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 | Permalink | Comments (0) | TrackBacks (0)

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.

Continue reading "Court Rejects City’s Efforts to Avoid Discrimination Claims" »

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

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.

Continue reading "Middle Managers' Right to Compete Limited" »

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

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.

Continue reading "Age and Adverse Employment Decisions" »

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

Jamaica Hospital Medical Center in Queens, New York is accusing Oxford Health Plans of engaging in age discrimination for people in need of acute rehabilitation and traumatic brain injuries against patients enrolled in Medicare Advantage. Oxford Health Plans shows the pattern of discriminations according to data released. “Our data clearly shows a pattern of age discrimination by Oxford that can be characterized as elder abuse,” David P. Rosen, chief executive of the hospital and its parent company, MediSys Health Network. In a statement he quoted that from Jan. 1 2006 to August 2, 2007, of 58 Oxford-insured patients referred by doctors for acute rehabilitation or traumatic brain injury rehabilitation, 46 were denied coverage. That is an 80 percent denial rate. The hospital has yet to file a lawsuit or complaint with regulators and Oxford’s parent company UnitedHealth has not commented on the findings. Under Medicare Advantage, the government pays insurance companies for taking on the risk of covering elderly patients' health needs. This is just another example of the types of hurdles traumatic brain injured patients face daily in the healthcare system.

Posted by Diane V. Smith at 12:30 PM | Permalink | Comments (0) | TrackBacks (0)

On August 3, 2007, Colorado Governor Bill Ritter signed into law legislation to prohibit discrimination based on sexual orientation and gender identity. The Colorado Anti-Discrimination Act (CADA) which previously prohibited employers from discriminating against employees based on disability, race, creed, color, sex, age, national origin or ancestry now also prohibits discrimination against employees based on their sexual orientation which includes gender identity.

Continue reading "Colorado Anti-Discrimination Act (CADA) " »

Posted by Rosemary Orsini at 10:49 AM | Permalink | Comments (0) | TrackBacks (0)

HB 1247 which recently became law applies to all legal actions to recover wages or compensation commenced on or after the date the bill was signed under the Wage Act statute. It makes a number of important changes to the wage claim statute including eliminating the provision for a mandatory award of fees to a defendant in any case in which the plaintiff fails to recover more than the amount the defendant had tendered. This eliminates some of the risk and allows for more cases to be filed under this statute.

It also increases the penalties to an employee who prevails under the Wage Act to 125% for the first $7,500 in unpaid wages or compensation, and 50% of unpaid wages or compensation above that amount.

Posted by Rosemary Orsini at 10:33 PM | Permalink | Comments (0) | TrackBacks (0)

Workers had better complain quickly if they want to seek relief under federal discrimination laws. This was the impact of the U.S. Supreme Court's decision last week in Ledbetter v. Goodyear Tire & Rubber Co., Inc. (No.05-1074). Ms. Ledbetter, a former supervisor at Goodyear Tire & Rubber Co. claimed she had been paid thousand of dollars less than male co-supervisors. She reported the discrimination just before retiring after twenty years with the Company. The United States Supreme Court found that Ms. Ledbetter had no valid discrimination claim because the discriminatory pay decisions she had suffered earlier in her tenure with Goodyear happened outside of the statutory 180-day time period for filing discriminatory charge.

Continue reading "Ledbetter v. Goodyear Tire & Rubber Co., Inc. (No.05-1074)" »

Posted by Rosemary Orsini at 11:53 AM | Permalink | Comments (0) | TrackBacks (0)

Workers had better complain quickly if they want to seek relief under federal discrimination laws. This was the impact of the U.S. Supreme Court's decision last week in Ledbetter v. Goodyear Tire & Rubber Co., Inc. (No.05-1074). Ms. Ledbetter, a former supervisor at Goodyear Tire & Rubber Co. claimed she had been paid thousand of dollars less than male co-supervisors. She reported the discrimination just before retiring after twenty years with the Company. The United States Supreme Court found that Ms. Ledbetter had no valid discrimination claim because the discriminatory pay decisions she had suffered earlier in her tenure with Goodyear happened outside of the statutory 180-day time period for filing discriminatory charge.

Continue reading "Ledbetter v. Goodyear Tire & Rubber Co., Inc. (No.05-1074)" »

Posted by Rosemary Orsini at 11:53 AM | Permalink | Comments (0) | TrackBacks (0)

The AP reports that flight attendants with Northwest will begin unannounced strikes on August 15 at 9:01 p.m. CDT if Northwest does not stop the imposition of a new contract on employees. Questions remain about the legality of such a strike.

Airline law and bankruptcy code may be challenged in court as Northwest 2005 bankruptcy allows new contracts to be established. They believe that not only do they have the right to impose the contract, but also according to the Railway Labor Act (RLA) it is illegal for employees to strike in opposition to that contract. Northwest worker's union believes that they cannot be compelled to work under a contract with which they disagree.

Continue reading "Northwest Flight Attendants Threaten Strike" »

Posted by Diane V. Smith at 09:28 PM | Permalink | Comments (0) | TrackBacks (0)

The Court first explained that in making a reverse discrimination claim, an employee must show that the employer is actually discriminating against the majority - a fairly unusual occurrence. The Court concluded that Argo could not establish reverse discrimination in this case. Instead, Blue Cross showed that it hired many men for the same position and that it had employed Argo in the position, until his performance deteriorated so badly that it had not choice but to terminate his employment.

Continue reading "Title VII Sex Discrimination Claim v. Performance" »

Posted by Diane V. Smith at 03:58 PM | Permalink | Comments (0) | TrackBacks (0)

Sometimes, it really is all about performance. Or, in the words of Judge McConnell of the Tenth Circuit, "This case presents an especially weak Title VII sex discrimination claim."

The Plaintiff, Griff G. Argo, worked as an Individual Enrollment Specialist ("IES") for the Defendant Blue Cross Blue Shield of Kansas, Inc. ("Blue Cross"). Although he was an effective worker for several years, his work performance steadily declined in 2002. Within that year, Argo failed to meet one or more performance goals for nine consecutive months as well as his annual goal. Additionally, Argo received repeated warnings about tardiness and "attitude" problems, but Argo persisted in arriving late, misusing time, and failing to perform work as directed. Blue Cross repeatedly disciplined Argo, which apparently led to the filing of an internal complaint alleging that he was being sexually harassed by his supervisor. Despite the internal complaint, Blue Cross terminated Argo's employment when he was again late for work and again failed to perform work as directed.

After termination, Argo sued, claiming that Blue Cross had engaged in reverse discrimination and retaliation for the internal filing of a sexual harassment complaint. The federal trial court dismissed the claim and the 10th Circuit affirmed.

Posted by Diane V. Smith at 03:58 PM | Permalink | Comments (0) | TrackBacks (0)

On June 22, 2006, the United States Supreme Court rendered entered a new, sweeping decision concerning retaliation claims under Title VII, which gives victims of retaliation greater protection than victims of actual discrimination. In Burlington Northern & Santa Fe Railroad v. White, an opinion authored by Justice Breyer, the Supreme Court decided for the first time that an employer may be liable for retaliation if an employee can show that the employer's actions might well have "dissuaded" a reasonable worker from making or supporting a charge of discrimination

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Posted by Diane V. Smith at 03:55 PM | Permalink | Comments (0) | TrackBacks (0)