MHTL Presents South Shore Chamber Of Commerce Employment Law Update, March 15, 2005
7:30 am to 12:30 pm at The Boston Marriott Hotel in Quincy , MA.

The Harshbarger Report

Necessity of Fraud For Whistleblower Protection
Claiming that batteries being produced were defective was not a claim of "fraud" under Sarbanes-Oxley.

ALJ Orders Whistleblowing CFO Reinstated
Look for more of these cases.

OTHER EMPLOYMENT LAW HEADLINES

What The Heck Is A "Blog," And Why Should I Worry About It?
"Blogging" is increasingly popular, but can be a forum for cranky employees.

Man Bites Dog
Well, not really, but an entertaining case nonetheless, with the EEOC being sued for discrimination.

Bartender Fails To Show Makeup Policy Disproportionately Burdened Females
Despite what some media accounts of this case might have suggested, it does not stand for the proposition that employers may impose more burdensome appearance standards on females than males.

Court Holds Transfer Of Police Sergeant Not An Adverse Employment Action
Lateral transfer with same pay and benefits, despite claim that the new position was not as “prestigious,” was not sufficient for employee to maintain discrimination claim.

The Notorious Boston "Meter Maid" Case
A hostile work environment generally created by co-workers in retaliation for complaining about unlawful discrimination was an "adverse employment action" that could support a retaliation claim.

This Looks Like A Pretty Rough Place To Work
The issue in this same-sex harassment case was whether or not the victim had to show the harasser was homosexual, or just motivated by "sexual desire."

10th Circuit Approves ADA Hostile Environment Claims
According to the 10th Circuit Court of Appeals, there is a cause of action under the ADA for a hostile work environment based upon disability.

No Good Deed Goes Unpunished
Injuries incurred from receiving a flu shot at a clinic sponsored by the employer were, in this case, arising from the Plaintiff's employment, and thus compensable under workers comp.

Age Discrimination and Employer's "Inadequate Explanation"
"Unpersuasive" explanations for the discharged employee's low evaluation ratings supported jury verdict in employee's favor.

Temporal Proximity and Pregnancy Discrimination
The "temporal proximity between the plaintiff's announcement of her pregnancy and her firing" was sufficient to raise an inference of discrimination.

AT THE SUPREME COURT

Contingent Payment To Attorney Was Includible In Income
Court held that when a litigant's recovery, by judgment or settlement, constitutes taxable income, such income includes any portion of the recovery paid to the litigant's attorney as a contingent fee.

Supreme Court Takes "Walking To Workstations" Cases
These cases could have far-reaching implications for many employers.

Legislative/Regulatory Actions Of Note

IRS Issues Final Rule On Defined Contribution Plan Distribution Cuts
A new IRS regulation, which took effect January 25, 2005, modifies the circumstances under which certain forms of distribution previously available are permitted to be eliminated from qualified defined contribution plans without violating anti-cutback rules.

FMCSA Seeks Comments On "Hours Of Service" Rules
Federal Motor Carrier Safety Administration (FMCSA) is seeking public and industry comments on the revised rules, particularly its health effects on drivers, as it essentially was ordered to by the District of Columbia Court of Appeals a couple of months ago.

President Signs Class Action Legislation
On February 18, 2005, President Bush signed into law the Class Action Fairness Act, which is intended to move product liability and mass tort class action cases from state courts to the federal courts.

EEOC Issues New Employer Training Material
The Equal Employment Opportunity Commission ("EEOC") has published a new pamphlet entitled The ABCs of EEO for Small Businesses and Supervisors.

FLSA/FMLA Cases

Profane Tirade Justified Termination, Despite FMLA Claim
While the Plaintiff may have reasonably believed that she was entitled to FMLA leave, she was discharged due to her hostile and profane objections to employer's denial.

Adjusting Salaried Employees' Hours Without Losing Exemption
An employer may prospectively make adjustments in salary with a like adjustment in scheduled hours to accommodate business needs without losing an employee's exemption from overtime pay.

Exempt Status As A "Prestige" Issue
Reclassifying exempt employees as non-exempt can be a touchy issue.

Prior Approval Precludes Employer's Later Challenge To FMLA Leave
If you approved the leave, you can't later raise deficiencies in the employee's documentation.

In The Public Sector

The Rat Can Stay, According To The 6th Circuit
Giant inflatable rat was "free speech" so that City couldn't enforce time, place and manner restriction.

Another "Free Speech" Case
Plaintiff's interest in making allegations of the University's illegal financial dealings outweighed the University's interest in regulating his speech.

On The Labor Front

CBA Could Not Require Employees To Wear Union Insignia
All employees in certain job classifications, even if non-union, were required to wear both the Employer's logo and the union's logo - the Court said "no.

Employer Ordered To Provide Subcontractor Information To Union
The Employer had argued that it need not respond to the union's request because the union acted in bad faith by flooding it with 82 information requests over 19 months .

Was Not Discriminatory Under NLRA To Fire Union Activists For Failing To Disclose Criminal Record On Job Applications
But beware of possible state law restrictions on use of criminal information.

Did You Know . . . ?

That February's Molecule of the Month is Kevlar, a long chain-like molecule known as a polymer? It is one of the strongest human-made substances, and is strong enough to withstand a bullet fired at a bullet proof vest.

That February's flower is the Violet, and its birthstone is the Amethyst?

That February is, among other things, African Heritage Month, American Heart Month, Pets Dental Health Month, National Bird Feeding Month and International Friendship Month?

That February 14-20 is International Flirting Week, the 17th is Random Acts of Kindness Day, and the 20th is Love Your Pets Day?

That March's Molecule of the Month is Hexenal, which is the key aroma substance emitted when grass is cut, which behavioral studies have shown has a healing effect on the psychological damage caused by stress?

That March's flower is the Crocus, and its birthstone is the Aquamarine?

That March is, among other things, National Nutrition Month, Kidney Month, Reading Month, Women's History Month, National Craft Month, National Colorectal Cancer Awareness Month, Family Eye Health Month, Newspaper in Education Month, Red Cross Month, National Peanut Month, Social Work Month and Archaeology Awareness Month?