The Harshbarger Report

Redefine "Consequence Management" Practices
Appoint An Integrity Point Person.

OTHER EMPLOYMENT LAW HEADLINES

Continuing Violation Theory Also Applies To Claims Of Retaliation
According to the Court, "an employee may be 'unable to appreciate that he is [the object of retaliation] until he has lived through a series of acts and is thereby able to perceive the overall [retaliatory] pattern.'"

Cleansing Blood Through Dialysis Was A "Major Life Activity" Under The ADA
End-stage renal disease substantially limited the Plaintiff's ability to care for herself.

Another Circuit Splits On Whether "Interacting with Others" Is A "Major Life Activity" Under The ADA
Circuit split may leave employers wondering whether every abrasive, combative employee is actually suffering from a personality disorder and entitled to accommodation under the ADA.

In This Case, It Might Have Been Better To Have Known
Because none of the alleged harassers knew the Complainant was homosexual, any alleged harassment had to have occurred simply because he was male.

Same-Sex Harassment Must Be Personal
Claim based on, "[A]lleged long-standing practice of tolerating male-on-male sexual harassment in the workplace" must fail without Plaintiff establishing that he was "personally discriminated against because of his gender" (emphasis added).

Legislative/Regulatory Actions Of Note

President Bush Signs Law Eliminating Double Taxation Of Civil Rights Awards
Basically answering the question the Supreme Court is deciding right now.

Busy, Busy, Busy . . . EEOC Issues Two New ADA Guides
One for the employment rights of individuals with "intellectual disabilities," and another entitled "How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers."

New Hours-Of-Service Trucking Rules Remain In Effect For Now
Thanks to Congress and President Bush, for now at least, the new rules are the rules.

Wage-Hour Cases

Overtime Claimants Did Not Have To Exhaust Grievance Procedure Before Filing State Law Action
The "right to timely payment of wages is a distinct independent statutory right that can be enforced judicially even though the subject matter of overtime, call-back, and stand-by pay is incorporated in the Plaintiffs' collective agreement."

On The Employee Benefits Front

Even Applying A Heightened Standard of Review, The Plaintiff Loses
Another case involving a plan administrator who also is the plan funder, and thus has a "conflict of interest" in making some plan determinations.

On The Public Sector Front

Court Backs School Board In Tenure Denial Due To Relationship With Former Student
And lying to the principal about it when questioned didn’t help either.

Town Not Immune Under Tort Claims Act For Injuries Caused By Snow Salter/Sander Accident
Town was liable under the Tort Claims Act for the acts of an alleged independent contractor.

Collective Bargaining Agreement ("CBA") May Override Statutory Reinstatement Rights Of Disabled Retirees
At least as to the reinstatement rights of disability retirees returning to work, a collective bargaining agreement ("CBA") may provide for something different than the statute would provide in the absence of any CBA provisions.

Stipend Position Not In Contract Does Not Count Towards Retirement
A frequent issue in teacher contracts re: extra service fee positions - bottom line is the position actually does have to be in the contract.

On The Labor Front

Termination Of Steward For Harassment Of Dissident Union Member For Filing Decertification Petition Upheld By Board
Employer lawfully terminated a union's chief steward for his unprotected harassment of a fellow employee because of that employee's filing of a decertification petition.

Employer's Refusal To Deal With Particular Union Representative Upheld
But it took a telephoned death threat to get there.

Claim Of Financial "Distress" Did Not Trigger Obligation To Provide Financial Information To Union
Stating in negotiations that the employer is in "financial distress" did not effectively communicate a claim of inability to pay; "inability to pay . . . means that the company presently has insufficient assets to pay or that it would have insufficient assets to pay during the life of the contract that is being negotiated. Thus, inability to pay is inextricably linked to nonsurvival in business."

Making Health Insurance Changes According To Past Practice Not Unlawful
Changes consistent with the prior "status quo" were lawful.

Handbook Rules Barring "Gossip" And Job Abandonment Upheld By Board
Union claimed a rule prohibiting employees from "[a]bandoning your job by walking off the shift without permission of your [s]upervisor or [a]dministrator" - in a nursing home - was a restriction on the employees' right to strike.

Clear Contract Language Trumps Arbitrator's Decision
The arbitrator was out to lunch on this one.

Did You Know . . . ?

That the Molecule of the Month is Morphine, the most abundant of opium’s 24 alkaloids. It is named after the Roman god of dreams, Morpheus, who also became the god of slumber; the drug morphine, appropriately enough, numbs pain, alters mood and induces sleep.

That November’s flower is the Chrysanthemum, and its birthstone is the Topaz?

That November is, among other things, Peanut Butter Lover’s Month, National Adoption Month, International Drum Month, Military Family Appreciation Month, CPR Month, National Novel Writing Month, National Diabetes Month, Lung Cancer Awareness Month, and Wilderness Watersheds Month?

That November 2 is National Deviled Egg Day, November 7 is National Bittersweet Chocolate with Almonds Day, that November 12 is National Pizza with the Works except Anchovies Day, that November 15 is National Clean Out Your Refrigerator Day, and the 23rd is National Cashew Day?