No FMLA Violation When Employee Fired for Attendance Violation After Earlier Warnings

Darrell VanDeusen
Darrell VanDeusen
03/17/2012
In Lovland v. Employers Mut. Cas. Co., 2012 U.S. App. LEXIS 5503 (8th Cir. March 16, 2012), the Eighth Circuit held that an employee who was fired for her failure to call her supervisor regarding an unscheduled two-day absence, after having been previously warned about excessive absenteeism, had no FMLA claim under either the interference or retaliation theories.   Affirming summary judgment for the employer the appellate court held that the trial...
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Fourth Circuit Holds That Harassed Employee Suffered Tangible Employment Action

Eric Paltell
Eric Paltell
03/17/2012
The United States Court of Appeals for the Fourth Circuit – which covers Maryland, Virginia, West Virginia, and the Carolinas - has long been thought of as a “pro-employer” court in discrimination cases. Recently, that image has begun to change, and the Court’s recent decision in Dulaney v. Packaging Corp. of Am., No. 10-2316 (3/12/12) is the latest evidence of that change. In Dulaney, the Plaintiff was a former factory worker in Roanoke,...
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District Court for Maryland Holds that Bi-Polar Employee Not Qualified Individual with Disability

Randi Klein Hyatt
Randi Klein Hyatt
03/05/2012
On February 28, 2012, the U.S. District Court for the District of Maryland dismissed a claim by a former Maryland Department of Agriculture worker under federal and state law that the Department failed to accommodate his disability and terminated him because of his disability.  Higgins v. Maryland Dep't of Agric., No. 11-0081 (D. Md., February 28, 2012). The Court found that the employee failed to demonstrate he was a qualified individual with a...
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Donning/Doffing Is Still Work in the Fourth Circuit

Randi Klein Hyatt
Randi Klein Hyatt
02/27/2012
Back in June, I wrote about Mountaire Farms, Inc. v. Perez, 650 F.3d 350 (4th Cir. 2011).  In that case, the Fourth Circuit affirmed a district court ruling that held that time spent by chicken processing plant workers donning and doffing their protective gear was “work,” and therefore compensable, under the Fair Labor Standards Act.  The employees in Mountaire sought wages for the time that they spent putting on and taking off gloves, smocks,...
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Lactation Discrimination? Texas Judge Says No

Randi Klein Hyatt
Randi Klein Hyatt
02/15/2012
A federal judge in Texas recently ruled that a new mother does not have the right to pump breast milk at work.  (EEOC v. Houston Funding II, Ltd.; no. H-11-2422; S. D. Texas).  The facts in Houston Funding are straightforward.  The plaintiff gave birth to a baby girl in December 2008, after which she took maternity leave.  While the plaintiff claimed that she had been in contact with her employer throughout her leave, her employer claimed that...
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California Appeals Court Reverses Class Action

Randi Klein Hyatt
Randi Klein Hyatt
02/15/2012
Discrimination and wage class actions that rely on statistics are getting harder and harder to maintain.  In the wake of the well-publicized Wal Mart Stores, Inc. v. Dukes case, decided by the Supreme Court last year, the California Court of Appeals recently overturned a $15 million judgment entered on behalf of a class of business banking officers at U.S. Bank.  Duran v. U.S. Bank Nat’l Assoc. (Calif. Court of Appeals, First District, Division...
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Federal Court Finds that Parties Cannot Agree to Choose Georgia Law in California

Frank Kollman
Frank Kollman
02/10/2012
How many times have you signed a contract that says the law of another state controls the agreement?  The idea is to apply the law of a state more favorable to the person drafting the contract.  It’s a lawyer’s trick that sometimes works. It did not work in the case of Ruiz v. Affinity Logistics Corp., No. 10-55581 (9th Cir., February 8, 2012).  The company in this case tried to get around California labor and employment law with its drivers...
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Oops – Teamster Found Liable to Members for Lost Wage Increases

Frank Kollman
Frank Kollman
02/07/2012
A federal court in Chicago has found a Teamsters Union local liable for wage increases its members “would have received” had the local requested bargaining.  Under the collective bargaining agreement, either the union or the employer could have requested a wage reopener by giving written notice to the other.  The union, who did not track the date for doing so, gave late notice.  The employer, within its right, said “no.”  Members sued the...
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Woman Offended by Gross Female Employee Can Sue for Harassment

Frank Kollman
Frank Kollman
02/06/2012
A federal court in Kentucky will permit a female employee to proceed with her hostile environment sexual harassment claim based on gross, sexual conduct by another female coworker.  Bradford v. Dep't of Community Based Services, No. 09-206 (E.D. Ky., February 2, 2012).  In the overwhelming majority of hostile environment cases, male employees are accused by female employees of engaging in the offensive behavior.  The court in Bradford merely...
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Court Finds Pre-School Required to Accommodate Parent’s Latex Allergy

Clifford Geiger
Clifford Geiger
02/03/2012
Lisa Meade was diagnosed with a latex allergy in 1998.  In 1999, she learned that the staff at her two year-old son’s preschool wore powdered latex gloves when changing the children’s diapers.  Meade spoke with the School Administrator about her allergy, and her concerns about the use of powdered latex gloves, which included potential airborne exposure, and secondary exposure, as latex particles may attach to the powder disbursed when the...
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