The Harshbarger Report

What Is Trust Worth?
The costs of not having a climate of integrity should be unacceptable to corporations.

OTHER EMPLOYMENT LAW HEADLINES

Notice Of Nonrenewal Not The Equivalent Of A Constructive Discharge
Notice of intent to commence termination process may not be treated, at the employee's election, as a completed discharge

Arrest For Possession Of Drug Paraphernalia, And Subsequent Lies About It, Sufficient To Justify Random Drug Testing
As the Court wrote, “[t]he nature of Relford's employment misconduct, i.e., his dishonesty to his employer exemplified by his efforts to cover up the reasons for his work absence, when accompanied by his arrest for criminal trespass and possession of drug paraphernalia, reasonably suggests his use of the paraphernalia for the consumption of illegal narcotics.”

Update - Plaintiff Prevails On First Circuit Remand Case, Reversing Original Decision
Plaintiff showed that his former supervisor, on the basis of age animus, withheld crucial information from decision-makers which resulted in Plaintiff’s termination.

Mass. Appeals Court Affirms Jury Finding Of “Actual Malice” In Interference With Employment Claim
A supervisor acted with “actual malice” where he tried to get subordinate to interfere with independent safety evaluator’s investigation.

Less Than Ideal, But Not Hostile
“Hostile” means changing the work environment substantially and negatively.

Bad Attitude Versus Race Discrimination
As the Court wrote, the Plaintiff’s workplace “problems were not related to his race—they were related to him.”

Legislative/Regulatory Actions Of Note

IRS “Clarifies” Employment Tax Treatment Of Payments Made For Signing Or Cancelling Employment Contract
On November 23, 2004, the Treasury Department and the IRS published two revenue rulings clarifying that payments by employers to employees made in connection with employment contracts are to be treated as wages for purposes of FICA, FUTA and Federal income tax withholding.

H-1B Relief, Sort Of
The new legislation provides for another 20,000 available visas for FY 2005, but has a few strings attached.

OFCCP Proposes Pay Bias Standards And Self-Evaluation Guide
In the November 16, 2004, Federal Register, the Office of Federal Contract Compliance Programs (“OFCCP”) published two items of interest to federal contractors and their subcontractors.

FLSA/FMLA Cases

A Reasonable Employee Would Have Attempted To Resolve Things Before Quitting And Suing
As the Court wrote, “a reasonable employee who genuinely felt these working conditions were upsetting to the point of intolerable would have attempted resolution of these concerns before choosing to quit after just over two weeks back on the job.”

Restoration Position Was Substantially Similar Despite Minor Changes In Duties
Being newly required to use small hand tools in addition to former duties did not suddenly make a job not substantially similar.

On The Employee Benefits Front

Employer Ordered To Continue Health Benefits For Retirees.
The Court concluded that language in a supplemental agreement to the CBA equated eligibility for retiree health benefits with eligibility for a pension, which thus established a likelihood that the Plaintiffs would prevail on their claim that the health benefits vested upon retirement.

OK To Charge For Retroactive COBRA Payments.
While there was a technical notice violation, it was lawful to charge for retroactive COBRA payments.

On The Public Sector Front

Replacement Overtime Costs Not “Undue Disruption” Sufficient To Deny Use Of Comp Time
A municipality cannot refuse to honor a police officer's timely leave request solely to avoid payment of overtime to substitute police officers.

Liability For Unlawful “Comp Time” Program Did Not Include Comp Time Already Taken
City got a credit for comp time already given to the police officers in the form of paid time off rather than cash payment.

Arbitrator’s Reduction Of Termination For Failing To Report Assault On Detainee Upheld By Appeals Court
The standards for overturning an arbitration award are stiff indeed.

Promises, Promises
A promise within your authority sometimes can be the basis for a legal claim if you don’t follow through.

FMLA Applies To County Auditor’s Office Of Only 12 Employees
Court looked to whole County rather than just one particular office.

On The Labor Front

Flip-Flop, Flippity-Flop - Again
Yes, that National Labor Relations Board is at it again.

Work Rules Barring Profane Language And Harassment Upheld By Board
The Board agreed with the ALJ that employer work rules barring “abusive and profane” language, and harassment, are not unlawful on their face.

Hospitals Unlawfully Refused To Hire Another Hospital’s Striking Employees
The hospitals claimed that the refusal to hire strikers was akin to a lockout - and a lockout is a legitimate economic weapon to use in an impasse-strike situation, but the Board wasn’t buying it.

Was ULP Not To Grant Negotiator-Employees Unpaid Release Time For Negotiations
At least while also insisting that employees must use their paid time off for time spent at negotiations, and while refusing to meet at times when employees were not scheduled to work.

No “Waiver” Of Union Right To Bargain In General “Policies” Contract Article
General contract language is not a “clear and unmistakable” waiver of a union’s bargaining right..

Did You Know . . . ?

That the Molecule of the Month is Maleimide-Polyethylene Glycol (known as MPEG for short)? This is a molecule created by artificially modifying human hemoglobin. It can be used as a substitute for blood, and so has applications in medical operations and transfusions.

That December’s flower is the Narcissus or the Pointsettia, and its birthstone is the Turquoise or the Blue Topaz?

That December is, among other things, Walnut Month, Seasonal Depression Awareness Month, National Drunk and Drugged Driving Prevention Month, Safe Toys and Celebrations Month, Smart Client Month, International Sharp Injury Prevention Awareness Month, and Taxi Aware Month?

That December 3 is Worldwide Day of No Pesticides Use, December 5 is International Volunteer Day, December 12 is Poinsettia Day, and December 26th is Boxing Day? (No, that’s nothing to do with the boxing ring.)