Please help me!! I’m Tweeting, and I can’t stop!!!!!

Okay, I gotta admit that I’ve been skep­ti­cal about the value of Twit­ter. Lawyers tend to delude them­selves into believ­ing that they think impor­tant and deep thoughts. For exam­ple: “I just read an inter­est­ing arti­cle on res ipsa loquitur and its rela­tion­ship to the Philip­pines pro­bate code. Would you please pass the Chardon­nay and the shrimp tem­pura?” And let’s face it, how good are lawyers at being brief? Lawyers are almost con­gen­i­tally inca­pable of express­ing them­selves in 140 char­ac­ters or less.

But my army of mar­ket­ing con­sul­tants (er, all the mar­ket­ing dudes writ­ing on the Inter­net) says Twit­ter and Face­book have real busi­ness value for lawyers (every­one assumes lawyers are too anti-social to actu­ally use those sites for their orig­i­nally intended social pur­poses). So I’ve done some mod­er­ately care­ful look­ing at Twit­ter and have decided to jump on the band­wagon. Of course, now that I am on that band­wagon, I think Twit­ter is the great­est thing since sliced bread. Here it is, my but­ton so you can fol­low me on Twit­ter:

Follow DrewCapuder on Twitter

What am I Tweet­ing about (like most peo­ple above 23, I ini­tially asso­ci­ated the word “Tweet­ing” with some­thing that was drip­ping down my leg)? I have only been Tweet­ing a few weeks, so I am still get­ting my sea legs. But here is a list of things I have been and expect to be Tweet­ing about:

  • Employment-related legal issues. This is the main area of my prac­tice, and most of my Tweets will be on this topic.
  • Legal issues relat­ing to the med­ical indus­try (much of my employ­ment lit­i­ga­tion is in the med­ical industry).
  • Other legal issues which I think may be of inter­est to my “fol­low­ers” (I feel the power cours­ing through my veins).
  • Time man­age­ment and orga­ni­za­tional skills. Like most lawyers and busi­ness peo­ple, I am always look­ing for ways to become more effi­cient, so I can spend more time con­cen­trat­ing on deep thoughts.
  • Com­puter and soft­ware prod­ucts & issues that might be of inter­est to lawyers and busi­ness people.
  • Media issues. I teach a class at Fair­mont State Uni­ver­sity on legal and eth­i­cal issues in media, and I am espe­cially inter­ested in media bias in gen­eral and specif­i­cally relat­ing to polit­i­cal coverage.

Con­tinue read­ing Please help me!! I’m Tweet­ing, and I can’t stop!!!!!

Martin Luther King; His entire “I Have a Dream” speech

Today is the 47th Anniver­sary of Dr. Mar­tin Luther King’s “I Have a Dream Speech” given on the steps of the Lin­coln Memo­r­ial. We are now two gen­er­a­tions removed from that speech. Worse, we live in the age of MTV, Twit­ter, and 30-second sound­bites on the evening news. So all too often, we see only bite-sized snip­pets from Dr. King’s speech, so I wanted to post the entire speech on this video from YouTube:

Click here for a site that has the tran­script, audio, and video of the speech.

Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

A few days ago, I posted my arti­cle on PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , in which the West Vir­ginia Supreme Court ruled that a sin­gle episode involv­ing mul­ti­ple uses of the N-word could cre­ate a racially hos­tile work envi­ron­ment.

The US Court of Appeals for the Sev­enth Cir­cuit just released an opin­ion in Berry v. Chicago Tran­sit Author­ity, – F.3d –, – WL — (7th Cir. August 23, 2010), which raises the sim­i­lar issue: Can a sin­gle instance of sex­ual harass­ment cre­ate a hos­tile work envi­ron­ment? And the answer was yes, depend­ing on the circumstances.

Ms. Berry is Sex­u­ally Harassed in a Sin­gle Incident

Cyn­thia Berry was an employee at the Chicago Tran­sit Author­ity. She was on her break and sat at a pic­nic style table with three male co-workers. A fourth male co-worker, Philip Carmichael, had fol­lowed her to the pic­nic area and ordered Ms. Berry to get up from the table. Offended by Mr. Carmichael’s “com­mand­ing tone”, Ms. Berry remained seated. Mr. Carmichael then sat down and “strad­dled the bench” so he was fac­ing one of the male co-workers at the pic­nic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The other three male co-workers got up from where they were seated at the pic­nic table and moved to the other end of the table. Then:

Berry says Carmichael remained where he was seated and began rub­bing his back against her shoul­der. She jumped up, told him not to rub him­self against her, and sat down next to Hardy at the other end of the table. At this point,
Berry says, Mar­shall began telling her to get up from the table again. Not want­ing Mar­shall to think he could order her around, she remained seated, but began rub­bing her tem­ples to com­pose her­self. Accord­ing to Berry, she next felt Carmichael grab­bing her breasts and lift­ing her up from the bench. Hold­ing her in the air, he rubbed her but­tocks against the front of his body—from his chest to his penis—three times before bring­ing her to the ground with force. Berry landed off-balance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and want­ing to avoid any men, she lay down in a bus for the rest of her shift.

 

Con­tinue read­ing Sin­gle act may cre­ate hos­tile work envi­ron­ment, accord­ing to Sev­enth Cir­cuit in Berry v. Chicago Tran­sit Author­ity

The disastrous consequences of the N-word in the workplace. Just ask Dr. Laura!

Okay, this arti­cle has noth­ing to do with Dr. Laura Sch­lessinger and her “rant” in which she used the N-word repeat­edly on her radio pro­gram when respond­ing to an African-American caller. But the ensu­ing con­tro­versy (see arti­cles for and against Dr. Laura), and her deci­sion to end her long-running radio pro­gram, high­light the extra­or­di­nary sig­nif­i­cance of the N-word term in Amer­i­can society.

The West Vir­ginia Supreme Court recently dealt with the N-word in a case that high­lights the great risks for employ­ers when that word enters the workplace.

In PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , — W. Va. –, — S.E.2d –, 2010 WL 2244096 (June 3, 2010) (per curiam), the West Vir­ginia Supreme Court dealt with a claim of a racially based hos­tile work envi­ron­ment under the West Vir­ginia Human Rights Act, and con­cluded that the West Vir­ginia Human Rights Com­mis­sion was jus­ti­fied in find­ing for the employee. The deci­sion was unan­i­mous. Click here for the WV Human Rights Com­mis­sion’s deci­sion which was affirmed by the WV Supreme Court.

A Sin­gle Day, With the N-Word Again and Again

PAR Elec­tri­cal was build­ing “giant tow­ers” for a high volt­age elec­tri­cal trans­mis­sion line. Richard Wayne Bev­elle was hired by PAR Elec­tri­cal on March 22, 2005, and, after work­ing as a “ground­man” assem­bling the tower bases, was assigned to load heli­copters with parts to con­struct the tow­ers (this heli­copter job was described as a “gravy job” by the Human Rights Com­mis­sion). Mr. Bev­elle is African-American.

Con­tinue read­ing The dis­as­trous con­se­quences of the N-word in the work­place. Just ask Dr. Laura!

Charleston, WV Jury Awards $1.7m in Age Discrimination Case, 10–1-09

On Octo­ber 1, 2009, a jury in Charleston, Kanawha County, West Vir­ginia returned a ver­dict in an age dis­crim­i­na­tion case, award­ing James Nagy a total of $1,750,450.

The Law­suit

James Nagy filed suit in Charleston in March 2008 against West Vir­ginia Amer­i­can Water Com­pany, alleg­ing that he was fired in March 2007 because of his age at 53, after 23 years of employment.

James Nagy was rep­re­sented by Maria W. Hughes and Stephen Weber at Kay Casto & Chaney PLLC. West Vir­ginia Amer­i­can Water Com­pany was rep­re­sented by Mychal Schulz at Dins­more & Shohl LLC.

The case is pend­ing in Cir­cuit Court in Kanawha County, West Vir­ginia, before Judge Jen­nifer Bailey-Walker.

The Ver­dict

That $1,750,450 ver­dict con­sisted of:

  • $150,000 for humiliation,

Award of Attorney’s Fees and Expenses

Under the West Vir­ginia Human Rights Act (which pro­hibits age and other forms of dis­crim­i­na­tion in the work­place), Nagy’s coun­sel filed a motion addi­tion­ally request­ing attor­neys’ fees and expenses.

Judge Bailey-Walker awarded the plain­tiff total attorney’s fees of $177,772.50, and $8,855.33 in expenses.

Appeal

The Defen­dant is in the process of appeal­ing.  The issue of attor­neys’ fees was resolved by Judge Bailey-Walker on June 8, 2010, so the appeal process is in its early stages as of the date of this arti­cle being updated (July 31, 2010). As things develop in the appeal, I will update this article.

July 31, 2010

FMLA now applies to leave for care of children by same-sex couples

The United States Depart­ment of Labor recently issued an Administrator’s Inter­pre­ta­tion 2010–3 which applies leave rights under the Fam­ily and Med­ical Leave Act to care of chil­dren by same-sex cou­ples. The US Depart­ment of Labor issued a press release to help explain the Administrator’s Inter­pre­ta­tion. In other words, employ­ees in same-sex rela­tion­ships who qual­ify for leave under the FMLA will be enti­tled to pro­tected leave for the qual­i­fy­ing care of their children.

As the DOL’s press release suc­cinctly says, the “FMLA allows work­ers to take up to 12 weeks of unpaid leave dur­ing any 12-month period to care for loved ones or them­selves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daughter”?

The key issue was when the child fell into the def­i­n­i­tion of “son or daugh­ter” for the employee seek­ing leave. When does the law rec­og­nize the child as the “son or daugh­ter” of the employee?

Administrator’s Inter­pre­ta­tion 2010–3 sets out the statu­tory lan­guage, and same-sex cou­ples now have the nec­es­sary rela­tion­ship to the child through the sta­tus of being “in loco par­en­tis”, which more or less means some­one who “stands in the place” of the par­ent. Here is the dis­cus­sion in the Administrator’s Interpretation:

The FMLA enti­tles an eli­gi­ble employee to take up to 12 work­weeks of job-protected leave, in rel­e­vant part, “[b]ecause of the birth of a son or daugh­ter of the employee and in order to care for such son or daugh­ter,” “[b]ecause of the place­ment of a son or daugh­ter with the employee for adop­tion or fos­ter care,” and to care for a son or daugh­ter with a seri­ous health con­di­tion. See 29 U.S.C. § 2612(a)(1)(A) — ©; 29 C.F.R. § 825.200. The FMLA defines a “son or daugh­ter” as a “bio­log­i­cal, adopted, or fos­ter child, a stepchild, a legal ward, or a child of a per­son stand­ing in loco par­en­tis, who is— (A) under 18 years of age; or (B) 18 years of age or older and inca­pable of self-care because of a men­tal or phys­i­cal dis­abil­ity.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122©, 825.800.

(empha­sis added).

Con­tinue read­ing FMLA now applies to leave for care of chil­dren by same-sex cou­ples

Drew Capuder will be speaking on retaliation law on Oct 29–30, 2010 at Oglebay Park in Wheeling

I will be speak­ing (and pre­sent­ing on arti­cle) on recent devel­op­ments in retal­i­a­tion under fed­eral and West Vir­ginia employ­ment law on either Octo­ber 29 or 30, 2010 at the annual con­fer­ence of the West Vir­ginia Employ­ment Lawyers Asso­ci­a­tion. The con­fer­ence will be at Ogle­bay Resort and Con­fer­ence Cen­ter in Wheel­ing, West Vir­ginia. The final sched­ule is not out yet, so I don’t know whether my speech with be on Octo­ber 29 or 30.

Retal­i­a­tion law in recent years has been one of those devel­op­ing areas, and much more often than not the move­ment in the case law has been in the direc­tion of expand­ing pro­tec­tions for employ­ees against retal­i­a­tion. The US Supreme Court espe­cially has focused on retal­i­a­tion law, and has “plugged gaps” in the law for fed­eral employ­ees to include pro­tec­tion for retal­i­a­tion claims, has low­ered the thresh­old for what is action­able retal­i­a­tion, and has broad­ened the def­i­n­i­tion of “oppo­si­tion” which enti­tles employ­ees to protection.

One of the dan­gers for employ­ers from retal­i­a­tion claims is that, after an employee com­plains about alleged dis­crim­i­na­tion, the employer may be guilty of retal­i­a­tion even if a jury decides there was no dis­crim­i­na­tion to sup­port the employee’s orig­i­nal com­plaint. An employee may suc­ceed in a retal­i­a­tion claim as long as his com­plaint was made in good faith, even if the employee was wrong about the com­plaint of discrimination.

In the prior 2 years at the annual con­fer­ence for WVELA, I spoke and wrote arti­cles on awards of attor­neys’ fees under employ­ment dis­crim­i­na­tion laws, and on age dis­crim­i­na­tion.

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

I will be speak­ing (and pre­sent­ing arti­cles)  at a sem­i­nar spon­sored by Ster­ling Edu­ca­tion Ser­vices on Octo­ber 20, 2010 in Mor­gan­town, West Vir­ginia, enti­tled “Fun­da­men­tals of Employ­ment Law”.

I will be speak­ing (and pre­sent­ing arti­cles) on “Sex­ual, Racial, and Other Harass­ment in the Work­place” and “ADA and FMLA Update”.

Here is the full agenda, and here is the fac­ulty infor­ma­tion. The sem­i­nar will pro­vide around 6–8 hours of con­tin­u­ing edu­ca­tion credit for lawyers (I don’t know the exact num­ber, but the sem­i­nar is a full day).

You can reg­is­ter for the the sem­i­nar online. For fur­ther infor­ma­tion, you can con­tact Ster­ling, and their num­ber is 715–855-0498.

Sorry boss, I didn’t know you were having sex in the office!!

The West Vir­ginia Supreme Court recently issued an opin­ion deal­ing with one of those stereo­typ­i­cally awk­ward sit­u­a­tions, where an employee allegedly stum­bles into a room where the boss is hav­ing sex with a co-worker. The deci­sion was  Roth v. DeFe­lice­Care, Inc., – W. Va. –, — S.E.2d –, 2010 WL 2346248 (June 8, 2010) (per curiam). It was a 3–2 deci­sion, in which the 3-vote major­ity con­sisted of Jus­tices Robin Davis, Mar­garet Work­man, and  Thomas McHugh. Jus­tices Menis Ketchum and Brent Ben­jamin dis­sented, and Jus­tice Ketchum wrote a dis­sent­ing opinion.

The Facts–Sex at Work

These are the facts accord­ing to the com­plaint in the law­suit: Tri­cia Roth was a res­pi­ra­tory ther­a­pist work­ing at DeFe­lice­Care, Inc. in Ohio County, West Vir­ginia, and she was about to go on vaca­tion. She was directed by Leslie DeFe­lice (the male boss/owner) to come to work some­time dur­ing the week­end pre­ced­ing her vaca­tion in June 2006. She was not told a spe­cific time to come to work dur­ing that week­end. When she came to work as ordered, she “observed Defen­dant [Leslie] DeFe­lice and/or Michelle Kelly par­tially clothed and in a com­pro­mis­ing posi­tion”. Mr. DeFe­lice instructed Ms. Roth to go into a con­fer­ence room and wait–meanwhile Mr. DeFe­lice and the other employee got all their clothes back on. Mr. DeFe­lice then talked to Ms. Roth and told her to for­get about what she had just seen, and threat­ened Ms. Ross with the loss of her res­pi­ra­tory ther­apy license and the loss of her employment.

Ms. Roth then went on vaca­tion. When she got back from vaca­tion and returned to work, she had a meet­ing with Mr. DeFe­lice that didn’t go well. Ms. Roth told Mr. DeFe­lice that she hadn’t told any­one about his sex­ual encounter at work. Mr. DeFe­lice pro­ceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal the­o­ries cen­ter­ing around sex dis­crim­i­na­tion and sex­ual harass­ment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s com­plaint (the doc­u­ment which starts the law­suit and describes the plaintiff’s alle­ga­tions) focused on the sex­ual inci­dent I have described above, but also made alle­ga­tions about other sex­ual harassment–I will dis­cuss those details below.

Con­tinue read­ing Sorry boss, I didn’t know you were hav­ing sex in the office!!

Fourth Circuit rules that pension contribution rules may be age biased

The Fourth Cir­cuit Court of Appeals, in an unpub­lished opin­ion, addressed whether an employer’s pen­sion con­tri­bu­tion rules may con­sti­tute age dis­crim­i­na­tion under the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, in Equal Employ­ment Oppor­tu­nity Com­mis­sion v. Bal­ti­more County, –F.3d. — (4th Cir. 2010). The unan­i­mous opin­ion was writ­ten by Judge Den­nis Shed, and was joined by Judge Roger Gre­gory and Arther L. Alar­con (Senior Judge on Ninth Cir­cuit, sit­ting by designation).