The Harshbarger Report

Court Orders 2 Executives Preliminarily Reinstated Under Sarbanes-Oxley
Court ordered company to preliminarily reinstate two vice-presidents pending the outcome of the company's appeal on the merits of the case.

Hertz Ordered To Reinstate Alleged Whistleblower
Hertz ordered to rehire an employee and pay her more than $154,000 in legal fees, backpay and interest.

OTHER EMPLOYMENT LAW HEADLINES

In Massachusetts, SJC Decides Discrimination RIF Standard
A Plaintiff's prima facie discrimination case consists of producing evidence on four elements: that she is a member of a class protected by the state anti-discrimination statute; she performed her job at an acceptable level; she was terminated; and her employer sought to fill her position by hiring another individual with qualifications similar to hers. But the 4th element is "nonsensical" in the context of a RIF since by definition there is no position to fill.

The Jespersen Case Is Back
A panel of the 9 th Circuit Court of Appeals had ruled that an employer policy which required women to wear makeup but allegedly did not impose analogous burdens on male employees was lawful because the Plaintiff had failed to demonstrate that the policy actually did impose more stringent and onerous requirements on female bartenders. Now the entire 9 th Circuit will hear the case.

"Single, Attractive Male" Has No Discrimination Claim
Applicant for a letter carrier job claimed that the U.S. Postal Service discriminated against him because of his status as a "single, attractive male." This fellow sounds like quite a character.

Job Performance Does Play Out In Disability Analysis
"Employee's careless behavior and poor attitude were relevant in determining whether or not he was a 'qualified individual with a disability'."

8 Discriminatory Incidents Over 5 Years Not A Hostile Work Environment
"These relatively infrequent and isolated incidents are thus insufficient to constitute discriminatory changes in the terms and conditions of employment."

Being "Set Up To Fail" Satisfies Prima Facie "Causation" Analysis In Retaliation Case
There was evidence of being "set up to fail" because Plaintiff allegedly was assigned a job but not given the proper training.

AT THE SUPREME COURT

Supreme Court Accepts Title VII Jurisdictional Case
Only after the verdict did the employer claim that it did not have enough employees to subject it to federal court jurisdiction under Title VII of the 1964 Civil Rights Act.

Legislative/Regulatory Actions Of Note

35,000 New H-2B Exemption Visas Available
On May 25, 2005, the Department of Homeland Security ("DHS") began accepting applications for employers seeking seasonal, low-skilled foreign workers for current job openings under the H-2B visas program.

Special H-1B Visa Slots Still Available
As of August 11, 2005, DHS had received 10,000 visa applications for the 20,000 H-1B visa slots available this fiscal year for employers seeking highly skilled foreign workers if those workers have at least a master's degree from a U.S. academic institution.

Anti-Cutback Relief Guidance Published
On April 18, 2005, the United States Treasury Department and Internal Revenue Service published guidance on relief from anti-cutback rules for multi-employer plan sponsors that amended certain suspension of benefits provisions.

FLSA/FMLA Cases

LMRA Does Not Preempt State Break Law
Claim brought in state court on the basis of a state-law right that is independent of rights under a CBA will not be preempted by §301 of the LMRA.

Claiming "Stress" Not Enough For FMLA Notice To Employer
"Claim under the FMLA cannot succeed unless the plaintiff can show that he gave his employer adequate and timely notice of his need for leave, and an employer has the right to request supporting information from the employee."

No Strict Liability Under FMLA, At Least According To The 8th Circuit
Court held that "an employer who interferes with an employee's FMLA rights will not be liable if the employer can prove it would have made the same decision had the employee not exercised the employee's FMLA right."

Discipline For Violation Of Sick Leave Rule Committed During FMLA Leave OK
"Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave."

In The Public Sector

Policy Of Not Rehiring Disability Pensioners Violates ADA
There was sufficient evidence that the County did in fact have an informal policy of refusing to rehire disability pensioners, even though they were authorized to return to work with no restrictions.

On The Employee Benefits Front

Failure To Act On Claim In Timely Manner Earns De Novo Review And Waives Failure To Exhaust Administrative Remedies Defense
"Substantial compliance" does not apply to excuse a long-term disability benefit plan administrator's failure to comply with ERISA regulations.

On The Labor Front

Rule Barring Complaining To Customers Ruled Unlawful By NLRB
Board says rule would "chill" the right of employees to seek customer support for their complaints about terms and conditions of employment.

Harassment of Co-Workers Bars Unfair Labor Practice Charge
Egregious employee conduct can lose the protection of the Act.

On The Other Hand . . .
But even egregious conduct may not lose the protection of the Act if provoked by an employer's unlawful acts.

Following Up On Alexandria Clinic - Board Upheld By 8th Circuit
Court upholds the Board and the termination of 22 nurses for engaging in an unlawful strike by failing to give proper notice.

Following Up On Anheuser-Busch, Inc. - Split Decision For Board In D.C. Circuit Court
Court upheld the Board's ruling that the installation of hidden videotape cameras was a mandatory subject of bargaining, but also ruled a remand was necessary to reconsider the issue of make-whole relief.

Did You Know . . . ?

That the Molecules of the Month are:

May=British Anti-Lewisite, a chelating (to remove a heavy metal from the body) molecule that is used to treat heavy metal poisoning?

June=Dichlorodifluoroethane (Freon), the Chloro-Flouro Carbon refrigerant gas that damages the ozone layer?

July=Quinine, the anti-malarial drug that's found in gin and tonic?

August=Linezolid, one of the only new class of antibiotics developed in the last 40 years?

That May's flower is the Lily of the Valley, and its birthstone is the Emerald?

That May 3 is Lumpy Rug Day, May 7 is National Roast Leg of Lamb Day, May 9 is Lost Sock Memorial Day, May 11 is Twilight Zone Day, May 14 is National Dance Like a Chicken Day, May 25 is National Escargot Day, May 29 is End of the Middle Ages Day, May 30 is My Bucket's Got A Hole In It Day, and May 31 is National Macaroon Day?

That June's flower is the rose, and its birthstone is the pearl?

That June 2 is National Bubba Day, June 3 is Doughnut Day, the 4 th is Give Your Dog A Bone Day, the 14 th is Family History Day, the 16 th is Recess at Work Day, the 18 th is National Splurge Day, the 21 st is Vegan World Day, the 22 nd is Stupid Guy Thing Day and the 28 th is Hand Shake Day?

That July's flower is the Water Lily, and its birthstone is the ruby?

That July was named after Julius Caesar? And that July 5 th is Workaholics Day, the 7 th is Chocolate Day, the 17 th is Peach Ice Cream Day, the 20 th is Lollipop Day, the 26 th is Groovy Chicken Day, the 28 th is Hamburger Day, and the 31 st is Jump For Jellybeans Day?

That August's flower is the Gladiolus, and its birthstone is the Peridot?

That August was named after Augustus Caesar? And that August 3 is Watermelon Day, the 8 th is Cheesecake Day, the 10 th is Lazy Day, the 13 th is Left-Handers Day, the 15 th is Sit Back and Relax Day, the 17 th is #2 Pencil Day, the 22 nd is Be An Angel Day, the 23 rd is Hug Your Sweetheart Day, the 25 th is Kiss And Make Up Day and the 30 th is Toasted Marshmallow Day?