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« May 2009 | Main | July 2009 »

 

June 29, 2009

“I have had enough!”

Clearly the Denver judges couldn’t take the fighting between the attorneys anymore. After months of discovery warfare, the judge issued an order that the bad actors (the Defendants) would be held liable for the wage claims, leaving only the amount of the damages award to be determined. Pinkstaff v. Black & Decker (U.S.) Inc, (No. 09SA19, June 29, 2009). The Supreme Court reversed, holding that the trial court had adopted the harshest sentence first, rather than trying less drastic sanctions for the behavior. As the Supreme Court explained, courts are - first and foremost - a place to try claims on the merits, not to punish bad actors by way of defaults. The matter now goes back to the trial court for further proceedings. I wonder what the trial judge will try next.

Posted by Diane V. Smith at 05:22 PM | | Comments (0) | TrackBacks (0)

Court Rejects City’s Efforts to Avoid Discrimination Claims

Today, the United States Supreme Court held that the City of New Haven, Connecticut violated Title VII, when it refused to certify the results of its promotional exams, which advanced almost only white firefighters for promotion. Ricci v. DeStefano (No. 07-1428, June 29, 2009). New Haven is made up of almost 60% minorities, but only a very small percentage of the promotion list included minority candidates. The city was understandably concerned about being sued for disparate impact discrimination. The Supreme Court rejected the City’s concern and actions, holding that the City could not demonstrate that it would have been sued if it hadn’t thrown out the test.

Justice Ginsberg dissented, predicting that the decision in Ricci “will not have staying power” because the majority deviated from long standing and well established prior case law. In her dissent, Justice Ginsberg asked, “why did such racially skewed results occur in New Haven, when better tests likely would have produced less disproportionate results?”

The Ricci decision follows closely on the heels of the Gross decision, where the Supreme Court did away with the “mixed motive” standard for age discrimination cases and, instead, now requires a showing that “but for” age, the employer would not have taken the adverse action.

Posted by Diane V. Smith at 05:14 PM | | Comments (0) | TrackBacks (0)

June 25, 2009

Middle Managers' Right to Compete Limited

Covenants not to compete can severely limit a person’s ability to pursue their chosen career path, if they can’t use their knowledge, skill and experience when that person leaves one employer to go to work for another. Depending on the circumstances, a person can be precluded from competing for a period generally ranging from 6 months to three years. That’s why the Colorado statute presumes that such covenants are void, unless the employer proves it to be valid under one of the four exceptions, as well as reasonable as to time and geographic coverage. Today, the Court of Appeals appeared to take a step toward loosening the statutory standard for determining whether a covenant is valid under the “executive and management personnel” exception.

In Dish Network Corp. v. Christopher Altomeri, the Court held that a mid-level manager who supervised fifty employees, was otherwise at the top of the compensation scheme, was employed in a decision-making capacity, and had a certain level of autonomy, was “management personnel” under section 8-2-113(2)(d) of the statute. This decision appears to be at odds with other recent decisions of the Court of Appeals, that have limited the statute’s application to “key personnel.”

The Supreme Court will have to wade in at some point and tell us what this exception means. In the meantime, employees who are presented with a covenant should think hard before signing. And, it never hurts to get advice from a competent employment attorney about what that covenant really means and how it might be applied.

Posted by Diane V. Smith at 09:03 AM | | Comments (0) | TrackBacks (0)

June 24, 2009

BURG SIMPSON FILES NEW LAWSUIT REGARDING CONTAMINATED HEPARIN

On June 23, 2009, the attorneys at Burg Simpson filed a complaint on behalf of their client, Barbara Bender, against Baxter Healthcare Corporation, Baxter International, Inc., Scientific Protein Laboratories, LLC, and American Capital, Ltd. in the pending heparin products liability litigation.

In January 2008, Ms. Bender was admitted to the hospital for coronary artery bypass graft surgery. During the surgery, Ms. Bender received multiple doses of heparin to prevent blood clots. Immediately after the administration of heparin during the surgery, Ms. Bender suffered a serious adverse reaction to the heparin, including, but not limited to, severe hypotension, cardiogenic shock, hypokalemia, severely decreased platelet count, and respiratory distress requiring prolonged intubation. She also suffered a stroke. The heparin was contaminated.

As a result of the injuries Ms. Bender suffered following the administration of contaminated heparin, she remained hospitalized for a month and was required to undergo physical therapy, occupational therapy and speech therapy for three months. Ms. Bender continues to suffer permanent injuries including, but not limited to, right sided hemiparalysis, difficulty with speech, and cognitive issues regarding memory loss and reading comprehension.

Attorneys at Burg Simpson are representing individuals harmed by contaminated heparin and are actively involved in the national leadership of these cases. Please contact Burg Simpson if you have questions concerning heparin, and visit our website at heparininjurylawyers.com

Posted by Janet G. Abaray at 12:38 PM | | Comments (0) | TrackBacks (0)

June 18, 2009

Age and Adverse Employment Decisions

http://www.burgsimpson.com/age.htmlToday, the United States Supreme Court created a new rule of law, making it more difficult for employees to make a claim for age discrimination in employment. In Gross v. FBL Financial Services, Inc., the Supreme Court held that in order to have a viable claim, the employee must show that age is the motivating factor for the adverse employment decision. In other words, "but for" the employee's age, the employer would not have taken the action it did. This is a significant change in the law. Under prior cases, the employee only needed to show that age was one factor contributing to the adverse employment action. The decision was a close one, with 4 of the 9 Justices dissenting.

Employees often have a difficult time proving that they have been discriminated against based on age. Proving that age discrimination is the only reason makes that burden more difficult. Congress has stepped in to change other decisions, when it appeared that the Supreme Court had narrowed the law too much. For example, recent legislative changes have substantially broadened employee protections in the Americans with Disabilities Act. We may see Congress stepping in to change this law as well.

Posted by Diane V. Smith at 03:08 PM | | Comments (0) | TrackBacks (0)

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