You Have To Get Your Story Straight
An employer’s “shifting explanations” for an employee’s discharge precluded summary judgment.

The Harshbarger Report

The Value Of Corporate Integrity
People expect business corporations to have values, to act according to their values in a consistent manner, and to make the right choices where the public good is at odds with corporate self-interest.

Employment Law Headlines

First Circuit Rules Company May Be Liable For Discrimination Even Where Decision Maker Lacked Discriminatory Animus
A corporation can be held liable for discrimination when neutral decision makers, free of any age-based animus themselves, rely on information that is manipulated by another employee who harbors age-based discriminatory animus.

Last Chance Agreement Was Strictly Applied
Where an LCA required “reporting to work every day and on time,” and that any violation “would automatically constitute just cause for the employee's immediate discharge,” it meant just that.

“Church Of Body Modification ” Practices
Just because plaintiff “interpreted” church doctrine as “requiring her to display her body modifications at all times” does not make it so, nor does it divest a retailer of the right to maintain appearance standards.

Initial Consensual Nature Of Relationship Did Not Insulate Employer From Sexual Harassment Claim
At least not where the employee later tried to break off the relationship. However, (and once again, see Mistake of the Month above) “there are inconsistencies in defendants' proffered reason for plaintiff's termination” so the employer was denied summary judgment.

Pay Discrimination Claim Rejected Where Each Assistant Coach Had Different Duties
Plaintiff claimed he was paid less than a similarly situated female assistant hockey coach, and then retaliated against by the Head Coach for complaining.

“Toxic” Work Environment Not Necessarily Actionable
A foolish case, and the Court’s first paragraph says it all:
“People do not always get along. And people occasionally overreact. And sometimes people who do not get along overreact in the workplace. This can be a toxic condition. But toxicity is not equivalent to discrimination, nor is it actionable in federal court. This is one such case.”

“Mother” Stereotype Could Support Sex Discrimination Claim
Plaintiff survived summary judgment on her claim that the real reason she was let go was that the defendants presumed that she, as a young mother, would not continue to demonstrate the necessary devotion to her job, and indeed that she could not maintain such devotion while at the same time being a good mother.

Plaintiff Terminated For Violation Of Harassment Policy Did Not Have A Religious Discrimination Claim
The plaintiff supervisor was terminated for violating the Company’s harassment policy by coercing and harassing an openly gay subordinate, despite the fact that the two of them appeared to be friendly.

193 Unapproved Absences Over Five Years Enough To Justify Termination Of Diabetic
Plaintiff never claimed during his employment that any absence was because of his diabetes, and never protested numerous verbal and written attendance warnings.

Employee On “Brink Of Discharge” Not Saved By Last Minute Revelation That He Had AIDS
After being told his job was in jeopardy because of attendance issues, the plaintiff disclosed he had AIDS. Threatening another employee and being convicted of it didn’t help him either.

On The Employee Benefits Front

Fraud Claim Of Independent Contractor Preempted By ERISA
Despite signing an agreement to the contrary, plaintiff claimed that “she was, at all relevant times, an employee of ExxonMobil entitled to its employee benefits.”

Claim For “Loss Of Benefits” Was Preempted By ERISA
Federal courts have drawn a distinction between a complaint that alleges that the employer wrongfully terminated an employee to avoid paying benefits and a complaint in which loss of benefits is merely an element of damages for wrongful conduct. The first is preempted by ERISA; the second is not. This case fell into the first category.

On The Labor Front

“Joint Employers” Liable For Unfair Labor Practices
A labor supplier and a Dunkin' Donuts distribution center were “joint employers” liable for numerous unfair labor practices.

Board Refuses To Order Employee Promoted
The Act was violated by a refusal to promote, but the Board, reversing the Administrative Law Judge, refused to order the employee to be promoted, although he did have to be paid as though he had been promoted.

Board Orders Work Schedule Restored
Because the employer violated the Act by adversely changing the work schedules of a group of its corrugator employees from two nonrotating shifts to three rotating shifts in retaliation for their activity on behalf of a union, the Board ordered reinstatement of the prior schedule.

Use Of “Ride Alongs” During Election Campaign Not Unlawful
Employer’s decertification election win certified by Board despite union’s claim that having non-union employees and supervisors “ride along” with voters was unlawful.

Legislative and Regulatory Actions of Note

They’re Here!
The federal Department of Labor has finally released its final rule revisions to the white-collar exemptions under the Fair Labor Standards Act. Please go to www.mhtl.com for more information.

Pension Funding Stability Act Signed By President Bush
Pension Funding Stability Act will lower required employer contributions to traditional pension plans for two years.

FMCSA Issues Final Rule On Commercial Truck Driver Records
Final rule requiring current and former employers of commercial truck drivers to respond to inquiries from prospective employers seeking driving record information was effective April 29, 2004.

Did You Know?

Little known and thoroughly useless facts about the Month of May.


If you have any questions or comments regarding these updates, please contact Geoff Wermuth or Kathy Murphy, Michael Bertoncini, or the attorney assigned to your account.