EEOC’s First GINA Suit Settlement

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law.  EEOC charges alleging GINA violations have increased each year.  Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009.  Some of GINA’s regulations are as follows.

• It is illegal for employers to discriminate against employees or applicants based on their genetic information.
• Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.
• GINA also applies to third parties.  So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.
• There are exceptions for voluntary health risk assessments.  However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case.  In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

via EEOC’s First GINA Suit Serves As Reminder of Pre-Employment Exam Pitfall | Proskauer Rose LLP – JDSupra.

Evidence destruction leads to ruling U.S. was negligent

Under the civil rules of procedure, a sanction for the destruction of evidence would include an adverse finding.  In other words, if you are a party to a lawsuit and destroy evidence, the court may find that you were guilty of the allegations.

One of the reasons for this is that now, the court has no way of telling what the evidence said.  Would the evidence point to the party knowing about the problem?  Would the evidence show the party did nothing while it knew?  Would the evidence show nothing?

That is why it is so important to write a Spoliation Letter.  An Spoliation Letter is a letter that explains your duty to preserve evidence.  The letter explains that because there is a lawsuit (or there will be one), you now have to stop destroying evidence.

As an attorney, regardless of what side you are in, you have a duty to advise your client.  A big part of discovery is finding relevant evidence.  It would be against the idea of justice to go about destroying evidence.

This case highlights the importance of not destroying evidence.  In this case, in 2009, a 9-year old boy was at a mountain trail in Lassen Volcanic National Park when the retaining wall gave way.  Unfortunately, the boy died from this accident.

Court records show a complaint that the chief of maintenance shredded all of his documents, some of which dealt with visitor safety issues.  The documents were shredded sometime around December 2009 and January 2010.

As a sanction for destruction of evidence by the National Park Service in a wrongful death case, a federal judge in Sacramento, Calif., ruled Tuesday that the United States was negligent.

U.S. District Judge Nunley, held that the government was negligent “for all purposes in this case.”  The judge found that the government “purposely destroyed” the remains of the retaining wall, and that the park director and some staff knew the wall was unsafe, the newspaper says.

“What is less clear, although highly suspicious, is whether defendant [destroyed] evidence other than the wall,” U.S. Magistrate Gregory G. Hollows wrote in a previous decision.

Still undecided in the case and expected to be addressed at a June hearing is whether the government can assert a “discretionary function” defense under the Federal Tort Claims Act. The government argues that those in charge of the park had discretion to decide whether or not to repair the wall, and hence the government cannot be held liable for their decision-making.

via As sanction for destroying evidence, federal judge finds US negligent in wrongful death case – ABA Journal.

EEOC wins over $1.5 million in sexual harassment case

The EEOC has issued a press release announcing a big victory for sexual harassment cases.  These cases are often dismissed.  For instance, according to EEOC 2011 statistics, the EEOC received 11,364 sexual harassment complaints.  Of these, 53% were found to have no reasonable cause.  This is an increase from 2010, where the percentage was of 50.1%.  Since 1997, the percentage of cases dismissed has been in an upwards trend.

In the EEOC case against New Breed Logistics (Civil Action No. 2:10-cv-02696-STA-tmp), the jury awarded $177,094 in back pay, $486,000 in compensatory damages, and $850,000 in punitive damages.

Following the 7-day trial, the jury found that the warehouse supervisor subjected 3 temporary workers to unwelcome sexual touching and lewd, obscene and vulgar  sexual remarks at the company’s Avaya Memphis area warehouse facility.  Further, the jury found that a supervisor fired the three temp workers because they complained about the harassment.

 

via Jury Awards More Than $1.5 Million in EEOC Sexual Harassment and Retaliation Suit against New Breed Logistics | U.S. Equal Employment Opportunity Commission (EEOC) – JDSupra.

Minnesota Senate joins House in approving same-sex marriage

This news exploded in the media and social media.  Minnesota is set to become the first Midwestern state and the 12th state in the U.S. to allow same-sex marriage.

Yesterday, Minnesota Senate voted 37 to 30 in favor of allowing same-sex marriage.  Earlier, the Minnesota House of Representatives voted 75 to 59 in favor for it.  As a backdrop, in the prior election, Minnesota voters rejected a proposed constitutional amendment that would have defined marriage as only between a man and a woman.

Governor Dayton stated that he will sign the bill once it comes to his desk.

via Minnesota Senate joins House in approving same-sex marriage | MinnPost.

D.C. Circuit Strikes Down NLRB Notice Rule

In NAM v. NLRB, No. 12-5068 (D.C Cir. May 17, 2013), the D.C. Circuit Court of Appeals struck against the NRLB notice rule.

The background is as follows.  On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting.  76 Fed. Reg. 54,006.  That final rule provides:

All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”

39 C.F.R. 104.202(a).  The final rule also declares that failure to post this notice is an unfair labor practice (ULP).   In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA).  This is essentially the focus for the Court of Appeals.

The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP.  The Court of Appeals found that the NLRB’s final rule did both.  The court states,

Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice.  See 29 C.F.R. 104.210, 104.201.  And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).

(as in original).

DOL clarifies expansion of FMLA due to ADAAA

The DOL published Administrator’s Interpretation No. 2013-1, which clarifies the expansion of FMLA.  The DOL explained that the ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims, but also expanded the scope of FMLA coverage for children.

The DOL clarified the following.

• The DOL adopted the ADA’s definition of disability to define “mental or physical disability” for purposes of defining a son or daughter 18 years or older.  See 58 Fed. Reg. 31794, 31799 (June 4, 1993).  The 2008 FMLA Final Rule explicitly adopts the ADAAA’s changes to the ADA’s definition of disability;
• The definition of a “son or daughter” is defined by the definition of a disability under the ADAAA, which “shall be construed in favor of broad coverage;”
• The determination of whether an adult son or daughter is incapable of self-care under the FMLA focuses on whether the individual currently needs active assistance or supervision in performing three or more activities of daily living (or ADLs) including “grooming, hygiene, bathing, dressing and eating;” or instrumental activities of daily living (or IADLs) including “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, and using a post-office, etc.;”
• A serious health condition is an illness, injury impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider; and
• For a parent to take FMLA leave to care for an adult son or daughter, the parent must be “needed to care” for that son or daughter due to the serious health condition.

In the Administrative opinion, the DOL provides examples.

via Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children | Orrick – Global Employment Law Group – JDSupra.

Court upholds Handgun-Sales Age Requirement

This case again shows that regulating firearms is constitutional.

In NRA v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 11-10959 (5th Cir. Apr. 29, 2013), the court upheld 18 USC 922(b)(1) and (c)(1).  These laws prohibit federally licensed firearms dealers from selling handguns under the age of 21.

The NRA claimed that this federal statute was unconstitutional under the Second Amendment.  The court disagreed.

The Fifth Circuit Court of Appeals explained:

In a critical passafe, moreover, the Court emphasized that the ‘right secured by the Second Amendment is not unlimited.’ [Dist. of Columbia v. Heller, 554 US 570, at 626].  As the [Supreme] Court explained:

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ills, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27 (emphasis added) (citations omitted).

Thus, the Circuit Court stated that “Congress designed its scheme to solve a particular problem: violent crimes associated with the trafficking of handguns from federal firearms to licensees to young adults.”  The court, further stated that Congress could have sought to prohibit all persons under 21 from possessing handguns or all guns.  Additionally, the court pointed that under the Census, 18-to-20-year-olds accounted for a disproportionately high percentage of arrests for violent crimes” in 2010.

E-Discovery: Defendant not required to redo discovery

In this product liability case, the issue is when does a defendant meet its discovery obligations.  In other words, does defendant satisfy its duty by using a keyword search.

In this product’s liability case, In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013), the court held that the burden of the costs outweighed any benefits.  Here, the costs of starting over with 19.5 million documents outweighed the possibility of finding additional relevant documents.  The case is as follows.

Defendant (Biomet) relied on keyword searching in order to reduce the volume of information.  The documents to be searched were reduced from 19.5 million to 2.5 million.  Afterwards, Biomet used predictive coding.  Throughout this process, Biomet spent $1.07 million, and expects the e-discovery costs to total between $2 million and $3.25 million.

Plaintiffs asked the court to require Biomet to start all over again and only use predictive coding.  Plaintiffs wanted to be part of the process and give input as to the predictive coding language.  The court disagreed.

In explaining its decision, the court relied on proportionality.  The proposal to start all over again (utilizing the original 19.5 million documents) “[sat] uneasily with the proportionality standard in Rule 26(b)(2)(C).”  Further, starting again would “entail a cost in the low seven-figures” and that the “confidence tests” run by Biomet “suggest a comparatively modest number of documents would be found.”

The court agreed that predictive coding would identify additional relevant documents.  However, the benefits would not outweigh the burdens.

 

via Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding : Electronic Discovery Law.

Successor Liability does not cover federal claims

Teed v. Thomas & Betts Power Solutions, LLC (7th Cir. 2013) held that  a buyer of a company’s assets can’t rely on state law to keep  a seller’s violations of the Fair Labor Standards Act (FLSA) from transferring to the buyer of the Seller company’s assets.  This standard has been previously applied to the LMRA, NLRA, Title VII, ADEA, and FMLA.

The Seventh Circuit explained that federal labor law claims are governed by federal common law, not state law.  Further, the court explained that employees do not have the power to stop an owner from selling the company.  Therefore, the buyer (successor) is stuck with the seller’s (prior owner) liability regardless of what the contract states.

To determine whether successor liability will apply, the Seventh Circuit considered the following multi-part balancing test:

1. Whether the successor had notice of the pending law suit;
2. Whether the predecessor would have been able to provide the relief sought in the lawsuit before the sale;
3. Whether the predecessor could have provided relief after the sale;
4. Whether the successor can provide the relief sought in the suit (if not successor liability is a phantom); and
5. Whether there is continuity between the operations and work force of the predecessor and the successor – which favors successor liability because nothing really has changed.

via Buyer Beware of Successor Liability For FLSA Claims | Sands Anderson PC – JDSupra.

Supreme Court and collective action dismissals

The Supreme Court has recently decided a collective action case that affects how the litigation process can be cut promptly by defendants.  In summary of the details below, a plaintiff loses its interest in a collective action when an offer completely satisfies the plaintiff’s claim.  Further, if the plaintiff does not move for certification, even though the lawsuit had already started, the plaintiff’s case ends if the claim is no longer alive.

What this might imply is that plaintiffs in a collective action would need to move promptly when seeking certification.  The question, however, is: would you have enough supporting evidence by then?

In Genesis Healthcare Corp. v. Symczyk, 11-1059 (2013), the Supreme Court held that a collective action (FLSA) is moot when the named plaintiff has no continuing personal interest in the outcome of the lawsuit and no motion for conditional certification has been filed.

The District Court, finding that no other individuals had joined her suit and the Rule 68 offer that was ignored fully satisfied her claim, dismissed the lawsuit for lack of subject matter jurisdiction.  The Third Circuit Court of Appeals dismissed.  However, the Supreme Court agreed with the District Court, and thus reversed the Court of Appeals’ opinion.

The Supreme Court explained that Sosna v. Iowa, 419 US 393 (1975) and United States Parole Comm’n v. Geraghty, 445 US 388 (1980), held that a class action that was erroneously denied relates back to the time of the erroneous denial — as long as the named plaintiff’s claim remains live at the time of the denial of the class certification.

The Supreme Court, here, found that the named plaintiff had not moved for conditional certification and her claim became moot.  Consequently, the relate back provision did not apply in her case.

As to the Rule 68 offer, the Supreme Court held that the purposes of a collective action would not be frustrated by the offer.  The plaintiff alleged that the Rule 68 had the effect to “pick off” the named plaintiffs before the collection action’s process had run its course.  The Supreme Court explained that in Deposit Guaranty Nat. Bank v. Roper, 445 US 326 (1980), when the Rule 68 offer did not provide complete relief, the named plaintiffs could appeal because they retained an ongoing, personal economic stake in the lawsuit.

Here, however, the named plaintiff conceded that the Rule 68 offer offered complete relief, and plaintiff asserted no continuing interest in shifting attorney’s fees and costs.