Friday, November 19, 2010

What Should You Do About Workplace Bullies?

The following report from Fox News is an interesting story about workplace harassment and bullying.

Tuesday, November 16, 2010

Tenth Circuit: Nurse who Resigned on Advice of Supervisor did not Have claim for Discrimination

In Chaplin v. Park Hospital District, Inc., the Tenth Circuit Court of Appeals ruled that a nurse who resigned her position in reliance upon her supervisor's statement that she would likely become the new Unit Coordinator could not bring claims for disability discrimination and FMLA violations because the record established that being placed in that position was not a reasonable accommodation since she could not be reassigned to it.  The court also agreed that the statement by the supervisor could not be construed as an implied contract or enforceable promise.

Friday, November 12, 2010

Utah Court of Appeals: If You're on Vacation, You Can't Get Unemployment

In Higgs v. DWS, the Utah Court of Appeals affirmed the Department of Workforce Services determination that a man who was on vacation in the U.S. Virgin Islands had fraudulently obtained unemployment benefits for the week of his vacation.  The court rejected the man's claims that his ignorance of the requirements of the statute should preclude a finding of fraud given that he had received a copy of the Claimant Guide, which detailed that a claimant must contact the Department of Workforce Services in circumstances such as his.  It also did not matter that he claimed he would have returned from vacation if he had been offered a job.

Tenth Circuit: Excluding Witness Testimony of Other Employees who Made Ageist Remarks Permissible


The Tenth Circuit Court of Appeals ruled in Mendelsohn v. Sprint/United Management Company that the district court did not abuse its discretion when it excluded testimony of witnesses who claimed to hear ageist remarks before a RIF that included the plaintiff.  The court reasoned that because the plaintiff alleged only that her RIF was inconsistent with the RIF criteria and not that the RIF was inherently discriminatory, what other employees reported that supervisors said who were not in the plaintiff's supervisory chain was irrelevant to whether she suffered discrimination.  Accordingly, the Tenth Circuit ruled that the district court's exclusion of the witness testimony was appropriate.  An earlier appeal in the case made it all the way to the United States Supreme Court.  This decision came to the Tenth Circuit after it had been remanded back to the district court.

Thursday, November 11, 2010

Work Thanksgiving Parties: Hopefully There is more Thanks and Less "Giving"

Now that we are entering the holiday season, it is important to remember that even though an employer may host an off-site holiday party, there is a potential for employer liability for improper employee activity.  Activities at employer-sponsored Thanksgiving parties have been at the center of at least two reported court cases.  In Jordan v. Alternative Resources Corporation, 458 F.3d 332 (4th Cir. 2006), for instance, an employee brought a racial discrimination and retaliation claim as a result of some activities that occurred at an "office Thanksgiving party."  Although the employer eventually won the suit, a vigourous dissent pointed to the fact that the employee was retaliated against at the party for having reported an inappropriate racially insensitive remark that had occurred some weeks before the party.  Also, in U.S. v. Rogers, 50 M.J. 805 (USAF Crim App. 1999), a lieutenant colonel was convicted of "disorderly conduct of a nature to bring discredit upon the armed forces" for having fraternized and engaging in an inappropriate relationship with a lieutenant who got drunk at an off-site Thanskgiving party.

Although most employees will certainly behave appropriately, it bears noting that employers should be careful to assure that holiday parties do not foster or exacerbate any inappropriate or illegal conduct.

Happy Veterans Day!


To all those who have served our country and their families, happy Veteran's Day.  Not only have veterans contributed to all of us by willingly serving to protect our freedoms and way of life, but they are often excellent employees who are used to dealing with difficult issues calmly and quickly.  Thank you for your service.

Friday, November 5, 2010

Utah Court of Appeals: Employee Who Said He Did Not Want to Remain Employed Because of his Supervisor Quit and was not Layed Off

In Brucks v. DWS, the Utah Court of Appeals agreed with the Department of Workforce Services that an employee, who apparently was attempting to gain some concessions by approaching his field supervisor and saying he did not want to remain employed if he had to work with his immediate supervisor, had quit and was not laid off, precluding him from receiving unemployment benefits.  The employee's claim that the employer agreed to report the claim as a lay-off did not change the outcome.

Tenth Circuit States Once Again: Title VII of the Civil Rights Act Does Not Create a General Civility Code

In Musungayi v. Whirlpool Corporation, the Tenth Circuit Court once again reaffirmed the principle that Title VII of the Civil Rights Act does not create a general civility code.  The court agreed with the district court's decision that the plaintiff had not stated a claim of discrimination despite the fact that some coworkers made stray comments about "dark Africa" and occasionally got angry with the plaintiff. 

Wednesday, November 3, 2010

Arbitration Agreement Enforceable Against Employee Despite Illegality of Provision




In Kepas v. eBay, the Tenth Circuit Court of Appeals, with one judge dissenting, affirmed a district court's decision to compel an employee to arbitrate a dispute.  Applying California law, the Court reasoned that, although the arbitration agreement impermissably allowed the arbitration costs to be shifted to Kepas and the agreement was procedurally unconscionable, the defects were not significant enough to render the arbitration agreement unenforceable.  The dissenting judge found the former employee's argument more compelling and chided the majority for concluding that the agreement was bilateral when the agreement excepted intellectual property claims from the arbitration requirement---a carve out that would exempt most claims brought by eBay from being arbitrated.