Posts Tagged ‘Employment Law’« Older Entries
Expert Article by Brian A. Tarian
Ohio Revised Code 4213.542 does not permit the filing of a workers’ compensation claim in Ohio if a claimant or the dependents involved in a workers’ compensation claim have been granted an allowed claim in another state. In Smiley v. Professional Staff Mgt. Inc., 2013-Ohio-139, the claimant was involved in a motor vehicle accident while in the performance of her job duties. The claimant worked for a property management company as a regional manager. The claimant was responsible for overseeing and managing properties in both Ohio and Indiana. The claimant’s employer was located in Indiana. The claimant resided in Ohio. The employer filed a claim for the claimant in Indiana. This claim was allowed and both medical bills and compensation were paid in this claim.
Later, the claimant filed a claim in Ohio. This claim was denied by the Industrial Commission of Ohio pursuant to ORC 4123.542. The claimant appealed the denial of this claim to Common Pleas Court who ruled that this denial was proper. The claimant then appealed this decision to the Court of Appeals who upheld this decision. It did not agree that this statute was unconstitutional as argued by the claimant and upheld the decision of the lower court.
To date, all challenges to ORC 4123.542 have been struck down. This case provides the precedence that this statute also applies even when the claimant does not file the claim in another state and this filing results in an allowed claim in that state.
May 10th, 2013
in Legal Conferences |
Come join your colleagues and clients at the nation’s premier wage and hour defense forum and hone the skills and strategies needed to keep pace with this rapidly changing area of law, defend against new and innovative claims, and prepare for emerging regulations and evolving enforcement priorities cliff
When: Thursday, May 30th to Friday, May 31st , 2013
Where: One United Nations Plaza New York, NY
For more information, and to register: click here
Industry Related News
Industry related article from atlantaemploymentlawattorney.com, by Barrett & Farahany, LLP, posted on 04/15/2013
Wage and Hour Lawsuits Increased Last Year
Wage and hour lawsuits in California and throughout the country increased last year compared to 2011, according to a new report by the National Economic Research Associates. The report showed that employers in the U.S. paid 18 percent more in 2012 to settle wage and hour lawsuits filed by employees.
Most wage and hour lawsuits are filed under the Fair Labor Standards Act. FLSA provides employees with the right to receive proper payment for all hours worked; receive accurate payments for overtime according to state and federal guidelines and establishes meal or rest breaks during work shifts.
The report noted that in 2012, U.S. employers paid roughly $467 million in wage and hour settlements, and that 102 lawsuits filed last year were settled before they even went to trial. The average settlement award in 2012 was reported at $1,300 per plaintiff.
Wage and hour lawsuits should be taken very seriously by employers because they are legally obligated to pay employees for the hours they have worked. If they do not pay employees according to federal and state laws, employees can file a wage and hour lawsuit against the company to try and receive a monetary settlement for any unpaid wages.
Workers are protected by California employment laws as well as federal laws. Employees should understand their rights under California law, especially if they work overtime hours or are concerned they may not be receiving proper lunch or rest breaks during their shifts. Employment laws can be difficult to fully understand so it is beneficial to work with an employment law attorney when taking legal action against your employer, especially when filing a wage and hour lawsuit.
When: Monday, October 29 to Tuesday, October 30, 2012
Where: The Carlton Hotel, New York, NY, USA
ACI’s Forum on International Labor & Employment Law has been specifically designed to provide both in-house and outside counsel for multinational corporations with everything that they need to know to handle the multitude of international labor and employment issues confronting them. Our unparalleled international speaker faculty will provide attendees with key insights for managing and overcoming the most difficult challenges and mastering the nuances inherent in international employment law.
We’ve polled the audience, and below are the 7 top issues that international labor and employment professionals are facing and which will be a focus of the conference:
- Reducing exposure to lawsuits arising from hiring and firing
- Drafting and enforcing cross-border restrictive covenants with confidence
- Protecting data and privacy, including cross-border investigations and employee social media activity
- Conducting successful reductions in force, mergers and acquisitions across borders
- Effectively managing expat assignments, including benefits and tax considerations
- Implementing global corporate social responsibility initiatives without increasing exposure to litigation
- Overcoming the hurdles associated with extraterritorial enforcement of U.S. discrimination and whistleblower laws
This year’s International Labor & Employment Law conference has been tailored to address the needs of in-house and outside employment counsel for multinational corporations. Plus, don’t miss out on an unparalleled international faculty from more than 20 cities world-wide and networking opportunities with in-house counsel from multinational corporations including:
FedEx Corporation, Halliburton, Northrop Grumman, McDonald’s, Toyota Tsusho America, Reed Elsevier, Goldman, Sachs & Co., BNP Paribas
Hill-Rom, ServiceMaster, Marsh & McLennan, Credit Suisse
…and many other companies in the audience as well!
Join us in New York on October 29-30 at the beautiful Carlton Hotel on Madison Avenue. When registering, don’t miss out on the in-depth pre and post-conference workshops.
|Pre-Conference Workshop • Sunday, October 28, 2012 • 3:00p.m. – 5:30p.m.|
|Employment Law Primer on the International Reach of Title VII, ADA, and ADEA|
|Post-Conference Workshop • Tuesday, October 30, 2012 • 2:45p.m. – 5:15p.m.|
|An In-Depth Look at the Hotbed of Continental Europe and the UK|
Expert Article by Jaime A. Maurer
An area of employment law that has been gaining increased attention from the Equal Employment Opportunity Commission (“EEOC”) in recent times are lesbian, gay, bisexual and transgender (“LGBT”) issues. In particular, the EEOC has recently adopted certain shifts in policies to find sexual orientation and gender identity coverage under Title VII. The rationale for finding such coverage is twofold: (i) the conduct at issue is discriminatory because of sex and (ii) the conduct is discriminatory because the employer uses gender stereotypes. Interestingly, the EEOC is not only reviewing LGBT Charges of Discrimination, but is actively soliciting the filing of such Charges.
Most recently, in Mia Macy v. Eric Holder (Appeal No. 0120120821, April 20, 2012), Macy, a male veteran police detective with an extensive law enforcement background, applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Macy was informed that he would be hired pending a background check. During the background check process, Macy informed ATF that he was in the process of transitioning from male to female. A few days later, Macy was notified that the position was no longer available due to budget reductions, when, in fact, another person had been hired for that position.
Macy filed a complaint with the EEOC against ATF alleging discrimination on the basis of “gender identity” and “sex stereotyping.” The EEOC found that employment discrimination against transgender individuals is a form of sex discrimination under Title VII and, in doing so, the EEOC clarified that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition . . . .”
Although not binding on courts, this decision and larger approach by the EEOC will be given great deference when courts assess the scope and breadth of discrimination claims based upon sex under Title VII. As such, employers should be mindful of this new development, stay abreast of local laws, maintain an open dialogue with employees on these issues, and provide information and training when appropriate to ensure that staff understand the implications of their actions with regard to members of the LGBT community.
When: Thursday, September 27 to Friday, September 28, 2012
Where: Hilton San Francisco Financial District, San Francisco, CA, USA
These days you know about the importance of taking every opportunity to network with clients at Fortune 500 companies. In-house professionals from dozens of such companies will be in attendance at this event. VIEW SOME OF THEM HERE
Given all that’s going on in the industry, your colleagues at your competitors have signed up already for this critical summit and there are no signs of it slowing down. Don’t miss the unparalleled in-house client presence and networking opportunities, or updates and opinions directly from DOJ and NLRB officials and federal and state judges. Join your colleagues by registering today and reserving your place at the end of September. Topics include:
Expert Article by Jonathan Secrest
On June 25, 2012, the United States Supreme Court agreed to consider Vance v. Ball State Univ., No. 11-556, a case in which the issue is whether the definition of “supervisor” under Title VII includes an employee who has no authority to hire and fire an employee but who oversees and directs the worker’s daily tasks.
In Vance, the plaintiff is an African-American catering assistant who claimed she was harassed by white co-workers and supervisors based on her race. The U.S. Court of Appeals, Seventh Circuit, determined that plaintiff failed to establish liability based on supervisor or co-worker harassment. Plaintiff contended that one of the alleged harassers actually was a supervisor and not a co-worker because this harasser directed her work. The Seventh Circuit determined, however, that this harasser did not have the power to hire, fire, demote, promote, transfer or discipline Plaintiff and was therefore not a supervisor. On this basis, the Seventh Circuit affirmed summary judgment to Ball State University on the plaintiff’s Title VII claim.
The outcome of Vance is significant because typically under Title VII, an employer is vicariously liable for harassment by a supervisor of the victim regardless of whether the employer knew or had reason to know the harassment was occurring. If the harasser is a co-worker, however, the employer is not liable unless it was negligent and knew or had reason to know the harassment was occurring.
ERISA “Fiduciary Exception” Does Not Exempt Attorney Correspondence Created After the Filing of a Complaint from Work-Product Protection
Expert Article by Emily Seymour Costin
On May 31, 2012, Magistrate Judge Ann Marie Donio of the United States District Court for the District of New Jersey denied plaintiffs’ motion to compel the production of 54 e-mails on the basis that these documents were protected from disclosure by the work-product doctrine.
In doing so, Judge Donio held that these documents did not fall within the “fiduciary exception” commonly applied in the ERISA context so as to mandate their disclosure because the documents were created specifically for use in litigation against the beneficiary requesting the documents. See Goldenberg v. Indel, Inc., et al., Case No. 09-5202, Order dated May 31, 2012 (Doc. No. 205).
Plaintiffs filed their putative class action complaint on October 9, 2009, alleging that Defendants mismanaged the Inductotherm Companies Master Profit Sharing Plan (“the Plan”). Plaintiffs are both past and present participants in the Plan. Plaintiffs’ complaint asserts claims against three sets of Defendants: (1) the “Inductotherm Defendants” which include the individual Trustees of the Plan and Indel, Inc.; (2) the “FSC Defendants” which include Financial Services Corporation, FSC Securities Corporation, and the Wharton Business Group, which allegedly provided advice to the Plan’s Trustees concerning investment of the Plan’s assets; and (3) the “SunAmerica Defendants” which include the American International Group, SunAmerica Asset Management Corporation, SunAmerica Capital Services, Inc., and SunAmerica Fund Services, Inc., entities related to the SunAmerica Money Market Fund, a fund used as a sweep account for some of the Plan’s assets.
At issue in Plaintiff’s motion to compel was Defendants’ claim of protection for e-mails sent after the filing of the complaint in this matter. The e-mails contain mostly correspondence between Indel, Inc.’s corporate counsel; non-attorney representatives of the FSC Defendants and the Wharton Defendants; and non-attorney representatives of the Inductotherm Defendants. During discovery, Defendants withheld the e-mails asserting work product protection and the common interest privilege. Plaintiffs subsequently filed a motion to compel the production of the e-mails.
Plaintiffs asserted that the work-product doctrine did not apply to the e-mails in question because: (1) the e-mails were not created for the purpose of litigation; (2) the e-mails were not created by or for an attorney; and (3) the Indel Defendant’s in-house counsel was not acting in his capacity as an attorney. Plaintiffs further asserted that, by sharing the e-mails with the FSC Defendants and the Wharton Defendants, the Inductotherm Defendants waived work product protection. Plaintiffs also asserted that the common interest privilege did not protect the e-mails from this alleged waiver.
In response, Defendants asserted that all e-mails were created in response to the complaint and solely for litigation purposes and that Indel’s in-house counsel was acting in his capacity as corporate counsel for Indel. Defendants further asserted that the sharing of the e-mails between Defendants did not waive the work-product doctrine, and that even if the doctrine had been waived, the common interest privilege would apply to afford protection from disclosure.
After examining the work-product doctrine in some detail, and an in camera review of the documents, the Court held that documents were prepared “in anticipation of litigation” because the e-mails (1) were sent after the date the complaint was filed, and (2) made references to the complaint or issues raised in the complaint. Further, the Court found that the documents were prepared “because of” the complaint and for no other reason and, therefore, they met the two-prong test for work product protection. The Court further held that the work-product protection was not waived when the e-mails were shared with the other defendants because the protection for work-product is only waived when the information is disclosed in a manner inconsistent with keeping the documents from the adversary.
Plaintiffs then asserted that, if the documents were protected by the work-product doctrine, the ERISA “fiduciary exception” nevertheless required Defendants to produce them. The Court rejected this argument and rightfully held that the fiduciary exception did not apply to documents created specifically for use in litigation against the beneficiary requesting the documents.
The Court noted that the fiduciary exception generally provides that “where beneficiaries sue their fiduciaries alleging breaches of fiduciary duty, the attorney-client privilege does not attach to legal advice rendered to the fiduciaries for assistance in the performance of fiduciary duties.” Wachtel v. Health Net, Inc., 482 F.3d 225, 233 (3d Cir. 2007) (citing Donovan v. Fitzsimmons, 90 F.R.D. 583, 585 (N.D.Ill. 1981)). Further, this exception to the attorney client privilege is “premised on both the beneficiaries’ right to inspection and their identity as the ‘real’ clients.” Wachtel, 432 F.3d at 233.
Here, however, the Court noted that the e-mails were all created after Plaintiffs filed their complaint and in connection with the fiduciaries’ defense of the action – that is, for the fiduciaries’ “own personal defense in contemplation of adversarial proceedings against its beneficiaries.” Where the information or communications sought were created solely for adversarial proceedings against the beneficiaries, the Court concluded that the fiduciary exception to work product simply does not apply. Therefore, because the Court found that the e-mails were protected by the work-product doctrine, that the work-product doctrine had not been waived, and that the ERISA fiduciary exception did not apply in this situation, plaintiffs’ motion to compel was denied.
In so ruling, the Court explicitly rejected Plaintiffs’ argument to endorse a more extensive application of the fiduciary exception. Rather, the Court confirmed that the fiduciary exception is a narrow exception, limited only to instances when the beneficiary of a fiduciary relationship seeks to acquire communications or documents otherwise protected by the attorney-client privilege or the work-product doctrine when the documents were created “in furtherance of a fiduciary duty.”
Expert Article by Emily Seymour Costin
It’s that time of year again. Final exams are almost over, the school year is ending, and summer recess is almost here. With graduations looming, May often serves as a time to reflect on the past and look to the future. Inspired by the sense of nostalgia this time of year brings, we thought it would be a good time to reflect on how ERISA stock drop class actions have fared in the Circuit Courts of Appeal during this spring semester of 2012.
In re Citigroup ERISA Litigation and Gearren v. McGraw-Hill Cos., Inc.
Last fall, the Second Circuit joined the Third, Fifth, Sixth and Ninth Circuits in holding that the presumption of prudence is the applicable standard in reviewing breach of fiduciary duty claims related to investments in employer stock. In re Citigroup ERISA Litig., 662 F. 3d 128 (2d Cir. 2011). On December 6, 2011, plaintiffs-appellants petitioned for rehearing or rehearing en banc, asking the Second Circuit to reconsider this significant decision, purporting to raise three questions of law of exceptional importance: (1) Is a judicially created presumption of prudence for employer securities offered in defined contribution plans mandated by or consistent with ERISA? (2) If such a presumption exists, what is its strength? (3) Does ERISA’s duty of loyalty impose upon defined contribution plan fiduciaries a duty to disclose to plan participants material adverse information about company stock which the fiduciaries know but plan participants do not?
Despite the additional support of an amicus curie brief submitted by the Secretary of Labor, plaintiffs-appellants were unsuccessful in challenging the decision. In a summary order, the Second Circuit denied the petition on February 23, 2012, thereby confirming that the presumption of prudence is here to stay in the Second Circuit. This marks the bitter end of plaintiffs’ class action bid arising from the drop in the price of McGraw Hill and Citigroup stock held in their 401(k) plans after the financial crisis of 2008. Grade: Fail.
Our advisory, summarizing these two cases in more detail, can be accessed through the link below:
Pfeil v. State Street Bank & Trust Co.
The Sixth Circuit recently took the opportunity to resolve a district court split on the issue of whether the “Kuper/Moench presumption” may be applied when considering a motion to dismiss, holding that the presumption of “reasonableness” adopted in Kuper v. Iovenko, 66 F.3d 1447 (6th Cir. 1995) is not an additional pleading requirement and, thus, does not apply at the motion to dismiss stage. Pfeil v. State Street Bank & Trust Co., No. 10-2302, 2012 WL 555481 (6th Cir. Feb. 22, 2012).
In Pfeil, plaintiffs alleged that State Street Bank and Trust – as the fiduciary for the two primary retirement plans offered by General Motors – breached its fiduciary duty under ERISA by continuing to allow participants to invest in GM common stock, even though public information indicated that GM was headed for bankruptcy. The district court dismissed the complaint, holding that State Street’s alleged breach of duty could not have plausibly caused the losses to the plan.
After acknowledging that State Street was entitled to the Kuper/Moench presumption, the Sixth Circuit noted that it had not addressed whether the presumption applies at the pleading stage and, therefore, took the “opportunity to address whether a plaintiff must plead enough facts to overcome the Kuper presumption in order to survive a motion to dismiss.” In this regard, the Sixth Circuit held that the presumption does not apply at the pleading stage because the plain language of Kuper stated that a plaintiff could rebut the presumption of reasonableness by “showing” that a prudent fiduciary acting under similar circumstances would have made a different investment decision. Further, in Kuper, the presumption was cast as an evidentiary presumption and the Sixth Circuit applied the presumption to a fully developed evidentiary record, and not merely the pleadings. Moreover, the Court noted that this holding is consistent with the standard for motions to dismiss in general because application of the presumption necessarily concerns weighing questions of fact that would be inconsistent with the Rule 12(b)(6) standard. Apparently, the Court never grasped the notion that since all of the alleged facts are assumed to be true, the standard can and should be applied to see if the claims alleged are “plausible.”
The Sixth Circuit has thus set itself apart as the only Circuit to affirmatively reject the Kuper/Moenchpresumption as a standard that may be applied at the pleading stage. The plaintiffs’ bar undoubtedly views this as a major victory, and courts in the Sixth Circuit will likely see a rise in ERISA stock drop suits, now that plaintiffs are far more likely to advance to the long (and costly) discovery phase of litigation. Grade: Pass.
The Class of 2013?
Two other potential class actions are worth noting and (we expect) may resurface in the fall semester, if not sooner:
Lanfear v. Home Depot
In Lanfear, the Northern District of Georgia concluded that plaintiffs failed to plausibly plead that Home Depot stock was an imprudent investment during the proposed class period. Although the district court refused to explicitly adopt the Moench presumption, it nonetheless analyzed the facts under the Moench presumption and determined that plaintiffs’ stock drop claim would still fail. Now on appeal, the Eleventh Circuit is expected to either explicitly adopt (or reject) the Moench presumption in its opinion. The Lanfear case was argued on October 7, 2011. Lanfear v. Home Depot, 11th Cir. Case No. 10-13002.
Harris v. Amgen, Inc. et al.
Likewise, in the first stock drop case following its adoption of the Moench presumption in Quan v. Computer Sciences Corp., 623 F.3d 870 (9th Cir. 2010), the Ninth Circuit will address whether plaintiffs have alleged sufficient facts to overcome the presumption in a case arising from a temporary drop in Amgen’s stock price following negative publicity surrounding one of its products. Because Quan was decided on a summary judgment motion, the Amgen panel may take the opportunity to opine on whether the Moench presumption should apply at the pleading stage. The Amgen case was argued on February 17, 2012. Harris v. Amgen, Inc., et al, 9th Cir. Case No. 10-56014.
The nation’s premier ERISA litigation conference devoted entirely to managing and defending complex ERISA-related claims returns for its fifth installment, led by an unparalleled faculty of leading in-house counsel and expert outside defense counsel, as well as federal and state judges from across the nation.
Increasingly complex theories of liability, mounting requests for attorneys’ fees, continuing scrutiny of and litigation arising from investment decisions, PPACA compliance and litigation concerns, new and emerging regulations affecting disclosures from plan sponsors and service providers, a very sophisticated plaintiffs’ bar, the ongoing fallout from Cigna v. Amara, new developments regarding the 404(c) defense, the impact of Tussey v. ABB, Inc.on fee cases, overwhelming discovery burdens, and preemption complexities– these are just some of the issues facing plan sponsors, fiduciaries, service provides, insurance companies, and defense lawyers today.
Building on the incredible success of our past ERISA events, and in response to demand from the market, ACI has developed its 5th National Forum on Defending and Managing ERISA Litigation. This advanced forum has been designed to bring together the nation’s leading in-house counsel and outside defense attorneys to engage in a two-day seminar geared towards developing winning litigation strategies and overcoming new and emerging theories of liability from the plaintiffs’ bar. Our expert faculty, led by seasoned in-house counsel, top defense attorneys, and renowned federal and state judges, will provide you with the proven strategies, innovative tactics, and key insights needed to mount a rigorous defense
Expert Article by Nathan Pangrace
The Sixth Circuit Court of Appeals recently made it easier for Ohio employees to prove a claim of discrimination under the Americans with Disabilities Act (ADA). The court reversed 17-year-old precedent and found the “but for” causation standard appropriate for ADA claims.
In Lewis v. Humboldt Acquisition Corp., No. 09-6381 (6th Cir. May 25, 2012), the employer terminated the plaintiff from her position as a registered nurse at one of the employer’s retirement homes. The plaintiff sued the employer under the ADA, claiming that the employer fired her because she had a medical condition that made it difficult for her to walk and that occasionally required her to use a wheelchair. The employer responded that it terminated the plaintiff based on an outburst at work in which she allegedly yelled, used profanity and criticized her supervisors.
When it came time to present her ADA claim to a jury, the plaintiff asked the court to instruct the jury that she could prevail if her disability was a “motivating factor” in the employer’s decision to terminate her. The employer asked the court to instruct the jury that the plaintiff could prevail only if the employer’s decision was “solely” because of the plaintiff’s disability. In requesting this instruction, the employer relied on 17 years of Sixth Circuit precedent requiring courts to instruct juries that ADA claimants may win only if they show that their disability was the “sole” reason for any adverse employment action against them.
The court rejected both approaches. It held that the plaintiff was required to show her disability was a “but for” cause of the employer’s decision to terminate her. In other words, the plaintiff was required to prove that “but for” her disability, her employer would not have terminated her. The court noted that its previous interpretation of the ADA was out of sync with the other circuits, none of which use the “sole” reason test.
With this decision, the Sixth Circuit reversed 17 years of precedent and eased the burden for employees bringing discrimination claims under the ADA. The court’s decision puts it in line with other federal circuits, but it is undoubtedly a loss for employers in the Sixth Circuit who will likely see an uptick in ADA claims.