Favorite quotes about the law, part 1

Maybe it’s the frustrated novelist in me, but I’ve been thinking about literature and law.

This article is the start of a series where, once in a while and for no particular reason, I will focus on thought provoking and even profound statements (by others) about the law. Sometimes the quotations will be from literature, and sometimes they will be from legal writings, philosophical works, and from darn near anything else that makes us think about the nature of law and its relationship to society.

So let’s begin . . . Continue reading Favorite quotes about the law, part 1

Fifth Circuit applies hostile work environment to age claims

Courts have sometimes questioned whether hostile work environment claims apply to all “flavors” of discrimination. Hostile work environment claims most frequently arise in claims of sex discrimination  and race discrimination claims under Title VII of the Civil Rights Act of 1964, but age discrimination claims under federal law arise under a different statute, the Age Discrimination in Employment Act of 1967.

The Fifth Circuit directly held recently that hostile work environment claims are encompassed by age discrimination claims under the ADEA in Dediol v. Best Chevrolet, Inc., — F.3d — (5th Cir. September 12, 2011).

Continue reading Fifth Circuit applies hostile work environment to age claims

US Supreme Court Rules for Employee on "Cat’s Paw" Theory

The United States Supreme Court recently unanimously issued a major victory for employees under “USERRA“, the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq., on the “cat’s paw” theory in employment discrimination claims. The decision was in Staub v. Proctor Hospital, — U.S. — (March 1, 2011) (opinion at Google Scholar). Justice Scalia wrote the opinion for the unanimous court. Justice Alito wrote an opinion concurring in the judgment, which Justice Thomas joined. Justice Kagan did not participate in the decision.

What is the “Cat’s Paw” Scenario?

Drew's kitty-cat, HannaSo, what the heck is the “cat’s paw” theory? Does it explain why my cat, pictured at the left, is staring so intently at you?

First, to define “cat’s paw” in a non-legal context, the Webster’s Online dictionary defines a “cat’s paw” as: “A person used by another to gain an end.” The term arises out of a fable in which a a shrewd monkey tricks a cat into pulling roasting chestnuts out of a fire—the cat gets its paw burned, and the monkey gets the chestnuts and scampers away unhurt.

Continue reading US Supreme Court Rules for Employee on “Cat’s Paw” Theory

Legislative Update: Pending bill would expand sick leave rights for West Virginia employees

House Bill 2770, which was recently introduced into the West Virginia House of Delegates, would create the “Flexible Leave Act” to allow employees to take already earned paid leave, and to use that leave for paid time off for an illness of the employee or the employee’s “immediate family”. The bill does not give employees any additional paid leave—it only allows them to take their paid leave that they have already earned under their employers’ policies, and allows the flexibility (hence the name, “Flexible Leave Act”) to take leave that may have been intended for another purpose, such as earned vacation time, and apply it for the different purpose of their own or an immediate family member’s illness.

On January 24, 2011, Delegates Caputo, Fragale, Hatfield, Martin, and Moye introduced House Bill 2770, which is being referred to the Committee on Energy, Industry and Labor, Economic Development and Small Business then Finance. You can keep track of the progress of the bill by going to the Bill Status page and entering 2770 in the “Enter Bill Number” field. For information on the bill’s sponsors, or on any other members of the Senate, you can go to the House Members page and pick the member from a drop-down list. For those of you who are interested in finding out more about the legislative process, the Legislature has a “How a Bill Becomes Law” page.  The Legislature also has a very nice photo gallery of the Capitol Building.

Continue reading Legislative Update: Pending bill would expand sick leave rights for West Virginia employees

Legislative Update: West Virginia legislature may give employers more time to cut final paycheck

Pending West Virginia legislation would, if passed, extend the time employers have to issue a terminated employee’s final paycheck, from the current 72 hours after discharge to the next regular pay day.

On January 28, 2011, Senators Palumbo and Klempa introduced Senate Bill 339, which is being referred to the Labor and Finance Committees. You can keep track of the progress of the bill by going to the Bill Status page and entering 339 in the “Enter Bill Number” field. For information on the bill’s sponsors, or on any other members of the Senate, you can go to the Senate Members page and pick the member from a drop-down list.

Senate Bill 339 would amend the WV Wage Payment and Collection Act, which deals in part with the obligation of an employer to issue a final paycheck to an employee within a certain period of time.  The Wage Payment and Collection Act currently sets two different deadlines, depending on whether the employee resigned or was discharged.

  • Section 21-5-4(b): If an employee is discharged, the employer must pay the employee all earned wages within 72 hours after the discharge.
  • Section 21-5-4(c): if the employee resigns, the employer must pat the employee all earned wages by the next regular payday, either through “regular channels” or, if the employee requests, by mail. There is this additional variation where the employee resigns: if the employee provides “at least one pay period’s notice of intention to quit”, then the employer must pay the employee all earned wages “at the time of quitting” (which is the final day worked after giving notice).

Continue reading Legislative Update: West Virginia legislature may give employers more time to cut final paycheck

Legislative Update: Insurance industry seeks amendment to West Virginia Human Rights Act

Insurance companies have been urging the West Virginia Legislature to pass legislation to overturn the West Virginia Supreme Court’s decision in Michael v. Appalachian Heating, LLC, 701 S.E.2d 116 (June 11, 2010). In Michael, the West Virginia Supreme Court held that the West Virginia Human Rights Act prohibited discrimination by an insurance company in settling claims covered by an insurance policy.

The Michael Decision

Generally, the Human Rights Act prohibits discrimination (1) in the workplace, (2) in places of public accommodation (like hotels, shopping centers), and (3) in connection with transactions involving housing and real estate (like renting apartments and buying houses).

But at issue in Michael was section 5-11-9(7) of the Human Rights Act, which was not limited to those three categories of activity. Here is the relevant language in section 5-11-9(7)(A);

It shall be an unlawful discriminatory practice [based on race, religion, color, national origin, ancestry, sex, age, and disability] . . .

(7) For any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution to:

(A) Engage in [1] any form of threats or reprisal, or to [2] engage in, or hire, or conspire with others to commit acts or activities of any nature, the purpose of which is to harass, degrade, embarrass or cause physical harm or economic loss or [3] to aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in this section . . . .

In subpart (7)(A) above I have bracketed the three specific causes of action (legal theories) which the Supreme Court said are discernible in subpart (7)(A). I have also bolded the second cause of action, which was the key cause of action at issue in the Michael case.

Continue reading Legislative Update: Insurance industry seeks amendment to West Virginia Human Rights Act

Cleveland jury awards $900,000 against hospital in age discrimination case

Ellen Simon, an attorney in Cleveland who authors the excellent blog, Ellen Simon’s Employee Rights Post, recently tried an age discrimination claim for plaintiff Gloria Parks (a phlebotomist) against Cleveland’s University Hospitals Case Medical Center.

Ms. Parks had worked for the hospital for 30 years when she was fired over a medical mistake involving herself and another much younger employee. The hospital fired Ms. Parks, but not the much younger employee.

The jury returned a verdict in favor of the plaintiff (Ms. Parks) for $450,000 for her economic loss and $450,000 for “other compensatory damages”, according to Ms. Simon’s blog article. Based on the limited information I have so far, it looks like the “other compensatory damages” was an award for emotional distress, The jury did not award punitive damages.

So the verdict totals $900,000, and Ms. Simon will file a request for attorneys’ fees‘ fees and expenses. While it is not clear from the article so far, I suspect the case was asserted for age discrimination under Ohio’s Fair Employment Practices Act (and not the federal ADEA).

Continue reading Cleveland jury awards $900,000 against hospital in age discrimination case

Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer

Retaliation law is one of the most developing (and dangerous) areas of employment law. I recently spoke at the West Virginia Employment Lawyers Association’s annual conference on retaliation law, and I wanted to go back and discuss an important Fourth Circuit decision on the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.

Dotson v. Pfizer: Adoption and the FMLA

The decision is Dotson v. Pfizer Inc., 558 F.3d 284 (2009), and involved allegations of retaliation stemming from leave taken for an international adoption from Russia.

The jury awarded $1,876 in damages on the FMLA interference claim and $331,429.25 on FMLA retaliation claim. The judge then awarded $333,305.25 in statutory liquidated damages, $375,000 in attorneys’ fees, and $14,264.88 in court costs. Both sides appealed. The Fourth Circuit rejected all aspects of the employer’s appeal, but found the trial court made a mistake in refusing to award the plaintiff pre-judgment interest. Continue reading Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer