Category Archives: Litigation

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Employer’s Honest Belief Sufficient to Defeat FMLA Retaliation Claim

In a welcome decision to employers, the Third Circuit decided last week, for the first time, that an employer’s mere “honest belief” that an employee misused FMLA leave is sufficient to defeat a retaliation claim. As an employee claiming retaliation for using protected FMLA leave must prove that the very exercise of that right was a … Continue Reading

Federal Rule 6(d) Amendment Removing 3 Days To Respond To Electronically Served Papers Goes Into Effect Dec. 1, 2016

On April 28, 2016, the Supreme Court of the United Sates approved amending Federal Rule of Civil Procedure 6(d) to remove electronic service from the modes of service under Rule 5(b)(2) that allow an extra three (3) days to respond. Rule 6(a) specifies how a party must compute time as provided in the Federal Rules … Continue Reading

Split California Supreme Court Holds that without Express Agreement, Classwide Arbitrability is not a ‘Gateway Issue’ that must be Decided by the Court

In a 4-3 decision, the California Supreme Court recently determined that the question of “who decides whether [an arbitration] agreement permits or prohibits classwide arbitration” is not subject to a “universal rule [that] allocates this decision in all cases to either arbitrators or the courts.” See Sandquist v. Lebo Automotive, Inc., Case No. S220812, 2016 … Continue Reading

Recent Florida Supreme Court Decisions on Workers’ Compensation Could Lead to Higher Premiums

In two long-awaited decisions, the Florida Supreme Court declared several provisions of the state’s workers’ compensation statutes unconstitutional, weakening legislative reforms approved in 1994 and 2003 intended to curb the system’s growing costs and higher premiums for employers and businesses. The rulings, in Castellanos v. Next Door Company and Westphal v. City of St. Petersburg … Continue Reading

The ARB Potentially Broadens Protected Activity Under Sarbanes-Oxley

Just when employers thought that the anti-retaliation provision of the Sarbanes-Oxley Act of 2002 (SOX), 15 U.S.C. § 1514A, already covered a broad range of protected conduct, the Department of Labor’s Administrative Review Board (ARB), the appellate body that reviews Administrative Law Judge (ALJ) decisions, potentially broadened the scope of conduct that is protected from … Continue Reading

U.S. Supreme Court Holds that Unaccepted Offer to Settle Per Rule 68 Does Not Moot a Case

In a 6-3 opinion, the United States Supreme Court held yesterday that a defendant’s unaccepted Rule 68 offer of judgment for complete relief does not moot a case. See Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016). Justice Bader Ginsburg, writing for the 6-3 majority, explained that “[u]nder basic principles of contract law,” an offer … Continue Reading

The Exclusivity Provisions of the Illinois’ Workers’ Compensation Act and Workers’ Occupational Diseases Act Bar a Mesothelioma Plaintiff’s Occupational Exposure Claims Where Diagnosis Is Made After the Expiration of the Statute of Repose

Mesothelioma victims are not exempt from the exclusivity provisions and statutes of repose in Illinois’ Workers’ Compensation Act and Workers’ Occupational Diseases Act, according to a recently issued Illinois Supreme Court decision. Thus, common law claims against a former employer for asbestos related diseases are barred, even if the disease does not manifest until after … Continue Reading

Supreme Court OKs Review of EEOC Conciliation: Practical Implications for Employers

Under Title VII, if the EEOC issues a cause finding, it must then try to remedy the alleged unlawful employment practice through “informal methods of conference, conciliation and persuasion.”  42 U. S. C. §2000e–5(b).  If, and only if, it is unable to obtain a conciliation agreement that is “acceptable to the commission,” may the agency … Continue Reading

California Supreme Court: Employees Entitled to On-Call Pay

Written by James M. Nelson In the Mendiola v. CPS Security Solutions, Inc. decision last week, the California Supreme Court held that employees are entitled to pay not only for on-call time, but also for time spent sleeping during on-call shifts. The author of this GT Alert summarizes the case and notes that unaddressed items, … Continue Reading

The Risky Business of Litigating Retaliation Claims

Atlanta attorneys David Long-Daniels and Peter Hall recently co-authored an article for the American Bar Association’s Journal of Labor & Employment entitled “Risky Business: Litigating Retaliation Claims”. The article analyzes the recent increase in retaliation claims, the impact on employers and a forecast for future trends. To read the full article, please click here.… Continue Reading

New Jersey Federal Court Cautions Employers When Responding to Even Routine Demand Letters

Though it has long been a common practice for in-house counsel to respond to routine (and not so routine) demand letters, a recent New Jersey District Court decision should cause in-house counsel serious concern when doing so in the future. In Bourhill v. Sprint Nextel Corp., the Court allowed into evidence a portion of a letter written by an in-house attorney, prior to the action’s commencement, explaining why counsel’s position was factually meritless, but offering to entertain counsel’s invitation to resolve the matter so as to avoid litigation (the Court opinion is attached for your convenience). And this decision affects in-house counsel’s exchanges not only in the employment context, but also extends to all litigation.… Continue Reading

Good News From the California Supreme Court on Mixed Motive Discrimination Cases…at Least for Now

It is an age old litigation problem.  The employee engaged in conduct the employer found sufficient for termination.  The employee claims that was not the real reason and points to alleged discriminatory acts. How does one decide the issue?  As importantly, from an HR perspective, how does the employer assess risk as no workplace is … Continue Reading

Employers Can be Held Liable for Failing to Protect Employees From Sexual Harassment Based on Sexual Orientation

In a unanimous decision due to be published on May 15, the Connecticut Supreme Court has ruled that employers can be held liable for failing to protect employees from harassment based upon sexual orientation.  In Patino v. Birken Manufacturing Company, a former employee of the jet engine component maker Birken Manufacturing, Co. accused the company of … Continue Reading

California Supreme Court’s Kirby Decision: If Money Talks, is This Another Post-Brinker Blow to Meal and Rest Period Claims?

On April 30, 2012, the California Supreme Court issued a decision holding that the fee shifting provisions of California Labor Code sections 128.5 and 1194 do not apply to claims for wages made pursuant California Labor Code section 226.7 for failure to authorize meal and/or rest periods. Kirby v. Immoos Fire Protection, Inc., ____ Cal. 4th ___ (2012).… Continue Reading

OSHA Alert – February 1 Deadline for OSHA 300-A

The OSHA Standard for Reporting and Recording Occupational Injuries and Illnesses, 29 C.F.R. § 1904, requires that certain employers track work related illnesses and injuries of their employees throughout the year, and post the summaries of those injuries from the previous year from February 1 to April 30. OSHA's deadline for employers to post their annual summary of injuries and illnesses is February 1, 2012. … Continue Reading

Social Media Posts and Concerted Activity

In the last several months, the National Labor Relations Board (“NLRB”) has attracted attention by issuing complaints against employers who disciplined or discharged employees for posting comments on Facebook or other social media criticizing the employer (see NLRB A ‘Twitter Over Employers’ Social Media Policies, and Social Media in the Workplace – The Social Media … Continue Reading

New Remedies Under ERISA for Employees Harmed by Misinformation

Employers providing employees with benefits subject to ERISA have a duty to provide accurate benefit information to employees. As with many areas of ERISA, the definition of “inaccurate” information and the consequences to employers for providing inaccurate information has been unclear. The United States Supreme Court addressed this gray area of ERISA in CIGNA Corp. … Continue Reading

Social Media and Discovery: Accessing Password Protected Material

Social media is everywhere, including, with increasing frequency, in lawsuits, particularly those involving employment-related claims. For example, employers sued by potential, current, and former employees are seeking social media information to learn if on-line postings by those employees on social media sites contradict statements or contentions made by them in their lawsuit. For their part, … Continue Reading

The Ever Increasing Size of Class Action Lawsuits

Recently, it seems, class action lawsuits against employers are getting bigger. Firms that in representing plaintiffs are targeting companies with class action litigations, in particular lawsuits alleging gender discrimination. These lawsuits allege gender discrimination against a few women combined with evidence designed to show a pattern of discrimination against women throughout the company to create a plaintiff … Continue Reading

Transgender Man Challenges Firing From Male-Only Job

A job discrimination suit recently brought under the New Jersey Law Against Discrimination (“NJLAD”) challenges an employer’s decision to terminate a transgender man from a “male-only” position. Urban Treatment Associates in Camden, New Jersey, hired El’Jai Devoureau as a part-time urine monitor, but terminated him after his supervisor discovered that his assigned sex at birth … Continue Reading
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