Frost Brown Todd

Silence or Waiver? What’s the Best Strategy For Employers With Arbitration Agreements To Avoid Class Actions

Deborah S. Adams — Sun, 12 Jun 2011 12:00:00 -0400

In Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., 130 S.Ct. 1758 (2010), the Supreme Court held that a class action could not proceed in arbitration where the agreement to arbitrate was silent on the issue of proceeding on a class basis. Accordingly, the plaintiffs were forced to arbitrate their disputes on an individual basis. The plaintiffs in Stolt-Nielsen purported to represent a class of users of shipping services who alleged price-fixing by certain shipping companies. The plaintiffs first filed an antitrust class action in federal court, but were compelled to bring their claims to an AAA panel pursuant to the arbitration clauses in their various contracts. The plaintiffs then attempted to proceed as a class in arbitration under the AAA’s Supplemental Rules for Class Action Arbitration. The Second Circuit upheld an AAA panel’s clauseconstruction award that the class arbitration could proceed. The Supreme Court reversed, holding that arbitration is a matter of the parties’ consent, not coercion, and that private agreements to arbitrate should be enforced according to their terms like any other contract. Read More ›

Tags:

The Supreme Retailer Challenges the Supreme Class in the Supreme Court

Raymond D. Neusch — Sun, 12 Jun 2011 12:00:00 -0400

On December 6, 2010, in Wal-Mart v. Dukes, the Supreme Court agreed to conduct a limited review of a decision by the U.S. Court of Appeals for the Ninth Circuit in which the Ninth Circuit affirmed class certification in what is reported to be the world’s largest class action. Wal-Mart petitioned for review on two issues but the Court’s Order granting certiorari limited review to one of Wal-Mart’s and one of its own. Wal-Mart’s issue is “whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) – which by its terms is limited to injunctive or corresponding declaratory relief – and, if so, under what circumstances.” The Court’s issue is whether the class certification ordered under Rule 23(b) (2) was consistent with Rule 23(a) and its requirements of numerosity, commonality, typicality and adequate representation. The Ninth Circuit found that commonality and typicality existed on the basis of evidence of excessive subjectivity in personnel decisions as well as statistical and anecdotal evidence, which figured prominently in the opinion offered by plaintiffs’ expert, a sociologist. The case has sparked intense national interest since the Supreme Court’s ruling may determine, among other important issues, whether or in what circumstances claims for punitive damages are subject to class certification. Read More ›

Tags:

Supreme Court Tweaks Gender Discrimination Law

Keith Moorman — Wed, 08 Jun 2011 12:00:00 -0400

As company executives and human resource professionals know, discrimination charges continue to be a hindrance in the workplace, and continuing changes make navigating discrimination laws more difficult than ever.

Read More ›

Tags:

Supreme Court Rules the FLSA Prohibits Retaliation Against Employees who Make Oral Complaints

James K. L. Lawrence — Wed, 30 Mar 2011 12:00:00 -0400

On March 22, the U.S. Supreme Court, in Kasten v. Saint-Gobain Performance Plastics Corp., ruled that oral complaints, in addition to written complaints, about wage/hour issues are protected under the Fair Labor Standards Act’s (“FLSA”) anti-retaliation provision. The FLSA makes it illegal “to discharge or . . . discriminate against any employee because [the employee] has filed any complaint. . .” alleging an FLSA violation Read More ›

Tags:

Removing Class Actions to Federal Court: Beware of Opposition Based on Alleged One-Year Limitation

Katherine Cook Morgan — Mon, 07 Mar 2011 12:00:00 -0500

When faced with class action allegations in state court, it is no secret that most defendants prefer to do battle in federal court. Although removal to federal court is ideally pursued at the outset of a case, early removal is not always possible. In some cases, grounds for removal may only become apparent as discovery progresses, or when plaintiffs amend their pleadings to include new claims or greater amounts in controversy. When defendants seek to remove later in the game, they may be surprised to encounter an argument by plaintiffs’ counsel that the time period for removal is limited to one year after the initial filing of the case. Read More ›

Tags:

"Cat's Paw" Theory: The U.S. Supreme Court Requires Greater Decisionmaker Diligence Before Disciplining Employees

Andrew R. Kaake — Sun, 06 Mar 2011 12:00:00 -0500

On March 1, the U.S. Supreme Court held that an employer can be liable for the discriminatory motives of a lower-level supervisor, even if the individual who made the challenged decision was unaware of those discriminatory motives. In Staub v. Proctor Hospital, the Court examined the applicability and scope of the "cat's paw" theory of liability. Under this theory, an employee who has suffered an adverse employment action (termination, demotion, discipline, etc.) can seek to hold the employer liable for the discriminatory animus of a supervisor, even when the actual decisionmaker had no discriminatory motives. In this scenario, the "cat" is the bigoted supervisor, and the "paw" is the benign decisionmaker. Read More ›

Tags:

Supreme Court Recognizes Retaliation Claim by Terminated Employee whose Fiancé Filed Discrimination Charge

Andrew R. Kaake — Thu, 27 Jan 2011 12:00:00 -0500

On January 24, the U.S. Supreme Court ruled, in Thompson v. North American Stainless, LP, that Title VII of the Civil Rights Act of 1964 prohibits some forms of third-party retaliation. Thompson, the Plaintiff in the lawsuit, and his fiancé both worked for North American Stainless. The fiancé filed a charge of sex discrimination with the EEOC. Three weeks after she filed her charge, North American Stainless fired Thompson. Thompson then filed a charge (and eventually a lawsuit in federal district court) of his own, claiming that his firing had been in retaliation for his fiancé's discrimination charge.

Read More ›

Tags:

OSHA's Retraction of Proposed Noise Exposure Interpretation

Robert A. Dimling — Sun, 23 Jan 2011 12:00:00 -0500

On Wednesday, January 19, the Occupational Safety and Health Administration ("OSHA") announced its decision to withdraw its newly-proposed interpretation of the agency's noise exposure standard. Under this standard, employers with employees exposed at or above certain threshold noise levels must use "feasible" administrative and engineering controls to reduce noise to acceptable levels. OSHA intended to alter its long-standing interpretation of when administrative and engineering controls are "feasible." However, after receiving feedback from Senators Olympia Snowe and Joseph Lieberman and the public, OSHA has "suspended work on this proposed modification." Read More ›

Tags:

GINA Regulations Provide Safe Harbor for Employers

Adam R. Hanley — Thu, 06 Jan 2011 12:00:00 -0500

After more than a year of delays, the EEOC has finally issued its regulations for the Genetic Information Nondiscrimination Act of 2008 ("GINA"). In effect since November 2009, GINA bars employers from using genetic information in employment decisions. The statute also prohibits employers from acquiring employees' genetic information, though it provides an exception if the information is obtained inadvertently. Read More ›

Tags:

Staying Union-Free in 2011

James K. L. Lawrence — Tue, 04 Jan 2011 12:00:00 -0500

President Obama promised to reinvigorate Organized Labor. We escaped the Employee Free Choice Act. Unfortunately, during 2010 the President succeeded in placing his majority on the National Labor Relations Board (NLRB). Will the new NLRB undermine your ability to keep your workforce free from unions? Read More ›

Tags: