July 17 : June 21 : April
12 : April 5 : January
21 : January 11
- The Washington Legal Foundation has published a Legal Backgrounder entitlted, "California High Court Muddles Standard for Workplace Tort Suits," written by Lynn A. Bersch.
Bersch explains, "In a pair of decisions rendered January 31,
2002, the California Supreme Court ruled that businesses hiring
independent contractors may be liable for workplace injuries suffered
by the contractors' employees. In Hooker v. Department of Transportation,
27 Cal.4th 198 (2002), and McKown v. Wal-Mart Stores, Inc.,
27 Cal.4th 219 (2002), the Court held that a business hiring an
independent contractor may be liable to the contractor's employees
for workplace injuries to the extent the hiring business "affirmatively
contributes" to the injuries by either exercising retained control
over worksite safety conditions or providing unsafe equipment.
To read the full document click HERE
- United States Supreme Court Further Limits the ADA
On June 10, 2002, the United States Supreme Court handed down
a major victory for employers in Chevron v. Echazabal,
No. 00-1406, 2002 WL 1270586 (U.S. June 10, 2002). Further limiting
the American with Disabilities act ("ADA"), the Supreme
Court unanimously reversed the Ninth Circuit and held that the
ADA does not entitle people to jobs that might jeopardize their
health. In other words, an employer may make employment decisions
(including hiring, assignment, transfer, and firing) based on
a disabled employee's "direct threat" to himself or
Mario Echazabal worked for independent contractors at a Chevron
plant in El Segundo, California before twice applying for a regular
job with the company. Chevron refused to hire Echazabal both times
based on a test that showed that Echazabal suffered from chronic,
active Hepatitis C, a liver condition that can lead to cirrhosis,
liver failure and death. According to doctors, continued exposure
to toxins at the refinery would exacerbate the liver condition.
Chevron subsequently asked the maintenance contractor to fire
or reassign Echazabal in 1996, which it did, arguing that he risked
further liver damage the longer he worked around the chemicals
at the plant, and that his medical condition was outside the protection
of the ADA. Echazabal filed suit under the ADA. Chevron argued
that an Equal Employment Opportunity Commission ("EEOC")
regulation permitted the defense that an employment decision based
on a worker's disability on the job that would pose a direct threat
to his health does not violate the ADA. The Ninth Circuit reversed
summary judgment granted to Chevron by the District Court finding
that the EEOC regulation exceeded the scope of permissible rulemaking
under the ADA. The Supreme Court agreed with the District Court
The ADA generally prohibits discrimination against a qualified
individual because of a disability. 42 U.S.C. § 12101 et.
seq. Prohibited actions include the use of qualification standards
that tend to screen out disabled individuals. 42 U.S.C. §
12112(b)(6). The EEOC regulation in question expands upon the
affirmative defense created by the plain language of the ADA allowing
an employer to rely on such a qualification standard "shown
to be job-related for the position in question and
with business necessity," which may include " a requirement
that an individual shall not pose a direct threat to the health
or safety of other individuals in the workplace. § 12113(b).
The regulation allows employers to screen not only for risks that
an individual would pose to others but for risks he or she would
pose to himself or herself. 29 CFR § 1630.15(b)(2) (2001).
The Court's holding that the EEOC regulation is valid under the
ADA is based on its disagreement with the Ninth Circuit's application
of the statutory interpretive canon, expressio unius exclusio
alterius, or, expressing one item of an associated group or series
excludes another left unmentioned. Rather, the Court found the
expansive language of the ADA's provision on what may be included
in that which defines job relatedness and business necessity to
permit a qualification standard which takes into account potential
harm to one's self.
- On March 12, 2002, Senator Patrick Leahy (D-VT), Chairman of
the Senate Judiciary Committee, introduced legislation entitled
the Corporate Criminal Accountability Act of 2002. This is another
bill that was created in response to the Enron crisis. A whistleblower
protection provision is included in the legislation, among other
provisions, to address some concerns caused by the recent crisis.
Specifically, the bill protects whistleblowers at publicly traded
companies from retaliation by their employers in fraud cases.
If an employee alleges that retaliation has taken place, a complaint
can be filed with the Department of Labor, or the individual can
file a lawsuit in district court.
To see the text of the bill, please visit (The whistleblower
provision is Sec. 7 of the bill):
- In response to the Enron collapse and the loss of personal
savings suffered by its company's employees, President Bush proposed
reforms to protect employee pensions. H.R. 3762, the Pension Security
Act, is legislation introduced by Representative John Boehner
(R-OH), Chairman of the House Committee on Education and the Workforce,
that codifies the President's proposals.
On March 20, 2002, the full Committee on Education and the
Workforce voted to approve the legislation and send it to the
House floor by a vote of 28-19. The bill addresses many of the
problems that were experienced by Enron employees. Some of the
- Senior employees would be prohibited from selling company
stock during "blackout" periods when other employees
are unable to make changes in their plans.
- Employees would be able to diversity their stock in their
they would be allowed to sell their stock three years after
receiving it in their pension plan.
- Employers would have to provide better information to employees
about their pensions
- Employers are encouraged to provide employees professional
investment advice (this provision was already approved by
the full House in the Retirement Security Advice Act, H.R.
Senator Jeff Bingaman (D-NM) and Senator Edward Kennedy (D-MA)
have introduced their own pension reform bill, Protecting America's
Pensions Act of 2002 , S. 1992. The Senate Committee on Health,
Education, Labor, and Pensions approved the measure on March 21,
2002. A key difference between the House and Senate legislation,
according to the House Committee, is the Senate bill will discourage,
not encourage, employers to provide investment advice to employees.
Committee on Education and the Workforce press release
- Does the Age Discrimination in Employment Act (ADEA) provide
for lawsuits based on a disparate impact theory of liability?
The answer to this question remains unresolved as the Supreme
Court decided that it had improperly granted certiorari on a case
it heard in March (Adams v. Florida Power Corp., 01-0584). The
11th Circuit Court of Appeals had held that the ADEA does not
provide for disparate impact claims under the ADEA.
There is a major split in the circuits on this issue. The 1st,
3rd, 7th, 10th, and 11th circuits have held that a disparate impact
claim is not allowed. The 2nd, 8th, and 9th circuits have held
that a disparate impact claim is allowed. A primary argument in
favor of allowing disparate impact claims is that the language
in the ADEA allegedly mirrors that of Title VII, a statute that
does allow for disparate impact claims.
11th Circuit Opinion: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=11th&navby=case&no=9915306MAN&exact=1
- The U.S. Supreme Court ruled last week that the Equal Employment
Opportunity Commission can step into disputes covered by arbitration
agreements. In this case, an applicant, Eric Baker, signed a Waffle
House employment application containing an agreement that any
employment-related dispute would be decided by binding arbitration.
Soon after Mr. Baker was hired, he suffered a seizure at work
and was discharged shortly thereafter. He never initiated arbitration
proceedings, but filed a disability-discrimination charge with
the EEOC. After investigating the charge, the EEOC filed suit
against Waffle House, seeking broad injunctive relief, as well
as victim-specific relief - backpay, reinstatement, and compensatory
and punitive damages - on behalf of Mr. Baker.
Waffle House argued that allowing the EEOC to obtain victim-specific
judicial relief for Mr. Baker would undermine the federal policy
favoring arbitration agreements. The Supreme Court rejected Waffle
House's argument and held that because the EEOC was not a party
to the arbitration agreement between Waffle House and Mr. Baker,
that agency was not barred from bringing an enforcement action
in its own name. The Supreme Court further held that because the
discrimination statutes (Title VII and the Americans with Disabilities
Act) at issue in this case grant the EEOC the right to obtain
all statutory remedies (including backpay and compensatory and
punitive damages) in any action it brings, the EEOC was free to
seek victim-specific relief on behalf of an individual who could
not himself file a lawsuit for such relief.
The ruling could reverse or complicate the trend of using arbitration
in employment disputes by depriving arbitration of finality, employer-side
labor lawyers said.
From Kilpatrick Stockton.
Supreme Court's Decision in EEOC v. Waffle House, Inc.
- On January 8, the U.S. Supreme Court ruled that a Kentucky
woman with carpal tunnel syndrome could not be categorized as
a disabled worker under the Americans with Disabilities Act because
she is still able to care for herself off the job. The unanimous
ruling came in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
The case can be found here: http://laws.findlaw.com/us/000/00-1089.html
A New York Times editorial states "Congress should either
revisit the Americans With Disabilities Act and clarify its
language or pass a new law." Read the editorial here: http://www.nytimes.com/2002/01/10/opinion/10THU2.html?ex=1011687675&ei=1&en=f6799ea693f7e62c.
On January 2, U.S. District Judge Henry H. Kennedy, Jr., struck
down an executive order by Pres. Bush that requires government
contractors to advise their workers that they need not join
a union. Read the decision HERE.