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Federal Judicial Center Workshop for Judges of the Fourth Circuit Baltimore, Maryland, March 9-11, 2009 Emerging Employment Law Issues by Robert B. Fitzpatrick,

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Presentation on theme: "Federal Judicial Center Workshop for Judges of the Fourth Circuit Baltimore, Maryland, March 9-11, 2009 Emerging Employment Law Issues by Robert B. Fitzpatrick,"— Presentation transcript:

1 Federal Judicial Center Workshop for Judges of the Fourth Circuit Baltimore, Maryland, March 9-11, 2009 Emerging Employment Law Issues by Robert B. Fitzpatrick, Esq. Robert B. Fitzpatrick, PLLC Suite 640 Universal Building South 1825 Connecticut Avenue, N.W. Washington, D.C. 20009-5728 (202) 588-5300 (telephone) (202) 588-5023 (fax) fitzpatrick.law@verizon.net (e-mail) http://www.robertbfitzpatrick.com (website)

2 Lilly Ledbetter Fair Pay Act of 2009 Pub. L. No. 111-2 (2009) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice Id. § 3(a)For purposes of this section, an unlawful employment practice occurs, with respect to discrimination compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice Id. § 3(a) This Act, and the amendments by this Act, take effect as if enacted on May 28, 2007 Id. § 6This Act, and the amendments by this Act, take effect as if enacted on May 28, 2007 Id. § 6 Bush v. Orange County Corr. Dept, 2009 U.S. Dist. LEXIS 7156 (M.D. Fla. Feb. 2, 2009)Bush v. Orange County Corr. Dept, 2009 U.S. Dist. LEXIS 7156 (M.D. Fla. Feb. 2, 2009) Gilmore v. Macys Retail Holdings, 2009 U.S. Dist. LEXIS 4937 (D.N.J. Jan. 20, 2009)Gilmore v. Macys Retail Holdings, 2009 U.S. Dist. LEXIS 4937 (D.N.J. Jan. 20, 2009)

3 Americans With Disabilities Act ADA Amendments Act of 2008, Pub. L. No. 110-325 (2008) ADA Amendments Act of 2008, Pub. L. No. 110-325 (2008) Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121, 2008 U.S. App. LEXIS 21567 (10th Cir. 2008) (driving is a major life activity) Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121, 2008 U.S. App. LEXIS 21567 (10th Cir. 2008) (driving is a major life activity) Adams v. Rice, 531 F.3d 936, 2008 U.S. App. LEXIS 15295 (D.C. Cir. 2008) (sexual relations is a major life activity) Adams v. Rice, 531 F.3d 936, 2008 U.S. App. LEXIS 15295 (D.C. Cir. 2008) (sexual relations is a major life activity)

4 Americans With Disabilities Act Desmond v. Mukasey, 530 F.3d 944, 2008 U.S. App. LEXIS 13803 (D.C. Cir. 2008) (sleeping is a major life activity)Desmond v. Mukasey, 530 F.3d 944, 2008 U.S. App. LEXIS 13803 (D.C. Cir. 2008) (sleeping is a major life activity) Archive ADA: The Path to Equality, www.archiveADA.org (last visited February 27, 2009)Archive ADA: The Path to Equality, www.archiveADA.org (last visited February 27, 2009)

5 Retaliation Claims: The Tail is Wagging the Dog The number of retaliation charges filed with the EEOC increased from 1997 at 22.6% to 29.8% of all charges filed in 2006. Sylvia A. Bier, American Bar Assn, Protect Against the Surge of Employee Retaliation Claims: Understanding Title VII and Its Application to Recent EEOC Cases, 36 The Brief 3, at 15 (Spring 2007) The number of retaliation charges filed with the EEOC increased from 1997 at 22.6% to 29.8% of all charges filed in 2006. Sylvia A. Bier, American Bar Assn, Protect Against the Surge of Employee Retaliation Claims: Understanding Title VII and Its Application to Recent EEOC Cases, 36 The Brief 3, at 15 (Spring 2007) Crawford v. Metropolitan Govt of Nashville and Davidson County, 129 S. Ct. 846, 2009 U.S. LEXIS 870 (2009) Crawford v. Metropolitan Govt of Nashville and Davidson County, 129 S. Ct. 846, 2009 U.S. LEXIS 870 (2009) Michael J. Zimmer, A Pro-Employee Supreme Court? – Retaliation Decisions, 60 S.C. L. Rev. (forthcoming 2009), available at http://ssrn.com/abstract=1333778 Michael J. Zimmer, A Pro-Employee Supreme Court? – Retaliation Decisions, 60 S.C. L. Rev. (forthcoming 2009), available at http://ssrn.com/abstract=1333778

6 Litigation Under New Whistleblower Laws Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, 15 U.S.C. § 2087 (2008) (CPSIA whistleblower rights to private sector workers connected with the manufacture, importing, distribution, labeling, or retail sail of consumer products under the jurisdiction of the Consumer Product Safety Commission) Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, 15 U.S.C. § 2087 (2008) (CPSIA whistleblower rights to private sector workers connected with the manufacture, importing, distribution, labeling, or retail sail of consumer products under the jurisdiction of the Consumer Product Safety Commission) McCaskill Amendment (S.Amdt. 196) to the American Recovery and Reinvestment Act of 2009, H.R. 1, 111th Cong. (2009) See also whistleblower amendment to the Surface Transportation Assistance Act 49 U.S.C. §31105, the Federal Rail Safety Act (49 U.S.C. §20109), the National Transit Systems Security Act (6 U.S.C. §1142) and section 846 of the National Defense Authorization Act for Fiscal Year 2008 (10 U.S.C. §2409) (amending whistleblower protection for employees of DOD contractors and grantees) See also whistleblower amendment to the Surface Transportation Assistance Act 49 U.S.C. § 31105, the Federal Rail Safety Act (49 U.S.C. § 20109), the National Transit Systems Security Act (6 U.S.C. § 1142) and section 846 of the National Defense Authorization Act for Fiscal Year 2008 (10 U.S.C. § 2409) (amending whistleblower protection for employees of DOD contractors and grantees)

7 SOX Platone v. United States Dept of Labor, 548 F.3d 322, 2008 U.S. App. LEXIS 24378 (4th Cir. 2008) (holding that the plaintiffs communication to her supervisors that pilots were misusing a missed-flight reimbursement plan was merely communicating a billing discrepancy and was not enough information to indicate possible fraud against shareholders within the scope of SOX Platone v. United States Dept of Labor, 548 F.3d 322, 2008 U.S. App. LEXIS 24378 (4th Cir. 2008) (holding that the plaintiffs communication to her supervisors that pilots were misusing a missed-flight reimbursement plan was merely communicating a billing discrepancy and was not enough information to indicate possible fraud against shareholders within the scope of SOX) Day v. Staples, Inc., 2009 U.S. App. LEXIS 2266 (1st Cir. Feb. 9, 2009) (SOX did not bar the termination of an employee whose complaints about the companys product return practices could not reasonably have been construed to reflect an objectively reasonable belief that the company was defrauding shareholders) Day v. Staples, Inc., 2009 U.S. App. LEXIS 2266 (1st Cir. Feb. 9, 2009) (SOX did not bar the termination of an employee whose complaints about the companys product return practices could not reasonably have been construed to reflect an objectively reasonable belief that the company was defrauding shareholders)

8 Gross v. FBL Financial Servs., Inc. 129 S. Ct. 680, 2008 U.S. LEXIS 8885 (2008), cert. granted, 526 F.3d 356 (8th Cir. 2008) Does § 2000(e)-2(m) of the Civil Rights Act of 1991 apply to claims arising under the ADEA? Does § 2000(e)-2(m) of the Civil Rights Act of 1991 apply to claims arising under the ADEA? Does the Courts decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) supersede Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)? Does the Courts decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) supersede Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)?

9 Ricci v. DeStefano 129 S. Ct. 893, 2009 U.S. LEXIS 394 (2008), cert. granted, 530 F.3d 87 (2d. Cir. 2008) Is it reverse discrimination to withdraw promotions because a test had disparate impact? Oakley v. City of Memphis, 2008 U.S. App. LEXIS 19377 (6th Cir. 2008) (When content-valid, civil service examination and race-neutral selection process yield unintended racially disproportionate results, does employer racially discriminate when it rejects results and successful candidates in order to achieve racial proportionality in candidates selected?) Oakley v. City of Memphis, 2008 U.S. App. LEXIS 19377 (6th Cir. 2008) (When content-valid, civil service examination and race-neutral selection process yield unintended racially disproportionate results, does employer racially discriminate when it rejects results and successful candidates in order to achieve racial proportionality in candidates selected?)

10 Graham County Soil & Water v. United States ex rel. Wilson 129 S. Ct. 753, 2008 U.S. LEXIS 9031 (2008), cert. granted, 528 F.3d 292 (4th Cir. 2008) Does the public disclosure bar of the False Claims Act apply to administrative audits, reports, hearings or investigations conducted or issued by a state or local governmental entity?

11 14 Penn Plaza LLC v. Pyett 128 S. Ct. 1223, 2008 U.S. LEXIS 1418 (2008), cert. granted sub nom, Pyett v. Pa. Bldg. Co., 498 F.3d 88 (2d. Cir. N.Y. 2007) Whether and arbitration provision in a collective bargaining agreement (CBA), which explicitly waives union members right to bring statutory discrimination claims in court, I enforceable so as to deprive the employees of a judicial forum even where the union has refused to submit the claims to arbitration. Whether and arbitration provision in a collective bargaining agreement (CBA), which explicitly waives union members right to bring statutory discrimination claims in court, I enforceable so as to deprive the employees of a judicial forum even where the union has refused to submit the claims to arbitration. See Austin v. Owens-Brockway Glass Container, 78 F.3d 87 (4 th Cir. 1996) (individual must pursue discrimination claims through union-negotiated grievance procedure; provision requiring arbitration of such claims is enforceable). The Supreme Court, when presented with a similar question in Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1990), refused to resolve the question, holding that it was not clearly presented because that CBA provision did not explicitly include statutory claims. See Austin v. Owens-Brockway Glass Container, 78 F.3d 87 (4 th Cir. 1996) (individual must pursue discrimination claims through union-negotiated grievance procedure; provision requiring arbitration of such claims is enforceable). The Supreme Court, when presented with a similar question in Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1990), refused to resolve the question, holding that it was not clearly presented because that CBA provision did not explicitly include statutory claims.

12 Fitzgerald v. Barnstable School Committee 129 S. Ct. 788, 2009 U.S. LEXIS 592 (2009), revd, 504 F.3d 165 (1st Cir. 2007) Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for §1983 suits as a means of enforcing constitutional rights Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for §1983 suits as a means of enforcing constitutional rights The implied private right of action under Title IX is in stark contrast to the unusually elaborate, carefully tailored, and restrictive enforcement schemes of the statutes in Sea Clammers, Smith and Rancho Pelos Verdes. The implied private right of action under Title IX is in stark contrast to the unusually elaborate, carefully tailored, and restrictive enforcement schemes of the statutes in Sea Clammers, Smith and Rancho Pelos Verdes.

13 Hybrid FLSA Cases Under the FLSA, plaintiffs can proceed under the Section 216(b) opt- in collective action procedure, but only state law claims allow for an opt-out class actions under FRCP 23. Combining an FLSA collective action and a state-law class action claims in one proceeding has been labeled a hybrid wage and hour action. Some courts have allowed plaintiffs to proceed with a hybrid or opt in/opt out approach under both FLSA Section 216(b) for opt in notice and FRCP 23 for class notice as to state law claims (on an opt out basis). See McLaughlin v. Liberty Mutual Ins. Co., 224 F.R.D. 304 (D. Mass. 2004); Ansoumana v.Gristede's Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001); O'Brien v. Encotech Constructions Servs., Inc., 203 F.R.D. 346 (N.D. Ill. 2001) Under the FLSA, plaintiffs can proceed under the Section 216(b) opt- in collective action procedure, but only state law claims allow for an opt-out class actions under FRCP 23. Combining an FLSA collective action and a state-law class action claims in one proceeding has been labeled a hybrid wage and hour action. Some courts have allowed plaintiffs to proceed with a hybrid or opt in/opt out approach under both FLSA Section 216(b) for opt in notice and FRCP 23 for class notice as to state law claims (on an opt out basis). See McLaughlin v. Liberty Mutual Ins. Co., 224 F.R.D. 304 (D. Mass. 2004); Ansoumana v.Gristede's Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001); O'Brien v. Encotech Constructions Servs., Inc., 203 F.R.D. 346 (N.D. Ill. 2001) Lindsay v. Gov Employees Ins. Co., 448 F.3d 416, 2006 U.S. App. LEXIS 13166 (D.C. Cir. 2006) Lindsay v. Gov Employees Ins. Co., 448 F.3d 416, 2006 U.S. App. LEXIS 13166 (D.C. Cir. 2006)

14 Transgender Discrimination Schroer v. Billington, 577 F. Supp. 2d 293, 2008 U.S. Dist. LEXIS 71358 (D.D.C. 2008); see also Schroer v. Billington, 424 F. Supp. 2d 203, 2006 U.S. Dist. LEXIS 14278 (D.D.C. 2006) Etsitty v. Utah Transit Auth., 502 F.3d 1215, 2007 U.S. App. LEXIS 22989 (10th Cir. 2007) Etsitty v. Utah Transit Auth., 502 F.3d 1215, 2007 U.S. App. LEXIS 22989 (10th Cir. 2007) Zachary A. Kramer, Heterosexuality and Title VII, 103 Nw. U. L. Rev. 205 (2009) Zachary A. Kramer, Heterosexuality and Title VII, 103 Nw. U. L. Rev. 205 (2009) Elizabeth M. Glazer & Zachary A. Kramer, Transitional Discrimination, Temp. Pol. & Civ. Rts. L. Rev. (forthcoming 2009), available at http://ssrn.com/abstract=1345254 Elizabeth M. Glazer & Zachary A. Kramer, Transitional Discrimination, Temp. Pol. & Civ. Rts. L. Rev. (forthcoming 2009), available at http://ssrn.com/abstract=1345254

15 Class Actions In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 2008 U.S. App. LEXIS 26871 (3d Cir. 2008) (in a landmark opinion, Chief Judge Scirica provided extensive guidance to the district courts in deciding whether to certify a class under Civil Rule 23, stating that the district court must find, by a preponderance of the evidence, that each requirement of Rule 23 is satisfied, that it must resolve all factual and legal disputes relevant to class certification even if they overlap with the merits, and holding that expert testimony is part of the relevant evidence that the court must consider) In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 2008 U.S. App. LEXIS 26871 (3d Cir. 2008) (in a landmark opinion, Chief Judge Scirica provided extensive guidance to the district courts in deciding whether to certify a class under Civil Rule 23, stating that the district court must find, by a preponderance of the evidence, that each requirement of Rule 23 is satisfied, that it must resolve all factual and legal disputes relevant to class certification even if they overlap with the merits, and holding that expert testimony is part of the relevant evidence that the court must consider) Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007), rehg granted, 2009 U.S. App. LEXIS 2854 (9th Cir. Feb. 13, 2009) Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007), rehg granted, 2009 U.S. App. LEXIS 2854 (9th Cir. Feb. 13, 2009)

16 Class Action Waivers in Arbitration In re American Express Merchants Litigation, 2009 U.S. App. LEXIS 1646 (2d Cir. Jan. 30, 2009)In re American Express Merchants Litigation, 2009 U.S. App. LEXIS 1646 (2d Cir. Jan. 30, 2009) Homa v. American Express, 2009 U.S. App. LEXIS 3688 (3rd Cir. 2009)Homa v. American Express, 2009 U.S. App. LEXIS 3688 (3rd Cir. 2009) Shannon P. Duffy, 3rd Circuit Deals Blow to Class-Arbitration Waivers, The Legal Intelligencer, February 25, 2009, available at http://www.law.com/jsp/article.jsp?id=124 28563116 Shannon P. Duffy, 3rd Circuit Deals Blow to Class-Arbitration Waivers, The Legal Intelligencer, February 25, 2009, available at http://www.law.com/jsp/article.jsp?id=124 28563116

17 Arbitration Issues Continue to Abound Morales v. Sun Constructors, Inc., 541 F.3d 218 (3d Cir. 2008) (the majority, with Judge Fuentes dissenting, held that an employee who did not read English nonetheless manifested mutual assent to the arbitration clause at issue; the panel unanimously reaffirmed that it would be inconsistent with the FAA to apply a heightened knowing and voluntary standard to arbitration agreements) Morales v. Sun Constructors, Inc., 541 F.3d 218 (3d Cir. 2008) (the majority, with Judge Fuentes dissenting, held that an employee who did not read English nonetheless manifested mutual assent to the arbitration clause at issue; the panel unanimously reaffirmed that it would be inconsistent with the FAA to apply a heightened knowing and voluntary standard to arbitration agreements) Guyden v. Aetna Inc., 544 F.3d 376 (2d Cir. 2008) (held that nothing in the statute prohibits SOX whistleblower claims from being resolved in arbitration ) Guyden v. Aetna Inc., 544 F.3d 376 (2d Cir. 2008) (held that nothing in the statute prohibits SOX whistleblower claims from being resolved in arbitration ) Richard A. Bales, Twenty-Second Annual Carl A. Warns, Jr. Labor & Employment Law Institute: Contract Formation in Employment Arbitration, 44 Brandeis L.J. 415 (2006) Richard A. Bales, Twenty-Second Annual Carl A. Warns, Jr. Labor & Employment Law Institute: Contract Formation in Employment Arbitration, 44 Brandeis L.J. 415 (2006)

18 Attorney-Client Privilege Waivers When Client Communicates Using Employers Equipment or Email System Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, 60 Fla. L. Rev. 1190 (2008) Suggested language for representation agreements:Suggested language for representation agreements: Client agrees and consents to the Firms transmission of bills and other materials related to billing by facsimile and e-mail to Client. Typically, the Firm would communicate by e-mail to Client and the Client agrees and consents to e-mail transmission to Client of privileged attorney-client communications. While e-mail provides a fast and efficient medium for communication, there exists some case law which suggests that e-mail communications between attorney and client may not be confidential and may be discoverable by an adverse party. In addition, most employers consider company-owned computers, as well as all information contained in them, to be company property. Accordingly, there is generally no right to privacy of any e-mail sent or received at your place of employment. Your employer has complete access to, and is capable of, retrieving any e-mail message sent or received by you at your company-owned computer or business e-mail address, even after you have deleted the message. Therefore, you should NEVER communicate by e-mail with your attorney using a company-owned computer or your business e-mail address. Additionally, you should exercise discretion in e-mailing the Firm from your home or non-business e-mail address. Therefore, you should NEVER communicate by e-mail with your attorney using a company-owned computer or your business e-mail address. Additionally, you should exercise discretion in e-mailing the Firm from your home or non-business e-mail address.

19 National Origin Discrimination Claims Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 87, 2008 D.C. App. LEXIS 281 (D.C. 2008) Stratton & Bergquist, The Contours of National Origin Discrimination Under Federal Law, National Employment Lawyers Association 18th Annual Convention Manual (2007) Stratton & Bergquist, The Contours of National Origin Discrimination Under Federal Law, National Employment Lawyers Association 18th Annual Convention Manual (2007)

20 Race Prohibited as a Criterion for Computing Damages McMillan v. City of New York, 2008 U.S. Dist. LEXIS 76711 (E.D.N.Y. Sep. 19, 2008) (Weinstein, J.) (Order Excluding Race as a Criterion for Computing Damages) McMillan v. City of New York, 2008 U.S. Dist. LEXIS 76711 (E.D.N.Y. Sep. 19, 2008) (Weinstein, J.) (Order Excluding Race as a Criterion for Computing Damages) While race may be a social construct, many policymakers and courts insist that it remains a significant predictor of… access to societal goods and resource. Audrey Smedley & Brian D. Smedley, Race as a Biology is Fiction, Race as a Social Problem is Real, 60:1 Am. Psychologist 16, 22 (2005). Racial and ethnic disparities in quality of health care, for example, remain substantial across a broad range of medical services. Id at 23. But those disparities are associated with socioeconomic difference and tend to diminish significantly and, in a few cases, to disappear altogether when socioeconomic factors are controlled. Id. By allowing the use of race-based life expectancy tables, which are based on historic data, courts are essentially reinforcing the underlying social inequalities of our society rather than describing a significant biological difference. While race may be a social construct, many policymakers and courts insist that it remains a significant predictor of… access to societal goods and resource. Audrey Smedley & Brian D. Smedley, Race as a Biology is Fiction, Race as a Social Problem is Real, 60:1 Am. Psychologist 16, 22 (2005). Racial and ethnic disparities in quality of health care, for example, remain substantial across a broad range of medical services. Id at 23. But those disparities are associated with socioeconomic difference and tend to diminish significantly and, in a few cases, to disappear altogether when socioeconomic factors are controlled. Id. By allowing the use of race-based life expectancy tables, which are based on historic data, courts are essentially reinforcing the underlying social inequalities of our society rather than describing a significant biological difference.

21 The Contours of Protected Activity Birdyshaw v. Dillards Inc., 2009 U.S. App. LEXIS 1737 (11th Cir. Jan. 28, 2009) Circuit split about whether a person who rejects a supervisors sexual advances has engaged in a protected activity. Compare LeMaire v. La. Dept of Transp. & Dev., 480 F.3d 383, 389 (5th Cir. 2007) (holding that a single, express rejection of sexual advances does not constitute protected activity for purposes of a retaliation claim) with Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (finding that when the plaintiff told her supervisor to stop harassing her, she engaged in the most basic form of protected conduct). Niswander v. The Cincinnati Ins. Co., 529 F.3d 714, 2008 U.S. App. LEXIS 13284 (6th Cir. 2008) (majority sets forth a six-factor balancing test for determining whether employees delivery of confidential documents to her attorney was reasonable )

22 Damages Issues Eshelman v. Agere, 2009 U.S. App. LEXIS 1947 (3d Cir. Jan. 30, 2009) (holding that a district court may, pursuant to its broad equitable powers granted by the ADA, award a prevailing employee an additional sum of money to compensate for the increased tax burden a back pay award may create). Contra Fogg v. Gonzales, 492 F.3d 447 (D.C. Cir. 2007) (Court affirmed the award of back pay and denial of front pay, but reversed as to the extent of the gross up) and Dashnaw v. Pena, 12 F.3d 1112 (D.C. Cir. 1994) (holding that absent an arrangement by voluntary settlement of the parties, the general rule that victims of discrimination should be made whole does not support gross-ups of back pay to cover tax liability. We know of no authority for such relief.) Eshelman v. Agere, 2009 U.S. App. LEXIS 1947 (3d Cir. Jan. 30, 2009) (holding that a district court may, pursuant to its broad equitable powers granted by the ADA, award a prevailing employee an additional sum of money to compensate for the increased tax burden a back pay award may create). Contra Fogg v. Gonzales, 492 F.3d 447 (D.C. Cir. 2007) (Court affirmed the award of back pay and denial of front pay, but reversed as to the extent of the gross up) and Dashnaw v. Pena, 12 F.3d 1112 (D.C. Cir. 1994) (holding that absent an arrangement by voluntary settlement of the parties, the general rule that victims of discrimination should be made whole does not support gross-ups of back pay to cover tax liability. We know of no authority for such relief.) Tarr v. Bob Ciasullis Mack Auto Mall, Inc., 943 A.2d 866, 2008 N.J. LEXIS 222 (N.J. 2008) (punitive damages awards to focus only on deterrence of the specific defendant as opposed to general deterrence of others; consideration of the employer financial condition both after and at the time of the wrongful conduct is necessary) Tarr v. Bob Ciasullis Mack Auto Mall, Inc., 943 A.2d 866, 2008 N.J. LEXIS 222 (N.J. 2008) (punitive damages awards to focus only on deterrence of the specific defendant as opposed to general deterrence of others; consideration of the employer financial condition both after and at the time of the wrongful conduct is necessary)

23 Damages Issues Robert H. Wright, Punitive Damages Immunity of Federal Instrumentalities, 38 The Brief, A.B.A. Sec. Tort Trial & Ins. Practice 24 (2009), available at http://www.abanet.org/tips/brief/briefcurrent.html (appellate courts have split on the fundamental question of whether the sue and be sued language in the statutes granting federal charters to federal instrumentalities, including Fannie Mae, Freddie Mac, and the American Red Cross, waives the federal instrumentalitys immunity from punitive damages claims. Compare in re Sparkman, 703 F.2d 1097, 1100-01 (9th Cir. 1983) (holding that [a] federal instrumentality… retains its immunity from punitive damages unless Congress explicitly authorizes liability for such damages) with McGee v. Tucoemas Federal Credit Union, 153 Cal. App. 4th 1351 (Cal. Ct. App. 2007) (refusing to follow in re Sparkman and holding instead that federal instrumentalities are generally subject to punitive damage claims))Robert H. Wright, Punitive Damages Immunity of Federal Instrumentalities, 38 The Brief, A.B.A. Sec. Tort Trial & Ins. Practice 24 (2009), available at http://www.abanet.org/tips/brief/briefcurrent.html (appellate courts have split on the fundamental question of whether the sue and be sued language in the statutes granting federal charters to federal instrumentalities, including Fannie Mae, Freddie Mac, and the American Red Cross, waives the federal instrumentalitys immunity from punitive damages claims. Compare in re Sparkman, 703 F.2d 1097, 1100-01 (9th Cir. 1983) (holding that [a] federal instrumentality… retains its immunity from punitive damages unless Congress explicitly authorizes liability for such damages) with McGee v. Tucoemas Federal Credit Union, 153 Cal. App. 4th 1351 (Cal. Ct. App. 2007) (refusing to follow in re Sparkman and holding instead that federal instrumentalities are generally subject to punitive damage claims)) http://www.abanet.org/tips/brief/briefcurrent.html

24 Application of Faragher-Ellerth Affirmative Defense to FLSA Cases Lisa A. Lee Schreter, Whitney M. Ferrer & SoRelle B. Braun, Adopting the Avoidable Consequences Affirmative Defense: Applying the Lessons of Ellerth/Faragher to FLSA Claims, copies available from the author at LSchreter@littler.com

25 Attorneys Fees for Pre-suit Work in ERISA Cases Cann v. Carpenters Pension Trust Fund, 989 F.2d 313 (9th Cir. 1993) (Court interpreted §1132(g)(1)s language in any action to preclude the award of fees for any efforts expended on negotiations or administrative proceedings prior to the action.) Cann v. Carpenters Pension Trust Fund, 989 F.2d 313 (9th Cir. 1993) (Court interpreted §1132(g)(1)s language in any action to preclude the award of fees for any efforts expended on negotiations or administrative proceedings prior to the action.) LaSelle v. Public Service Co. of Colorado Severance Pay Plan, 988 F. Supp. 1348 (D. Colo. 1997) (agreeing with Cann that ERISAs attorneys fees provision did not permit recovery for fees incurred in the administrative fee of the proceedings but held that all time spent by counsel in interviews, consultation, preliminary research, and various additional tasks unrelated to the administrative appeal, even thought performed before the filing of the complaint, is compensable) LaSelle v. Public Service Co. of Colorado Severance Pay Plan, 988 F. Supp. 1348 (D. Colo. 1997) (agreeing with Cann that ERISAs attorneys fees provision did not permit recovery for fees incurred in the administrative fee of the proceedings but held that all time spent by counsel in interviews, consultation, preliminary research, and various additional tasks unrelated to the administrative appeal, even thought performed before the filing of the complaint, is compensable)

26 Attorneys Fees for Pre-suit Work in ERISA Cases Hedley-Whyte v. Unum Life Ins. Co. of America, 1996 U.S. Dist. LEXIS 5880 (D. Mass. 1996) (This Court find Canns strict exclusion of prelitigation expenses to be a questionable interpretation of the statutory language… this Court can identify no sound reason however based on the statutory language, why a court lacks discretion to award fees and costs for work appropriately contributing to the prosecution of the action just because they were incurred prior to the filing date)

27 USERRA Litigation Serricchio v. Wachovia Securities LLC, 556 F. Supp. 2d 99, 2008 U.S. Dist. LEXIS 20043 (D. Conn. 2008) (Plaintiff was a financial adviser working on commissions who was called to active duty, and upon reinstatement, argued that defendant had not satisfied its reemployment obligations under 38 U.S.C. 4316, contending that defendant had a duty to preserve his book of business. The Court held that defendant does not have a duty to provide the employee with his exact previous book of business, so long as what is provided gives him the opportunity to reenter the workforce with comparable earning potential and chance for advancement as his own book of business provided prior to his service, regardless of whether the same clients are in the substituted book)

28 Cy Pres Power Diamond Chemical Co. Inc. v. Akzo Nobel Chemicals B.V., 517 F.Supp.2d 212 (D.D.C. 2007) and 2007 U.S. Dist. LEXIS 49406 (D.D.C. 2007) Diamond Chemical Co. Inc. v. Akzo Nobel Chemicals B.V., 517 F.Supp.2d 212 (D.D.C. 2007) and 2007 U.S. Dist. LEXIS 49406 (D.D.C. 2007) Amanda Bronstad, Cy Pres Awards Under Scrutiny, The National Law Journal, August 11, 2008, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=120 2423649133 Amanda Bronstad, Cy Pres Awards Under Scrutiny, The National Law Journal, August 11, 2008, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=120 2423649133 Theodore Frank, The Federalist Society, Class Action Watch, Cy Pres Settlements (Apr. 4, 2008), available at http://www.fed- soc.org/doclib/20080404_FrankCAW7.1.pdf Theodore Frank, The Federalist Society, Class Action Watch, Cy Pres Settlements (Apr. 4, 2008), available at http://www.fed- soc.org/doclib/20080404_FrankCAW7.1.pdf Adam Liptak, Doling Out Other Peoples Money, N.Y. Times, Nov. 26, 2007, available at http://www.nytimes.com/2007/11/26/washington/26bar.html? _r=1&oref=slogin Adam Liptak, Doling Out Other Peoples Money, N.Y. Times, Nov. 26, 2007, available at http://www.nytimes.com/2007/11/26/washington/26bar.html? _r=1&oref=slogin

29 Computer Fraud & Abuse Act Intl Airport Centers v. Citrin, 440 F.3d 418 (7th Cir. 2006) (while the CFAA does not define transmission a transmission includes the installation and use of an erasure program on the computer) Intl Airport Centers v. Citrin, 440 F.3d 418 (7th Cir. 2006) (while the CFAA does not define transmission a transmission includes the installation and use of an erasure program on the computer) Patrick Patterson Custom Homes, Inc. v. Bach, 586 F. Supp.2d 1026, 2008 U.S. Dist. LEXIS 92761 (N.D. Ill. 2008) (opinion discusses whether the defendant knowingly cause[d] the transmission of a program, information, code or command, and as a result of such conduct intentionally cause[d] damage without authorization, to a protected computer ) Patrick Patterson Custom Homes, Inc. v. Bach, 586 F. Supp.2d 1026, 2008 U.S. Dist. LEXIS 92761 (N.D. Ill. 2008) (opinion discusses whether the defendant knowingly cause[d] the transmission of a program, information, code or command, and as a result of such conduct intentionally cause[d] damage without authorization, to a protected computer ) L-3 Commcns Westwood Corp. v. Robicharux, 2007 U.S. Dist. LEXIS 16789 (E.D. La. Mar. 8, 2007) L-3 Commcns Westwood Corp. v. Robicharux, 2007 U.S. Dist. LEXIS 16789 (E.D. La. Mar. 8, 2007)

30 Computer Fraud & Abuse Act Chas. S. Winner, Inc. v. Polistina, 2007 U.S. Dist. LEXIS 40741 (D.N.J. June 4, 2007) Motorola Credit Corp. v. Uzan, 2002 U.S. Dist. LEXIS 19632 (S.D.N.Y. Oct. 16, 2002) Motorola Credit Corp. v. Uzan, 2002 U.S. Dist. LEXIS 19632 (S.D.N.Y. Oct. 16, 2002) Pearl Invs. LLC v. Standard I/O, Inc., 257 F. Supp. 2d 326, 2003 U.S. Dist. LEXIS 6890 (D. Me. 2003) Pearl Invs. LLC v. Standard I/O, Inc., 257 F. Supp. 2d 326, 2003 U.S. Dist. LEXIS 6890 (D. Me. 2003) United States v. Middleton, 231 F.3d 1207 (9th Cir. 2000) United States v. Middleton, 231 F.3d 1207 (9th Cir. 2000) Spangler, Jennings & Dougherty, P.C. v. Mysliwy, 2006 U.S. Dist. LEXIS 39602 (N.D. Ind. 2006) Spangler, Jennings & Dougherty, P.C. v. Mysliwy, 2006 U.S. Dist. LEXIS 39602 (N.D. Ind. 2006) Tyco Intl Inc. v. Does, 2003 U.S. Dist. LEXIS 11800 (S.D.N.Y. July 11, 2003) Tyco Intl Inc. v. Does, 2003 U.S. Dist. LEXIS 11800 (S.D.N.Y. July 11, 2003)

31 Defense Discovery Subpoenas to Plaintiffs Former and Current Employers Barrington v. Mortage IT, Inc., 2007 U.S. Dist. LEXIS 90555 (S.D. Fla. Dec. 10, 2007) (rejecting subpoenas duces tecum which sought any and all documents, files and records, reflecting or relating to the employment of the plaintiff as overly broad on their face) Badr v. Liberty Mutual Group, Inc., 2007 U.S. Dist. LEXIS 73437 (D. Conn. Sept. 28, 2007) (holding that defendants subpoena of any and all records relating to plaintiff was overbroad and limiting the subpoena to documents relating to prior claims or complaints against plaintiffs co-workers) Badr v. Liberty Mutual Group, Inc., 2007 U.S. Dist. LEXIS 73437 (D. Conn. Sept. 28, 2007) (holding that defendants subpoena of any and all records relating to plaintiff was overbroad and limiting the subpoena to documents relating to prior claims or complaints against plaintiffs co-workers) Richards v. Convergys Corp., 2007 WL 474012 (D. Utah Feb. 7, 2007) (quashing overbroad subpoena duces tecum directed to plaintiffs former employer that sought all documents in your possession or control regarding the employment of the plaintiff) Richards v. Convergys Corp., 2007 WL 474012 (D. Utah Feb. 7, 2007) (quashing overbroad subpoena duces tecum directed to plaintiffs former employer that sought all documents in your possession or control regarding the employment of the plaintiff) Richmond v. UPS Serv. Parts Logistics, 2002 U.S. Dist. LEXIS 7496, at 13, 2002 WL 745588 (S.D. Ind. Apr. 5, 2002) (holding that a discovery request for the plaintiff's entire personnel file was on its face overbroad) Richmond v. UPS Serv. Parts Logistics, 2002 U.S. Dist. LEXIS 7496, at 13, 2002 WL 745588 (S.D. Ind. Apr. 5, 2002) (holding that a discovery request for the plaintiff's entire personnel file was on its face overbroad)

32 Compensation Litigation Pachter v. Bernard Hodes, 891 N.E. 2d 279 (N.Y. 2008) (deciding certified questions from the Second Circuit and finding that executives are covered by the New York Labor Law unless expressly excluded and holding that in the absence of a governing written instrument, when a commission is earned and becomes a wage for purposes of Labor Law article 6 is regulated by the parties express or implied agreement; or if no agreement exists by the default common-law rule that ties the earnings of a commission to the employees production of a ready, willing and able purchaser of the services. See also Pachter v. Bernard Hodes Groups, Inc., 541 F.3d 461, 2008 U.S. App. LEXIS 18922 (2d Cir. 2007) Pachter v. Bernard Hodes, 891 N.E. 2d 279 (N.Y. 2008) (deciding certified questions from the Second Circuit and finding that executives are covered by the New York Labor Law unless expressly excluded and holding that in the absence of a governing written instrument, when a commission is earned and becomes a wage for purposes of Labor Law article 6 is regulated by the parties express or implied agreement; or if no agreement exists by the default common-law rule that ties the earnings of a commission to the employees production of a ready, willing and able purchaser of the services. See also Pachter v. Bernard Hodes Groups, Inc., 541 F.3d 461, 2008 U.S. App. LEXIS 18922 (2d Cir. 2007) Weems v. Citigroup Inc., 453 Mass. 147, 2009 Mass. LEXIS 19 (Mass. 2009) forfeiture provision in employee stock plan held not to violate state wage act) Weems v. Citigroup Inc., 453 Mass. 147, 2009 Mass. LEXIS 19 (Mass. 2009) forfeiture provision in employee stock plan held not to violate state wage act) In re Citigroup, Inc., 535 F.3d 45, 2008 U.S. App. LEXIS 15645 (1st Cir. 2008) (forfeiture provisions of employers capital accumulation plans were unambiguous and enforceable) In re Citigroup, Inc., 535 F.3d 45, 2008 U.S. App. LEXIS 15645 (1st Cir. 2008) (forfeiture provisions of employers capital accumulation plans were unambiguous and enforceable)

33 Privacy in the Workplace in the Electronic Age Quon v. Arch Wireless Operating Co., 529 F.3d 892, 2008 U.S. App. LEXIS 12766 (9th Cir. 2008), rehg denied, 2009 U.S. App. LEXIS 2259 (9th Cir. Jan. 27, 2009) Richard A. Paul & Lisa Hird Chung, Brave New Cyberworld: The Employers Legal Guide to the Interactive Internet, 24 Lab. Law. 109 (2008) Richard A. Paul & Lisa Hird Chung, Brave New Cyberworld: The Employers Legal Guide to the Interactive Internet, 24 Lab. Law. 109 (2008) Elizabeth C. Lawnicki, Location Surveillance in the Employment Context and the Right to Privacy, available at http://www.laborandemploymentcollege.org/ Contest_Winners/Contest-Lawnicki.pdf Elizabeth C. Lawnicki, Location Surveillance in the Employment Context and the Right to Privacy, available at http://www.laborandemploymentcollege.org/ Contest_Winners/Contest-Lawnicki.pdf

34 Collaborative Law Michael A. Zeytoonian, Pioneers on the Horizon: Collaborative Law in Employment Disputes, available at http://www.hutchingsbarsamian.com/pdf/employment- disputes.pdf Michael A. Zeytoonian, Pioneers on the Horizon: Collaborative Law in Employment Disputes, available at http://www.hutchingsbarsamian.com/pdf/employment- disputes.pdf Collaborative Law Process Agreement for Business and Employment Cases, available at http://www.collaborativepractice.com Collaborative Law Process Agreement for Business and Employment Cases, available at http://www.collaborativepractice.com R. Paul Faxon & Michael Zeytoonian, Prescription for Sanity in Resolving Business Disputes: Civil Collaborative Practice in a Business Restructuring Case, available at http://www.collaborativepractice.com/lib/PDFs/Presc riptionForSanityInResolvingBusinessDisputes.pdf R. Paul Faxon & Michael Zeytoonian, Prescription for Sanity in Resolving Business Disputes: Civil Collaborative Practice in a Business Restructuring Case, available at http://www.collaborativepractice.com/lib/PDFs/Presc riptionForSanityInResolvingBusinessDisputes.pdf

35 A New Generation of Discrimination Claims: Unconscious Discrimination Franita Tolson, The Boundaries of Litigating Unconscious Discrimination, 33 Del. J. Corp. L. 347 (2008)

36 Bullying Claims in the Workplace Raess v. Doescher, 883 N.E.2d 790, 2008 Ind. LEXIS 313 (Ind. 2008) (The Indiana Supreme Court, over the dissent of one judge, declined to decide whether it was error to admit the testimony of a so-called bullying expert. A cardiac surgeon who was accused of being a workplace bully because he yelled at a co-worker, was sued by the co-worker for intentional infliction of emotional distress, and the trial court permitted a so-called bullying expert to testify. The Supreme Court did state as follows: The phrase workplace bullying, like other general terms used to characterize a persons behavior, is an entirely appropriate consideration in determining the issues before the jury. As evidenced by the trial courts questions to counsel during pre-trial proceedings, workplace bullying could be considered a form of intentional infliction of emotional distress.) Tresa Baldas, States Take Aim by Taming Bully Bosses, The National Law Journal, April 9, 2007

37 Pregnancy Discrimination Act Doe v. C.A.R.S. Protection Plus, Inc., 543 F.3d 178, 2008 U.S. App. LEXIS 19544(3d Cir. 2008) (Court foundthat a plaintiffs claim that she was terminated because she underwent a surgical abortion states a claim under the Pregnancy Discrimination Act) Doe v. C.A.R.S. Protection Plus, Inc., 543 F.3d 178, 2008 U.S. App. LEXIS 19544(3d Cir. 2008) (Court foundthat a plaintiffs claim that she was terminated because she underwent a surgical abortion states a claim under the Pregnancy Discrimination Act)

38 Demise of Prima Facie Case Analysis Brady v. Office of the Sergeant of Arms, U.S. House, 520 F.3d 490 (D.C. Cir. March 28, 2008) (Lest there be any lingering uncertainty, we state the rule clearly: In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not -- and should not -- decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?)Brady v. Office of the Sergeant of Arms, U.S. House, 520 F.3d 490 (D.C. Cir. March 28, 2008) (Lest there be any lingering uncertainty, we state the rule clearly: In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not -- and should not -- decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?)

39 Additional papers authored by Mr. Fitzpatrick may be found at FJC online (http://cwn.fjc.dcn), including the following:http://cwn.fjc.dcn Employment Law Update New Federal Labor and Employment Legislation Proposed Federal Employment and Labor Legislation Emerging Employment Law Issues Review of the Supreme Courts Employment Cases (2007-2008 Term) And A Preview of the Coming Term (2008-2009 Term) Review of the Supreme Courts Employment Cases (2001-2006 Terms)


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