Significant Canadian Labor Decision on Right to Bargain

Fri, 21 Nov 2008 15:27:31 GMT

David Doorey (York Univ.) sends along word that there was a big decision this week from the Ontario Court of Appeal that ruled unconstitutional a statute that did not require employers to bargain collectively with unions selected by a majority...

Feuer on the Supplemental Briefs in Kennedy ERISA Case

Fri, 21 Nov 2008 15:20:35 GMT

Here is additional commentary from Albert Feuer on the Supplemental Briefs requested after oral argument in the ERISA case of Kennedy v. Dupont Savings Plan Administrator. As the title of the piece suggests, it is Albert's view that this case...

The Ghost of Executive Compensation Past

jphillips@millermartin.com (John B. Phillips) — Fri, 21 Nov 2008 14:40:50 GMT

In recent weeks, I’ve tried to cover a lot of stuff about the current economic crisis. Some of what I’ve written about has had to do with executive compensation. I don’t think that executive comp and the greed associated with it are the only causes of the crisis, but they are contributing factors. The Wall Street Journal details [...]

Brace For Impact - January 1st - The new ADA Amendments

MMoore@mwn.com (Michael Moore) — Fri, 21 Nov 2008 14:13:38 GMT

Webinar Registration

Congress recently passed legislation amending the Americans with Disabilities Act, which will greatly expand the coverage of the Act. On Thursday December 4, 2008, McNees Wallace & Nurick will host a 45 minute webinar to discuss these new changes to the ADA and what employers should know before the amendments take effect on January 1, 2009. Please join Samuel N. Lillard and Michael A. Moore, attorneys with McNees Wallace & Nurick’s Labor & Employment Law Practice Group, as they tell you exactly what the new legislation means for employers and what your business should do to comply with the new amendments and avoid costly litigation.

Thursday, December 4, 2008 12:00 PM - 1:00 PM EST : Online Registration link here.

UK Haidresser losses job after shaving profits from employer

dan@toronto-employmentlawyer.com (Daniel A. Lublin) — Fri, 21 Nov 2008 14:05:32 GMT

Mark McMorrine will likely be styling hair in prison for the next 18 months. The Lasswade, Scotland hairdresser was recently convicted of theft and fraud stemming from a scheme in which he stole equipment from the salon which employed him...

Mark McMorrine will likely be styling hair in prison for the next 18 months.

The Lasswade, Scotland hairdresser was recently convicted of theft and fraud stemming from a scheme in which he stole equipment from the salon which employed him and sold it via his eBay account. It is reported that McMorrine netted more $125,000 from the sale of the items which ranged from flattening irons to posh shampoos.

Theft from one's employer has long been regarded as cause for dismissal. In McMorrine's case, he lost both his job and his freedom. Please visit Canadian Employment Law Today for more on this story.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com.

It’s a Set Up

Fri, 21 Nov 2008 13:28:20 GMT

Litigation value: $500,000 to Toby; maybe a couple of bucks to Pam. Welcome back Toby to The Office! For your trouble, how about a sizable money judgment courtesy of Michael Scott, Dwight Schrute, and the good folks at Dunder Mifflin! Invasion of privacy, intentional infliction of emotional distress, assault . . . the list goes on [...]

Get Back in Line — HR Song of the Week

jphillips@millermartin.com (John B. Phillips) — Fri, 21 Nov 2008 12:29:18 GMT

The Kinks were featured last week. Let’s stick with them this week, because this week’s poignant song paints a much different picture from last week’s “Shangri-La.” “Get Back in Line” tells of working stiffs who wait to be picked up by the union to work that day. Some regard songs like this as raising The Kinks [...]

WIRTW #57

jth@kjk.com (Jon Hyman) — Fri, 21 Nov 2008 12:00:01 GMT

Two topics dominate the employment law headlines this week – the new FMLA regulations and the continued debate over the prospects for the Employee Free Choice Act. I’ve covered the former in depth earlier in the week (here and here). The following blogs all wrote this week on the latter, the EFCA: Today’s Workplace, Jottings By An Employer's Lawyer, World of Work, and Work Matters. In related news, Overlawyered happily reports that employment lawyers are busier than ever.

As always seem to be the case, we have a couple of interesting wage and hour posts: George’s Employment Blawg on wage and hour implications for telecommuters, and the Workplace Prof Blog on whether time spent booting up one’s computer is considered compensable work time.

The Trade Secrets Blog reports on a case before the Ohio Supreme Court on whether certain customer-related information qualifies as a trade secret.

The MMMG Law Blog discusses a 10th Circuit case, which may be the first of its kind to apply the Supreme Court’s Holowecki standard of what constitutes a “charge” of discrimination.

The Delaware Employment Law Blog gives some helpful guidance on how to properly make deductions from a salaried employee’s pay without jeopardizing an FLSA exemption.

BLR’s HR Daily Advisor properly advises that when management hears a rumor about inappropriate or discriminatory workplace conduct, it should investigate and not ignore it.

Finally, the Toronto Employment Lawyer points out a key difference between American and Canadian employment law – apparently north-of-the-border management-level employees have an affirmative duty to provide a reasonable notice of resignation.

:: Subrogation Claims In Complex Litigation - The Whole Is Less Than The Sum Of Its Parts

rharmon@healthplanlaw.com (Roy F. Harmon III) — Fri, 21 Nov 2008 11:31:03 GMT

As a threshold matter, the Court recognizes that it is possible, even likely, that a significant portion of the settlement funds do–or, perhaps more accurately, will at some point in the future–belong to some of the Plaintiff health plans. Whether those funds belong in good conscience to the Plaintiffs at this stage of the settlement [...]

The Office: Frame Toby

mark.toth@na.manpower.com (Mark Toth) — Fri, 21 Nov 2008 08:51:55 GMT

In my humble opinion, NBC’s The Office is the world’s #1 employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see. To help enhance your viewing experience, each week I provide a critique of the action from an employment lawyer’s perspective. Here’s this [...]

In my humble opinion, NBC’s The Office is the world’s #1 employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see.

To help enhance your viewing experience, each week I provide a critique of the action from an employment lawyer’s perspective. Here’s this week’s review . . .

Episode Title: ”Frame Toby”

The Plot: When HR “professional” Toby returns to the office, Michael and Dwight do everything humanly possible to get him fired.

Quote of the Week: In referring to their various nefarious plots, Michael admits they, “seem awfully mean” but then adds, ”sometimes the end justifies the mean.”

My Analysis:

Issue: Obesity Discrimination
Description: As in previous weeks, employees made derogatory comments about Kevin’s weight without rebuke by management. As discussed previously here, studies show that obesity bias is more prevalent than many other forms of discrimination in the workplace. At this point, though, only one state (Michigan) and a few municipalities (San Francisco and Washington, D.C.) forbid it. Because neither Pennsylvania nor Scranton prohibits obesity discrimination, Kevin would have no such claim but could potentially sue for intentional infliction of emotional distress.
Risk: $$
Issue: HR Hatred
Description: When Michael discovered that Toby was back from exile, he screamed ”Noooooooooooooooooooo!” several times and then spent the rest of the episode conspiring with Dwight on various ways to terminate Toby. The company’s CFO was made aware of Michael’s refusal to support Toby but did basically nothing than give Michael a mild tsk-tsking. It’s incumbent on management to show support for the company’s HR people, policies and practices. When (as here) management does the opposite, the potential for inappropriate action and big-ticket lawsuits skyrockets.
Risk: $$$$$
Issue: Wrongful Discharge/Constructive Discharge/Retaliation/Obstruction of Justice/False Police Report
Description: Michael’s and Dwight’s attempts to get Toby fired could result in a hefty wrongful discharge/retaliation case (and possible criminal prosecution). Michael begs Toby to hit him in front of other employees so he can fire him for “cause.” He then tries to frame Toby for sexual harassment of Pam. When that doesn’t work, Michael tries to nail Toby for drug possession. Michael buys “pot weed” (actually, a salad) from two warehouse workers, plants it in Toby’s desk and then Dwight calls the cops. Michael and Dwight are lucky they didn’t get arrested for their exploits. Toby could leave, claim constructive discharge (and multiple other claims) and in about five seconds he’d have a dozen plaintiffs’ attorneys following him around begging to represent him.
Risk: $$$$$
Issue: Sexual Harassment
Description: As always, employees are allowed to make multiple inappropriate sexual comments without rebuke. Despite the fact that Ryan and Kelly seemingly do nothing at work other than make out, Toby allows them to remain in neighboring cubes. Michael’s attempt to get Toby to sexually harass Pam could result in a whopping verdict.
Risk: $$$$$

As always, anyone who spots an employment law issue I missed will be entitled to a valuable prize. If you think I missed something, either leave a comment below or shoot me an e-mail at blawg@manpower.com.

If you didn’t get a chance to see the episode, you can view it on NBC’s official web site here.

Join us in two weeks (The Office is on vacation over Thanksgiving) for our lawyerly look at Episode #9, entitled “The Surplus.” Here’s NBC’s official description: “A budget surplus causes factions to break out in the office over how to spend the money.” Should be fun.

Can You Keep Employees Off The Clock While Their Computer Boots Up?

walshandwalsh@aol.com (Walsh & Walsh, P.C.) — Thu, 20 Nov 2008 23:27:35 GMT

You have to have a subcription to read the entire thing, but the National Law Journal has a very interesting article written by Tresa Baldas, entitled: Is Booting Up a Computer Work, or a Work Break? More Companies Fending Off...

Lawyers are noting a new type of lawsuit, in which employees are suing over time spent booting [up] their computers. ... During the past year, several companies, including AT&T Inc., UnitedHealth Group Inc. and Cigna Corp., have been hit with lawsuits in which employees claimed that they were not paid for the 15- to 30-minute task of booting their computers at the start of each day and logging out at the end. Add those minutes up over a week, and hourly employees are losing some serious pay, argues plaintiffs' lawyer Mark Thierman, a Las Vegas solo practitioner who has filed a handful of computer-booting lawsuits in recent years. ...

We aren't sure why it takes 15 to 30 minutes to boot your computer, even if you have Vista, but it seems ridiculous to us that an employer would argue that you have to get to your desk and wait while the equipment warms up or boots up on your own time. The absurd defense position is that employees can boot the computer, then engage in nonwork activities, which must remain off the clock. Richard Rosenblatt, of Morgan, Lewis & Bockius, argues:

"They go have a smoke, talk to friends, get coffee — they're not working, and all they've done at that point is press a button to power up their computer, or enter in a key word."

Lawyers face similar situations frequently. We arrive on time for a deposition or a court hearing, only to find that the witness is running late, or the court won't be taking the bench for 20 minutes. Do lawyers like Richard Rosenblatt stop billing during these minutes, since, after all, they can go have a smoke, talk to other lawyers, get coffee or read their newspapers? Or are they on the clock, ready, willing and able to proceed? If the judge tells you to be in court at 8:30 a.m., and you are, but then you sit there for 15 to 30 minutes playing on your iPhone or Blackberry until your case is called, should you be off the clock? We think we know the answer to that question.

Workers' Comp PA

Thu, 20 Nov 2008 21:51:19 GMT

Michael W. Cardamone represents injured workers all over Pennsylvania including, but not limited to:

Philadelphia
Lancaster
Allentown
Reading
Downingtown
Lansdale
Dresher
North Wales
Doylestown
Philly
Forth Washington
Willow Grove
Easton
Poconos
Lampeter
Norristown
King of Prussia
Pottsville
Scranton
Skippack
Manheim
Plymouth Meeting
Gwynedd
Montgomeryville
Lebanon
Harrisburg
Montgomery County
Chester County
Delaware County
Philadelphia County
Bucks County
Lancaster County
The Lehigh Valley

workers comp lawyer philly
workers comp lawyer allentown
workers comp lawyer pottstown
workers comp lawyer norristown
workers comp lawyer downingtown
workers comp lawyer lancaster
workmans comp lawyer philly
workmans comp lawyer harrisburg
workers comp lawyer chester county
workers comp lawyer williamsport
workmans comp lawyer in manheim, pa
Manheim work comp attorney
Manheim workmens comp lawyer
Lawyer in manheim, pa for workers comp
columbia, pa workmans comp lawyer
lancaster pa workmans comp lawyer
philly work comp
workers comp pa
work comp pa
malvern work comp lawyer
dresher work comp lawyer
bristol work comp lawyer
williamsport work comp lawyer
lancaster work comp lawyer
pa work comp lawyer
pa work injury
pa workers comp

workmans comp lawyer lancaster
pa work comp
work comp pa
pa workers compensation
pa workmans comp

Michael W. Cardamone
The Injured Worker's Lawyer
Fighting For Injured Workers In Pennsylvania
215-206-9068
mcardamone@krasno.com

See also http://www.workerscomppa.com/

United Gets Injunction Against ALPA

Thu, 20 Nov 2008 21:22:43 GMT

United Airlines has just gotten a preliminary injunction against the Air Line Pilots Association in response to the union's alleged sick outs. ALPA has been seeking reversal of some of the bankruptcy-era concessions they gave to United, without success. According...

Another DLSE Settlement With a Car Wash

walshandwalsh@aol.com (Walsh & Walsh, P.C.) — Thu, 20 Nov 2008 19:53:13 GMT

Yesterday, the California Labor Commissioner announced another settlement, this time for $450,000, for unpaid wage claims brought on behalf of carwash workers. Sixty workers at a Redondo Beach carwash will receive $450,000 in unpaid wages, thanks to a settlement reached...

Yesterday, the California Labor Commissioner announced another settlement, this time for $450,000, for unpaid wage claims brought on behalf of carwash workers.

Sixty workers at a Redondo Beach carwash will receive $450,000 in unpaid wages, thanks to a settlement reached in a lawsuit against the carwash by the California Labor Commissioner on the workers' behalf. The Bruno Scherrer Corporation dba Hollywood Riviera shorted their employees' earned wages and intentionally failed to record employee total work hours. This deceptive practice resulted in payment of sub-minimum wage to the carwash employees.

The settlement arose from an investigation that began in October 2006, leading to a lawsuit filed by the Labor Commissioner in September 2007 in Los Angeles County Superior Court. Hollywood Riviera carwash had been paying employees minimum wage for as little as 3 to 4 hours of work then requiring them to finish out the day with no further wages, being paid in tips only. As a result of the settlement, each affected worker will receive an average of $7,500.

‘Tis The Season Music

jphillips@millermartin.com (John B. Phillips) — Thu, 20 Nov 2008 19:47:04 GMT

This may not be true for everyone, but Christmas music makes me feel better. I usually don’t start listening to it quite this early, but these are extraordinary times of gloom. Thus, I was pleased to see the list of such music in Cultural Offering, which also includes a link to a post CO did last [...]

Big Costs on Small Judgments

walshandwalsh@aol.com (Walsh & Walsh, P.C.) — Thu, 20 Nov 2008 19:35:37 GMT

Can a company defeat several of an employee's claims and still be on the hook for all of his attorney's fees if the employee wins on just one substantial claim? Yes. "The law does not mandate . . . that attorney fees bear a percentage relationship to the ultimate recovery of damages in civil rights cases." Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407. In Harman, a jury found in favor of the employee on a discrimination claim, and even though the court had dismissed most of the employee's claims, the jury award of $30,300 in damages justified an award of attorney's fees, and the trial court found $1.1 million to be the reasonable amount of fee incurred pursuing the case. Aside from $144,170 spent on a prior appeal, the Court of Appeal upheld the award.

In conclusion, we borrow from Justice Powell's observations in his concurring opinion in Riverside: “On its face, the fee award seems unreasonable. But [we] find no basis for this Court to reject the findings made and approved by the [court] below.” (Riverside v. Rivera, supra, 477 U.S. 561, 581 (conc. opn. of Powell, J.).) Although we may have exercised our discretion differently, we “cannot conclude that the detailed findings made by the [trial court] … were clearly erroneous, or that the [trial court] abused its discretion in making this fee award.”

We have a case headed in this direction, not out of a lack of trying to settle it early.

Force Majeure Provisions in Outsourcing Contracts

Thu, 20 Nov 2008 18:38:39 GMT

Last week, I provided a general overview of some of the compelling reasons for outsourcing at E-Solutions Integrator. Outsourcing contracts need to be carefully negotiated as problems can have a huge impact on the company that outsources. Lawyers tend to use the same boilerplate provisions despite the type of contract. That can be a killer in [...]

Lawyers tend to use the same boilerplate provisions despite the type of contract. That can be a killer in an outsourcing transaction. For example, one provision that should be carefully reviewed is the force majeure provision.

Force majeure literally means “greater force.” Force majeure excuses a party from liability or from performing its obligation if some unforeseen event or circumstance beyond that party’s control prevents it from performing as required under the contract. Thus, force majeure clauses commonly cover Acts of God, such as natural disasters, war, strikes or labor unrest, riots, and the failure of third parties (e.g., subcontractors, suppliers) to perform their obligations to the contracting party.

When negotiating an agreement to outsource on behalf of a client, one should read and limit the list of categories under which force majeure may be claimed. Sometimes, the vendor’s contract provides includes an unnecessarily broad list. Additionally, one should limit the duration of any enforced delay. Consider how long a force majeure event lasts. Forever? If so, no one will provide the service.

A force majeure event for one of the vendor’s other customers should not be a force majeure event for your client. Further, one should make a distinction between a supplier and a subcontractor, the latter typically being more easily and quickly replaced. Depending on the type of contract, one should consider whether the failure of a supplier should be a force majeure event.

Force majeure events should not include power or equipment failures. The vendor should have immediate backups when these events occur. Similarly, software defects should not be force majeure events.

When a force majeure event occurs, it should not relieve the vendor from implementing its disaster recovery plan. In fact, it must do so when such an event occurs. The client should have its own business continuation plan as well. The client should have insurance If the risk can’t be minimized in a particular area.

The Black Book of Outsourcing: How to Manage the Changes, Challenges, and Opportunities and The Outsourcing Handbook: How to Implement a Successful Outsourcing Process are good places to start when considering an outsourcing arrangement.

How and When to Reopen your Claim

Thu, 20 Nov 2008 18:32:19 GMT

A L&I claim may be reopened within 7 years from the date the first closing order becomes final, for full benefits. That means, time loss, medical benefits, vocational services, disability awards, all benefits that are available under the law. If it has been more than 7 years since the claim was first closed, the claim may be reopened for medical benefits only. The Director of the Department has discretion to provide full benefits in certain circumstances in these ‘over 7’ reopenings.

Keep in mind, the time limit is 7 years from first claim closure, not the date of injury, not the date you returned to work, not the date the final installment of any PPD was paid. If a closing order was protested or appealed, and ultimately set aside, that is NOT the first claim closure. You are looking for the first final claim closing order. That is the start of the 7 year clock.

In a nutshell, a claim will be reopened only where there is medical evidence, based on objective medical findings, that the industrially related condition has worsened, or become aggravated, since the claim was closed. Your own subjective descriptions of increased pain, loss of function, or inability to work are not enough. A claim can not be reopened solely for vocational services. The Department is looking for increases in objectively measurable findings. Worsening in measures of atrophy, nerve damage, degenerative changes, muscle wasting, range of motion, sensation. Worsening which is evident on MRI, CT scan, EMG. I tell clients, we are looking for concrete, objectively measurable changes in their work related condition.

Reopening requests, or aggravation applications as they are sometimes called, should be forwarded directly to the Department, even if your employer was self-insured. There is an actual form, which you can get here:

http://www.lni.wa.gov/FormPub/Detail.asp?DocID=1591

However, an informal written requests, with or without supporting medical information, will start the ball rolling. If there is such an informal request, the Department will forward you the reopening application to complete. There is a portion of the form for you and a section for your medical provider to complete.

You can go to any medical provider to complete a reopening application. If you had a good relationship with the physician who treated you while your claim was open, that is a great place to start. Your primary care provider is ok, an appropriate specialist may be even better. If you have a copy of the closing medical report, take it with you. This will help the physician in comparing your current findings on exam to those at the time your claim was closed. The medical provider will be paid by the Department for performing the exam and completing the paperwork, whether the claim is ultimately reopened or not. If the physician recommends a diagnostic study to complete the exam, the request should be forwarded to the Department along with the reopening application. The Department will approve many diagnostic procedures in order to gather all the medical information necessary to review the reopening application. Again, if the Department authorizes such a study, they will pay for it. The Department will likely schedule you for a medical exam, called an Independent Medical Exam, or IME. (We can discuss some other time whether there is anything ‘independent’ about these exams)

When in this process should you talk to an attorney? There is no hard and fast rule, although I tend to be in the ‘earlier is better’ camp. The Department will issue an Order either reopening the claim or denying the application. You can protest or appeal a denial, and an attorney will most definitely be helpful, if not indispensable. However, earlier involvement has its up side. An attorney with a good relationship with the Department can nudge a claims manager in the right direction, help make sure all necessary diagnostic studies have been done (on the Department’s nickel), help the attending physician articulate the objective findings which have worsened or respond coherently to an IME report. It is, of course, quicker and less expensive if your claim can be reopened without having to litigate the matter. Getting an attorney involved early in the process will only serve to make sure all possible avenues are being examined before the Order is issued.

9th Cir: Hard Look at Beaufort Sea Drilling

will@schendellaw.com (Will Schendel) — Thu, 20 Nov 2008 18:15:56 GMT

The 9th Circuit this morning reversed the Interior Department’s approval of Shell Oil’s plan for three years of exploratory drilling in the Beaufort Sea, and remanded for a “hard look” under NEPA. Alaska Wilderness League v. Kempthorne, 2008 WL _______ (9th Cir. Nov. 20, 2008). Deidre McDonnell from Earthquake in Juneau represents several environmental groups. Kyle Parker from Patton [...]

21st Century’s New Deal

jphillips@millermartin.com (John B. Phillips) — Thu, 20 Nov 2008 17:20:35 GMT

It’s clear that the economy was the #1 issue for voters this year. It’s becoming painfully clear that the part of this issue that’s most important as President-elect Obama prepares to take office is job creation. Staggering layoffs have increased unemployment claims to a 14-year high. And the layoffs are far from over. As discussed in [...]

Recent Articles in Employment & Labor Law from LexMonitor