July 22, 2006
Labor Law Professors Seek Oral Argument in NLRB Supervisor Cases
Saying that they "believe the Board's decisions in these three supervisor cases will be among the most important in the 71 years of Board jurisprudence," a group of labor law professors has asked that the National Labor Relations Board reconsider its decision to deny oral argument in the three supervisor status decisions now pending before the Board.
Writing for a group of 30 labor law professors from across the country (including myself), Catherine Fisk (Duke) wrote a letter on July 13th to Lester Helzer, the Executive Secretary of the NLRB, in support of the unions' motion for reconsideration of the denial of their motion to hold oral argument.
In it, Professor Fisk argued that oral argument in these supervisor status cases was imperative because:
The determination of employee status is critical to all rights under the NLRA. These cases may radically shift the line between labor and management, not only in the healthcare industry, but in virtually every industry and occupation. They could redefine both the category of employees protected by the Act and the category of workers who can be required to act as agents of employers in respect to labor relations. The impact of these decisions is of grave concern in all industries, but particularly in the healthcare industry where employment is expanding; workers, ranging from orderlies to doctors, have shown an increasing interest in organizing; and Congress, in the Healthcare Amendments, expressed entirely appropriate concern about channeling labor disputes into the peaceful procedures created by the Act.
As far as why written briefs alone are not adequate in a cases such as these, she wrote:
Written briefs are no substitute for the searching, interactive exchange possible in oral argument. The Board has historically held oral argument in cases of this degree of importance, including in the two nurse supervisor cases it designated as lead cases after the Supreme Court's decision in Health Care & Retirement Corp. of America v.
NLRB, 511 U.S. 571 (1994) -- Providence Hospital, 320 NLRB 717 (1996), and Nymed, Inc. 320 NLRB 806 (1996).
It goes without saying that I applaud Catherine's non-partisan efforts in this regard. Wanting the Board to be fully informed about all aspects of its decision is neither a union nor management argument. In this regard, I hope that the Board will reconsider its ill-advised decision to decide the case on briefs alone, as "the short additional delay needed to hold oral argument will be fully justified by making sure that the Board is in a position to consider all the ramifications of its decisions."
- Yvonne Zylan (top left), Finding the Sex in Sexual Harassment: How Title VII and Tort Schemes Miss the Point of Same-Sex Hostile Environment Sexual Harassment, 39 U. Mich. J. L. Reform 391 (2006).
- Stephen F. Befort (top middle) & Sarah Gorajski, When Quitting is Fitting: The Need for a Reformulated Sexual Harassment/Construc tive Discharge Standard in the Wake of Pennsylvania State Police v. Suders, 67 Ohio St. L.J. 593 (2006).
- April M. Franco (top right) & Matthew F. Mitchell (bottom left), Employment Mobility Laws and Competition, 31 J. Corp. L. 375 (2006).
- John E. Matejkovic (bottom middle) & Margaret E. Matejkovic (bottom right), If It Ain't Broke . . . Changes to FMLA Regulations Are Not Needed; Employee Compliance and Employer Enforcement of Current Regulations Are, 42 Williamette L. Rev. 413 (2006).
Top-5 International Employment & Labor Law SSRN Downloads
- Mary Catherine Daly (left) & Carole Silver (right), Flattening the World of Legal Services? The Ethical and Liability Minefields of Offshoring Legal and Law-Related Services (68).
- Allison Christians, Taxing the Global Worker: Three Spheres of International Social Security Coordination (49).
- David J. Doorey, Who Made That?: Influencing Foreign Labour Practices Through Reflexive Domestic Disclosure Regulation (19).
Top-5 Benefits/Compensation//Pension SSRN Downloads
- Chris Armstrong, Alan D. Jagolinzer, & David F. Larcker, Timing of Employee Stock Option Exercises and the Valuation of Stock Option Expense (109).
- Jan Bouwens & Laurence van Lent, Performance Measure Properties and the Effects of Incentive Contracts (76).
- Olubunmi Faleye (left) & Emery A. Trahan (right), Is What's Best for Employees Best for Shareholders? (65).
- Martin J. Conyon, John E. Core, & Wayne R. Guay, How High Is US CEO Pay? A Comparison with UK CEO Pay (41).
- Gordon Leslie Clark & Ashby Monk, The 'Crisis' in Defined Benefit Corporate Pension Liabilities: Current Solutions and Future Prospects (40).
Bankruptcy Judge Permits Comair to Void CBA
A federal bankruptcy judge in New York yesterday ruled that Comair (a regional airline in the midwest) can void its collective bargaining agreement with the flight attendants union (Teamsters Local 513). Comair has not yet voided the cba, and says it is still interested in a consensual agreement. The union has threatened "work actions" -- presumably a strike -- if Comair simply imposes terms unilaterally. The union has ten days to appeal to the Second Circuit. The parties intend to resume negotiations on Monday.
For more, see Alexander Coolidge's article in today's Cincinnati Enquirer.
Thanks to Paul Secunda . . .
for blogging solo over the last two weeks while I was vacationing in southeastern Kentucky.
When I tell folks I teach at Northern Kentucky University, they usually assume I'm somewhere in Appalachia. Not so -- if I crane my neck a bit, I can see downtown Cincinnati from my office, and the northern tip of Kentucky has an outlook that is more midwestern than either Appalachian or southern. Southeastern Kentucky, however, is coal country, with its own unique history and culture (shared with much of West Virginia, Eastern Tennessee, and Northern Virginia). Overt friendliness is a stereotype of the region, but I found it to be universally true, transcending race, socioeconomic status, etc. But if you visit, buy your produce from a roadside stand from someone who's grown it locally. The only grocery store in one small town we visited had only one kind of lettuce -- iceberg -- but lard you could get in 1, 5, 10, and 25-pound barrels!
I'm sure that's more than any of you wanted to know. I really just wanted to extend my heartfelt gratitude to Paul for keeping the blog rolling while I was gone, and for everything he's done to take the blog "to the next level" since we partnered last fall.
July 21, 2006
French Employee Suing for Being Fired for Blogging
Yahoo! News (via the AP) has the story of the ex-pat British employee working in France who sought to keep her blogging anonymous, but was fired when her employer found out who she was. Now she is fighting back:
The 33-year-old British expat in Paris writes under the pseudonym "La Petite Anglaise" and tells of love affairs, single motherhood and office bloopers with self-deprecating, "Bridget Jones"-style humor.
She kept her popular blog anonymous, never revealing her full name or workplace. But despite her attempts at secrecy, her employer found out and fired her — unusual in labor-protected France, where workers have strong legal protections.
Now she's suing her employer in a case generating buzz on both sides of the English Channel.
"I wasn't describing what my employers did, or disclosing professional secrets or criticizing the firm or anything," she said in a telephone interview.
Her employers, the accounting firm Dixon Wilson, cited "loss of trust" and said they felt she had damaged their reputation, Catherine[, the blogger], said. Though her name was never used online, her photo appear[ed] in a French newspaper article about her blog.
The blogger has filed suit with a French work tribunal seeking two-years salary or $110,000. I don't know the applicable French law under which she is suing, but if it is a wrongful discharge claim based on something like just cause and her blogging only had a mininal nexus to work, she might actually be able to prevail.
Also, if she is suing because her employer violated her privacy rights to discover her identity, which she sought to keep anonymous, there might be an interesting question as to whether the employer engaged in conduct which would be something like the American-equivalent of highly offensive to a reasonable person (the standard for an invasion of privacy tort in the United States).
Of course, in mostly at-will employment America, she probably wouldn't even have a chance in such a case outside of having an employment contract or collective bargaining agreement giving her just cause protection.
Hat Tip: Christopher Timmermans
North Carolina Cohabitation Law Struck Down in Case of Female Sheriff Dispatcher
As some readers of this blog know, my legal scholarship focuses a lot on employee privacy issues. Indeed, my forthcoming law review article entitled, "The (Neglected) Importance of Being Lawrence," considers how a modified Pickering test (borrowed from First Amendment public employee free speech law) can be utilized to protect public employee rights to decisional non-interference in private affairs (especially with regard to matters pertaining to sex) from overreaching government employer action.
One of the examples I used from the real world in that paper is that of a female sheriff dispatcher from Penders Country, North Carolina, who was told by the male sheriff that she had to either marry her boyfriend she was living with, move out, or find a new job. The sheriff based his threats on an 1805 criminal anti-fornication law which prohibited unmarried individuals from living together.
To me, this was a classic case of an employer (and state) interfering with the decisional privacy interests of an employee without legitimate or substantial justification and thus, I argued, such a law should be considered unconstitutional in light of Lawrence and its emphasis on heightened sexual liberty interests.
Well, I am happy to report that a state court in North Carolina has agreed and although it is not clear the exact nature of the legal analysis employed, the North Carolina anti-fornication statute has been declared unconstitutional. No word if an appeal by the State is contemplated.
In the meantime, this is clearly a victory for public employees and their privacy rights.
The Interplay of Work and Doing Nothing
In light of my recent post on Americans and their hesitancy in using up all of their vacation time, Orly Lobel of PrawfsBlawg fame writes to tell us "about a recent post she did about a new book on work ethic and doing nothing - a cultural history of their interplay."
Here are some excerpts from that post:
As Oscar Wilde said, “to do nothing is the most difficult thing in the world.” Now English professor Tom Lutz has written a book – Doing Nothing: A History of Loafers, Loungers, Slackers and Bums in America. The book is a cultural history of the tensions between work ethics and idle impulses.
It includes case studies that unfold the interplay of the competing models of hard workers and slackers, ranging from the Industrial Revolution through the dotcom '90s . . . .Weaving it all together, the book actually makes you think differently not only on the art of resting, but perhaps more so on norms of production, productivity and work. Now that’s hard work!
July 20, 2006
Distinguishing Gender Stereotype Discrimination from Sexual Orientation Discrimination
Here's a potentially important decision written by the Sixth Circuit in the case of Vickers v. Fairfield Medical Center, No. 06-0252 (6th Cir., July 19, 2006), finding (2-1), on a Rule 12(c) motion, that a Title VII plaintiff did not have a cognizable sex discrimination claim based on gender sex stereotyping.
Here's a summary of the facts of the case by the Court:
Vickers was employed as a private police officer by Fairfield Medical Center in Lancaster,
Ohio. Kory Dixon and John Mueller were also police officers at FMC and often worked with Vickers. Steve Anderson was Police Chief of FMC’s police department and was Vickers’ supervisor.
According to the complaint, Vickers befriended a male homosexual doctor at FMC and assisted him in an investigation regarding sexual misconduct that had allegedly occurred against the doctor. Once his co-workers found out about the friendship, Vickers contends that Dixon and Mueller “began making sexually based slurs and discriminating remarks and comments about Vickers, alleging that Vickers was ‘gay’ or homosexual, and
questioning his masculinity.”
Vickers contends that he was subject to daily instances of harassment at the hands of his coworkers from May 2002 through March 2003. The allegations of harassment include impressing the word “FAG” on the second page of Vickers’ report forms, frequent derogatory comments regarding Vickers’ sexual preferences and activities, frequently calling Vickers a “fag,” “gay,” and other derogatory names, playing tape-recorded conversations in the office during which Vickers was ridiculed for being homosexual, subjecting Vickers to vulgar gestures, placing irritants and chemicals in Vickers’ food and other personal property, using the nickname “Kiss” for Vickers, and making lewd remarks suggesting that Vickers provide them with sexual favors.
Allegations also concerned pervasive sexuall-oriented physical harassment. Nevertheless, based on this set of facts, the court found, on the pleadings, that:
We conclude that the theory of sex stereotyping under Price Waterhouse is not broad enough to encompass [this case]. The Supreme Court in Price Waterhouse focused principally on characteristics that were readily demonstrable in the workplace, such as the plaintiff’s manner of walking and talking at work, as well as her work attire and her hairstyle . . . . Later cases applying Price Waterhouse have interpreted it as applying where gender non-conformance is demonstrable through the plaintiff’s appearance or behavior . . . . Rather, the harassment of which Vickers complains is more properly viewed as harassment based on Vickers’ perceived homosexuality, rather than based on gender non-conformity.
Ultimately, recognition of Vickers’ claim would have the effect of de facto amending Title
VII to encompass sexual orientation as a prohibited basis for discrimination.
Let me blunt. I think this decision is just plain wrong. In cases such as Oncale, the actual sexual orientation of the person did not matter (no one even knew Oncale's sexual orientation). All that mattered was that the plaintiff was subject to degrading, usually physically, behavior by other men because he was not living up to some gender stereotypical norm.
I am at a loss as to why this court considered this claim one of discrimination based on perceived homosexuality, as opposed to a claim of discrimination based on gender non-conformity. Is the court serious that such a distinction should really come down to whether a man acts like a woman or walks like a woman?
I think the Nichols case from the 9th Circuit is a much more coherent view for these types of sexual discrimination claims involving gender non-conformity.
Finally, the fact that a case like this could be decided on a judgment on the pleadings is beyond me. Is there really nothing that could have been gained by allowing discovery to fill out the record in this case? In this regard, I agree with Judge Lawson's dissent:
However, these distinctions can be complicated, and where, as here, the plaintiff has
pleaded facts from which a fact finder could infer that sex (and not simply homosexuality) played a role in the employment decision and contributed to the hostility of the work environment, drawing the line should not occur at the pleading stage of the lawsuit.
Here's hoping the 6th Circuit, sitting en banc, reverses this bad boy.
More on Overturned Maryland Wal-Mart Bill
Now that I have had the chance to read the Maryland Wal-Mart Bill decision in-depth (the Bill would have required Wal-Mart to spend an amount equal to at least 8% of its Maryland payroll on health care benefits for its Maryland employees), I wanted to supplement my previous post with these additional comments about the decision in RILA v. Fielder, No. 06-316 (D. Md., July 19, 2006).
First, I think the importance of these types of play-or-play state health care insurance law is underscored by the fact that this case was only filed about five months ago and there is already a decision. Clearly, this case was fast-tracked because it it due to go into effect this January and there is general agreement that the 4th Circuit should have the chance to review the district court's decision before then.
Second, although this case is primarily interesting to me because of its ERISA preemption discussion, there is also a very thorough discussion about whether industry groups like RILA can bring lawsuits on behalf of members like Wal-Mart. The court, applying appropriate constitutional and prudential standing doctrine, found that standing did in fact exist (and also that the case is ripe for adjudication).
Third, there is also an interesting discussion on whether the Maryland law places an impermissible payroll tax on Wal-Mart in violation of the Tax Injunction Act. This is clearly not my area of the law, but the distinction appears to come down on the fact that the law is a regulatory fee and not a tax, and therefore permissible.
Fourth, and finally (although there is also an equal protection argument at the end of the case), getting to the ERISA preemption part of the decision, the court recognizes under the Egelhoff decision that preemption under ERISA is expansive. This is a somewhat curious place to start an ERISA preemption analysis since the general trend in ERISA preemption cases under cases like Travelers has been to narrow ERISA preemption, especially in situations dealing with traditional areas of state concern. In other words, I am wondering if the court purposefully begins its analysis with the pre-Travelers view of ERISA preemption in order more easily to arrive at its result.
In this regard, the case states: "A short description of the statutes involved in Travelers, DeBuono, and Dillingham is sufficient to demonstrate that they lie at the periphery of ERISA analysis, not (as does the Fair Share Act) at its core." In some of the most important language of the case, the court finds:
The Fair Share Act stands in stark contrast to the statutes challenged in Travelers,
Dillingham, and DeBuono. The Act is not merely tangentially related to ERISA plans but is focused upon them. Indeed, as the legislative history makes clear, the Fair Share Act is targeted directly at the ERISA plan of a particular employer. Moreover, the economic effect of the Fair Share Act upon Wal-Mart’s ERISA plan could not be more direct: it would require Wal-Mart to increase its health care benefits for Maryland employees and to administer its plan in such a fashion as to ensure that the statutory spending required by the Act is met. Thus, the Act violates ERISA’s fundamental purpose of permitting multi-state employers to maintain nationwide health and welfare plans, providing uniform nationwide benefits and permitting uniform national administration.
Fifth, is the Maryland law really focused on ERISA plans? Some would argue that the law does not directly interfere with Wal-Mart's health care plan, but only requires it to spend a given amount of money on health care regardless of whether it has such a plan or not. My sense is that this dispute lies at the heart of this controversy over Fair Share laws.
BTW, there was no additional savings clause/deemer clause analysis I presume because the Maryland law is clearly not directed to an entity engaging in insurance and does not substantially affect the risk pooling arrangements.
July 19, 2006
Maryland Wal-Mart Fair Share Health Bill Struck Down
Although the AP story of the Distrcit of Maryland court's decision on the Maryland Wal-Mart bill is anything but clear about the basis of its ruling to strike down the law, it does appear that the Court found the law preempted by ERISA. This is probably because such a bill interfered too much with Wal-Mart's administration of its health care plans and also undermined subsidiary concerns like Wal-Mart being subject to non-uniform employee benefit plan throughout the country.
Here are some of the excerpts from the AP story on the district court decision:
A federal judge on Wednesday overturned a Maryland law that would have required Wal-Mart Stores Inc. to spend more on employee health care, arguing the retail giant "faces threatened injury" from the law's spending requirement.
U.S. District Judge J. Frederick Motz concluded that the law would have hurt Wal-Mart by requiring it to track and allocate benefits for its Maryland employees in a different way from how it keeps track of employee benefits in other states. Motz wrote that the law "imposes legally cognizable injury upon Wal-Mart."
I hope to the read distrcit court opinion in full and will have a better sense for the basis of the court's decision in the near future. Here is a copy of the district court opinion in RILA v. Fielder, No. 06-316 (D. Md. July 19, 2006), which at first blush seems to support my intiial application of ERISA preemption principles to the facts of this case.
In any event, stay tuned as this decision will likely have some impact on similar laws being considered in other states. Also expect this case to be appealed to the 4th Circuit.
Here's more from Peter Lattman at the WSJ Law Blog.
Hat Tip: Chris Timmermans
General Electric Executive Has So Much Money, Can't Keep Track of It
Tens of millions in the earnings and stock wasn't enough to stop General Electric CEO Jeffrey Immelt from bouncing a $2,000 check recently.
Immelt, who received $15.5 million in total compensation in 2005, according to the latest GE . . . proxy statement, and has nearly $190 million in GE stock, bounced the check to the since-abandoned campaign of New York gubernatorial candidate William Weld, according to a campaign finance report.
The bounced check was disclosed in a filing by the Weld campaign made Monday.
The New York Times reported that a GE spokesman attributed the problem to Immelt writing a check on an account he wasn't aware had been closed.
Ahhh, more than one checking account. Imagine that.
Counting Employees Under Title VII
A few years back, the United States Supreme Court decided the Clackamas case and made a distinction between owners who are not counted as employees for Title VII's 15-employee threshold test and employees who are. A list of factors to consider were discussed in Clackamas to make this determination.
Yesterday, the 7th Circuit in the case of Smith v. Castaways Family Diner (7th Cir., July 18, 2006), decided an interesting Clackamas issue concerning two managers who had unnfetterd control to run a restaurant and whether they counted toward the 15 employee minimum, such that Title VII could be invoked by plaintiffs.
Michael Fox (who BTW just celebrated four years in cyberspace!) has this summary on Jottings By An Employer's Lawyer:
Any time a bright line exists between coverage or not, there will be fights as to how to determine the line. Wading into one such fight, the 7th Circuit today holds that two individuals -- even though given unfettered reign by the sole proprietor to run her restaurant-- were employees for purpose of determining the 15 needed for coverage under Title VII.
Although the Supreme Court had focused on that issue in Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 123 S. Ct. 1673 (2003), Judge Rovner focused on an issue not mentioned in Clackamas, the source of the two individuals' power. Unlike Clackamas, where the physicians whose status in question were also shareholders and members of the Board of Directors, at Castaways, the power derived strictly because the sole owner delegated it. As Judge Rovner explains that is a distinction that makes a difference:
Nonetheless, [a supervisor or manager] exercises that discretion and authority at the pleasure of the business owner; he has no inherent right, as the owner does, to control the business. In that respect, his position is no different from that of any other worker: he could be overruled (and, depending on the terms of his employment contract, fired) just as summarily as the lowest ranked employee. By contrast, the owner of a business, even if he chooses not to exercise it, always has the right to control the direction and operation of the business.
Michael makes the interesting point that this case may have significant ramifications for the Sidley Austin age discrimination case (in ways that favor the defendants in that case).
July 18, 2006
Red Cards at Work
Given the prominent role that red cards played in many of the games at this year's soccer World Cup (red cards are given to players when they are disqualified from the match (and the one after) for engaging in unacceptable behavior on the field), I couldn't help but wonder whether employers should start using red cards to eject employees like these shops are doing in England:
Verbal and sometimes physical abuse hurled at British shop staff has seen their union introduce a system where unruly customers are shown a red card – and the door.
The idea is winning some support in Christchurch[, New Zealand] where shop assistants say books, blood and oranges have been thrown at them.
National Distribution Union southern regional secretary Paul Watson said too often the public felt they could abuse or bully staff in vulnerable serving positions.
"It (giving the red card) might just be an interesting and up-front reminder that this kind of behaviour is unacceptable," he said.
Hat Tip: Wasted Blog
Another Day Labor Center Story
This time in the tony town of Laguna Beach, California (via Yahoo! News and Reuters). It seems that although day labor centers for immigrant labor (the official Austin, TX center is pictured left) always causes residents some distress, the more lush the community, the more severe the agitation:
But for some grown-up drama, there is Laguna Beach's day labor center for immigrants, where the deepening division over the tide of illegal workers in the United States is on display.
Opponents, mostly from other Orange County towns, call the center a magnet for illegal immigrants that encourages more to sneak over the border from Mexico. The anti-immigration Minuteman Project has organized protests at the center and challenged its legality.
Proponents, including the City Council, say it is an exemplary center that concentrates workers in one area on the outskirts of town and eliminates "swarming" where workers gather on residential street corners and surround trucks looking for day labor.
And in such situations, there is bound to be glaring contradictions:
"I don't think these people should be here because they are illegal, they are breaking the law," Jeff Hillman said as he picked up a day laborer to dig a hole for $12 an hour, almost twice California's minimum wage.
The chosen laborer, Marcos Jimenez from Mexico, heard Hillman's opinion and jumped out of his truck with a slam of the door.
What's the Deal with Americans and Vacation?
As I write this while I am on a (working) vacation, I guess I can't be too surprised by this entry by Strategic HR Lawyer:
Many Americans will not be taking all of the vacation they are entitled to this year. According to a recent survey, about 43% of respondents said they would not be taking all of their vacation. 6 percent expect to use none; 20 percent expect to use fewer than half of their eligible days; and 28 percent expect to use more than half of their vacation days. While this survey is noted as being "unscientific," a few other articles support the findings. According to the results from the sixth annual "Vacation Deprivation" survey by Expedia.com, U.S. workers expect to abandon an average of four accrued vacation days in 2006, up from three in 2005.
Is it that people just have trouble relaxing or feel too stressed at work to take all the vacation days allotted?
July 17, 2006
10 Ways to End Your Career in Unforgettable Fashion
Brent Hunsberger at The Oregonian At Work blog links to this amusing article by BBC writer Sean Coughlan on the 10 things to do on the last day of your career. The article was inspired by French soccer star Zinedine Zidane.
For those who have not been paying attention, Zidane, one of the top soccer players in the world who plays for France, ended his stellar career in the soccer World Cup final by viciously head butting an Italian opponent.
Here are a few of my favorite how to leave work suggestions from Coughlan's list:
2. Leave a challenge for your successor. When President Bush's staff took over the White House they complained that the Ws were missing from the computer keyboards (as in George W Bush) and that an office had been renamed Office of Strategerie.
6. The Mozambique chardonnay has all been drunk at the leaving party, they're playing the get-your-coat-on music ... and that special co-worker is just about to say a final goodbye. But it's never, ever a good idea to tell someone you've worked with for 20 years that you love them. Life isn't a Christmas special edition of The Office. It's much more cruel.
10. That "exit" interview. This will be the first time you've come across the gleaming 20-storey office block occupied by floor upon floor of the "human resources" team. It's your big chance to tell them exactly... Are they listening? Hello?
The comments following the article also provides some hilarity about how people left their jobs including this one:
I once left a job and spent my last day wearing a summer dress and blue curly wig. (I'm 6' and a big guy). Lots of people took photos but the joke was ultimately on me as a year later I re-joined the company to find that picture on my desk!
2nd Circuit on Title VII Timely Filing
Ross Runkel in his Employment Law Memo (of July 17th) has this blurb on the case of McPherson v. New York Dept of Educ., No. 05-4387 (2nd Cir., July 13, 2006), a case dealing with the relationship between an EEOC right-to-sue letter and an untimely-filed charge of discrimination:
McPherson sued the employer for wrongful discharge in violation of Title VII, the Age Discrimination in Employment Act (ADEA), and the Due Process Clause. The trial court granted the employer's motion for summary judgment. The 2nd Circuit affirmed.
McPherson filed a timely charge with the Equal Employment Opportunity Commission (EEOC), withdrew it, filed another untimely charge with the EEOC, and then filed suit after receipt of the right-to-sue letter. Under Title VII, the court held that a right-to-sue letter enabled a private suit only if it was issued in connection with an administrative charge that was timely filed.
Yet another case about the importance of following all of Title VII's procedural niceties.
My only question is why did it take to summary judgment to dismiss the case? Given that the right-to-sue ltter was clearly invalid from the outset, seems like a lot of judicial resources could have been saved by the plaintiff filing a Rule 12(b)(6) motion for failure to state a claim after the pleadings had been filed.
Sad News in the Blawging World
It appears that Denise Howell of the Bag and Baggage blog and one of the original legal bloggers (indeed, she had been credited with coining the word "blawg"), has lost her job with her law firm, Reed Smith.
According to Denise, she was fired from her job, but it does not appear to be because of her prolific blogging, but rather as a result of workplace flexibility issues (she has a two year old son) and the difficulty of balancing a new child with the demanding large law firm world.
All this seems to suggest to me that even though employees do lose their jobs as a result of blogging, many, many more (women, mostly) continue to lose their jobs because their employers are unable to put together sensible workplace flexibility policies.
We wish Denise the best in whatever path she chooses to follow and look forward to her future blog entries.