Bits, Blurbs and Comments on 
Employment Law Developments


May 17, 2004: In Hughes v. Georgia Dept. Of Corrections, __Ga.App__ , (No. A04A0427, May 17, 2004), the Georgia Court of Appeals holds that backpay and money damages are not available under the Georgia Whistleblower Protection Act, O.C.G.A.45-4-1. The sole remedy is to have the action reversed and reinstatement. A claim under the Act is not moot where the employee would still be employed had the improper action not been taken.

June 9,2003: DESERT PALACE, INC. v. COSTA, No. 02-679 (U.S.S.C. June 09, 2003) The Supreme Court holds that direct evidence of discrimination is not required for a plaintiff to
obtain a mixed-motive jury instruction under Title VII of the Civil
Rights Act of 1964.

June 6, 2003: In Bogle v. McClure, - F.3d - (11th Cir. June 6, 2003) the Eleventh Circuit upholds a jury verdict of $17 million on racial discrimination claims of seven Caucasian librarians. The judgment includes $500,000 in damages for emotional distress for each plaintiff supported only by their testimony. Title VII's $300,000 damages cap does not apply to actions brought under 42 U.S.C. 1983.

January 26, 2003: The Atlanta Journal-Constitution publishes a frontpage article "Workers say bias breeds turmoil at INS" outlining allegations and findings of employment discrimination in the Atlanta District Office of the U.S. Immigration and Naturalization Service. The article discusses a finding of discrimination in case handled by Adam J. Conti LLC and reports serious employee relations problems at that agency. 

January 15, 2002: In EEOC v. WaffleHouse, Inc. the Supreme Court holds that an agreement between an employer and an employee to arbitrate employment-related disputes does not bar the EEOC from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an ADA enforcement action. 

November 13, 2001: The Supreme Court reverses the Federal Circuit and holds in United States Postal Service v. Gregory that the Merit Systems Protection Board in assessing the appropriateness of  a penalty for a Federal employee adverse action can consider prior disciplinary actions even though union grievances contesting those actions are pending. 

 June 4, 2001: In POLLARD v. E. I. du PONT de NEMOURS & CO. (00-763), the Supreme Court holds that front pay may be awarded to a victim of employment discrimination in excess of the statutory cap of $300,000 imposed by 42 U.S.C. §1981a. Since front pay is pay given to a victim where reinstatement is not feasible, it is equitable relief and not subject to the statutory cap which applies only to compensatory relief. 

March 21, 2001: In CIRCUIT CITY STORES, INC. v. ADAMS (99-1379) the Supreme Court holds that a provision in the Federal Arbitration Act that exempts certain employment contracts from that Act's provisions is limited to contracts in the transportation industry. The Court further states that the FAA preempts state law which may  impede contracts requiring arbitration, thereby reinforcing the now widespread use of employment agreements that require employment discrimination claims to be submitted to arbitration in lieu of being filed in court. This decision strongly reaffirms the use of mandatory arbitration of employment claims first sanctioned by the Court's 1991 decision in Gilmer v. Interstate/Johnson Lane Corp. (90-18), 500 U.S. 20 (1991).    

February 21, 2001: In a 5 to 4 opinion the Supreme Court again limited the rights of state employees under federal anti-discrimination laws. In University of Alabama Board of Trustees v. Garrett, __ U.S. __ (2001), the Court found that state employees could not sue their employers for disability discrimination under the Americans with Disabilities Act. The Court found that Congress had not shown a pattern or practice of discrimination that would allow it to override the State’s immunity from being sued. The dissenting justices, however, strongly disagreed with the majority and found that Congress had shown at least 300 examples of disability discrimination by state governments, and stated that this should have been sufficient to allow the states to be sued. This opinion is the second such decision in slightly more than a year. In January 2000, in Kimel v. Florida Bd. of Regents 528 U.S. 62 (2000); the Court, in the same 5 to 4 split, found that state employees could not sue their employers under the Age Discrimination in Employment Act. These cases continue the trend of the Rehnquist Court to curtail the federal government's regulation of the employment relationship between states and their employees.  

 March 27, 2000: In Reilly v. Alcan Aluminum the Georgia Supreme court strongly reinforces the employment-at-will rule in Georgia. The plaintiff in Reilly had argued that the duty not to discriminate on the basis of age set forth in the Federal Age Discrimination in Employment Act was actionable under the Georgia negligence per se statute. The U.S. 11th Circuit Court of Appeals asked the Georgia Supreme Court to interpret this unresolved issue of Georgia employment law. The Georgia Supreme Court rejected this claim, finding that the strong Georgia at-will rule precluded an action in tort for wrongful discharge based upon age discrimination. 

March 22, 2000: A 508 million dollar settlement of a 23 year old class action sex discrimination case against the United States Information Agency is announced. The settlement is the largest ever of a federal sex discrimination  case. The case encompassed the claims of 1100 women who alleged that the Voice of America had denied them positions as radio broadcasters, radio broadcast or electronic technicians, writer/editors, and production specialists over a ten year period that ended in 1984. The government had vigorously defended the claims, unsuccessfully appealing to the Supreme Court on two occasions. In addition to the $508 million, the government will also pay $22.7 in individual awards and attorneys fees of approximately $12 million. The case illustrates the extremely high cost of intransigence in employment litigation and that the federal government is indeed capable of egregious discrimination. Announcement of the settlement was made by the Washington, D.C. law firm of Webster, Fredrickson & Brackshaw, which serves as lead counsel in the case for the plaintiffs.

December 21, 1999: An eight person jury in the U.S. Federal District Court for the Northern District of Georgia returned a $200,000.00 verdict in favor of Attorney Clinton M. Fried on his claims that his employer, the Internal Revenue Service, had retaliated against him in violation of Title VII of the 1964 Civil Rights Act. The verdict came at the close of the six day trial held before the United States District Court Judge Thomas W. Thrash in the case of Clinton Fried v. Robert E. Rubin, Secretary of the Treasury, Civil Action No. 1:98-CV-554-TWT. Clinton Fried is a GS-14 Docket Attorney with the District Counsel Office of the Internal Revenue Service.

Mr. Fried’s complaint alleged that he was subjected to continuing retaliatory conduct because he had complained to his managers that a senior IRS manager had used religious and racially offensive epithets during lunch time conversation and because he filed subsequent EEO complaints against the IRS. The retaliatory conduct, which spanned the period 1992 through 1997, encompassed denial of two promotions, an oral and written reprimand, lowered performance evaluations , onerous and disparate work assignments and repeated and relentless criticism of his work product. At trial, six of Mr. Fried’s co-workers testified that they considered him the best litigator in the office and that he handled the most complex cases.

At the close of plaintiff’s case, Judge Thomas W. Thrash granted Defendant a directed verdict on Mr. Fried’s claims that the IRS had discriminated against him on the basis of his religion, his sex, age and disability. Judge Thrash permitted the retaliation claims to be decided by the jury. The jury deliberated approximately three hours before returning a verdict finding that the IRS had retaliated against Mr. Fried and awarding him $20,000.00 in back pay and $180,000.00 in compensatory damages.

Mr. Fried was represented by Adam J. Conti of Adam J. Conti, LLC. The Internal Revenue Service was represented by Assistant United States Attorney Patricia E. Stout. Mr. Conti plans to request that Judge Thrash order the IRS to retroactively promote Mr. Fried, to expunge the reprimands from his file, to cease further retaliatory conduct, and to pay the reasonable attorneys’ fees incurred in securing the relief Mr. Fried obtained.


November 16, 1999:    In Mendoza v. Borden, __ F.3d __ (No. 97-5121, 11th Cir., Nov. 16,1999) en banc, the Eleventh Circuit found that a female employee’s complaints of offensive, sexually related conduct were insufficient as a matter of law to constitute actionable sexual harassment under Title VII. In that case, the alleged pattern of discrimination including one instance in which supervisor said to employee "I'm getting fired up," one occasion in which supervisor rubbed his hip against employee's hip while touching her shoulder and smiling, two instances in which supervisor made sniffing sound while looking at employee's groin area and one instance of sniffing without looking at her groin, and supervisor's "constant" following and staring at employee in a "very obvious fashion," did not reach level of severe or pervasive conduct sufficient to alter employee's terms or conditions of employment, thus defeating hostile environment sexual harassment claim. her supervisor repeatedly stared at her and followed her around the work area in an offensive manner, that on two occasions the supervisor had made a sniffing motion while staring at her groin area, that on one occasion the supervisor had rubbed his hip against her hip. Affirming the trial court’s grant of judgment as a matter of law at the conclusion of plaintiff’s case after a trial on the merits, the Eleventh Circuit, noting that Title VII is not a federal "civility code," found that the conduct alleged was not sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment.

This decision is consistent with that of other circuits and establishes that where the conduct in question does not involve a tangible job detriment, it must be very severe and pervasive in order to violate Title VII.


September 3, 1999: In Wright v. Southland Corp (11th Cir 09/03/1999) an opinion  of the 11th Circuit Court of Appeals found that a supervisor's statements that the plaintiff was "Getting too old" was direct evidence of age discrimination and  his statement "You will regret it" was direct evidence of retaliation. The opinion proceeded to define direct evidence: 
Direct evidence of employment discrimination is evidence from which a trier of fact could conclude, based on a preponderance of the evidence, that an adverse employment action was taken against the plaintiff on the basis of a protected personal characteristic.
Although the definition of "direct evidence" may seem intuitively simple, many courts have struggled with its application in particular cases. The opinion also contains a lengthy discourse on methodology of proof in Title VII claims. Where direct evidence is present, the plaintiff need not use the methodology and order of proof set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and the plaintiff is virtually assured of a right to a jury trial on his or her discrimination claims.  Because the Court found in Wright v. Southland that the quoted statements directly evidence discriminatory and retaliatory motives, it reversed the trial court's grant of summary judgment to the employer and remanded the case for a trial on the merits of the claims.  The Wright decision is of questionable precedential value because two of the three panel members did not concur in the opinion, but only joined in the result.

June 22, 1993: In a trio of cases, Sutton v. United Air Lines (No. 97-1943), Murphy v. United Parcel Service (No. 97-1992) and Albertsons v. Kirkingburg (No. 98-591) the Supreme Court substantially narrows the scope of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. In Sutton the Court holds that mitigating measures must be taken into account in judging whether an individual has a disability under the ADA. This means that individuals with correctable disabilities, such as severe nearsightedness, are not entitled to the Act's protections because with their mitigating measures they no longer meet the ADA's definition of a disabled employee. Even before these decisions were issued, employers were prevailing in well over 90% of all ADA lawsuits, primarily because either the plaintiff failed to meet to the statute's definition of disability or he or she was too disabled to perform the essential functions of the job in question even with reasonable accommodation. By further narrowing the ADA's scope of coverage, the Court's recent decisions virtually negate the ADA's promise of protection against disability discrimination for all but a sliver of the American workforce.

In a fourth employment case decided the same day, Kolstad v. The American Dental Association (No. 98-208), the Court broadens the scope of available relief for victims of employment discrimination. In Kolstad the Court holds that an that an employer's conduct need not be independently 'egregious' to satisfy 42 USC's 1981a's requirements for punitive damages. This ruling means that punitive damages can be awarded in the run of the mill employment discrimination cases. Of course, to secure such damages, plaintiffs must survive summary judgment, prevail on the merits of their  discrimination claim and then convince a jury that punitive damages are warranted. Nonetheless, in making it easier to recover larger monetary awards, the Kolstad decision is likely to have a far more significant impact on the employment discrimination claims than its decisions in Sutton, Murphy and Albertsons.

June 21, 1999: The U.S. Equal Employment Opportunity Commission (EEOC) releases Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, comprehensive policy guidance explaining the circumstances under which employers can be held liable for unlawful harassment by supervisors. The guidance, which analyzes the recent Supreme Court decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, addresses the steps employers should take to prevent and correct harassment. It also explains the nature of employees' obligations to bring complaints of harassment to their employers' attention. The EEOC also released Questions & Answers for Small Employers on Employer Liability for Harassment by Supervisors. The guidelines reiterate the Commission's long-standing guidance on employer liability for harassment by co-workers remains in effect - - an employer is liable if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action.

June 17, 1999:  In a pair of decisions, the Supreme Court strengthens the rights of Federal sector employees. In West v. Gibson the Court affirms the right of the Equal Employment Opportunity Commission to award compensatory damages during the  administrative phase of federal employee administrative discrimination complaints. In NASA v. FLRA the Court upholds the right of federal employees to have union representation during interviews with Inspector General investigators. The decisions  are each grounded in statutory construction and

March 2, 1999: The EEOC issues new materials on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (ADA). The items released include:

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (ADA)
Fact Sheet: Small Employers and Reasonable Accommodation
Press release: EEOC Releases ADA Policy Guidance On Job Accommodations For Individuals With Disabilities

With a healthly increase in its budget, real progress in reducing its case backlog and a vigorous new initiative on mediation, the EEOC appears poised to assume its statutory role in developing and implementing U.S. anti-discrimination policy.

Nov. 16, 1998: In WRIGHT v. UNIVERSAL MARITIME SERVICE CORP. (97-889) the Supreme Court holds that a longshoreman covered by a collective bargaining agreement is not obligated to arbitrate his allegation of discrimination in violation of the Americans with Disabilities Act of 1990 before initiating litigation on his claim. Avoiding the issue of whether an employee can be compelled to arbitrate a discrimination claim instead of adjudicating that claim in court, the Court decided Wright on a purely contractual basics. The court does note "tension" between its holdings in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) and Alexander v.Gardner-Denver Co., 415 U.S. 36, 49-51 (1974) with respect to the propriety of a collective bargaining agreement's waiver of employees' statutory rights to a federal forum for adjudication of discrimination claims. The Supreme Court's decision in Wright is indicative of a judicial trend to limit, distinguish or perhaps outright overrule the holding in Gilmer that a clause in an employment contract requiring arbitration of discrimination claims in lieu of litigation in court is legally enforceable. Other factors supporting this trend are the Ninth Circuit's decision in Duffield v. Robertson Stephens & Co, 144 F. 3d 1182 (9th Cir. 1998), the Supreme Court's November 9, 1998 denial of certiori in that case, the EEOC's position that such agreements are void as contrary to public policy, EEOC Policy Notice 915.002 (July 10, 1997), and several lower court decisions upholding employees' right to to litigate discrimination claims even where they were contractually obligated to arbitrate them. Following the Court's issuance of Gilmer, many practitioners (myself included), believed that alternative dispute resolution policies that contractually obligated employees to arbitrate discrimination claims instead of litigating them would be upheld by the courts. The Court's decision in Wright and the other cited developments illustrate that such agreements will be carefully scrutinized by the courts especially where their application proves unduly harsh under the particular facts in a case. Therefore, both employers and employees should no longer assume that such clauses will automatically be enforced. It remains to be seen, however, whether Gilmer will be cease to be the law some day. Regardless of whether employees can be compelled to arbitrate their claims instead of litigating them, alternative dispute resolution policies remain productive and cost-effective means of resolving workplace disputes and should be considered by any employer as basic cornerstone of any employee relations policy.

October 31, 1998: The President signs the Veterans Employment Opportunities Act of 1998 into law. This new statute, to be codified at 5 U.S.C. 3304, increases the preferences accorded veterans for federal sector employment and provides new appeal rights to the Merit Systems Protection Board for veterans who believe they have been denied preference rights. The Office of Personnel Management has summarized the law's key provisions in a question and answer format on its web page. OPM offered additional explanation on the law's provisions in late November.



October 28, 1998: The U.S. Court of Appeals for the Eleventh Circuit in Walker v. Morthan clarifies the analysis that that court will apply in determining whether a plaintiff in a discrimination complaint has made a prima facie case of discrimination. The Court rules that to survive summary judgment a claimant need only establish basic qualifications for the position in question, not relatively better qualifications than the individual selected. This decision illustrates the complex legal issues involved in determining whether a discrimination plaintiff has presented sufficient evidence to prevent the court from deciding the claim for the employer without a trial or letting the case go forward to a jury.


June 26, 1998: In a pair of decisions, the Supreme Court establishes standards for handling employee sexual harassment complaints and for establishing liability for such complaints. In FARAGHER v. CITY OF BOCA RATON, the Supreme Court reverses the 11th Circuit Court of Appeals and holds an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim. In the second case, BURLINGTON INDUSTRIES, INC. v. ELLERTH, the Court holds that under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions, but the employer may interpose an affirmative defense.
Faragher the Court's syllabus, majority (Justice Souter) and dissenting (Justice Thomas) opinions are available from Cornell's Legal Information Institute. Similarly, for Burlington, the Court's syllabus, majority (Justice Kennedy), concurring (Justice Ginsburg) and dissenting (Justice Thomas) opinions are also available from Cornell.
In these cases the Court is attempting to provide guidance and direction to both employers and employees in dealing with the complex and often imprecise issues of liability for sexually related offensive conduct occurring in the workplace. The Court adopts a middle of the road approach by granting legal rights to both parties. First, it adopts broad interpretations of what conduct may be actionable sexual harassment under Title VII and when employers can be held liable for conduct that normally breaches company policy. It then permits employers to escape liability by permitting employers to raise affirmative defenses that they should not be held responsible when they acted promptly, effectively and reasonably in response to employee's complaints of offensive conduct.
As I have been advocating for years, to escape liability for offensive sexually related conduct in the workplace, employers of all sizes need to:
  1. propagate an effective anti-harassment policy
  2. establish complaint procedures under which employees may bypass the alleged perpetrator and complain directly to higher level management
  3. most importantly, establish an employee relations climate that unequivocally demonstrates that management is deadly serious about prohibiting any sort of sexually offensive behavior in the workplace.

All employers should examine their sexual harassment policies to ensure that they are fully consistent with, and take full advantage of, the guidance provided by the Supreme Court in these two cases. To preserve any legal claims they may have, employees should promptly complain to management about any offensive sexually related conduct they experience in the work place.


May 26, 1998: The EEOC issues revised guidelines on its handling of retaliation charges. In a press release the EEOC stated that it was issuing "comprehensive guidance on the prohibition against retaliation aimed at individuals who file charges of employment discrimination or who participate in the investigation of an EEO charge." The announcement was accompanied by a revision to EEOC Compliance Manual Section 8: Retaliation. While the changes in large part constitute a reiteration and codification of existing EEO policies and practices, their overall thrust is to strongly prohibit virtually any form of retaliation and to vigorously protect the rights of employees to file complaints and oppose practices made illegal under Title VII.. For example, the manual revision rejects the position taken by several Courts of Appeal that there must be tangible job detriment before a retaliation claim is established. The Manual provides: Although trivial annoyances are not actionable, more significant retaliatory treatment that is reasonably likely to deter protected activity is unlawful. There is no requirement that the adverse action materially affect the terms, conditions, or privileges of employment. Employers can expect more findings of retaliation to result from this change. It remains to be seen, however, whether the courts will defer to the EEOC's guidelines and affirm the aggressive level of protection of Title VII rights reflected in the EEOC's revised anti-retaliation policies.


May 4, 1998: In Weeks v. Baker & McKenzie, a California Appeals Court upholds a jury's punitive damages award of $3.5 million dollars in a sexual harassment case against one of America's largest law firms. The jury had originally awarded $6.9 million, but the trial court reduced that to 3.5 million. The Appellate Court also affirmed an award of $125,000 in punitive damages against the firm's partner who was found to have perpetrated the harassment , $50,000 in compensatory damages against both the firm and the partner and $1,202,342.36 in attorneys fees and costs. The Appellate court rejected the trial judge's enhancement of the attorneys fees incurred by a factor of 1.7. Apparently, the size of the award reflects the jury's assessment of their conclusion that the firm had failed to take corrective action in response to prior complaints about this partner's conduct.


April 1, 1998: U.S. District Court Judge Susan Webber Wright dismisses Paul Jones's lawsuit against President Bill Clinton. In the Order dismissing this lawsuit Judge Wright finds that Jones failed to prove quid pro quo or hostile working environment sexual harassment, tangible job impact, or other grounds entitling her claims to proceed to trial. This decision illustrates the formidable burden a plaintiff faces in surviving summary judgment in contemporary employment lawsuits. It also demonstrates that employment lawsuits are decided far more on the particular facts involved in the case then the law.


March 4, 1998: A unanimous Supreme Court holds that same sex harassment is actionable sex discrimination under Title VII. In ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC., ET AL . the Supreme Court held that Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII's prohibition of discrimination: "because of . . . sex" protects men as well as women. LLI's synopsis of the decision.


March 3, 1998: The U.S. Court of Appeals for the Seventh Circuit holds in Gibson v. Jesse Brown, Secretary U.S. Department of Veterans Affairs, that compensatory damages cannot be recovered by federal employees during the administrative phase of EEO complaint processing. The court's rationale was that since the provisions of 42 U.S.C. 1981a specify that either party can request a jury trial when compensatory damages are sought, Congress did not intend that compensatory damages are recoverable under the administrative complaint processing procedures which do not provide for jury trials. The defect in the court's analysis is that Congress did not spell out any procedures for processing administrative complaints at all, but delegated that authority to the EEOC which has set up an elaborate system for processing these complaints under 29 CFR 1614. As part of those procedures the EEOC has determined that compensatory damages can be recovered where warranted during the administrative phase. The Seventh Circuit's Gibson decisions clashes directly with the Fifth Circuit's 1997 decision in Fitzgerald v. Secretary, Secretary, Department of Veterans' Affairs, 121 F.3d 203, 207 (5th Cir. 1997), which held that compensatory damages are recoverable during the administrative phase. The Fifth Circuit's analysis is likely to prevail because it is based upon a more comprehensive analysis of the purposes behind Title VII and the administrative phase of complaint processing. Does the Seventh Circuit really want to encourage federal employees not to resolve their complaints administratively and to file their claims as lawsuits in federal court in order to secure larger recoveries?


January 30, 1998: The Bureau of Labor Statistics reports that the percentage of the American workforce who were represented by labor unions continued to decline in 1997. Union members accounted for 14.1 percent of wage and salary employment in 1997, down from 14.5 percent in 1996. The union membership rate has fallen steadily from 20.1 percent in 1983, the first year for which comparable data are available. Unionization in America reached its apex at approximately 35% of eligible workforce in the early 1950's. This decline is particularly devastating to organized labor which has undertaken a concerted effort and substantial expense over the past few years to reverse the trend of declining representation. In my view, the American workplace has become so fluid and changed so dramatically in the past ten years that the traditional adversarial model of labor-management relations is losing its relevance and value for most workers. Furthermore, unions have so successfully lobbied for legislation that protects workers that little beyond seniority rights and protection against arbitrary discharge is left for collective bargaining agreements.


July 18, 1997:  USA Today reports sexual harassment at the Federal Aviation Administration. In a front page article, FAA Report Acknowledges Problem USA Today reported widespread sexual harassment at the FAA. The article featured synopses of the allegations of several female FAA employees including Adam J. Conti, LLC client Joan Henson. The firm is also representing Libby and Gary Parham in a Title VII and loss of consortium case against the FAA arising from Libby's exposure to X-rated pornography on a FAA computer in December 1992. Trial on that case had begun on June 30, 1997, but a mistrial was declared on the third because the Judge was hospitalized with an emergency medical condition.


April 2, 1997: The U.S. Department of Labor issues new regulations on the implementation of the Health Insurance Portability and Accountability Act (HIPAA). Their explanatory booklet answers PWBA Questions & Answers: Recent Changes in Health Care Law.


March 10, 1997: The first "Cyberbrief" was recently submitted to the U.S. Supreme Court in the case of ACLU v. Reno which address the constitutionality of the Consumer Decency Act. My thoughts on the brief and what it portends for the future.


February 25, 1997: In Supreme Court makes it Easier for Employees to Sue Employers, Wimberly & Lawson analyzes the impact of the recent Supreme Court decision in Walters v. Metropolitan Educational Enterprises, Inc. The Court adopted a broad definition of employee, rendering more small employers subject to Title VII's fifteen employee threshold.


February 12, 1997: The U.S. Department of Labor publishes proposed regulations advocating increased use of alternative dispute resolution in several programs it administers, including the Fair Labor Standards Act, the Occupational Safety and Health Act, the Family and Medical Leave Act and the Vietnam Era Veterans Readjustment Act. As an experiment, the Department of Labor will accept electronically submitted comments on these proposed changes.


January 20, 1997: In Why Try ADR? Wimberly & Lawson Attorney Elizabeth K. Dorminey outlines the various types of Alternative Dispute Resolution currently in use for employment related claims, and sets forth the pros and cons for each.


January 17, 1997: A Federal court jury in the Nothern District of Georgia returns a verdict against my client in Joan P. Davis v. Espy, Secretary of Agriculture. In Davis v. Espy Trial Summary I summarize the evidence and make some observations about jury trials in discrimination claims.


November 19, 1996: In Costin v. Dept. of Health and Human Services and Office of Personnel Management the Merit Systems Protection Board finds that the Centers for Disease Control and Prevention denied a promotion to a wage grade incinerator operator because he had reported to the press that laboratory wastes were not being completely destroyed before being shipped to public dumps. The Board ordered the operator promoted pursuant to the Whistle blowers Protection Act. I represented Mr. Costin in this case.

October 3, 1996: In Vizcaino v. Microsoft , No. 94-35770 (9th Cir.Oct. 3, 1996) the U.S. Court of Appeals for the Ninth Circuit finds that a class of certain employees who had been characterized as independent contractors by Microsoft Corporation were improperly denied participation in the company's 401(k) and employee stock ownership plans. In reaching this conclusion the court relied upon the express language of the plan documents, the legal doctrine of construing certain ambiguous written instruments against the drafter and the nature of the relationship between the plaintiffs and Microsoft. One judge dissented and a request for rehearing by the entire Ninth Circuit en banc is likely. The decision illustrates the difficulties employment law faces in deciphering the employment relationship and determining the particular rights of workers in an ever changing environment. As employers increasingly turn to the "contingent workforce" of part-time employees and independent contractors to reduce wages and save benefit costs, they run a greater risk of being held retroactively liable to affected workers who successfully challenge their exclusion from benefits accorded regular employees. Still, the Vizcaino v. Microsoft decision contains language that suggests Microsoft might have prevailed if stronger language had been used in the controlling benefit plans. Employers need to carefully structure their relationships with independent contractors and classes of employees denied participation in benefits granted other employees to ensure that these exclusions will be upheld when challenged.

October 30, 1996: In New Legislation Brings More Change than Reported Wimberly & Lawson provides a listing of some of the employment related changes that resulted from recently enacted federal legislation. The new laws are likely to have a significant impact on all employers.

October 30, 1996: The Equal Employment Opportunity Commission recently announced a change in the standard it employs in determining whether a charge of discrimination filed with it has merit. In EEOC Changes Standard for Finding Violations we explain the nature of this change and why its likely to result in increased litigation of employment discrimination claims.

September 1996: The Workplace & The Internet: Resources,Risks,Privacy & Opportunities - Maintaining Employment Records Electronically I examine the legal issues raised by according employees workplace access to the Internet. This Article has been adapted from materials collected for a presentation I made on this topic for Wimberly & Lawson's 1996 Labor Relations Conference Update. As with most pressing employment law issues, legal uncertainty is associated with granting employees Internet access. Still, there are a few safeguards employers should implement to minimize their exposure when instituting this and similar technological innovations.


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