The idea of employers collecting or using genetic information for employment decisions—remember the movie Gattaca—seems more like a far-fetched science fiction story than an actual business practice today. Indeed, the Genetic Information Nondiscrimination Act (GINA) was passed primarily to prevent genetic information discrimination before it had taken firm hold in the workplace.

GINA only became effective on November 21, 2009, but as of April of this year, 80 charges of discrimination had already been filed under the new law with the Equal Employment Opportunity Commission (EEOC). One charge in particular made national media attention when an employee in Connecticut was terminated after disclosing to her employer that she had tested positive for the BRAC-2 gene, which can increase one’s risk for breast cancer. These charges beg the question: If genetic information discrimination is perceived to be merely science fiction, why are so many claims being filed?

One answer may be the shear breadth of protection afforded by GINA. The act applies to employers with 15 or more employees, and prevents an employer from requesting, requiring or purchasing the following information: (1) genetic tests of an employee or family member, (2) manifestation of a disease or disorder in a family member, (3) any request for or receipt of genetic services by an employee or family member, or (4) participation in genetic research by an employee or family member. A family member includes a dependent of an employee or a first- to fourth-degree relative of the employee or dependant; genetic information of a fetus or embryo is also protected. Certain uses and disclosures of genetic information by an employer, however obtained, are also prohibited.

GINA provides limited exceptions for employers who acquire genetic information, but even seemingly innocuous inquiries or mistaken beliefs by unwary employers can lead to potential violations. Employers who inquire regarding an employee’s health or continue to follow typical business practices of collecting medical information to comply with other policies can unwittingly violate GINA.

For instance, one exception allows an employer to obtain genetic information to comply with the certification provisions of the Family and Medical Leave Act of 1993 (FMLA) (or leave under similar state or local laws). The FMLA allows employers to require an employee submit certification by a health care provider to document that the employee qualifies for leave under the act. An employer who obtains genetic information regarding an employee, however, only to later learn that the employee was ineligible for FMLA leave may not be entitled to this exception.
GINA provides another exception for genetic information “inadvertently” requested or required by an employer. Interpretive regulations proposed by the EEOC as to this exception would allow an employee to provide genetic information to support (1) a request for leave not governed by law, or (2) a request for accommodation under disability discrimination laws. These regulations do not, however, address the scope of the inquiries which may be made by an employer in such regard. An employer can conceivably violate GINA, therefore, simply by adhering to established, but overly broad, policies requiring medical verification to support a request for leave or reasonable accommodation.

The proposed EEOC regulations would also apply to “water cooler” conversations where a supervisor overhears co-workers discussing an employee’s genetic information, or where an employee proffers protected information in response to a benign question, such as “how are you feeling today?” However, if the supervisor joined the co-workers’ conversation or asked the employee for further information, the acquisition of genetic information may no longer be inadvertent and could be a violation of GINA.

Even where acquired through a lawful inquiry or voluntary disclosure, genetic information can still haunt an employer. An employer may violate GINA if the genetic information is not properly maintained. The act requires that protected information be kept on separate forms and in separate medical files; genetic information may not be maintained as part of an employee’s personnel file.

Lawfully acquired genetic information can also form the basis of a charge of discrimination. GINA forbids an employer from using such information as a basis for an employment decision. As with the Connecticut employer described earlier in this article, an employer’s knowledge of genetic information followed shortly by an adverse employment decision can itself prompt an EEOC charge. As with any new employment law, there is going to be a learning curve for unwary employers under GINA. As EEOC charge statistics already show, time is not on their side.

This article originally appeared in Headnotes, September 2010, p. 17. It was jointly authored with Lindsay McNutt.

Robert G. Chadwick is a shareholder in the law firm of Campbell & Chadwick, P.C. He is Board Cerfied in Labor And Employment Law by the Texas Board Of Legal Specialization. He represents clients in a variety of Labor & Employment. Mr. Chadwick may be reached by email or at 972-277-8585. Read more Labor & Employment Law articles.

According to reports by the Society for Human Resources Management, (a) 60% of U.S. employers run credit checks on applicants for employment; and (b) more than 80% of U.S. employers conduct criminal background checks on applicants. The concerns which prompt such inquiries are generally legitimate and include safety, security, loyalty, integrity and avoidance of negligent hiring suits.

A backlash is brewing, however, against background checks and hiring decisions based upon credit history and criminal conviction records. Governor Quinn of Illinois recently said: “A job seeker’s ability to earn a decent living should not depend on how well they are weathering the greatest economic recession since the 1930’s.” One of the stated goals of President Obama's crime and law enforcement agenda is to break down employment barriers for people who have a prior criminal record, but who have stayed clean of further involvement with the criminal justice system.

In 2010 alone, three states were added to the list of states with laws regulating background checks by employers.  Although these laws do not affect existing federal or state laws which require background checks, they do substantially narrow the circumstances under which an employer can legally obtain or use background information regarding an applicant for employment.

Federal Law: For now, the federal law protecting applicants remains unchanged.

Fair Credit Reporting Act (“FCRA”): This Act mandates certain procedures which employers must follow in obtaining and using credit reports from outside agencies, but does not prohibit employers from using such reports in employment decisions.

Discrimination Laws: Under certain circumstances, hiring standards which disqualify applicants based upon credit history or criminal record can have a disproportionate impact on protected minorities.

Bankruptcy Code: There is a split of authority as to whether the prohibition of discrimination against employees who file for bankruptcy extends to applicants for employment.

Credit History or Report: On August 11, 2010, Illinois became the fourth state to pass a law protecting applicants with poor credit histories:

Illinois: Effective January 1, 2011, except under limited circumstances, an employer may not (a) inquire about an applicant’s credit history or obtain a copy of his credit report, or (b) use an applicant’s credit history in hiring.

Hawaii:  Except under limited circumstances, an employer may not refuse to hire an applicant because of his credit history or credit report.  Even if permitted, an employer may inquire about credit history only after extending a conditional offer of employment.

Oregon: Under a new law passed on March 29, 2010, an employer may not obtain or use for employment purposes information in the credit history of an applicant.  Exceptions include the circumstance where the information is “substantially job related.”

Washington:  An employer may not procure a credit report for employment purposes unless the information is “substantially job related.”  

Criminal Conviction Records:  On August 6, 2010, Massachusetts became the sixth state to pass a law protecting job applicants with criminal conviction records:

Massachusetts: Effective November 4, 2010, an employer cannot inquire on an “initial written application form” about an applicant’s “criminal offender record information” which includes information about criminal charges, arrests, and incarceration.  An employer may access and use the Commonwealth’s Criminal Offender Record Information database which has purged older conviction data.

Hawaii:  Employers may inquire about criminal records only after they have extended a conditional offer of employment. An employer may consider a conviction in a hiring decision only if it (a) occurred within the past ten years, and (b) is rationally related to the employment.

Kansas:  An employer may not be liable for a decision to employ based upon a person’s criminal history “provided the information that led to the employment … decision reasonably bears upon the … applicant’s or employee’s trustworthiness, or the safety or well-being of the employer’s employees or customers.”

New York: Employers with 10 or more employees may not deny employment to an applicant because of his conviction record unless (a) there is a direct relationship between the offense and the job sought, or (b) hiring would create an unreasonable risk to property or to public or individual safety.

Pennsylvania:  Criminal conviction records may be considered by an employer in a hiring decision “only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.”

Wisconsin:   An employer may only refuse to hire a qualified applicant because of a criminal conviction for an offense that is substantially related to the circumstances of a particular job.

Keep An Eye On: Currently before Congress is H.R. 3149, a bill which would amend the FCRA to bar the use of consumer credit checks against prospective and current employees for the purpose of making adverse employment decisions.

According to the National Conference of State Legislatures, as of July 2010, bills addressing the use of credit history in employment are pending in 15 states and the District of Columbia.  There are no pending bills addressing criminal background checks.

QUESTIONS

Questions regarding background checks of prospective employees can be directed to Robert G. Chadwick, Jr. at Campbell & Chadwick, P.C.

Download a copy of this article: "New State Laws Protect Applicants with Poor Credit History or Criminal Reocrds," Labor & Employment Law Update, September 2010.

Read more Labor & Employment Law articles by Robert G. Chadwick, Jr.

Robert G. Chadwick is a shareholder in the law firm of Campbell & Chadwick, P.C. He is Board Cerfied in Labor And Employment Law by the Texas Board Of Legal Specialization. He represents clients in a variety of Labor & Employment. Mr. Chadwick may be reached by email or at 972-277-8585.

On July 24, 2010, Kennedy Pola was hired as the new offensive coordinator for the University of Southern California’s football team. Pola had been the running back’s coach for the NFL’s Tennessee Titans. Two days later, the Titans sued USC and its head football coach, Lane Kiffin, for treble and punitive damages and attorney’s fees.

So what did USC do to invite a lawsuit?  After all, the school did not have a contract with the NFL or the Titans which precluded it from hiring Pola.   

The answer lies in the contract which Pola signed with the Titans.  The contract was for a one-year “Term” and included the following restriction: 

You agree that You will not under any circumstance solicit discussions or entertain employment with any other person or entity during the Term unless You are granted permission to do so by Titans or by the [NFL] Commissioner in accordance with NFL Rules. 

The suit alleges that USC and Kiffin knowingly induced Pola to breach this restriction and thereby tortiously interfered with the contract in violation of Tennessee law.  While the merits of this claim have yet to be tested, employers should heed its valuable lesson – inducing an employee to breach a contract with an employer can have expensive consequences.

TORTIOUS INTERFERENCE WITH CONTRACT: One count of the Titans lawsuit against USC alleges tortious interference with contract.  Most states have recognized some version of this common law tort. In an employee-raiding case, the elements of the tort generally entail the following:

1. A valid contractual obligation existed between an employer and an employee;
2. The prospective employer knew of the existence of the contractual obligation;
3. The prospective employer intentionally (or maliciously) interfered with the contract by inducing the employee to breach the contractual obligation;
4. The prospective employer’s interference caused the employee to breach the contractual obligation; and
5. The original employer suffered harm.

Most states allow the recovery of consequential damages caused by the tort as well as punitive damages.
  
STATUTORY TORT: Another count of the Titan’s lawsuit against the Trojans seeks relief under the Tennessee Code, which provides:

It is unlawful for any person, by inducement, persuasion, misrepresentation, or other means, to induce or procure the breach or violation, refusal or failure to perform any lawful contract by any party thereto... 

Other states have similar statutes which can provide for relief unavailable under the common law tort of tortious interference with contract, such as treble damages and attorney’s fees.

 NO CLAIM AGAINST POLA:  Significantly, it is not a requirement of either of the tort claims brought against USC that Pola also be sued for breach of contract.  The Titans, in fact, chose not to sue Pola. Accordingly, USC alone must answer for the breach of Pola’s employment contract with the Titans.  

RESTRICTIONS ON RESIGNATION: Generally, an employer cannot legally compel an employee to continue employment against his will. An employer may still sue for damages, such as the cost of locating and training a replacement, if an employee is induced to resign in breach of a contract which includes:  

1. Employment for a specified term;  
2. A specified notice period for resignation;
3. A requirement that an employee be available to assist with locating and/or training his replacement;
4. An opportunity to exceed or match an offer by a prospective employer; or
5. A requirement of prior notice to or permission from the employer regarding discussions with a prospective employer.

Such contractual provisions must be valid under the governing state law to support a claim for tortious interference with contract.  

RESTRICTIVE COVENANTS: An employer may also sue for damages if an employee is induced to breach restrictive covenants with the employer during or after his employment relationship. Typical restrictive covenants address:

1. Unauthorized moonlighting for another employer;
2. Unauthorized employment by an existing or former customer of the employer;
3. Competition with the employer;
4. Competitive solicitation of the employer’s customers which the employee serviced;
5. Unauthorized use or disclosure of the employer’s trade secrets or confidential information; 
6. Unauthorized solicitation or hiring of the employer’s employees; or
7. Negative or disparaging comments regarding the employer.

Such contractual provisions must likewise be valid under the governing state law to sustain a claim for tortious interference with contract. 

BEST PRACTICES FOR EMPLOYERS: Employers should adopt recruiting and hiring protocols which endeavor to minimize the risk of a lawsuit for job candidates with contractual obligations to existing or previous employers. Legal counsel should be consulted not only in adopting and implementing such protocols but also in assessing the risks presented by relevant contractual obligations of individual candidates for employment.

Download a copy of this article: " Titans v. Trojans: Tortious Interference with Contract in Spotlight!," Labor & Employment Law Update, August 2010.

Read more Labor & Employment Law articles by Robert G. Chadwick, Jr.

Robert G. Chadwick is a shareholder in the law firm of Campbell & Chadwick, P.C. He is Board Cerfied in Labor And Employment Law by the Texas Board Of Legal Specialization. He represents clients in a variety of Labor & Employment. Mr. Chadwick may be reached by email or at 972-277-8585.

Damage Caps: The cumulative compensatory and punitive damages available under Title VII and the TCHRA, each of which is applicable to employers with 15 or more employees, are identical:

QUESTIONS

Questions regarding sexual harassment law can be directed to  Robert G. Chadwick, Jr. at Campbell & Chadwick, P.C.

  Download a copy of this article: " Texas Supreme Court Continues To Tighten Caps On Damages For Sexual Harassment!" Labor & Employment Law Update, June, 2010.

Read more Labor & Employment Law articles by Robert G. Chadwick, Jr.

Robert G. Chadwick is a shareholder in the law firm of Campbell & Chadwick, P.C. He is Board Cerfied in Labor And Employment Law by the Texas Board Of Legal Specialization. He represents clients in a variety of Labor & Employment. Mr. Chadwick may be reached by email or at 972-277-8585.

Nationwide lawsuits alleging that Bank of America has failed to pay more than $100 million in overtime and other employee wages are being consolidated in Kansas City, Kan.

The action in U.S. District Court coordinates at least a dozen lawsuits that potentially represent 180,000 tellers and other employees of the banking giant’s branches and call centers around the country.

Attorneys for the plaintiffs said they believed they could prove that “when employees work more than 40 hours a week, they’re instructed not to report their hours or that, if they do, the bank goes back in and changes their time sheets,” said Brendan Donelon, a Kansas City lawyer appointed a lead counsel in the case.

The state and federal lawsuits seek back pay, overtime, liquidated damages, attorneys’ fees and costs covering various lengths of time, and going back as far as six years in some cases.

Bruce Steen, an attorney for Bank of America, referred comment to Shirley Norton, a spokeswoman for the banking company at its Charlotte, N.C., headquarters.

“Bank of America has comprehensive policies, practices and training for both managers and associates designed to ensure full compliance with all federal and state wage and hours laws. We intend to vigorously defend against the allegations,” Norton responded.

Read the full story here on the KansasCity.Com website.

Horror stories of employers using genetic testing for employment decisions are largely found in science fiction rather than in actual practice. Indeed, the Genetic Information Nondiscrimination Act ("GINA") was passed primarily to prevent genetic information discrimination before it had taken firm hold in the workplace.

Since GINA became effective on November 21, 2009, however, approximately 80 discrimination charges have been filed with the EEOC under the new law. No charge has received more attention than that filed in late April 2010 by Pamela Fink against her former employer, MXenergy. Fink alleges a genetic test at the Yale Cancer Center revealed a gene which predisposed her to breast cancer. She opted for a double mastectomy as a preventive measure. In her charge, she alleges she was discharged shortly after she voluntarily disclosed information regarding her genetic test and surgery to her employer.

As illustrated by the Fink charge, it is not essential to an employment discrimination claim under GINA that an employer inquire about or test for genetic information. A claim may allege that an employment decision was motivated by information (1) voluntarily disclosed to an employer, or (2) overheard by an employer. To minimize the risk of a charge or suit, employers must be wary of this and other potential traps lurking within GINA.

WHAT IS PROTECTED BY GINA? GINA protects the "genetic information" of employees and applicants for employment with employers with 15 or more employees. The Act broadly defines "genetic information" as "information about":

(1) The genetic test of a protected individual;

(2) The genetic test of a family member of a protected individual;

(3) The manifestation of a disease or disorder in family members of a protected individual (i.e. family medical history);

(4) A protected individual’s request for, or receipt of, genetic services, or participation in clinical research that includes genetic services by the individual or a family member; and

(5) The genetic information of a fetus carried by a protected individual or by a pregnant woman who is a family member and the genetic information of an embryo legally held by the individual or family member using an assisted reproductive technology.

EXAMPLE: An employer asks an employee how he is doing and the employee responds by volunteering that his mother is being treated for Polycystic kidney disease. This information, which reveals the employee’s family medical history, may be protected by GINA.

EXAMPLE: A supervisor overhears a conversation in which an employee laments to a coworker about a positive genetic test of his sister for Huntington’s disease. This information regarding the genetic test of a family member may be protected by GINA.

WHAT IS NOT PROTECTED BY GINA? GINA does not protect the following:

(1) Information about the sex or age of a protected individual or his family members; and

(2) Medical information that is not genetic information although such may be protected by the Americans with Disabilities Act ("ADA").

WHAT IS PROHIBITED BY GINA? GINA outlaws the following employer conduct with respect to the genetic information of a protected individual:

(1) Except as authorized by the Act, the acquisition by the employer, by request, requirement, or purchase, of genetic information regarding the individual or family member;

(2) Discrimination against the individual on the basis of genetic information in any term of employment, such as hiring, firing, pay, job assignments, promotions, layoffs, training or fringe benefits;

(3) Harassment of the individual because of genetic information; and

(4) Except as authorized by the Act, the disclosure of the genetic information of the individual, even when the information is received in oral form.

EXAMPLE: Suppose the employee who volunteers that his mother is being treated for Polycystic kidney disease does so in confidence. Any disclosure of this information by the employer to an unauthorized person could result in a GINA claim.

EXAMPLE: Suppose the employee who reveals the positive genetic test of his sister for Huntington’s disease is teased by coworkers who act out the involuntary movements associated with the disease. Such misconduct could expose the employer to a harassment claim under GINA.

WHAT IS NOT PROHIBITED BY GINA? The following conduct by an employer with respect to a protected individual is not unlawful under GINA:

(1) A test for the presence of drugs or alcohol;

(2) A medical test or exam which is not a genetic test although such a test or exam may be prohibited by the ADA; and

(3) A request for family medical history to comply with the certification provisions of the Family and Medical Leave Act.

HOW IS GINA ENFORCED?The EEOC and comparable state agencies play the same role in the enforcement of GINA as they do for the enforcementof the ADA and Title VII of the Civil Rights Act of 1964. A private right of action exists for reinstatement, hiring, back pay, compensatory and punitive damages, attorney’s fees and other relief.

WHAT CAN BE DONE TO MINIMIZE THE RISK OF GINA CLAIMS?Education of management and modification of personnel policies are two essential risk management steps. Employment decisions also should be reviewed for one other risk factor – genetic information.

QUESTIONS

Questions regarding GINA use can be directed to  Robert G. Chadwick, Jr. at Campbell & Chadwick, P.C.

  Download a copy of this article: "GINA Claims Begin," Labor & Employment Law Update, May 2010.

Read more Labor & Employment Law articles by Robert G. Chadwick, Jr.

Robert G. Chadwick is a shareholder in the law firm of Campbell & Chadwick, P.C. He is Board Cerfied in Labor And Employment Law by the Texas Board Of Legal Specialization. He represents clients in a variety of Labor & Employment matters. Mr. Chadwick may be reached by email or at 972-277-8585.

Marijuana is a Schedule 1 drug under the federal Controlled Substances Act.  A Schedule 1 drug is one (1) which has a high potential for abuse, (2) which has no currently accepted medical use in treatment in the U.S., and (3) for which there is a lack of accepted safety for use under medical supervision. The Act outlaws the possession of marijuana for any purpose. 

Notwithstanding the federal prohibition, fourteen states have now legalized the medical use of marijuana: Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.  As of March 18, 2010, there were at least fourteen additional states with ballot measures or pending bills to legalize medical marijuana use. 

The number of medical marijuana cards issued by state agencies is significant and is on the rise. The following statistics are only a sampling:

California:  37,236 (since 2004)
Colorado:  17,356 (since 2001)
Michigan: 11,835 (since April 6, 2009)
Oregon:  26,274 (as of January 1, 2010)

With these developments, employers are asking difficult questions about their legal rights and responsibilities in dealing with applicants and employees who are or were medical marijuana users.

CAN AN EMPLOYER PROHIBIT MEDICAL MARIJUANA USE OR POSSESSION AT WORK?

The short answer to this question is “yes.”

THE AMERICANS WITH DISABILITIES ACT:  The ADA expressly provides that an employer may (1) prohibit the “illegal use of drugs” at the workplace by all employees; and (2) require that employees not be engaging in the “illegal use of drugs” in the workplace.

The term “illegal use of drugs” means the use of drugs, the possession of which is unlawful under the federal Controlled Substances Act.  The term thus includes the use of marijuana for any purpose. 

FEDERAL AND STATE PROHIBITIONS: The prohibition of marijuana use for any purpose continues to be a mandate of the Drug-Free Workplace Act of 1988 (for federal contractors), industries regulated by the Department of Defense, Nuclear Regulatory Commission and Department of Transportation and some state employment laws.

CAN AN EMPLOYER PROHIBIT MEDICAL MARIJUANA USE AWAY FROM WORK?

Although the answer is likely “yes” under federal law, the states vary in their treatment of medical marijuana use by employees away from work.

MICHIGAN: The Michigan law legalizing medical marijuana use states that a person carrying a medical marijuana card cannot be “denied any right or privilege” by a “business or occupational or professional licensing board.”

CALIFORNIA: On January 25, 2008, the California Supreme Court ruled in Ross v. Raging Wire Telecommunications that the state’s Fair Employment and Housing Act does not require an employer to accommodate medical marijuana use away from work.  The Court found that the employer did not violate the Act by terminating an employee based upon a positive drug test for marijuana. 

DOES THE ADA PROTECT A MEDICAL MARIJUANA USER?

The ADA only protects a “qualified individual with a disability.”    

CURRENT USER: Under the ADA, “a qualified individual with a disability” does not include an applicant or employee “who is currently engaging in the illegal use of drugs” when the employer “acts on the basis of such use.” EEOC regulations say that employers “may discharge or deny employment to persons who illegally use drugs, on the basis of such use, without fear of being held liable for discrimination.” 

PAST USER:  The ADA’s safe harbor is limited to a person engaged in the current “illegal use of drugs.” The Act provides that a person may be a “qualified individual with a disability” if he is no longer engaged in the “illegal use of drugs” and has either been rehabilitated successfully or is in the process of completing a rehabilitation program.

UNDERLYING DISABILITY:  The ADA’s safe harbor is also limited to employment decisions made “on the basis of” the current “illegal use of drugs.” If the medical condition for which marijuana has been prescribed is itself a disability, a claimant can theoretically still be a “qualified individual with a disability” if he can show that an employment decision was made “on the basis of” such disability. For an employment decision citing current marijuana use, he would need to show either that: 
 
(1) His underlying disability was a motivating factor in the employer’s decision even if the employer was also motivated by his “illegal use of drugs”; or

(2) His “illegal use of drugs” was a mere pretext for discrimination on the basis of his underlying disability         

WHAT SHOULD EMPLOYERS BE DOING TO ADDRESS MEDICAL MARIJUANA USE BY EMPLOYEES?

All employers should be updating their drug policies to specifically address medical marijuana use by employees at and away from work.   Enforcement of drug policies should be monitored to ensure that such policies are being enforced consistently.

Employment decisions regarding applicants or employees using medical marijuana should also be reviewed carefully before implementation to evaluate the risk of a discrimination suit based on the underlying disability.

QUESTIONS

Questions regarding medical marijuana use by employees can be directed to  Robert G. Chadwick, Jr. at Campbell & Chadwick, P.C.

  Download a copy of this article: "Medical Marijuana Use By Employees: Another Quandary For Employers!," Labor & Employment Law Update, April 2010.

Read more Labor & Employment Law articles by Robert G. Chadwick, Jr.

Robert G. Chadwick is a shareholder in the law firm of Campbell & Chadwick, P.C. He is Board Cerfied in Labor And Employment Law by the Texas Board Of Legal Specialization. He represents clients in a variety of Labor & Employment. Mr. Chadwick may be reached by email or at 972-277-8585.

When Dina Partridge of Pleasanton first put on her Hooter Girl uniform in 2004, she was the single mother of a toddler daughter, she said, and she felt lucky.

“There were 1,200 applicants, and I was one out of 80 that got hired,” she said. “I thought I was going to make a lot of money and meet celebrities.”

Instead, Ms. Partridge was shocked not by the randy customers, the short-shorts and the plunging necklines, but because she says she spent her own money for her uniforms, worked long shifts without breaks and did not get her share of tips.

Now, Ms. Partridge, 30, is the lead plaintiff in what is perhaps the least salacious lawsuit imaginable against a restaurant chain that capitalizes on female sexuality. The Bay Area has become the epicenter for a cascade of similar lawsuits against Hooters franchises across the state alleging that the restaurants failed to follow state law about its obligations to its workers.

“These are wage-and-hour class-action lawsuits,” said Burton F. Boltuch, the plaintiffs’ lawyer. “That’s it.

Read the full story here on the New York Times website.

The Employment Opportunity Commission has published new proposed rules clarifying the meaning of "reasonable factors other than age" under the Age Discrimination in Employment Act.

The new rules are in response to the 2008 Supreme Court ruling in the case Smith v. City of Jackson, which held that an employment practice that has a disparate impact on older workers is discriminatory unless the practice is justified by a reasonable factor other than age.

The proposed rule explains that the "reasonable factors other than age" defense applies only if the challenged practice is not based on age. An age-neutral practice that disproportionately affects older workers can be justified under the defense only by showing that the practice is objectively reasonable when viewed from the perspective of a reasonable employer under like circumstances.

Click here to see a .pdf file of the Federal Register which has the proposed rules.

Employers are likely to face more claims and bigger exposures in 2010 as sophisticated class actions and collective lawsuits increase along with aggressive government enforcement, a law firm reported.

Those and other findings were part of    the sixth annual Workplace Class Action Litigation Report by Seyfarth Shaw LLP  analyzing class action and collective action court rulings of 2009 involving claims against employers in federal and state courts.

“Since we began publishing this annual report six years ago, both the number of cases filed and the financial exposure that they pose to companies has increased exponentially," J. Stephen Poor, chairman and managing partner of Seyfarth Shaw, said in a statement.

"As plaintiffs' attorneys bring increasingly sophisticated litigation against employers that combine claims under multiple statutes, the financial exposure is only going to become greater for businesses," Mr. Poor warned.

The report’s general editor, Gerald L. Maatman Jr., co-chair, Complex Discrimination Litigation Practice Group and frequent contributor to National Underwriter, said a significant number of the firm’s attorneys contributed to the study.

Read this full story here on the National Underwriter website.

It seems like all of the articles I'm seeing today are describing settlements.  Here is what's making news:

Washington DC agrees to $8.25 Million dollar settlement for protest arrests.

The group's lawyers say police encircled the park during a protest of the International Monetary Fund and the World Bank. Officers then arrested demonstrators, tourists and others without warning. The plaintiffs allege some were bound for 24 hours.

Albertson's to pay $8.9 Million in Colorado Bias Suits.

The Albertson's LLC grocery chain will pay $8.9 million to 168 black and Hispanic workers who said they were subjected to racial taunts and a graffiti-laced restroom depicting lynchings and swastikas, federal officials said Tuesday.

The money is part of a settlement agreement between Albertson's and the Equal Employment Opportunity Commission, which represented the workers in three lawsuits involving the company's warehouse distribution center in suburban Denver.

University of Phoenix settles False Claims Act lawsuit for $67.5 Million.

This case began as a whistleblower action filed in the Eastern District of California under the False Claims Act, which permits private citizens to bring lawsuits for fraud on behalf of the United States and to share in any recovery. Whistleblowers Mary Hendow and Julie Behn, two former University of Phoenix employees, alleged that the university accepted federal student financial aid while in violation of statutory and regulatory provisions prohibiting post-secondary schools from paying admissions counselors certain forms of incentive-based compensation tied to the number of students recruited. Though the United States did not intervene in this action, the Government provided support and assistance to the whistleblowers at many stages of the case, including filing friend-of-the-court briefs when the case was on appeal to the Ninth Circuit. The two whistleblowers will receive $19 million from the settlement.

After a quiet summer on the flu front, employment lawyer Rebecca Bernhard noticed a decided uptick in inquiries when it got cold earlier this month from business clients asking what they can and should do if the H1N1 virus visits their workplace.

Sitting in her St. Cloud office for the Minneapolis firm of Gray Plant Mooty, attorney Jackie Schuh experienced a similar increase in calls seeking advice from clients around Minnesota about what to do if the virus surfaces in the workplace.

The employers had a range of questions for the attorneys. Could they mandate employee vaccinations? Could they require families of workers to be vaccinated? Did they have to pay workers sent home who lacked sick leave? Could they ask people to work from home if they are sick? What about workers who had to stay home and tend to sick kids?

"This potential for an outbreak is probably over-hyped, but you'd hate not to be worried about it," said Bernhard, a member of the labor and employment practice group at the Minneapolis firm of Oppenheimer Wolff & Donnelly. "This is probably the first year that I've received calls about the flu."

Read the full story here on the StarTribune website.

The Supreme Court issued a poorly reasoned ruling in June that makes it much harder for older workers to prove illegal age discrimination. Fortunately, bills have been introduced in the Senate and House to undo the damage and put age discrimination cases on an equal footing with other employment-discrimination claims.

When employers discriminate, they generally do not admit it, so Congress and the courts have established calibrated rules of proof to give victims a fair chance. Generally, if workers can show that an illegal consideration, like race or national origin, was a factor in their being fired or demoted, the employer then has the burden of showing that it acted for nondiscriminatory reasons.

That should be the rule under the Age Discrimination in Employment Act of 1967, but the Supreme Court, by a 5-to-4 vote, decided that it is not. Older workers, Justice Clarence Thomas declared for the majority, have the full burden of proving that they were fired because of their age. That is an unfairly difficult standard, and it is an unreasonable interpretation of the law.

Read the full article here on the New York Times website.

The Genetic Information Anti-Discrimination Act of 2008 ("GINA" or "the Act") will take effect on November 21, 2009. Covered employers should start learning about this new anti-discrimination law now, to ensure compliance come November.

Title II of GINA prohibits discrimination in employment based on a person's genetic information, or the genetic information of a person's family members, and requires covered entities to protect the confidentiality of individuals' genetic information. GINA applies to all entities covered under Title VII of the Civil Rights Act of 1964 ("Title VII"); i.e., employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. It also applies to federal employers covered by Section 717(a) of the Civil Rights Act of 1964, such as military departments, executive agencies, and the United States Postal Service.

The term "genetic information" is generally defined as information about (1) genetic tests that an individual has undergone, (2) the genetic tests of an individual's family members, and (3) the manifestation of a disease or disorder in a family member. More specifically, the term "genetic information" encompasses use of genetic services (such as counseling) or participation in clinical research involving such services. The Equal Employment Opportunity Commission ("EEOC"), which is tasked with enforcing GINA, has issued proposed regulations which state that "genetic information" also includes genetic information of a fetus or an embryo. Final regulations were expected in May, but have not yet been released.

Read this full article, authored by Emily Miller of Cozen O'Connor, here on the Mondaq website.

Three Democratic Congressional committee chairmen said Tuesday that they would move to overturn a four-month-old Supreme Court ruling that made it significantly harder for workers to win many age discrimination cases.

The three chairmen criticized the court’s decision in a case involving a 54-year-old man who was demoted, saying the ruling flouted Congress’s intent and created unfair obstacles to the victims of age discrimination.

In a 5-to-4 ruling last June, the Supreme Court created a tougher burden of proof for plaintiffs in age bias cases. Previously, if an employee could prove that age was a factor in an adverse employment decision, like a demotion or a layoff, the employer then had to show that it had acted for a valid reason other than age discrimination. But as a result of the June ruling, employees now face the full burden of demonstrating that age was the deciding factor.

“This extremely high burden really undermines workers’ ability to hold employers accountable,” said Senator Tom Harkin, Democrat of Iowa and chairman of the Senate Health, Education, Labor and Pensions Committee.

Read the full article here on the New York Times website.

The Equal Employment Opportunity Commission last week sued Zachry Industrial Inc. for allegedly firing a female worker who complained about unequal access to bathrooms for women employees.

The case comes amid a surge in complaints of retaliation to the EEOC. Claims including a retaliation charge rose 23% in the year ended Sept. 30, 2008, to 32,690 -- more than a third of all claims filed with the agency. Claims that didn't involve retaliation rose 12% in the same period.

Carolyn Wheeler, an EEOC assistant general counsel, says stamping out retaliation is the commission's top priority. Enforcement of antidiscrimination laws "depends totally on people coming to file complaints," she says. "If people don't feel free to do that, these laws don't get enforced."

Please visit the Wall Street Journal website for the rest of the article.

In a recent opinion, Hernandez v. Hillsides, Inc., the California Supreme Court held that an employer acted lawfully when it surreptitiously installed a video camera in a shared office even though both employees had a reasonable expectation of privacy there. While binding only in California, the court's decision is instructive for employers throughout the United States because the court's analysis is based upon legal principles applicable to invasion-of-privacy claims in virtually every jurisdiction.

Read this full article, written by Philip Gordon and Gregory Iskander of the Littler law firm here on the Littler website.

A federal judge has ruled that three former Philadelphia cops who were awarded $10 million in damages by a jury in May 2008 in a race-discrimination and retaliation suit against the city will each only get $300,000.

U.S. District Judge Mary A. McLaughlin found last week that the plaintiffs' claims against the city were pursued only under the federal civil-rights statute, known as Title VII, which caps individual claims at $300,000.

The jury had awarded $2 million in damages to Raymond Carnation, $3 million to William McKenna and $5 million to Michael McKenna, the lead plaintiff in the case.

The judge said after the verdict that she would not enter an immediate judgment for the plaintiffs because the parties intended to file court papers on the issue of the statutory cap.

Read the full story here on the Philadelphia Daily News website.

With the Supreme Court’s 5-4 ruling in favor of white firefighters who sued New Haven Mayor John DeStefano Jr. and the city over promotional exams, legal experts say there are implications for both public and private employers.

Justice Anthony M. Kennedy, writing for the majority, said the city “violated Title VII” of the Civil Rights Act of 1964 by scrapping results of tests used to fill a finite number of vacancies in ranks of captain and lieutenant. The city decided not to certify exam results when it became apparent only one Hispanic and no African Americans would be eligible for promotion.

Read the full story here on the New Haven Register website.

A federal judge has given final approval to a $17.5 million settlement of a discrimination lawsuit that accused Wal-Mart Stores Inc. of not hiring black truck drivers.

U.S. District Judge William R. Wilson Jr. on Wednesday signed an order in Little Rock approving the settlement in the class-action case, a ruling that will also have the world's largest retailer take steps to hire more black drivers.

Attorney Morgan "Chip" Welch said Thursday that members in the class applied to drive for Wal-Mart between 2001 and 2008 and were turned away in disproportional numbers. Of the approximately 4,500 plaintiffs, those that applied earliest stand to receive the greatest settlement payments.

The settlement includes job placements for 23 of the black drivers who sued. The company will also have to notify other members of the class of future openings and establish hiring goals so that the company hires in proportion to the ethnic makeup of its applicants.

Read the full story here on the Yahoo! News website.

In ruling for a group of white firefighters in New Haven on Monday, the Supreme Court1tried to address a damned-if-you-do, damned-if-you-don’t quandary for many cities and other employers: what they should do when an employment test yields results that overwhelmingly favor whites.

But many legal experts said that instead of setting forth clear new rules, the court’s decision left things as muddled as ever for the nation’s employers — and seemed to ensure much more litigation over the explosive issue of employment discrimination.

“We don’t see clear, bright-line guidance here,” said Lars Etzkorn, a program director with the National League of Cities. “This is going to be good for employment lawyers.”

Read the full story here on the New York Times website.

The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

Read the full story here on the Yahoo! News website.

In a decision hailed as a major victory for employers, the U.S. Supreme Court ruled 5-4 Thursday that plaintiffs in age discrimination cases must prove that age was the determinative factor in an adverse job action, not one of several motivating factors.

The decision in Jack Gross vs. FBL Financial Services Inc. concerned Mr. Gross, who was removed from his position as claims administration director at West Des Moines, Iowa-based FBL in 2003, when he was 54, and assigned as claims project coordinator. A woman in her early 40s was given many of his previous responsibilities.

Mr. Gross sued, alleging violation of the Age Discrimination in Employment Act of 1967. FBL contended Mr. Gross' reassignment was part of a corporate restructuring and better suited to his skills. However, a jury awarded Mr. Gross $46,945 in lost compensation.

In its narrowly divided decision, the Supreme Court held that plaintiffs bringing age discrimination claims must prove their age “was the ‘but-for' cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” the high court ruled in overturning a lower court ruling. The case was remanded for further proceedings.

Read the full story here on the Business Insurance website.

This Monday morning, I've done a quick review of some of the great "Friends of the PLUS Blog" sites and come up with three interesting, albeit different, posts.

Over on the Insurance and Reinsurance Report, there is discussion about the recent California court decision which held that a restaurant is liable for an unintential ADA violation.  Links to the original decision, and an article addressing the relevant issues can be found here.

The Specialty Insurance Blog has an article about Black Swans (Nassim Nicholas Taleb's term for a large impact, hard to predict rare event beyond the realm of normal expectations).  It looks at the thesis that models are sometimes defective and lead to incorrect conclusions because some events are not contained in data.  You can read the analysis here.

Finally, over on the D&O Diary, Kevin LaCroix is writing about the cost versus value of D&O Insurance.  He notes that instead of being "the" factor, cost is just one of many factors to be considered in determing the best policy.  You can read the full article here.

A record number of women filed pregnancy discrimination complaints in the past decade, signaling more women demanding equal treatment in the workplace.

The number of pregnancy discrimination complaints filed with the Equal Employment Opportunity Commission soared to 6,285 in 2008, up 12 percent from the previous year and 50 percent in the past decade.

During that same period, the number of complaints in Ohio increased to 230, up from 205, with four discrimination filings in Butler County and 21 in Warren County.

“People are becoming more aware of the issue and more aware that there is something that they can do,” said Equal Employment Opportunity Commission Assistant Legal Counsel Dianna Johnston.

Read the full story here on the Middletown Journal website.

On April 1, 2009, a divided U.S. Supreme Court upheld the ability of an employer and a labor organization, as the employees' exclusive representative for purposes of collective bargaining, to agree that employees can be required to arbitrate their statutory employment discrimination or retaliation claims in accordance with an express requirement to do so under the terms of a bargained-for collective agreement.

Justice Thomas, writing for the majority, held that where the union and the employer have clearly and unmistakably agreed that statutory employment discrimination claims must be processed through the grievance and arbitration procedure in the parties' collective bargaining agreement, an employee will be required to file a grievance and ultimately submit the claim to a private arbitrator. Further, that employee will in most instances be barred from filing the same claims as a lawsuit in federal or state court.

Read this full story, written by Gavin Appleby, Hans Tor Christensen and Jennifer Mora, here on the Littler website.

Although workers recently received additional support for job discrimination cases in federal court, many recent studies indicate that employees who file lawsuits alleging discrimination are less likely to prevail in federal court than other plaintiffs.  Employment discrimination cases get less time in court and are more likely to be dismissed by judges.

Employee advocates hope that the Obama Administration will strengthen discrimination claims.  In January President Obama signed the Lilly Ledbetter Fair Pay Act, which extends the legal deadline for filing pay discrimination cases and which experts think will lead to the filing of many more employment cases in federal court.

Previous patterns suggest that these new cases will not receive better reception.  Federal plaintiffs won 15 percent of job discrimination cases between 1979 through 2006, compared with a rate of 51 percent for other civil cases, according to a study to be published in February by the Harvard Law & Policy Review.

Read the full article here on the Wall Street Journal website (subscription required). 

On February 13 the U.S. Court of Appeals for the Ninth Circuit in San Francisco agreed to reconsider whether a huge sexual discrimination lawsuit filed against Wal-Mart Stores Inc. will proceed as a class action.

The court declared that it would rehear a 2007 ruling by a panel of three of its members, which upheld the decision of a district court to certify Dukes v. Wal-Mart as a class action.  The full appeals court will now revisit the contentious case, originally filed in 2001 by Betty Dukes, a Wal-Mart employee in California who alleged that she was denied training to obtain a job with a higher salary because of her sex.  The case expanded to include two million women who have worked at Wal-Mart since December 1998.

Lawyers say that the lawsuit is among the largest class-action sexual discrimination cases in the U.S.  Wal-Mart faces billions of dollars in legal exposure because of the size of the class.

The full article is available here on the Wall Street Journal Website (subscription required).

 

The U.S. Equal Employment Opportunity Commission, charged with enforcing the nation's job discrimination laws, is facing its largest caseload in at least a quarter-century with sharply diminished staffing and resources, according to commission and union officials.

The 44-year-old commission has been dogged by budgetary and staffing problems before, but union officials say the Obama administration faces a tough challenge in overcoming morale problems and an overwhelmed workforce.

Some allegations of discrimination based on race, religion, sex, age or disability are languishing for months because of inadequate staffing.

More than 95,400 charges of job bias in the private sector were filed in fiscal year 2008, up 15.2 percent from the previous year and up 26 percent from 2006. But the size of the EEOC staff, which is responsible for investigating the complaints, has steadily decreased in size and now numbers 2,192, down from approximately 2,850 in 2000.

More workers are being let go as corporate layoffs that began in earnest last year have accelerated in recent weeks. And more often, people are looking around and complaining that they have been unfairly or improperly dismissed.

Former employees of Lehman Brothers, for example, say they were not given the required 60 days’ pay before their jobs vanished, while Dell is being sued over allegations of age and sex discrimination against workers, in what lawyers say are growing choruses.

Before filing many types of discrimination lawsuits, disgruntled employees must file a claim with the government. The number of such claims, which had fallen for several years, rose more than 15 percent last year on top of a smaller increase in 2007, and lawyers expect a bigger jump this year.

Read this full article here on the New York Times website.

An interstate trucking firm has agreed to pay $2.43 million and provide other remedial relief to a class of women to settle a major sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC had charged in the litigation that Pitt Ohio Express Inc. denied a class of qualified female applicants employment as truck drivers or dockworkers since 1997, while men were placed in these positions during the same period.

The comprehensive relief obtained by the EEOC includes $2.43 million for the class of women denied employment. Non-monetary relief includes offers of employment to women who should have been previously hired as drivers and dock workers and equal employment opportunity training to all supervisors and managers, as well as reporting and monitoring provisions.

You can see the Consent Decree by clicking here.

The Senate last night passed the Lilly Ledbetter Fair Pay Act, which reverses a Supreme Court decision limiting a worker’s ability to sue an employer over sex-based wage discrimination.

Approved by a 61-36 vote, the measure now goes back to the House for a final vote, which proponents of the bill said they expected to come quickly.

It requires a second House vote because that chamber combined the Ledbetter legislation with a measure the Senate did not vote on. It originally passed the House Jan. on a 247-171 vote.

President Obama made support of the measure a point of his campaign.

The bill would make it easier for a worker to sue their employer for pay discrimination on the basis of sex, age, race religion or country of origin.

Read the full story here on the National Underwriter website.

President-elect Barack Obama and Democrats in Congress are planning swift action to overturn a Supreme Court decision that made it much harder for people to challenge discrimination in employment, education, housing and other fields.

The decision, involving a woman named Lilly M. Ledbetter, who had accused her employer of sex-based pay discrimination, was issued in May 2007. Since then, courts around the country have gone far beyond the facts of that case and cited it as a reason for rejecting lawsuits claiming discrimination based on race, sex, age and disability.

In some cases, after initially ruling for employees, judges have reversed themselves and ruled in favor of employers. The judges said they had to switch because of the Supreme Court decision.

Read the full story here on the New York Times website.

African-American cafeteria workers employed by a London-based catering company serving the Comcast Center have filed a $200 million lawsuit alleging supervisors practiced "Jim Crow segregation" and used racist and demeaning slurs.

The 11 current and former employees of the Compass Group filed the suit in federal court yesterday against Compass, two Compass employees and two related companies.

"Our clients have been called names such as 'chim-chim,' 'monkey,' 'gorilla' and 'the N-word,' " Kenneth P. Thompson, an attorney for the plaintiffs, said yesterday at a news conference outside the Comcast skyscraper at 17th Street and JFK Boulevard.

Only four of the employees still work there. One employee said he felt forced to quit because of the racial slurs, and the other workers were fired after complaining of mistreatment, said Thompson, of the New York firm Thompson, Wigdor & Gilly LLP.

Thompson also accused the catering firm of practicing "Jim Crow segregation" when it provided private catering service such as during the Democratic Governors Association meeting at the Comcast Center in July. He said black employees were "forced to work in the back by the kitchen or were excluded from staffing these events entirely.”

Read the full story here on the Philadelphia Daily News website.

About 25 years ago, KMBC-TV anchor Christine Craft filed a pioneering gender discrimination suit against the Kansas City television station — a suit that damaged its reputation for years.

Now three of the most senior female on-air personalities at KMBC (Channel 9) have filed their own gender and age discrimination suit against the station, claiming they were publicly humiliated, degraded and demoted.

Kelly Eckerman, Peggy Breit and Maria Albisu-Twyman, known on air as Maria Antonia, allege a “pattern and practice” of discrimination at Channel 9 and “a hostile environment, permeated with threats, intimidation and disrespect.”

Read the full story here on the KansasCity.Com website.

A Federal District Court judge ordered University of Phoenix to pay nearly $1.9 million for practicing religious discrimination against non-Mormon employees who worked as enrollment counselors.

The U.S. Equal Employment Opportunity Commission charged in a class action suit that the online university and its parent Apollo Group provided the best leads to its Mormon recruiters, promoted less qualified Mormon workers over non-Mormon peers, and disciplined non-Mormons for conduct they condoned with Mormon employees.

Besides securing the nearly $2 million monetary compensation for 52 individuals, the consent decree requires that University of Phoenix immediately halt all discriminatory actions, train all managers and employees on the issue of religious discrimination and hire a diversity officer to monitor compliance.

Read the full story here on the East Valley Tribune (Phoenix) website.

The outcome of a complaint filed by a Tulsa Muslim teenager against Abercrombie & Fitch may never be made public.

The girl, assisted by the Council on American-Islamic Relations — Oklahoma, filed a complaint with the U.S. Equal Employment Opportunity Commission last month alleging that the popular clothier’s Woodland Hills store refused to hire her because she wears a religiously mandated headscarf.

Razi Hashmi, executive director of the Oklahoma CAIR office, said the store’s refusal to hire the girl was a violation of the Civil Rights Act of 1964.

EEOC attorney Michelle Robertson said her office cannot comment on any charge that is still open because of confidentiality requirements of the Civil Rights Act, and cannot even confirm that the case was filed.

In general, she said, when a complaint is filed, it is assigned to an investigator who gets information from the employer and elsewhere, and makes a recommendation to the area director.

In 5 percent of the cases, there is enough evidence to determine that discrimination occurred, she said.

Target Corp. has agreed to pay $6 million in damages to plaintiffs in California unable to use its online site as part of a class action settlement with the National Federation of the Blind, a leading advocacy group for blind people.

As part of the settlement, announced Wednesday, Target will place $6 million in an interest-bearing account from which members of the California settlement class can make claims. Furthermore, the settlement requires Target to implement internal guidelines to make its site more accessible to the blind by Feb. 28, 2009, with assistance from the NFB.

AARP, the national advocacy group for older Americans, is being accused of age discrimination.

Bonita Brady, a 63-year-old from Michigan, says the group passed her over for a series of jobs because she was too old, despite excellent job reviews.

She joined AARP in Chicago in 1996 as a health representative. She also worked for AARP in Washington before moving to the Lansing office in 2007.

Brady says she lost her job in a reorganization and was passed over for nine vacancies. She sued last week in federal court in Michigan and is seeking more than $25,000.

A message seeking comment was left with AARP lawyer Julie Badel in Chicago.

The Supreme Court says the Constitution's equal protection clause does not enable individual public employees to sue for workplace discrimination.

In a 6-3 decision, the justices said that Anup Engquist must be a member of a class targeted for discrimination in order to bring a claim.

The case revolves around an 8-year-old Supreme Court decision. In that case in 2000, the justices ruled that a person may assert an equal protection claim as a "class of one" rather than on the usual grounds of racial discrimination against an entire group.

Employment practices claims could soar this year as more companies lay off workers in a faltering economy—particularly in the financial institutions sector, professional liability underwriters here predicted.

Damage caused by the subprime debacle and resulting credit crunch, along with soaring energy costs, have “undermined the stability of workplace conditions” across the economy, according to James Gray, executive vice president and chief underwriting officer for professional liability at Max Bermuda Ltd.

“There’s lots of downsizing and restructuring as a result,” he said, noting that such activity “could trigger employment practices claims.”

“When companies are teetering on the edge, it affects the workplace psychology,” he added during a panel discussion yesterday at the Professional Liability Underwriting Society’s “Bermuda Perspective” conference. “An every-man-for-himself mentality takes hold.”

Read the full article here on the National Underwriter website.

Businesses in the state are applauding a Minnesota Supreme Court decision they say will spare them from becoming the targets of numerous sexual harassment suits.

Friday's decision states that companies aren't necessarily liable for sexual harassment that occurs in the workplace as long as they have a policy in place to prevent such behavior and a reporting system for victims of sexual harassment.

An unexpected blend of liberal and conservative Supreme Court justices gave workers more leeway Tuesday to sue when they face retaliation after complaining about discrimination in the workplace.

In two employment cases, one involving race and the other, age, the court took an expansive view of workers' rights and avoided the narrow, ideology-based decisions that marked its previous term.

The justices read parts of an 1860s civil rights act and the main anti-age bias law to include the right to sue over reprisals even though neither provision expressly prohibits retaliation.

A former senior systems engineer claims Rockwell Collins fired him last year because he wouldn't agree to sign a diversity document that asked him to accept homosexuality.

Thomas Meeker of Robins filed the lawsuit this week in U.S. District Court of Northern Iowa in Cedar Rapids. Meeker is a devout Christian and believes homosexuality is a sin, according to the lawsuit.

The suit claims Meeker was fired because he is a Christian. It also claims Meeker suffered loss of pay and benefits while on suspension without pay, as well as emotional distress.

Sutter Health will greatly improve accessibility and patient care for people with disabilities at its hospitals and other health care facilities under a settlement to a class-action lawsuit announced Friday.

The agreement calls for sweeping changes in hospital policies, architecture, equipment, staff and contractor training and outreach at 28 Sutter Health hospitals located across Northern California. The changes are tailored for patients with mobility, visual, hearing and speech disabilities.

The class-action suit filed in 2005 by the nonprofit Disability Rights Advocates asserted that the Sutter network of hospitals and medical foundations failed to provide access for disabled people as required by the Americans with Disabilities Act.

No one really disputes that Chad Hudgens was waterboarded outside a  Provo office park last May 29, right before lunch, by his boss.

There is also general agreement that Hudgens volunteered for the "team-building exercise," that he lay on his back with his head downhill, and that co-workers knelt on either side of him, pinning the young sales rep down while their supervisor poured water from a gallon jug over his nose and mouth.

And it's widely acknowledged that the supervisor, Joshua Christopherson, then told the assembled sales team, whose numbers had been lagging: "You saw how hard Chad fought for air right there. I want you to go back inside and fight that hard to make sales."

What's at issue in the lawsuit Hudgens filed against his former employers -- just as in the ongoing global debate over the CIA’s waterboarding of terrorism suspects -- is the question of intent.

Prosper Inc. maintains that what the supervisor did, while unauthorized, overzealous and misguided, falls far short of torture, and in fact was not nearly as bad as Hudgens makes out in his quest for damages.

Citigroup Inc. on Friday confirmed it agreed to pay $33 million to about 2,500 current and former female brokers at its Smith Barney unit to settle a class-action gender discrimination lawsuit.

The agreement also requires the largest U.S. bank to change how it awards bonuses and assigns accounts, and to adopt measures to help retain and promote women, papers filed Wednesday with the U.S. District Court in San Francisco show.

The plaintiffs had accused Smith Barney in the original March 2005 complaint of preventing female brokers from competing fairly for new accounts, promotions and pay, and of depriving women of equal training and sales support. They also accused Smith Barney of using past performance as a means to award business and pay -- putting women who had been discriminated against in the past at a disadvantage.

A state court jury in Bridgeport has awarded more than $4 million to a doctor who was fired from a health care lab in Stratford after he complained that one of its tests could jeopardize patients' health.

The six jurors found on Friday that Dianon Systems Inc.'s firing of Trumbull doctor G. Barry Schumann in April 2005 violated his free speech rights. The verdict could increase to nearly $7 million when lawyers' fees and interest are added in.

Dianon spokeswoman Donna Schuetz says the company disagrees with the verdict and intends to appeal.

Read the full article here on Boston.Com.

A federal judge has signed off on Walgreen Co.'s plan to pay $24 million to settle a federal lawsuit alleging racial bias at the nation's largest drugstore chain.

Roughly 10,000 past and present black Walgreen workers will split $20 million under the consent decree given final approval Monday by U.S. District Judge G. Patrick Murphy.

Mario A. Barrera and Lacey L. Gourley, Partners with Bracewell & Giuliani, have a great synopsis of the admissibility of “Me Too” evidence in employment discrimination cases and the Supreme Court’s decision that it should be determined on a “Case by Case” basis.

Carol I. Buckman, Counsel in the New York office of Osler, Hoskin & Harcourt LLP, has written an article detailing how the subprime mortgage crisis will accelerate the trend of lawsuits against 401(k) plan fiduciaries, and how these fiduciaries can reduce their risk of becoming a target.

You can read her full article here on the Employee Benefit News website.

The Supreme Court decided Wednesday that employees who claim job discrimination should not suffer because of mistakes made by the federal agency charged with investigating their allegations.

The U.S. Supreme Court will hear five cases this term that will deal directly with age discrimination. The cases at the court include what kind of evidence an employee may present to bolster an age discrimination claim; whether retirement-age workers are entitled to disability payments; and whether federal workers who complain about age discrimination are protected from retaliation.

Read the full story here on MSNBC.COM.

US District Judge Peter Dorsey rejected a motion filed by General Electric (GE) to prevent a high ranking attorney’s lawsuit from achieving class action status.

Dorsey rejected the argument from GE that Schaefer cannot lead a class action lawsuit because she had access to confidential client information while employed with GE. Dorsey’s ruling did state, however that "If at any point during discovery, the defendants learn and can demonstrate that plaintiff is inappropriately using confidential client confidences in asserting her claims or representing the class, the court may reconsider the propriety of plaintiff's class allegations at that time."

An appeals court in Fresno, California overturned a $1.5 million verdict awarded to a woman who was spanked in front of her co-workers in what employers called a camaraderie-building exercise.

Information about the original decision on this case can be found at this link, and the updated article on the appeal can be found in the Seattle Times.

A group of former employees of the Eastman Kodak Company have filed a class action lawsuit seeking nearly 500 million dollars against Morgan Stanley on the grounds that the broker gave them bad advice to retire early and promised them financial security that never materialized.

Four employees are named as plaintiffs, however the member class could number as many as 1,000.

In addition to this class action lawsuit, an arbitration claim making similar allegations on behalf of another 16 former Kodak employees was filed at the Financial Industry Regulatory Authority’s arbitration forum.

Ford Motor Company, two related companies and the UAW (United Auto Workers) have settled a race discrimination lawsuit by paying 1.6 million dollars and providing other relief. The United States EEOC charged that a written test to determine eligibility for an apprenticeship program discriminated against blacks. More information about this settlement can be found here on the BusinessWeek website.