1 / 28

2008 EMPLOYMENT LAW UPDATE

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.

ramiro
Télécharger la présentation

2008 EMPLOYMENT LAW UPDATE

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. 2008 EMPLOYMENT LAW UPDATE Keith M. Weddington May 7, 2008

  2. 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 further limited.

  3. 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

  4. 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.

  5. 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

  6. 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

  7. 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?

  8. 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?

  9. 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?

  10. 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?

  11. 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?

  12. 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?

  13. 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.

  14. 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.

  15. 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.

  16. 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…

  17. 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!!!

  18. 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.

  19. 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.

  20. 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

  21. 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.

  22. 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.

  23. 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.

  24. 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 signature by Bush.

  25. 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.

  26. 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

  27. Keith M. WeddingtonAttorney at Law Three Wachovia Center 401 South Tryon Street Suite 3000 Charlotte, NC 28202 Direct Dial 704-335-9035 Facsimile 704-335-9697 Main 704-372-9000 keithweddington@parkerpoe.com www.parkerpoe.com

More Related