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©: 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

Special Election for Senator Byrd’s Seat, and “Democracy in America” From Northern Exposure TV Series

Today is the Spe­cial United States Sen­ate Pri­mary Elec­tion for Sen­a­tor Byrd’s seat in West Vir­ginia.

With Democ­racy on my mind: Below is a video seg­ment of the “Democ­racy in Amer­ica” episode of North­ern Expo­sure. When you click the play but­ton below, you might get a copy­right mes­sage so that you have to get redi­rected to the actual YouTube site (on which this seg­ment is available).

This episode of North­ern Expo­sure was a won­der­ful (and mov­ing) glimpse of democ­racy in small town Amer­i­cana, cen­ter­ing around the may­oral elec­tion for the fic­tional Cicely, Alaska. There are a num­ber of other seg­ments from that episode on YouTube. If you have some free time, get on YouTube and type “North­ern Expo­sure democ­racy in Amer­ica” to see some of the other clips. Or buy the DVD of sea­son three of North­ern Expo­sure, which con­tains the Democ­racy in Amer­ica episode. While you’re at it, for another won­der­ful glimpse of small town Amer­i­cana, watch the always fan­tas­tic Robert Pre­ston in The Music Man.

Update (2015): It looks like the video linked above has been blocked on copy­right grounds, so here is the Ama­zon link to buy sea­son three of North­ern Expo­sure, which included the “Democ­racy in Amer­ica” episode.