interpretations herein are solely my opinion and don‘t reflect…blah, blah, blah… Enjoy!
                                               WMACCA
                                  2009 Employment Law Year in Review
                                       Presented January 13, 2010

U.S. Supreme Court 2009 Term

Ricci v. DeStefano, 129 S.Ct. 2658 (2009) – ―Damned if you do, damned if you don‘t‖ case - Pro-
Employee -Reverse discrimination in employment testing case - employer‘s concern over possible
disparate impact race discrimination does not justify intentional race discrimination; Supreme Court (5-4
decision) held that City of New Haven violated Title VII when it threw out the results of promotional
exams for firefighters when it realized the exams disparately eliminated any African Americans from
eligibility for such promotions. This case reversed the 2nd Circuit, saying the City would have needed a
―strong basis in evidence‖ that it would have been liable for disparate impact discrimination if it had
accepted the validity of the promotional exams.

Gross v. FBL Financial Services, 129 S.Ct. 2343 (June 18, 2009) – Pro-Employer – ―Mixed motive‖
analysis is not applicable to ADEA cases (as opposed to Title VII cases). Supreme Court (5-4 decision)
held that there are significant textual differences between Title VII and the ADEA, as well as Congress‘s
1991 Civil Rights Act amendment of Title VII and the absence of such an amendment to ADEA. ADEA
cases retain the ―but-for‖ causation standard – reversed the 8th Circuit decision in which a mixed motive
jury instruction was given in a case with no direct evidence of age discrimination.
Note: See H.R. 3721 – Protecting Older Workers Against Discrimination Act (POWAD) – proposed
to reverse Gross v. FBL case ruling, to allow older worker to prevail if s/he can demonstrate that age was
a ―motivating factor‖ for the discriminatory practice (rather than the more-difficult-for-the-plaintiff ―but
for‖ standard). The bill proposes the law be retroactive to all claims pending as of June 17, 2009, the day
before the Court issued its decision in Gross.

Ashcroft v. Iqbal, 129 S.Ct. 1937 (May 18, 2009) – ―The 12(b)(6) is back…for now‖ case - Pro-
Employer – Raises the bar for plaintiffs to provide well pleaded complaints. Overruled Conley v. Gibson,
355 U.S. 41 (1957), which stated that a case could proceed ―unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.‖
Note: See H.R. 4115 - Open Access to Courts Act – Pending legislation would overturn the Iqbal
decision, which allegedly has been cited in more than 3,500 decisions which have (arguably prematurely)
dismissed civil rights, environmental and consumer protection cases around the country.

Crawford v. Metropolitan Government of Nashville & Davidson County, 129 S. Ct. 846 (U.S.
January 26, 2009) – The ―bite-me‖ case - Pro-Employee – Court held that an employee‘s cooperation
with an employer-initiated sexual harassment investigation is protected as ―overt opposition‖ activity
under Title VII‘s anti-retaliation provision. Reversed 6th Circuit, agreed with 3rd, 5th, 7th, 8th, and 11th
Circuits and EEOC, which support the premise that it is protected activity to speak out against
discrimination/harassment during an investigation, even if it is not on your own initiative, but as a result
of answering questions during the investigation of a coworker‘s complaint.

AT&T Corp. v. Hulteen, 129 S. Ct. 1962 (U.S. 2009) – Pro-Employer – Employer‘s calculation of
female employees‘ pension benefits under the accrual rule did not violate the 1978 Pregnancy
Discrimination Act (PDA). Facts: Prior to the 1978 PDA, women did not receive service credit for
pregnancy leave, and were thus treated less favorably than others taking disability leave. That service
credit is used to calculate employee benefits, including eligibility for early retirement and pension
payment amounts, job bidding and vacation time.




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                                                WMACCA
                                   2009 Employment Law Year in Review
                                        Presented January 13, 2010

14 Penn Plaza, et al. v. Pyett, 129 S. Ct. 1456 (U.S. April 1, 2009) – Pro-Employer - Court held that a
CBA provision that ―clearly and unmistakably‖ requires union members to arbitrate ADEA claims was
enforceable. This reversed the 2nd Circuit, which claimed that the Gardener-Denver line of arbitration
cases precluded such enforceability. Additionally, the Court held that there is no difference between
arbitration agreements signed by an individual employee and ones collectively bargained for by a union.

Locke v. Karass, 129 S.Ct. 798 (U.S. January 21, 2009) – Pro-Union – Resolved circuit split between
1st, 3rd, 6th and 7th v. 4th and 10th Circuits - Held that local union could charge nonmembers for national
litigation expenses as long as the subject matter of the extra-local litigation was of a kind that would be
chargeable if the litigation were local (e.g., related to collective bargaining, rather than local political
activities), and the charge was reciprocal in nature (the contributing local reasonably expected that other
locals would also contribute to the national costs of similar litigation).

Union Pacific Railroad Co v. Brotherhood of Locomotive Engineers v., 2009 WL 4573275
(U.S., December 08, 2009), affirming 522 F.3d 746 (7th Cir. 2008) – Court clarifies the scope of federal
court authority to second–guess arbitration decisions made to resolve labor disputes in the railroad and
airlines industries.

Mohawk Industries, Inc. v. Carpenter 2009 WL 4573276 (U.S., December 8, 2009) - Pro-Employee -
Attorney-client privilege case - Disclosure orders adverse to attorney client privilege are not entitled to
immediate appeal in wrongful termination case – employee terminated after meeting with company
outside counsel regarding a pending case against the company alleging it was purposefully hiring
undocumented workers. Carpenter alleges he reported this violation of law to the company (not knowing
about the pending court case), and was fired for not recanting his report when speaking with the company
counsel.

Supreme Court - Certiorari denied:

Baxter Healthcare Corp. v. White, 533 F.3d 381 (6th Cir. 2008), cert. denied 129 S. Ct. 2380 (May
18, 2009) – Pro-Employee - 6th Circuit decision stands, holding that a Title VII plaintiff can survive
summary judgment in a mixed motive case by alleging reasonably sufficient evidence to convince a jury
that (1) the employer took an adverse employment action against plaintiff, and (2) ―race, color, religion,
sex, or national origin was a motivating factor‖ for that action. The 6th Circuit so noted that this analysis
should apply in all Title VII mixed motive cases, regardless of whether the evidence presented is direct or
circumstantial.

Kellogg v. Energy Safety Services, 544 F.3d 1121 (10th Cir. 2008), cert. denied 129 S. Ct. 1916 (April
6, 2009) – Pro-Employer - Driving is not a major life activity (even for an epileptic oilfield safety
technician in Wyoming).




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                                               WMACCA
                                  2009 Employment Law Year in Review
                                       Presented January 13, 2010

Supreme Court pending employment law-related cases on the docket:

Lewis v. City of Chicago, 528 F.3d 488 (7th Cir. 2009), cert. granted 130 S. Ct. 37 (September 30,
2009) - Court to address the deadline for workers to file a discrimination lawsuit with a federal agency
after completing a pre-employment test – should it be 300 days after the discriminatory practice is
announced, or 300 days after the employer implements the practice? Eight black individuals representing
a class of more than 5,000 black applicants who passed a 1995 entry-level test for firefighters, but were
never selected, allege that the flawed job test was an act of discrimination when the actual hiring decision
(based on the test results) was made, not prior, when the test results were announced. District court had
held that White test-takers were five times more likely than their black counterparts to qualify for
firefighting jobs, and thus, the test was discriminatory. But in 2008, the 7th Circuit (Judge Richard
Posner) dismissed the lawsuit entirely, held that the black firefighter applicants had waited more than a
year to challenge the test results.

New Process Steel, L.P. v. NLRB, 564 F.3d 840 (7th Cir. May 1, 2009), cert. granted 130 U.S. 488
(November 2, 2009) – Pro-NLRB - Circuit split – 7th Circuit joined 1st, 2nd, 9th and 10th Circuits in saying
that the National Labor Relations Board can issue decisions with only a two member quorum; See
Teamsters Local Union No. 523 v. N.L.R.B., 2009 WL 4912300 (10th Cir. December 22, 2009); Snell
Island SNF v. NLRB, 568 F.3d 410 (2nd Cir. June 17, 2009); Northeastern Land Services v. NLRB, 560
F.3d 36 (1st Cir. 2009); Photo-Sonics Inc. v. NLRB, 678 F.2d 121 (9th Cir. 1982). But see Laurel Baye
Healthcare of Lake Lanier, Inc, v. NLRB, 564 F.3d 469 (D.C. Cir. May 1, 2009, rehearing en banc denied
July 1, 2009)(you need three or more members to make a binding decision).

Stolt-Neilsen, S.A., et al. v. AnimalFeeds International Corp., 548 F.3d 85 (2nd Cir. November 4,
2008), cert. granted 129 S.Ct. 2793 (U.S. June 15, 2009) – Pro-Employee/Pro-Class for now - Oral
argument was December 9, 2009 – this case will determine whether arbitration of class claims is required
where the parties‘ arbitration agreement is silent on that issue.

ADA

Rederford v. U.S. Airways, 2009 WL 4756417 (1st Cir. December 14, 2009) – Pro-Employer –
Employee‘s ADA charge against airline were discharged as a ―claim‖ under the Bankruptcy Code in the
airline‘s 2003 bankruptcy.

Indergard v. Georgia-Pacific Corp., No. 08-35278 (9th Cir. Sept. 28, 2009) – Pro-Employee, for now -
Court held that the employer was not entitled to summary judgment on Indergard‘s ADA claim and
remanded the case to the trial court. Held that GP improperly gave Indergard, who was returning from a
medical leave of absence, a ―medical examination‖ (as opposed to just a ―physical agility test‖) under the
ADA.

Rohr v. Salt River Project Agricultural Improvement & Power Dist., 555 F.3d 850 (9th Cir.
February 13, 2009) – Pro-employee –Rohr presented sufficient evidence to create a material fact in
dispute over whether his Type-2 Diabetes substantially limited the major life activity of eating (which
would qualify him as disabled under the ADA). Remanded to district court for trial.

Willnerd v. First National Nebraska, Inc., 558 F.3d 770 (8th Cir. 2009) – Bank imposed an
unattainable performance goal (increasing overall volume of loans by 100%) to employee with
neurological voice disorder, hyperkinetic dysarthia – Thus, the bank‘s reason for termination
(performance issues) was considered arguably pretextual to a jury – remanded for trial.



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                                                WMACCA
                                   2009 Employment Law Year in Review
                                        Presented January 13, 2010

Tobin v. Liberty Mutual Insurance Co., 553 F.3d 121 (1st Cir. January 23, 2009) – Pro-employee –
Employee insurance sales representative made repeated requests for accommodation – including to be
assigned to a Mass Marketing (MM) corporate account – to help him reach his sales quota easier. But
Employer denied his requests – Court held that the jury reasonably concluded that he had made requests
within the statute of limitations period so the denial could be considered a new discrete act of
discrimination that starts a new limitations period for filing a claim.

Iverson v. City of Shawnee, Kansas, 2009 WL 1678195 (10th Cir. 2009)(unpublished opinion) – Pro-
Employer - Police officer with back injury could show that the employer failed to engage in the
interactive process about alternate jobs it could have placed her in, but she failed to specifically identify
and show vacant jobs that were available at the time (and thus, that a reasonable accommodation would
have been possible).

Klein v. Raytheon Co., 2009 WL 3672520, unpublished opinion (C.D.Cal., November 02, 2009) –
The ―load of crap‖ case – Pro-Employee - Age/Disability claim – disability claim retained for jury trial –
59-year old engineer suffers back injury, depression and memory loss/concentration problems while
billing his time for working on a technical guide for Raytheon. Alleges constructive termination (being
forced to resign).

ADAAA

Becerril v. Pima County, 587 F.3d 1162 (9th Cir. November 25, 2009) –Pro-Employee - 9th Circuit
joins four other Circuits (5th, 6th, 7th and DC Circuits) in holding that ADA Amendments Act of 2008
(which became effective January 1, 2009) cannot be applied retroactively.

ADEA

Nagle v. Village of Calumet Park, 554 F.3d 1106 (7th Cir. February 4, 2009) – ―Paul Blart, Mall Cop‖
case - Pro-Employer - Race and age discrimination and retaliation allegations by 54-year old white male
police officer allegedly subjected to disparate treatment from black Police Chief, and eventually
reassigned from patrol duty to the evidence locker to mall security detail at the Raceway Shopping Plaza.
The Court held that these reassignments were NOT an adverse employment action – ―not everything that
makes an employee unhappy is an actionable adverse action.‖

Raymond v. Boehringer Ingelheim Pharmaceuticals, Inc., 653 F.Supp.2d 151 (D.Conn., August 27,
2009) – Pro-Employee - Connecticut company violated ADEA by forcing the Chief Patent Counsel and
VP for IP to retire at age 65. Mandatory retirement policies are allowed by statute for ‗bona fide
executives or high policymaking employees‖ who hold those positions for at least two years prior to
retirement. He was clearly not one of ―a very few top level employees who exercised substantial
executive authority over a significant number of employees and a large volume of business.‖ 29 CFR
Sec. 1625.12(d)(2).

Attorney Client Privilege

Costco Wholesale Corp. v. Superior Court, 219 P.3d 736 (Cal. Sup. Ct., November 30, 2009) – Pro-
Employer - California Supreme Court held that the entirety of a letter from outside counsel to in-house
counsel – created as a result of Costco‘s internal job classification review – should not be produced in any
form to the plaintiffs and was not even subject to ―in camera‖ review by a discovery referee, as well as
the trial court judge.



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                                              WMACCA
                                 2009 Employment Law Year in Review
                                      Presented January 13, 2010

EEOC
Second highest number of charges in FY2009 – 93,277 (2nd to 2008 only)
Most frequently filed charges:
1) Race-based discrimination (36%)
1) Retaliation (36%)
3) Sex-based discrimination (30%)

Increases in the following areas:
Disability complaints (10%), from 19,453 to 21,451.
National origin complaints (5%), from 10,601 to 11,134.
Religious discrimination claims (3%), from 3,273 to 3,386.

-Record high recoveries of $294 million through administrative enforcement and mediation
-More than 1/3 of the lawsuits filed by EEOC in FY2009 were class actions (111 total)
-Nearly two-thirds involved race or gender discrimination.
-EEOC staffing levels have gone down 25% in recent years, from 2,850 in 2001 to 2,150 in 2008
-Currently, the agency is hiring 200 new investigators.

Acting Chair – Stuart Ishimaru (Dem) (Commissioner since 11/03)(Term expires 7/2012)
Vice-Chair – Constance Barker (Rep)(commissioner since 6/08)(Term expires 7/2011)
Three Commissioner vacancies (5 year terms):
Nominee for Chair – Jacqueline Berrien, former associate director-counsel for the NAACP Legal Defense
and Education Fund (LDF)
Nominee for Commissioner: Chai Feldblum, Georgetown Law Professor
Nominee for Commissioner: Victoria Lipnic, of counsel at Seyfarth Shaw, previously DOL Assistant
Secretary of Labor for Employment Standards
Plus:
Nominee for General Counsel – David Lopez, longtime EEOC and Justice Department lawyer

2010 Omnibus Appropriations Bill (passed by the U.S. House of Representatives on Dec. 10 and by
the Senate on Dec. 13) – Adds an additional $23million to the EEOC to help resolve the backlog of
73,951 cases (up 35% from 54,970 last year), and the record number of discrimination complaints in 2008
— 95,402 (up almost 20% from 79,896 in 2007).

EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593 (7th Cir. 2009) – ―Subpoena #1‖ case - Pro-EEOC -
Employee‘s request to withdraw his charge doesn‘t mean the EEOC cannot continue its investigation on
its own.

EEOC v. Kronos Inc., Slip Copy, 2009 WL 1519254 (W.D.Pa. June 01, 2009) – ―Subpoena #2‖ case -
Case on appeal to 3rd Circuit – Trial court refused to enforce a ―breathtakingly broad‖ subpoena to a 3rd
party. EEAC filed amicus brief urging the 3rd Circuit to uphold the ruling (joined by the Chamber of
Commerce, SHRM, National Federation of Independent Small Businesses Legal Center, and National
Association of Manufacturers).




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                                                 WMACCA
                                    2009 Employment Law Year in Review
                                         Presented January 13, 2010

FLSA – Wage and Hour

Parth v. Pomona Valley Hospital, 2009 WL 3381116 (9th Cir., October 22, 2009) – Pro-Employer -
Case of first impression in 9th Circuit – Court held that Hospital did not violate FLSA by agreeing to
nurses‘ request for alternate work schedule of 12-hour shifts, even though their hourly rate was reduced
so they would end up making the same amount (after now getting paid daily overtime) that they would
have if they worked 8-hour shifts. Note: Court gave the plaintiffs conditional class certification, but then
dismissed the case on summary judgment.

Kasten v. Saint-Gobain Performance Plastics Corp., 2009 WL 3296229, denying hearing and
rehearing en banc (7th Cir. June 29, 2009) – Pro-Employer - Circuit Split -FLSA‘s anti-retaliation
provision applies only to written (not verbal) complaints. Court interpreted the word ―filed‖ (as in, the
individual must ―file a complaint‖) to indicate that the complaint must be written. This interpretation
agrees with the 2nd and 4th Circuits, but is contrary to the opinions of DOL and the 1st, 5th, 8th, 9th, 10th, and
11th Circuits. Note: OSHA, Clean Water Act and the Solid Waste Disposal Act have anti-retaliation
provisions with almost identical language to the FLSA, but have not been restricted to ―written only‖
complaints being protected.

Sepulveda v. Allen Family Foods, 2009 WL 5125769, (4th Cir. December 29, 2009) –Pro-Employer -
4th Circuit held that donning and doffing of protective gear at poultry processing plant was ―changing
clothes‖ under FLSA Section 203(o) and thus, the union and employer could agree to exclude this time
from compensable work time.

Solis v. Partners HealthCare Systems Inc., et al (consent judgment on July 21, 2009) – Pro-Employee
- DOL lawsuit – employees not paid overtime for combined hours spent working for several different
hospitals or health facilities affiliated with Partners. $2.7 million backpay settlement to 700 employees.

FMLA

Scobey v. Nucor Steel-Arkansas, 580 F.3d 781 (8th Cir. August 25, 2009) – ―Don‘t drink and dial‖ case
- Pro-Employer – Employee failed to give sufficient notice of need for FMLA. Good discussion of what
is considered adequate notice to the employer of when an employee may be entitled to FMLA leave
(without using the exact phrase ―FMLA.‖). See also Aubuchon v. Kanuf Fiberglass, GMBH, 359 F.3d
950 (7th Cir. 2004)(―[T]he employee‘s duty is merely to place the employer on notice of a probable basis
for FMLA leave.‖)(Not necessarily a different standard than the 8th Cir., but perhaps more pro-employee
friendly, a sort of ―constructive notice‖ standard).

NLRB/Labor Relations

National Labor Relations Board –
Chair – Wilma Liebman - Liberal
Member - Peter Schaumber – Conservative
3 vacancies:
Pending Nominee Brian Hayes – Conservative – Republican Labor Policy Director for Senate Committee
on Health, Education, Labor & Pensions (HELP)
Pending Nominee Mark Pearce – Liberal – partner at union-side law firm
Pending Nominee Craig Becker – Liberal – Associate General Counsel for the SEIU

NLRB‘s overall caseload was steady during 2009 - increase in unfair labor practice case filings offset by
a decrease in representation case filings


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                                                WMACCA
                                   2009 Employment Law Year in Review
                                        Presented January 13, 2010

Non-compete Agreements

Dowell v. Biosense Weber, Inc., 179 Cal.App.4th 564, (Cal.App.2 Dist., October 20, 2009) -
California court refused to recognize an employer‘s overly broad non-compete and non-solicitation
covenants and further expressed doubt as to whether any non-compete covenant, no matter how narrowly
tethered to the protection of trade secrets and confidential information, could be enforceable under
California law.

Punitive Damages

Roby v. McKesson Corp. et al., 47 Cal.4th 686 (Cal. Supreme Court, November 30, 2009) - Pro-
Employer, sorta – Court reduced a $15m punitive damages award to a maximum of $2m – Court held that
a 1:1 ratio with compensatory damages award was sufficient punishment based on the low
reprehensibility of this particular situation.

Rehabilitation Act

Fleming v. Yuma Regional Medical Center, 587 F.3d 938 (9th Cir., November 19, 2009) –Pro-
Independent Contractor - Circuit split, Case of first impression in the 9th Circuit – Court held that
independent contractors, in addition to ―employees,‖ may sue for disability discrimination under the
Rehabilitation Act, even though there is no employer-employee relationship between the parties. This Act
prohibits discrimination on the basis of disability by contractors and subcontractors doing business with
federal agencies or under programs receiving federal financial assistance. This decision disagrees with
previous decisions by the 6th and 8th Circuits.

Religious Discrimination

Winspear v. Community Development, Inc (CDI), 574 F.3d 604 (8th Cir. July 29, 2009) – Pro-
Employee – Case remanded re: hostile work environment question – 8th Circuit reversed a trial court
dismissal of this case, in which CDI owner‘s wife (who worked for CDI) attempted to recruit Winspear to
find God.

Retaliation

Hamilton v. General Electric Co., 556 F.3d 428 (6th Cir. Rehearing en banc denied May 29, 2009) –
Another ―damned if you do, damned if you don‘t‖ case - Pro-Employee - Plaintiff can defeat summary
judgment by showing that the employer waited for a legal reason to terminate in order to conceal a
retaliatory motive. The Court said the following: ―Were we to adopt GE‘s position, any employer could
insulate itself from a charge of retaliatory termination by staging an incident to display its purported
‗favorable treatment‘ and then wait[] for a second opportunity to terminate the employee. …[this] does
not insulate that employer from liability for retaliatory termination.‖

Thompson v. North American Stainless, 567 F.3d 804 (6th Cir. 2009), U.S. Supreme Court cert.
pending – Pro-Employer – Court joins the 3rd, 5th and 8th Circuits, holding that there is no cause of action
for third party retaliation if the third party has not personally engaged in protected activity. Have to
oppose a practice, make a charge or assist or participate in an investigation. In this case, Thompson and
his fiancée worked for the same company. Thompson‘s fiancée filed an EEO charge and plaintiff was
fired by the company three weeks later.




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                                               WMACCA
                                  2009 Employment Law Year in Review
                                       Presented January 13, 2010

EEOC v. Go Daddy Software, Inc. (California) – ―Boumama v. Go Daddy‖ case - Pro-Employee -
$390,000 jury trial verdict – Underlying religion/national origin discrimination claim was meritless, but
jury decided employee was retaliated against because he was not offered a lower paying position upon
layoff due to reorganization (as he was originally promised).

Sex Discrimination

Dukes v. Wal-Mart, Inc., 556 F.3d 919 (February 13, 2009) – Update - rehearing en banc granted for
potential class of 1.5 million women in a Rule 23(a) Title VII class action pay/promotions/training sex
discrimination claim against Wal-Mart, but remanded for determination of the proper scope of the class,
holding that former employees lack standing to seek injunctive relief.

Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st Cir. March 26, 2009) – ―Kate plus 8‖ case - Pro-
Employee - 1st Circuit allows case of alleged gender stereotyping to proceed to trial for mother of 6-year
old triplets and an 11-year old who was not selected for promotion.

Drum v. Leeson Electric Corporation, (8th Cir. May 15, 2009) – Pro-Employee – Employer must prove
that pay differential (Drum was paid $41k, her replacement was paid $62k) was based on a factor other
than sex in an EPA case.

Sexual Harassment

Corbitt et al. v. Home Depot USA Inc., 2009 WL 4432654 (11th Cir. December 4, 2009) – Pro-
Employee – case remanded re: retaliation question only in case alleging HR manager‘s conduct was so
severe and pervasive against two male employees as to be considered sexual harassment. They were later
fired, after complaining, for loss prevention/theft issues. Court did not find the underlying conduct to be
offensive enough for a sexual harassment claim.

EEOC v. Central Wholesalers, Inc., 573 F.3d 167 (4th Cir. July 21, 2009) – Pro-Employee – Hostile
work environment case revived, regarding a maintenance supply company in Laurel, MD subjecting
African American female La Tonya Medley to a hostile work environment. Despite daily slurs,
pornography and dolls hanging by nooses, District Judge Peter Messitte had granted summary judgment
to Central on the race claim (no time given to the company to investigate) and gender-based claim (no
evidence that the slurs were gender-based), but was reversed by 4th Circuit.

Paul v. Northrop Grumman Ship Systems, 309 Fed.Appx. 825 (5th Cir. February 5, 2009) – ―One
long bite at the apple‖ case - Pro-Employer – single 90-second incident in which a male employee –
Corey Barattini – ―chested up‖ to a female employee‘s breasts, then followed her as she tried to separate
herself, and placed his arm around her waist and rubbed his pelvis across her hips and buttocks, was ―not
so severe or pervasive as to alter terms and conditions of employment‖ under Title VII.

Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. May 22, 2009) – The ―waw-
waw‖ case – Pro-Employee - common sexually explicit comments can be hostile work environment sex
harassment even if not specifically directed at the plaintiff.

Prowel v. Wise Business Forms, 579 F.3d 285 (3rd Cir. August 28, 2009) – Pro-Employee - gender
stereotyping case. The court notes, ―The line between sexual orientation discrimination and
discrimination ‗because of sex‘ can be difficult to draw.‖ See Price Waterhouse v. Hopkins, 490 U.S. 228
(1989).



                                                    8
                                              WMACCA
                                 2009 Employment Law Year in Review
                                      Presented January 13, 2010


Monteagudo v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 554 F.3d 164
(1st Cir. January 26, 2009) – Pro-Employee - plaintiff‘s failure to report sexual harassment to her
management was reasonable because she knew they were friends and ―drinking buddies‖ with the
harasser.

DiPasquale v. State of New Jersey, 2009 WL 1686186, unpublished opinion (N.J. App. Div. 2009) –
―Pro-Psycho Bitch‖ case - Pro-Employee – Female correctional officer referred to by her Director (not to
her face) as a ―psycho bitch,‖ ―steroid queen,‖ ―crazy,‖ ―snitch,‖ ―troublemaker.‖ A female who worked
for the Director told the employee, and she sued for hostile work environment. Appeals court held that
the slurs were gender-related and actionable, even if not made directly to the employee herself.

Social Networking

Pietrylo v. Hillstone Restaurant Group, Slip Copy, 2009 WL 3128420 (D.N.J., September 25, 2009)
– ―Let the S**t-talking begin‖ case - Pro-Employee – No ―pretexting‖ allowed – Court held that employer
violated the Stored Communications Act (SCA) and individual employees‘ privacy rights when it coerced
an employee into giving management unauthorized access to personal information (a private MySpace
group) belonging to other employees. See also Employee v. North American Corporation (invasion of
privacy $1.8 million jury verdict against NAC after it hired a private detective agency to investigate an
employee‘s alleged violation of the company non-compete agreement – the agency used private
information to pose as the employee and get her personal cell phone records).

Taxation of damages awards

Eshelman v. Agere Systems, Inc., 554 F.3d 426 (3d Cir. 2009) – Pro-Employee - 3rd Circuit joined the
10th Circuit holding that plaintiffs awarded backpay in discrimination cases may be entitled to an
additional sum to offset negative tax implications in an effort to make the aggrieved employee whole.
Eshelman won $30k comps plus $170k backpay all as a lump sum, and then got $6,893 to offset the
negative tax consequences. See also Sears v. Atchison, Topeka & Santa Fe Ry. Co., 749 F.2d 1451 (10 th
Cir. 1984).

Title VII – Race

Barrett v. Whirlpool, 556 F.3d 502 (6th Cir. 2009) – Pro-Employee – Court held that the white plaintiffs
had to demonstrate that harassment was directed towards them, not at their African American colleagues
for whom they were advocating or associating. Case remanded only for one of the three white plaintiffs,
who had specific allegations alleging that she was the victim of direct harassment due to her association
with black employees. ―A white person may not sue simply based on discomfort or unease at observing
wrongs perpetrated against others.‖

Union

Guard Publishing Co. v. NLRB, 571 F.3d 53 (D.C. Cir. July 7, 2009) – Pro-Union Employee – Court
held that the Register-Guard newspaper in Eugene, Oregon improperly disciplined Suzi Prozanski for
sending at least one union related e-mail to her coworkers, and for directing employee/union reps to not
wear union armbands or display a union placard in public. Communication policy banned ―all nonjob-
related solicitations,‖ but not ―all non-job related communications.‖




                                                   9
                                                WMACCA
                                   2009 Employment Law Year in Review
                                        Presented January 13, 2010

Reed v. International Union, United Auto., Aerospace and Agric. Implement Workers of America,
569 F.3d 576 (6th Cir. June 23, 2009, rehearing and rehearing en banc Sept. 21, 2009) – Pro-Union -
Autoworker objected to paying union dues based on religious beliefs, so the union allowed him to donate
to one of three charities instead of paying union dues. Court granted summary judgment (even though
plaintiff ended up having to pay more to charity than he would have if he had paid the union dues, and
alleged that this was a failure by the union to reasonably accommodate his religious beliefs), because he
failed to show any materially adverse employment action.

USERRA

FY2009 – Record-highs in complaints received and referred since DOL-VETS first started keeping track
in 2004.
        - 1633 complaints received (10% increase from FY08)
        - 184 complaints referred to Enforcement (31% increase from FY2008).
        - 64% were against private sector employers.
        - 1636 complaints resolved, 31% had no merit findings

Madden v. Rolls Royce Corporation, et al., 563 F.3d 636 (7th Cir. 2009) – Pro-Employer – Court
affirmed summary judgment despite allegation that the manager told the plaintiff ―that he wasn‘t being
retained because he wouldn‘t be around anyway,‖ since his Air Force Reserve unit was a being called to
active duty. The real reason was because Madden could not do the job, despite being an alleged grad of
Purdue‘s aeronautical engineering program. FYI - During litigation, Rolls Royce found out that Madden
flunked out of Purdue.

WARN Act

Gross, et al., v. Hale-Halsell Company, 554 F.3d 870 (10th Cir. 2009) – Pro-Employer – Court
dismissed WARN Act case against struggling company that laid off 200 workers days after losing a major
client. It was not reasonably foreseeable. Court didn‘t rely on the ―mere possibility‖ that layoffs would
happen, they must look at whether the employer knew of a more concrete ―probability‖ of such layoffs.

Whistleblowers

Amendment to the Defense Federal Acquisition Regulation Supplement (DFARS) – Effective
November 19, 2009:
-Expands on the type of information for which a whistleblower would be protected for reporting;
-Expands the categories of government officials to whom whistleblowers can report to without retaliation;
-Sets time frames for when the IG and DOD must act when a contractor employee files a complaint; and -
-Establishes a ―de novo‖ right of action in court, for contractor employees who have exhausted all
administrative remedies.
-Plus, adds a clause that requires contractors to inform employees, in writing, of their whistleblower rights
and protections.




                                                     10
                                               WMACCA
                                  2009 Employment Law Year in Review
                                       Presented January 13, 2010

Lewandowski v. Viacom Inc., ARB No. 08-026 (Oct. 30, 2009), released November 4, 2009 – ―My
next screenplay‖ case - DOL‘s Administrative Review Board ("ARB") dismissed a SOX whistleblower
complaint because the complaint failed to identify conduct that "definitively and specifically" related to
securities fraud (even if it violated company policies and harmed the company). ARB explained that "to
come under the protection of the SOX, the whistleblower must ordinarily complain about a material
misstatement of fact (or omission) about a corporation‘s financial condition on which an investor would
reasonably rely." "A mere possibility that a challenged practice could adversely affect the financial
condition of a corporation, and that the effect on the financial condition could in turn be intentionally
withheld from investors, is not enough.‖

Workers Compensation

Graves v. Workers Compensation Appeal Board (Philadelphia Housing Authority), 2009 WL
3400994 (Pa.Cmwlth., October 23, 2009) – Pro-Employer - Off-duty police officer denied workers
comp when he was shot trying to approach a bar patron who had a gun, while he was apparently
moonlighting as a bouncer at a South Philly tavern at 2am.

2009 Legislation

Lilly Ledbetter Fair Pay Act - Signed January 29, 2009, retroactive to May 28, 2007 – Deadline for
filing pay discrimination claims under Title VII, ADEA and ADA extended. Statute of limitations
restarts every time the employee gets a new paycheck, benefits, etc. Backpay is limited, however, to just
two years prior to the date of the charge.

FMLA Revised Regulations, effective January 16, 2009 – Includes two new types of leave:
     (1) Qualifying Exigency leave – 12 weeks leave for non-medical exigencies related to active
     military duty of spouse, child or parent; and
     (2) Military Caregiver leave – 26 weeks leave for spouses, children, parents and next of kin to
     care for family member with illness or injury due to or aggravated by active military duty.

Also, both employers and employees are held to stricter deadlines for notice of rights, submission of
medical certification, and designation of leave. For example:

    o   Employees will have to follow their employer‘s call-in policies when they plan to miss work
        "absent unusual circumstances."

    o   Employees will have to certify that they visited a doctor at least 2X in the past year for a "chronic
        condition" to qualify for FMLA leave.

    o   Employees may be required to take a FFD exam upon return from intermittent FMLA leave if
        performing the duties of the position raises a significant risk of harm to them or others.

    o   Time on "light duty‖ doesn‘t count against the employee‘s FMLA leave entitlement.

    o   Clarifications made regarding the type and frequency of treatments that employees must receive
        under the "chronic" and "continuing treatment" definitions for a serious health condition.




                                                     11
                                                WMACCA
                                   2009 Employment Law Year in Review
                                        Presented January 13, 2010

ADA Amendments Act of 2008 (ADAAA) - signed September 25, 2008, effective January 1, 2009:
- Gives a non-exhaustive ―laundry list‖ of ―major life activities‖ and includes ―major bodily functions‖
such as ―normal cell growth‖ and endocrine functions.
- Now you are considered disabled regardless of mitigating measures, such as medication, assistive
technology, auxiliary aids or adaptive behavior (other than eye glasses and contact lenses).
- Employers don‘t have to provide reasonable accommodation to someone who is only ―regarded as‖
having a disability but does not actually have one.
- Conditions that are episodic or in remission are disabilities if they would substantially limit a major life
activity when active.
- Overturns Supreme Court and other decisions that interpreted certain ADA provisions narrowly.
- Overturns Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for the Court's narrow
interpretation of the term "substantially limits" and instructs courts and the EEOC to construe the term
"substantially limits" broadly. Rejects the Supreme Court‘s reasoning in Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999) as it pertains to those only "regarded as" having a disability and reinstates the Court's
reasoning in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), which interpreted that
language broadly.

EEOC Proposed Rule addressing the ADAAA, published September 23, 2009 (solicited comments
through November 23, 2009) –
- Expands the definition of “disability” to be construed in favor of “broad coverage” and “should
not require extensive analysis”
-EEOC included a proposed list of about 18 medical conditions that would be considered per se
disabilities. Disability advocates have filed comments attempting to get the EEOC to include additional
impairments to the list of per se disabilities, including:
Chronic digestive diseases (several listed), life threatening food allergies, anaphylactic allergies, multiple
chemical sensitivity, electromagnetic hypersensitivity, being hard of hearing, panic disorder and other
anxiety disorders, hypothyroidism and hyperthyroidism, monocular vision, specific learning disabilities,
and attention-deficit/hyperactivity disorder (ADHD).

E-Verify – Now mandated for all federal contractors as of September 8, 2009 to confirm the employment
eligibility of their employees assigned to the contract within 90 days of contract or contract modification.
―Employee assigned to the contract‖ means an employee who was hired after Nov. 6, 1986, who is
directly performing work in the U.S.
An employee is not considered to be directly performing work under a contract if the employee—
1. Normally performs support work, such as indirect or overhead functions; and
2. Does not perform any substantial duties applicable to the contract.

Genetic Information Non-Discrimination Act (GINA) – Effective November 21, 2009 (signed by
President Bush on May 21, 2008) – Prohibits discrimination based on genetic information or disposition;
no insurer can require genetic testing; no disclosing of genetic info by employers – only disparate
treatment claims enforced (not disparate impact)




                                                     12
                                               WMACCA
                                  2009 Employment Law Year in Review
                                       Presented January 13, 2010

2010 Defense Appropriations Act (H.R. 3326) - Signed December 22, 2009, effective February 19,
2010 - Entities receiving federal contracts or subcontracts in excess of $1 million using funds from the
2010 DAA will be prohibited from executing mandatory arbitration clauses with employees or
independent contractors for Title VII claims or for certain torts related to sexual assault or harassment
(with possible waivers for limited national security issues)

DC Domestic Partnership Law (Religious Freedom and Civil Marriage Equality Amendment Act of
2009) – same-sex marriage legalized December 19, 2009

New Jersey Paid Leave Act - Effective January 1, 2009 (signed into law on May 2, 2008) - covered
employers must give up to 6 weeks of paid family leave per 12-months to an employee caring for either a
family member with a serious health condition or new baby (within the first year of birth/adoption).

Pending Legislation for 2010

Employment Non-Discrimination Act (HR3685)(ENDA) – Bill to amend Title VII to include ban on
sexual orientation discrimination (already is law in 20 states, DC and approx. 140 cities and counties)

Employee Free Choice Act (EFCA) – It would (1) eliminate secret ballot elections (substitute them with
―card-checks,‖ and (2) impose binding arbitration if a first CBA cannot be reached within 120 days.

Paid Sick Leave legislation - At least three bills under consideration re: paid sick leave. If any of these
measures passes, most employers‘ paid time off (PTO) policies would be affected.

2006 Topic of the Year – ―E-discovery‖
2007 Topic of the Year – ―Continuing violation‖ (Ledbetter case)
2008 Topic of the Year – ―Disability‖ - Will it be defined by ―substantial limitation‖ or not?
2009 Topic of the Year – ―Legislation‖ (EFCA and FMLA/ADAAA)

Prediction for Topic of the Year 2010…




                                                     13
                                             WMACCA
                                2009 Employment Law Year in Review
                                     Presented January 13, 2010




Bedtime Reading:

From SHRM's Research Department - 10 significant findings from research conducted in 2009.
      Going virtual. Nearly half of HR professionals expect the proportion of telecommuters to rise
       in the next five years. (Source: Workplace Flexibility in the 21st Century Survey Report)

      Stay home. Three-fourths of employers explicitly told workers to stay at home if they
       experienced flu and cold symptoms. (Source: The H1N1 Virus – How Prepared is Your
       Workplace?)

      Learn locally. Almost 60 percent of companies cut travel costs related to professional
       development. (Source: Financial Challenges to the U.S. & Global Economy and Their Impact
       on Organizations: An Update)

      Auto-enrollment. More than one-third of companies now automatically enroll employees in
       defined contribution retirement plans. (Source: The U.S. Recession and its Impact on
       Employee Retirement Poll)

      White-collar downturn. Professionals and management positions were hit hard by the
       economic downturn, with 56 percent of organizations anticipating layoffs in late 2009 planning
       to cut such workers. (Source: SHRM Labor Market Outlook Q4 2009)

      Job security. HR professionals and employees both placed job security at the top of the list of
       the “very important” aspects of job satisfaction in 2009. (Source 2009 Job Satisfaction Survey
       Report)

      Deferred retirement. Sixty-eight percent of HR professionals said the number of employees
       planning to delay retirement due to the recession rose during the past year. (Source: The U.S.
       Recession and its Impact on Employee Retirement Poll)

      Recruiting and retention cuts. Recruitment-related expenses, spot awards and morale and
       team-building activities are the areas companies are most likely to cut between now and
       March 2010. (Source: Financial Challenges to the U.S. & Global Economy and Their Impact on
       Organizations: An Update)

      Rising health care costs. One quarter of organizations had initiated a health care strategy,
       and another 71 percent had expanded their health care strategies to analyze various health
       care options to reduce their overall health care costs. (Source: Programs and Practices to
       Confront the Workplace Effects of the Downturn in the Economy) In 2008, the average annual
       cost of health care per covered employee was $7,033, a 5.4% increase from 2007 average
       health care cost of $6,670. (Source: Customized Benchmarking Database)

      Stagnating starting salaries. For 13 consecutive months, the rate of increase for wages and
       benefits packages declined for new hires, compared with the previous year. (Source: SHRM
       Leading Indicators of National Employment)




                                                 14
                                                         WMACCA
                                            2009 Employment Law Year in Review
                                                 Presented January 13, 2010


10 Funny Tees for Law Students in 2010
By Neetal Parekh on January 4, 2010 11:17 AM, Findlaw.com

That's right it's a new year, and a new decade. And whether that sees you in, out, or contemplating law school...you want
to be apparel-ready. In a cheeky cotton tee, you can make a statement without saying a word.
Here are a few of our favorites from CafePress...

1. "I am an attorney. I am not your attorney". For the scholar who can't resist weighing in with a legal opinion.
Whether the conversation has anything to do with the law or not. This visual disclaimer might be a good reminder to
everyone you're talking about that just because you take yourself seriously, doesn't mean they should.

2. "What the large print giveth. The small print taketh away." Ah, contracts. Bundled up in sections of the UCC and
Restatement are pages of utter joy for some law students and attorneys. And this one speaks just the right language for
those of you.

3. "I litigate therefore I am." For those Philosophy majors who found their way to law school, this is a call out to your
inner Descartes.

4. "I'm billing you for this." Who says a BigLaw-bound law students and firm associates can't own up to stereotypes of
their profession. And friends, family, and clients are welcome to coordinate with a responding tee, "The check is in the
mail."

5. "Don't call on me." Spin the Socratic method on its head by saying out loud what you and all of your classmates are
IM'ing to each other during class. Disclaimer: results are not guaranteed.

6. "I examined the bar. it passed." Whatever the results of the big test were, this tee lets anyone say "Bar" and "passed"
in the same breath. Consider it motivation for the February 2010 sitting as needed.

7. "Dicta Shmicta." Considering all of the things law students are responsible for knowing, memorizing, and being able to
apply to facts...no law student forgets the day the professor explains what dicta is, and the fact that it is not binding on the
holding.

8. "What would Scalia do?" Among any litter of law students you will find at least one, if not a few, strict
Constitutionalists. If the 'four corners' of the Constitution are the reason you went into law, then Scalia may be your hero,
and this tshirt may sport your motto.

9. "Caution: Please do not transport fireworks on the train." What would proximate cause in negligence be without a
harried train passenger, a package of fireworks, a couple of Long Island Rail Road employees, and one Mrs. Helen
Palsgraf? We'll never know. But, learning from that landmark case, you can spread the message of safety across the land.

10. "JD or Bust." Law school isn't a sprint, it's a marathon. And on those days you question your choice, feel unprepared
to take a final you've been studying months for, or are studying at the library until close...consider sporting this tee to
reaffirm the end goal.




                                                              15
                                       WMACCA
                          2009 Employment Law Year in Review
                               Presented January 13, 2010




                              FINAL THOUGHT:


“We live in a world of deadlines. If we are late for the start of the game or the
movie, or late for the departure of the plane or the train, things go forward
without us. The practice of law is no exception.” Spears v. City of Indianapolis,
74 F.3d 153, 157 (7th Cir. 1996)




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