Employment Law Bill Duda

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Information about Employment Law Bill Duda
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Published on November 22, 2007

Author: Chyou

Source: authorstream.com

Slide1:  Legal Update for South Carolina Employers – May 17, 2007 Presented By: William L. Duda, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Columbia, South Carolina 803.252.1300 www.ogletreedeakins.com What Will We Cover? :  What Will We Cover? A Harsh Reminder - Recent Individual Liability Verdict in South Carolina. Retaliation Claims In the Workplace – A New Standard Makes it Easier for Employees to Avoid Dismissal. E-Discovery – A Quick Look at a Significant Change in How Litigation Must be Approached Severance and Settlement Agreements – A New Pitfall? Slide3:  How would you personally come up with… $510,000.00 to pay an employee who sues you for civil conspiracy and wins? Calvin Anthony v. SCDC, Robert Ward, and Charles Sheppard.:  Calvin Anthony v. SCDC, Robert Ward, and Charles Sheppard. Filed June 2005 – Race/Retaliation against SCDC; Civil Conspiracy against Ward & Sheppard. U.S. District Court – Columbia Division The particulars: Anthony: 26-year employee; good evaluations; 2002 “Warden of the Year” supported two employees who were at odds with SCDC; investigated in 2004 by Ward & Sheppard and forced to retire; Ward & Sheppard: Plaintiff’s supervisor and SCDC’s Inspector General; investigated Plaintiff in 2004; allegedly falsified records and created bogus charges or suggestions about Plaintiff’s behavior that were ultimately the basis for his forced resignation. The Verdict – April 27, 2007. :  The Verdict – April 27, 2007. Verdict in favor of SCDC on claims of race discrimination and retaliation. Verdict against Ward & Sheppard on the civil conspiracy claim. $510,000.00 for Plaintiff. Of course, it’s being appealed… FYI – the first judge to review the case recommended that the conspiracy charge be dismissed. Individual Liability: A Few Reminders.:  Individual Liability: A Few Reminders. Many employment-related torts carry potential individual liability: Assault Battery Civil Conspiracy Defamation Intentional Infliction of Emotional Distress (Outrage) Interference with Contractual Relationship General Negligence Individual liability for statutory claims is based on the language of the applicable statute. While the successful cases are relatively few and far between, Anthony is a reminder to always act as a professional and to not let personal feelings or biases affect your employment decisions. A New Standard for Actionable Retaliatory Conduct?:  A New Standard for Actionable Retaliatory Conduct? Burlington Northern Santa Fe Railroad Company v. White 126 S. Ct. 2405 (2006) Two Key Questions Considered by the Court. :  Two Key Questions Considered by the Court. Is conduct that occurs outside the workplace prohibited by Title VII’s Anti-Retaliation Provision? What type of conduct is actionable? The Court’s Holding. :  The Court’s Holding. Actionable retaliatory conduct includes conduct occurring outside the workplace and unrelated to employment. Simply put, Title VII does not require employment- related action for retaliation. 42 U.S.C. § 2000e-3(a) As compared to the anti-discrimination provision, which does. 42 U.S.C. § 2000e-2(a) Examples of non-employment actions: FBI’s failure to investigate threats against an employee (contrary to policy). Filing false criminal charges against employee. The Court’s Holding.:  The Court’s Holding. “Materially Adverse” Conduct is Actionable. Conduct need not be employment-related. No more adverse employment action or ultimate employment actions to argue about. To be “materially adverse,” the conduct would dissuade a reasonable employee from engaging in protected conduct. Specifically intended to be an objective standard. However, subjective considerations are still part of the equation: Example: The effect of a schedule change on a mother with small children versus a woman with no children. The objectively reasonable person would be a reasonable mother with small children. Practical Impact and What to Expect.:  Practical Impact and What to Expect. Even fewer cases will be dismissed on Motion for Summary Judgment. Temporary proximity is still a problem at summary judgment. Continued increase in number of retaliation claims. E-Discovery – What is it?:  E-Discovery – What is it? What is it? A duty to take affirmative steps to preserve electronic information located in: Computers Documents E-mails Other files Blackberrys Cell phones Voice mail systems Surveillance video Etc. E-Discovery – Not Really New. :  E-Discovery – Not Really New. Duty to preserve information and documents has long existed. Common Law FRCP 26/SCRCP 26 Nature of Electronically-Stored Information (ESI) and specific requirements create new challenges. Decision when to preserve more acute problem More difficult to determine what to preserve More difficult to find where it is More difficult to determine how to preserve What Do I Need to Do?:  What Do I Need to Do? Establish/Refine an Electronic Information Retention/Preservation Policy: Where is the information? How will it be preserved? How long will it be preserved? Litigation Holds: May result in temporary suspension of record retention/deletions policies. How will the litigation hold protect information? Who will be responsible for implementing and monitoring a litigation hold? Who is responsible for notifying key players? Become Knowledgeable About Your Computer Systems! Ask your IT people to get involved. When To Preserve?:  When To Preserve? Duty starts when litigation is “reasonably anticipated.” When is litigation “reasonably anticipated”? Verbal threat of suit by employee? Written threat of suit by employee? Call from attorney on behalf of employee? Letter from attorney threatening suit? Complaint served? FYI – If you or your attorney intend to invoke the attorney “work product” privilege for actions taken, you are also invoking the obligation to preserve. Remember, the attorney-client communication privilege is not tied to anticipation of litigation. So just because you call your attorney for advice, does not mean the duty to preserve attaches. Slide16:  SEVERANCE AND SETTLEMENT AGREEMENTS New Pitfall? Agreement Pitfalls – Old Standards :  Agreement Pitfalls – Old Standards ADEA/OWBPA 21-day review, 7-day revocation period. 45 days and decisional unit requirements in RIF/layoff situations “Knowing and voluntary” requirement. Written notice to consult an attorney. FLSA/FMLA Require DOL or Court approval to be enforceable. Tax Implications Fines and penalties for failure to treat all or a portion of the consideration as proceeds. Agreement Pitfalls – A New Twist :  Agreement Pitfalls – A New Twist EEOC enforcement position that conditioning severance benefits on the employee’s agreement not to file charges or withdraw charges is facially retaliatory. Courts have held that it is not retaliation under standard analysis unless the employee has already filed a charge. Severance Agreements – Are “No Charge” Provisions Facially Retaliatory?:  Severance Agreements – Are “No Charge” Provisions Facially Retaliatory? EEOC v. Lockheed Martin Corp., 444 F.Supp. 2d 414 (D. Md. 2006) (EEOC wins) Facially retaliatory to condition severance payment on an agreement not to file a charge. Actual retaliation can be found where the employee has already filed a charge. EEOC v. Sun Dance Rehab. Corp., 466 F.3d 490 (6th Cir. 2006) (EEOC loses) However, retaliatory if employer refused to pay benefits because employee has already engaged in protected activity. Not facially retaliatory to require an employee to sign an agreement waiving his or her right to file a charge of discrimination in a severance agreement. EEOC v. Sun Dance Rehab. Corp. – Settlement Agreement Impact:  EEOC v. Sun Dance Rehab. Corp. – Settlement Agreement Impact The Sun Dance Court also noted that should the employer seek to get money back from the release if the employee files a charge, they would likely not get it. Case appears to strongly suggest that provision prohibiting charges from being filed is unenforceable because it would be against public policy. The EEOC cannot do its job without charges. “A charge filed with the EEOC is not a complaint seeking relief.” You can waive the right to relief or file a claim seeking relief. So, make them waive their right to recovery, but not the right to file a charge. May also want to incorporate the word “waivable” a modifier for the claims and actions being released. Employee hereby agrees to release Employer from all legally waivable claims or actions arising from… So, What Do We Do?:  So, What Do We Do? Include language specifically addressing their waiver of the right to recovery, but not the right to file a charge. May also want to incorporate the word “waivable” as a modifier for the claims and actions being released. Simplified example: Employee hereby agrees to release Employer from all waivable claims or actions arising from or related to his/her employment, including but not limited to… Questions?:  Questions? Slide23:  THANK YOU!!!

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