- Federal judge in Buffalo “dismisses EEOC’s largest pending pattern or practice lawsuit for failure to investigate” [Gerald Maatman, Jr. and Jennifer Riley, Seyfarth Shaw] U.S. magistrate judge in North Carolina orders sanctions against agency in lawsuit against law firm Womble Carlyle [Mary Kissel, WSJ]
- Commission’s campaign against employer use of criminal background checks meets resistance from nine state attorneys general [Penelope Phillips, Minnesota Employment Law Report] Federal judge in Maryland dismisses EEOC criminal-and-credit-background-check case against Freeman Companies using words like “laughable,” “unreliable,” “mind-boggling” [Nick Fishman, Employee Screen; Eric B. Meyer]
- Is regular attendance an essential job function for ADA purposes? Commission takes a hard line against employers who insist that showing up regularly is essential to a job without building a case individualized to the particular dispute [Jon Hyman, Ohio Employer’s Law Blog]
- Missed this one in October: Cato files amicus brief in lower-court case of EEOC v. Kaplan, on disparate impacts of credit checks in hiring [Ilya Shapiro]
- More epic losses by agency last year (earlier posts on that here and here) include Evans Fruit case [AP/Seattle Times] Defendants disadvantaged by agency’s prejudicial delay [Molly DiBianca on PBM Graphics and Propak Logistics cases; Anastasia Killian, WLF] Federal judge in Iowa orders agency to pay $4.7 million in attorneys fees to defendant trucking company CRST [Gerald Maatman Jr. and Howard Wexler, Seyfarth Shaw, ABA Journal, Wall Street Journal]
- “Does the EEOC Try To Intimidate Employers?” Merrily Archer v. Robert Young [Richard Cohen, Fox Rothschild; more from Merrily Archer on agency incentives; her major 2012 victory in the Picture People case, and a dissent]
- In commission’s view, two “incidents which ended in ambulance trips to the hospital” not enough to classify employee as safety risk absent individualized ADA determination [Joe Lustig]
Archive for March, 2014
Lenore Skenazy in a Cato podcast
“The world is force-feeding you a horror movie [in which] you’re the star, and your kid is dead.” When Lenore Skenazy came to speak earlier this month (video of that) she also recorded this audio podcast with Caleb Brown, which has significantly different content. Among the topics: how the media, law, and police encourage helicopter parenting; the best way to break the fear cycle; and how she got turned on to Cato.
EEOC challenges “garden-variety” severance terms
To end an employment lawsuit, or more often simply as part of a non-litigious parting, employers often offer a severance package part of which consists of various terms releasing all claims and covenanting not to sue, requiring confidentiality and cooperation in the case of future litigation, and so forth. Now, in a lawsuit against CVS, the Equal Employment Opportunity Commission is taking the position that many such clauses constitute “retaliation” for protected activity and are legally invalid. Jon Hyman of Ohio Employer’s Law Blog notes that the clauses under challenge are generic ones widely used in severance packages and explains why in his view the “case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.” Daniel Schwartz at Connecticut Employment Law Blog also calls the suit “a big deal: “My gut tells me that the courts are not likely to view the government’s arguments with favor. … But for employers, that is of little solace.” More: Ameet Sachdev/Chicago Tribune (“the EEOC brought the suit even though CVS expressly protected employees’ rights under discrimination laws”), Joshua Feinstein, JD Supra (“the potential for havoc is great”), Hope Eastman/Paley Rothman (“a major shock to employers”)
Food roundup
- Warnings dismissed at time: FDA rules implementing FSMA (Food Safety Modernization Act) of 2011 imperil practices common to organic, small growers, “such as using house-made fertilizers and irrigating from creeks” [Los Angeles Times] Oh, how D.C.’s “public-interest” establishment and its co-thinkers in the press jeered when we and others tried to raise such concerns before the bill passed!
- Related: pursuit of locally grown/artisanal meat options collides with USDA regs that put squeeze on small slaughterhouses, overbroad recalls also a problem [Baylen Linnekin, earlier here, here, and here]
- “America’s Obesity Problem: Legal Mechanisms for Prevention,” Duke Law School conference I spoke at (but did not write a paper for) last year, now online [Duke Forum for Law and Social Change].
- Related: “Wellness programs addressing obesity could lead to litigation, lawyers say” [ABA Journal]
- Looser regulation of microbrewing has already proved boon to Maryland, lawmakers now consider extending it further [Beth Rodgers, Frederick News-Post]
- “Bill introduced to undo California’s ‘glove law’ for food preparers” [KPCC; earlier]
- Sorry, I’ll stay home and thumb through old cookbooks instead: recent American Studies Association Food Studies Caucus program included “Food, Debt, and the Anti-Capitalist Imagination,” “Archives of Domesticity and Dissent: Cookbooks, Cooking Culture, and the Limits of Culinary Exchange,” and “Pedagogies of Food and Eating: Teaching Debt, Dissent, and Identity through Food” [Mary Grabar, Pope Center on “food studies” fad]
A way to reduce will contests?
Margaret Ryznar at PrawfsBlawg:
…in France, there are almost no will contests brought on the grounds of a lack of capacity, fraud, or undue influence. In the United States, on the other hand, 3% and 5% of all wills executed will be contested, most commonly, on undue influence grounds. Why the difference?
Two elements of French law — mandatory shares for children and the role of specialized officers known as notaires who assist in document preparation — would be hard to duplicate here. Another institutional step that might reduce the incidence of costly probate struggles, however, would be to adopt (as three states have) what is known as antemortem probate, a right of testators to go to court during their lifetime seeking to have their testaments validated against challenge. “The proceeding allows judicial evaluation of the testator’s capacity, intent, and freedom from undue influence or fraud during the testator’s lifetime, which has the obvious benefit of the presence of the testator at the proceedings.”
It seems, however, that the antemortem probate procedure is seldom used in the American states where it is available. (Nor are official registries of wills, another aspect of the French system Ryznar describes as “easily adoptable” here and indeed in effect in some states.) Is the process going unused mostly because of unfamiliarity, or because persons whose estates will end up being contested on grounds of undue influence do not commonly recognize that? Or are there other reasons the procedure might be unpopular, such as an unwillingness to offend family members who are getting less than they might like?
EU demand: Americanize those cheese names
“As part of trade talks, the European Union wants to ban the use of European names like Parmesan, feta and Gorgonzola on cheese made in the United States.” Having achieved some success in negotiations with Canada and Central American nations, Europe may seek to restrict marketing of U.S.-made cheeses such as Asiago, fontina, Muenster, and Neufchatel.
And it may not be just cheese. Other products could include bologna, Black Forest ham, Greek yogurt, Valencia oranges and prosciutto, among other foods.
No word on renaming French fries. [AP]
In Florida, a clever money-maker
Town installs traffic cam by hospital emergency room, snags patient rushing in with coronary symptoms. The judge is no help, either. [Marianela Toledo, Florida Watchdog via Fergus Hodgson, PanAm Post]
Overtime scheme more dangerous to economy than minimum wage hike
So says Coyote, and I agree with him (earlier here).
…companies will quickly restructure their work processes to make sure no one works overtime. And since their new hires are working just a straight 40 hours (with mandatory unpaid lunch break time in CA), they will likely pay less. If I am paying $40,000 a year for someone who will work extra hours for me, I am not going to pay that amount to someone just punching a time clock. And the whole psychological relationship is changed – a salaried person is someone on the management team. A person punching a timeclock may not be treated the same way. …
…for those who think schools assign too much homework, this could well be the end of homework. The most dangerous possible thing with hourly workers is to give them the ability to assign themselves unlimited overtime. Teachers could do this at home with grading papers. If I were a school, I would ban teachers from doing any grading or schoolwork prep at home — after all, it’s hourly and probably overtime and they could work unlimited hours at home and how would you get it under control? The only way to manage it would be to ban it entirely.
He marches through some of the implications, all bad, for employee travel (why allow it except for the direst company needs if every hour on the road is going to be paid at time and a half?), ObamaCare incentives, and the erosion of a minimum pay guarantee for those whose salary now provides one. (On the homework issue, incidentally, teachers are exempt under current FLSA rules; grading papers at home would only be dangerous assuming a change in those rules.)
“Report: FBI had urged charges in Maricopa County inquiry”
After 17 months the federal government has released heavily redacted information in response to a FOIA request, shedding new light on the probe into the systematic abuses committed by Sheriff Joseph Arpaio and allied county D.A. Andrew Thomas. We’ve been covering them for years. [Arizona Republic, auto-plays]
Brother at wheel in accident, recovers $18 million
Pennsylvania: “According to police, Kyle Piper, then 17, lost control of his car on a wet Route 422 in Union Township and struck a steel pole.” His 15-year-old brother Stephen, a passenger, was catastrophically injured. “At the time of the accident, according to court documents, the family was insured through Erie Insurance Exchange and believed $200,000 in uninsured motorist benefits and another $100,000 in liability coverage was available for Stephen.” Several legal twists later, Erie has agreed to pay $18 million. [New Castle (Pa.) News]