Kentucky Employment Law Blog

Employee Can Sue For Constructive Wrongful Discharge

An employee fired for refusing to do an illegal act in the course of his or her employment may sue for wrongful discharge.  An employee faced with intolerable conditions of employment and thereby compelled to quit is constructively discharged.  The Indiana Court of Appeals recently combined the two concepts and ruled in Baker v. Tremco, Inc. (No. 29A02-0711-Cv-1001 July 16, 2008) that an employee constructively discharged because he refused to commit an illegal act in the course of employment may sue for damages.  "It makes little sense," the court observed, "to allow an employer to accomplish constructively what the law will not allow it to do directly." 

Robert L. Abell
www.RobertAbellLaw.com

Former Employees Who Have Received Their Retirement Benefits May Sue For The Reduced Value Of The Benefits

Employees who have received their lump-sum retirement benefits may sue for breaches of fiduciary duty that reduced value of those benefits, the First Circuit ruled recently in Evans v Akers (No. 07-1140).   The key issue, the court explained, was whether a former employee, despite having already received pay-out of their benefits, was a "participant" of the retirement plan within the federal ERISA law.  A "participant" in an ERISA plan includes a former employee that has colorable claim that she will prevail in a suit for benefits under Supreme Court precedent.  A right to benefits, the court continued, includes an entitlement to prudent management.  Because the plaintiffs were participants in the plan when its value was reduced by imprudent management, they could sue to recover the reduced amount of their benefits. 
Robert L. Abell
www.RobertAbellLaw.com

Employee Fired For Reporting Co-Employee's Illegal Acts May Sue

An employee fired for reporting a co-employee's illegal acts relating to their employment may sue for wrongful termination and retaliatory discharge, the Mississippi Supreme Court ruled recently in DeCarlo v. Bonus Stores, Inc. (No. 2007-FC-02287-SCT).

DeCarlo learned that the company CEO was defrauding the company.  He reported this information to the company's CFO and several members of the company's board of directors.  He was fired and filed a wrongful termination lawsuit for retaliatory discharge.  The court ruled that his claim presented an exception to the employment-at-will doctrine and that a wrongful termination claim arose from a "discharge in retaliation for reporting a co-employee's illegal acts that relate to the employer's business." 

Robert L. Abell
www.RobertAbellLaw.com

Cancer Survivor Protected from Disability Discrimination

A breast cancer survivor qualifies for protection by the Americans With Disabilities Act (ADA), the D.C. Circuit held in Adams v. Rice (No. 07-5101). The protection arose, the court concluded, because the illness and treatment had caused an enduring impairment to the plaintiff's "major life activity" of sexual relations.

The plaintiff, Adams, earned a position with the United States Foreign Service, one that required a medical clearance.  Her medical clearance was revoked when she later reported a diagnosis of stage-one breast cancer.  She underwent a successful treatment program, which included reconstructive surgery.  Despite being cancer-free, her medical clearance was not reinstated and her job was lost.  Adams claimed this violated her rights under anti-disability discrimination laws.

The court ruled that Adams had established that, despite being cancer-free, she continued to suffer a disability because of an ongoing impairment to her ability to engage in sexual relations.  To reach that conclusion the court had to first decide whether engaging in sexual relations qualified as a "major life activity."  Based on statutory text, Supreme Court precedent and applying a "hefty dose of common sense" the court concluded that "engaging in sexual relations qualifies as a major life activity." 

While this case is testament first to Adams's bravery and the "common sense" of the court majority is to be acknowledged, it also serves as an illustration of how Supreme Court and other court rulings have so limited the Americans With Disabilities Act that its protections are ever difficult to define.  Adams lost her job with the State Department because it regarded her as a liability (or at least a potential liability) since she was a breast cancer survivor.  That she qualified for protection from disability discrimination in her employment as a Foreign Service officer based only on an ongoing impairment to her ability to engage in sexual relations indicates that Congress should act and restore a healthy dose of common sense to the protections afforded by the Americans With Disabilities Act by effectively repealing a number of misguided Supreme Court decisions.

Robert L. Abell
www.RobertAbellLaw.com 

Pregnancy Discrimination Act Prohibits Firing Woman For Absences Related to Receipt Of In Vitro Fertilization Treatments

    The Pregnancy Discrimination Act would be violated if a woman was fired because of absences caused by her receipt of in vitro fertilization treatments, so ruled the federal Seventh Circuit Court of Appeals in Hall v. Nalco Company (No. 06-3684 decided 7/16/08).  This is the first federal appeals court to decide this issue.
    The plaintiff, Hall, worked as a sales secretary.  She twice took leaves of absence to receive in vitro fertilization treatment.  The employer elected to reduce its secretarial staff and decided to let Hall go because she had "missed a lot of work due to health" and, most significantly, was cited for "absenteeism - infertility treatments." 
    The court ruled that her firing implicated the Pregnancy Discrimination Act (PDA) because the PDA prohibited discrimination based on a woman's pregnancy, which will always be sex discrimination, as well as based on childbirth and medical conditions related to pregnancy or childbirth.  While both men and women can receive fertility treatments, the court observed, employees "terminated for taking time off to undergo IVF -- just like those terminated for taking time off to give birth or receive other pregnancy-related care -- will always be women."  Therefore, the court concluded that Hall had presented a viable claim that she was unlawfully discriminated against based on her female sex in violation of Title VII and the Pregnancy Discrimination Act.

Robert L. Abell
www.RobertAbellLaw.com

Overtime and Wage Enforcment Lax, Government Reports

Overtime and minimum wage enforcement actions of the Fair Labor Standards Act have gone wanting by the Labor Department's Wage and Hour Division, according to two reports released today by the Government Accountability Office.  To review the reports click here and here.  In one inexcusable example, a truck driver was not paid overtime even though he worked 55 hours a week; his complaint sat idle for 17 months before an investigator was assigned and, when one was assigned, he did nothing until dropping the case because the statute of limitations was about to expire.  Enforcement actions declined to 29,584 from 46,758 ten years earlier.  What's the upshot: the number of investigators declined throughout the Bush Administration, the number of enforcement actions declined and, according to Representative George Miller of California, "the problem of wage theft is only getting worse because of weaker enforcement." 

Robert L. Abell
www.RobertAbellLaw.com

Sixth Circuit Sets Summary Judgment Standard In Mixed-Motive Cases

    An employment discrimination plaintiff to defeat summary judgment on a mixed-motive claim need only present sufficient evidence of (1) an adverse employment action; and, (2) a protected characteristic (race, color, religion, sex, age, national origin, disability) was "a motivating factor," the Sixth Circuit ruled in White v. Baxter Healthcare Corp. (No. 07-1626 decided July 3, 2008).  The Court specifically rejected application of the McDonnell Douglas burden-shifting framework.
    The Court also discounted the employer's explanation that the plaintiff had not been promoted owing in large part to a poor interview, observing that "any evaluation of White's interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer's true reasons for making the promotion decision." 

Robert L. Abell
www.RobertAbellLaw.com   

Wal-Mart Found Liable for Underpaying Workers

    The St. Paul Pioneer Press reports that a Minnesota state court judge has ruled that Wal-Mart violated wage and hour laws by shortening workers' meal and rest breaks and forcing them to work off the clock, see "Judge: Wal-Mart Owes Minnesota Workers $6.5 Million for Off-Clock Work, Lost Breaks." $6.5 million was awarded to cover the workers' back pay.  The employees claimed that they were forced to work through their mandated by law breaks and that managers sometimes recorded breaks on their time cards that they never took.  A further trial is scheduled in the fall to determine possible punitive damages and other penalties.  The Minnesota case follows other similar decisions against Wal-Mart in Pennsylvania, California and Colorado.  About 70 similar cases remain pending against Wal-Mart in various courts around the country. 

Robert L. Abell
www.RobertAbellLaw.com