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Two Lawyers Explain Why There's No Legitimate Reason for Most Noncompete Clauses -- read it at Crooks and Liars.
The two lawyers are Marilynn Mika Spencer of The Spencer Law Firm in San Diego, California, Anthony Munter of Price Benowitz in Washington, D.C.
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In Vance v. Ball State University, the Supreme Court limited who could be a sexual harassment victim's supervisor, a limitation that, in turn, makes it markedly tougher for victims of sexual harassment to establish their employer's liability. Bryce Covert at ThinkProgress identifies 43 sexual harassment cases, some with offensive and outrageous conduct involved, that have been thrown out of federal court since and as a result of this holding by the Supreme Court: 43 Sexual Harassment Cases That Were Thrown Out Because of One Supreme Court Case.
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In 1975, 65% of salaried workers in the United States were paid overtime. In 2013, only 11% of American salaried workers were paid overtime. So what happened?
Good lobbying by corporations; the increase of corporate PAC money in our elections; the decline of labor unions for another.
To be exempt from overtime (meaning you don't have to paid overtime), a salaried workers has to be paid a minimum of $455.00 per week ($455 divided by 40 = $11.38 per hour). There are other factors that make for the exemption also. If this threshold were the equivalent to what it was in 1975 (adjusted for inflation) the weekly minimum threshold would be $1327 or $69,000 a year.
President Obama should act to make the overtime standard the same today as it was for salaried workers in 1975; the minimum weekly should be changed to $1330.
The point is made in an excellent article in by Nick Hanauer in Politico: Whatever Happened to Overtime?
Sign a petition to President Obama at Daily Kos: What About Overtime?
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Kentucky law uses a "substantial" factor or "mixed-motive" proof approach to all employment discrimination claims under the Kentucky Civil Rights Act, KRS Chapter 344, and in other employment cases as well, such as claims under section 342.197 of the workers compensation law. This proof standard stems from the now long ago rulings of the Kentucky Supreme Court in Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992)(sex discrimination need only be substantial factor to violate KRS Chapter 344) and First Property v. Zarebidacki, 867 S.W.2d 185 (Ky. 1994)(employee only had to show that lawfully impermissible reason for discharge was substantial and motivating factor in 342.197 claim).
Pretext -- that the employer's proffered reason(s) for the adverse employment action is somehow suspect -- is, of course, a commonly litigated issue in discrimination cases. The Sixth Circuit recently in Wallner v. Hilliard Lyons, 13-6548 (October 31, 2014), discussed the imperfect application of pretext analysis to mixed-motive cases:
... we note that the typical examination of pretext, which is geared toward single-motive claims, is only imperfectly applicable to mixed-motive cases. In a mixed-motive case, even if the employer's FMLA-neutral reason did have a basis in fact, did motivate the employer's action, and was sufficient on its own to motivate the employer's action, a mixed-motive FMLA plaintiff may still withstand summary judgment so long as her exercise of her FMLA rights also contributed to the employer's action. Because a mixed-motive plaintiff does not need to disprove the employer's stated reason for the adverse employment action but must show only that it was not the only reason for the employer's conduct, the traditional pretext analysis can be grafted only imperfectly upon a mixed-motive claim. (citations omitted).
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The temporal proximity between an employee's protected activity -- taking FMLA leave -- and an employer's adverse action - firing - is strong evidence of causation and therefore of unlawful retaliation. Generally, the shorter the period of time between the protected activity and the adverse employment action, the stronger the inference of causation, that is, a causative link between the protected activity and the adverse employment action. The Sixth Circuit's recent decision in Wallner v. Hilliard Lyons, 13-6548 (October 31, 2014) considered how temporal proximity should be measured: should it be measured from when the employee first requests to take FMLA leave and her firing or should it be measured from when the employee returns from her FMLA leave and her firing. Choosing rightly the latter the Sixth Circuit reversed a summary judgment granted Hilliard Lyons by the district court.
Jeanne Wallner was a 27 year employee of Hilliard Lyons. In June 2009, she requested FMLA leave for knee replacement surgery; she submitted the appropriate documentation from her doctor that she would require leave for about two months, from August 11, 2009, to "approximately October 11, 2009." Wallner, in fact, returned to work earlier, on October 6, 2009. She was fired 9 days later. Wallner filed suit claiming that her firing was unlawful retaliation for her exercise of her rights to take FMLA leave. The district court tossed her case on summary judgment reasoning, among other things, that the temporal proximity was weak because it should be measured from when Wallner first requested FMLA leave in June and her termination some 4 months later, although that was right after she returned to work from FMLA leave.
The Sixth Circuit rejected the notion that Wallner's protected activity occurred and then terminated immediately upon her mere request for FMLA leave, explaining:
After all, if merely asking for FMLA leave is a protected activity, then surely actually taking the time off is, as well. Skrjanc, 272 F.3d at 314. The temporal proximity that is relevant to Wallner’s FMLA retaliation claim, therefore, is the length of time between when she was absent from work on FMLA leave and when she was discharged. This was a total of nine days, not four months. Thus, the inference of causality generated by temporal proximity is stronger than recognized by the district court.
So the rule recognized by this decision is simple and sensible: in a FMLA retaliation case, the temporal proximity between the employee's protected activity -- taking FMLA leave -- and the adverse employment action is first measured by the amount of time passing between the employee's return to work from FMLA leave and the adverse employment action.
The Sixth Circuit's opinion was authored by Circuit Judge Richard Griffin, who was jointed by District Judge Greg Van Tatenhove of the Eastern District of Kentucky; Circuit Judge John Rogers dissented.
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