1. Moffatt Thomas 2012 Updates in Employment Law Gerald T. Husch December 18, 2012

2. Sexual Harassment (SH) Analysis governing claim for SH under Title VII applies to SH claim brought under IHRA. Faragher/Ellerth defense is available under IHRA. NIC acted reasonably to prevent harassment by providing SH training, including SH reporting procedure in handbook, disseminating handbook, and taking prompt corrective action when it received SH report. Plaintiff acted unreasonably in not reporting SH for years after it had begun. Plaintiffs generalized fear of retaliation did not excuse her failure to report SH. Johnson v. North Idaho College, 153 Idaho 58, 278 P.2d 928 (2012)

3. Unemployment Compensation – Misrepresentation Re Cause for Separation Unemployment compensation claimant, who had quit his employment due to reduction of his work hours but told IDOL that his separation for employment was due to lack of work/laid off, willfully made a false statement when he filed his claim for unemployment benefits and therefore is not entitled to such benefits. Current v. Haddons Fencing, Inc., 152 Idaho 10, 266 P.3d 485 (2011)

4. Unemployment Compensation – Failure to Report Part Time Employment & Earnings Unemployment compensation claimant, a Sun Valley ski patroller, who failed to report PT employment at Sawtooth Club during off season (and earnings from that employment), was properly found to have willfully failed to report material facts in order to obtain benefits. Claimant may not misrepresent or withhold information from IDOL even if full disclosure would not have affected his rights to benefits. Claimant is not entitled to waiver of requirement that he repay benefits, because his repayment obligation was due to his failure to report material fact to the IDOL, not because of an error by the IDOL or an employers misreporting of wages. McNulty v. Sinclair Oil Corporation, 152 Idaho 582, 272 P.3d 554 (2012)

5. Unemployment Compensation – Employee Insubordination Where employer fired employee because employee refused to identify source of rumor that one of employers facilities was closing, employees termination was a termination for misconduct in connection with her employment such that employee was not entitled to unemployment compensation. Stark v. Assisted Living Concepts, Inc., 152 Idaho 506, 272 P.3d 478 (2012)

6. Unemployment Compensation – Retail Employees Use of Vulgar Language Employee, whose employment was terminated because he used vulgar language showing disrespect for management in speaking to assistant manager in presence of other employees in back room of store, violated employers objectively reasonable standard of behavior, which prohibited employee vulgarity in the store. It is reasonable for an employers standard of behavior to extend to the entire building and not just an area where customers may be present, because the employers standard of behavior obviously has to do with not only customer sensibilities and marketing goals, but also morale and sensibilities of its other employees. prohibiting and was therefore terminated for misconduct rendering him ineligible for unemployment compensation benefits. Employee was therefore terminated for misconduct rendering him ineligible for unemployment compensation benefits. Rigoli v. Wal–Mart Associates, Inc., 151 Idaho 707, 263 P.3d 761 (2011)

7. Workers Compensation Exclusive Remedy Employee injured while traveling in a vehicle driven by his co-employee could not sue his co-employee for negligence, because the employee and co-employee were traveling in the vehicle in the course and scope of their employment at the time of the accident. Workers compensation is the injured employees exclusive remedy for injuries resulting from accident. Gerdon v Rydlach, 153 Idaho 237, 280 P.3d 740 (2012)

8. Wrongful Termination – Workers Compensation – NIED - IIED Although employer had a for-cause employment policy at time of employees hiring, employer changed that policy to an at-will employment policy and employee accepted that change by continuing to work for employer following notification of new policy. Thus, employee was an at-will employee who could be terminated without cause or liability for breach of contract. Although workers compensation is the exclusive remedy for an employees injuries arising out of and in the course of employment, a tort action may be maintained against the employer if the employees injury is not compensable under workers compensation. An employees claim of negligent infliction of emotional distress (NIED) against her employer is not barred by the workers compensation law where, as here, the distress was not caused by an accident resulting in violence to the physical structure of the employees body.

9. Wrongful Termination – Workers Compensation – NIED – IIED (contd) An employers mere termination of an at-will employee, without more, will not render the employer liable for NIED. Employers conduct, in abruptly terminating employee and giving her only 30 minutes to pack up her personal property, was not atrocious or beyond all possible bounds of decency and therefore did not support a claim of intentional infliction of emotional distress (IIED). Bollinger v. Fall River Rural Electric Cooperative, Inc., 152 Idaho 632, 272 P.3d 1263 (2012)

10. Wrongful Termination – Public Employment ISU professor failed to show that ISU took an adverse employment action against him or breached his employment contract as a result of his exercise of free speech rights in publicly criticizing successive ISU administrations. Sadid v. Idaho State University, 151 Idaho 932, 265 P.3d 1144 (2011)

11. Age Discrimination in Employment Act (ADEA) - LTD Plan ERISA plan administrators reduction of plan beneficiarys LTD benefits by the amount of the beneficiarys pension benefits that the beneficiary had rolled over into an IRA did not violate the ADEA because the reduction did not force the beneficiary to retire from employment in order to receive the full value of his benefits. If the beneficiarys interpretation of the plan were correct, he would be able to roll over his pension benefits into an IRA, continue to receive full LTD benefits, and have the option of withdrawing from his IRA, thus circumventing the plans legitimate attempt to prevent double dipping. Day v. AT&T Disability Income Plan, 698 F.3d 1091 (9th Cir. 2012)

12. Age Discrimination in Employment Act – Sufficiency of Complaint Appellate court reversed trial courts dismissal of ADEA complaint, because the complaint alleged a plausible prima facie case of age discrimination, in that the complaint alleged that: (1) plaintiff was at least forty years old; (2) her performance was satisfactory or better and she received consistently good performance reviews; (3) she was discharged; and (4) her five younger comparators kept their jobs. Sheppard v. David Evans and Assoc., 694 F.3d 1045 (9th Cir. 2012)

13. Title VII – Disparate Treatment and Disparate Impact Claims Female city employee, who alleged that surviving spouse benefit provided by city to its retired employees discriminated on the basis of sex, failed to state a disparate treatment claim under Title VII, in that employee did not allege that the city adopted the surviving spouse benefit because it would benefit men more often than women. Employee failed to state a disparate impact claim under Title VII because facially neutral pension plan provisions will inevitably have a disparate impact on some protected groups. Even if the city pays a larger amount of money to the married retirees (who are more likely to be male) than the unmarried retirees (who are more likely to be female) due to the surviving spouse benefit, the benefit does not create an unlawful disparate impact on female retirees. Wood v. City of San Diego, 678 F.3d 1075 (9th Cir. 2012)

14. Computer Fraud and Abuse Act Defendant, who convinced his former co-employees to access their employers computer system, download the employers confidential information and then transfer that data to him in order to help him start a competing business, did not cause the employees to exceed their authorized access to their employers computer system in violation of the CFAA. The purpose of the CFAA is to criminalize computer hacking, not to criminalize an employees violation of his employers computer use restrictions. United States v. Nosal, 676 F.3d 854 (9th Cir. 2012)

15. For Further Information or Questions, Please Contact: Gerald T. Husch Moffatt, Thomas, Barrett, Rock & Fields, Chartered 101 S. Capitol Blvd., 10 th Floor Post Office Box 829 Boise, Idaho 83701 gth@moffatt.com 208.385.5406 1.800.422.2889