Labor & Employment Insights
Winter 2005

WITH YOUR EMPLOYEES ON YOUR SIDE, YOU CAN’T LOSE
by W.R. Loftis, Jr.

Not many lawyers have won a wrongful discharge suit without putting a single management witness on the stand. But several years ago, I did. My secret weapon was the support of all of the plaintiffs’ co-workers. Thanks to them, the jury took only about 35 minutes before finding in favor of the company.

A lot was at stake in this case. Our plaintiff, a truck driver, had accused the company of requiring him to violate the rules on driving and rest hours, and required him to falsify his log books—both of which, if true, would have been serious violations of regulations issued by the federal Department of Transportation (DOT).

We had tried to get the lawsuit dismissed at an early stage, but succeeded only in having the North Carolina Supreme Court recognize a cause of action for wrongful discharge in violation of public policy.

After the plaintiff’s well-publicized win at this preliminary stage of the case, he became a minor local celebrity. He was interviewed by television and radio stations, and newspapers, always alleging that he—and all the other drivers for our client —drove in violation of DOT regulations with the knowledge, approval, and encouragement of the Company. The plaintiff claimed that his pay was cut in half after he refused to continue violating DOT regulations—action that he claimed was tantamount to a discharge.

Our strategy for the trial was nothing out of the ordinary. We planned to call several key management witnesses who could tell the Company’s side of the story and explain that no driver was required or expected to violate DOT regulations in the operation of trucks.

The actual trial proceeded pretty much as we had expected . . . at first. Our plaintiff testified that he had violated DOT regulations and falsified his log book with the knowledge, approval and encouragement of the Company.

But then the plaintiff made the mistake of calling a fellow driver, “Pop Top,” to testify in his behalf. What neither the plaintiff nor we had known was that Pop Top and the other drivers were furious with the plaintiff for publicly accusing them of violating DOT regulations and falsifying their logs.

Even though the plaintiff’s attorney had previously represented Pop Top in another matter, Pop Top let the plaintiff’s side have it and testified in favor of the Company.

Based on the “Pop Top surprise,” we decided to call other drivers before calling any management witnesses to testify. Several drivers testified favorably to the Company.

The essence of the drivers’ testimony was that they did sometimes drive in violation of DOT regulations but not because the Company required it or even knew they were doing it. Rather, they usually did it so that they could attend church and have Sunday dinner with their families. They all testified that the Company scheduling allowed them ample time to make their runs in compliance with DOT regulations.

Our last driver-witness was “Red,” a slightly-built, older man who came to court in his Sunday best blue suit with an American flag in the lapel. I asked him the standard question I had asked all the other drivers: “Did the Company ever require or know that you were operating your truck in violation of DOT regulations?”

Red reached for the Bible with his left hand, raised his right hand, and solemnly faced the jury. His eyes glistened with tears. “So help me, God, the Company never knew that I was violating DOT regulations.”

Now it’s time for me to solemnly swear: Red’s answer was unrehearsed and sincere. I would never have had the nerve to try to “coach” a witness to respond in this manner.

The plaintiff’s attorney tried his best to cross-examine Red, but Red would not be moved. “Sir, you are trying to mislead the judge and this fine jury, and I will not let you do it.” Red was truly the witness of my dreams.

After hearing Red and his fellow drivers, I felt that the case was the Company’s to lose. Following these drivers with a parade of dry management witnesses would have been worse than gilding the lily—the management witnesses would have actually detracted from and devalued the powerful testimony of the drivers.

That was my belief, and the judge agreed. The client, of course, was another story. Defending a case without calling any management witnesses was, as they say, “highly irregular.” The judge was good enough to grant my request for a recess so that I could persuade the client that we did not need or want the management witnesses any more. The client eventually agreed.

We rested our case. After about 35 minutes, the jury was back with a defense verdict. And I had learned a valuable lesson from my friends Pop Top, Red, and the other drivers.

A company’s best friends are its employees. If your employees support you, it will be difficult for even the most sympathetic plaintiff to crack your defense. On the other hand, if enough employees think you did wrong, then there won’t be much that management can say that will convince a jury otherwise.

A very good thing to keep in mind when you make your next employment decision.

Randy Loftis is head of Constangy’s Litigation Practice Group, and of Constangy’s office in Winston-Salem, North Carolina.

FROM THE EDITOR’S DESK: NASTY LAWYERS DO NO SERVICE TO THEIR CLIENTS
by Robin E. Shea

The Michigan Supreme Court recently ordered a new trial in a sexual harassment case in which a single plaintiff – a skilled laborer at DaimlerChrysler – had won a verdict of $21 million. The plaintiff had allegedly been the victim of sporadic low-grade sexually harassing actions beginning in 1994, such as inappropriate cartoons being pasted near her work area. However, she had remained continuously employed in her $100,000-a-year job and had never been the victim of unwanted touching or sexual assaults.

The disproportionate verdict appeared to have resulted from some nasty trial tactics from the plaintiff’s team, led by the notorious Geoffrey Feiger of Detroit. Feiger has also represented Dr. Jack Kevorkian and sued the Jenny Jones show.

In the sexual harassment case, tried in 1999, Feiger likened his client to a prisoner in a concentration camp, made repeated references to the fact that DaimlerChrysler is a German company (get it?), repeatedly used the Holocaust survivors’ expression “never again” in his closing argument, and urged the jury to give DaimlerChrysler a taste of some “American justice.” His expert witness apparently lied about his credentials and claimed that the harassment changed the plaintiff’s "brain chemistry" . . . permanently. (She had become a substance abuser, allegedly as a result of the harassment.)

The Michigan Supreme Court, finding for DaimlerChrysler, said that Feiger’s tactics unfairly prejudiced the jury.

So . . . justice for DaimlerChrysler has been too long delayed but apparently not yet denied. DaimlerChrysler will get another chance to vindicate itself, and I certainly wish it well.

But I feel for the plaintiff, too. Has Feiger done his client a service? Even assuming (just for the sake of argument) that this was a very bad workplace, was it better for the plaintiff to let her wound fester, or would it have been better for her to seek some appropriate relief – enhanced harassment training, a beefed-up no-harassment policy, some company-paid substance abuse treatment, and a reasonable amount of compensation – that would have ended the harassment and allowed her to get on with her life and career?

Sometimes I get the impression that, to the Geoffrey Feigers of the world, the well-being of the client comes last.

Robin E. Shea, Editor—Winston-Salem, NC

COURT PROVIDES A ROAD MAP FOR EMPLOYERS: HOW NOT TO HANDLE A RIF
by Jena Tarabula

While we wait for the U.S. Supreme Court to provide the definitive word on whether “disparate impact” claims will be recognized under the Age Discrimination in Employment Act, the U.S. Court of Appeals for the Second Circuit (Connecticut, New York, Vermont) has given some helpful guidance to employers.

The case, Meacham v. Knolls Atomic Power Laboratory, has it all: ADEA and disparate impact, subjective and somewhat speculative criteria for selection, and the “four-fifths rule.”

The plaintiffs in Meacham were 26 former employees, all 40 years old or older. All had been eliminated in a reduction in force. The case went to a jury, and although the jury rejected the plaintiffs’ claims for intentional discrimination, it found that the plaintiffs had been victims of age-based “disparate impact.” (“Disparate impact” is a claim that a facially neutral policy adversely affects members of one protected group more than others. It is typically used in the context of a race or sex discrimination case. The U.S. Supreme Court will decide this summer in Smith vs. City of Jackson whether it applies in the context of age discrimination.)

The jury also found that the employer’s age discrimination was “willful,” meaning that the employer was liable for the employees’ backpay times two. “Willfulness” also means that the employees can collect for three years before the lawsuit was filed, instead of the norm of only two. The Second Circuit affirmed.

So, what did this employer do to warrant such a nasty result? First, the company identified functional units that were “over budget.” These units were required to reduce headcount. The managers of the units that were subject to the RIF were required to list their employees in a “matrix,” and rank them on a scale of 0 to 10 for the following criteria: performance, flexibility, “criticality,” and length of service.

Not surprisingly, the court focused on the somewhat fuzzy criteria of “flexibility” and “criticality.” “Flexibility” meant that the employee’s skills could “be used in other assignments that [would] add value to current or future Lab work.” It also meant that the employee could be retrained to perform other assignments.

“Criticality” meant that the employee’s skill was a “key technical resource” that was not “readily accessible within the Lab or generally available from the external market.”

Once each employee in the unit was rated, those with the lowest scores were eliminated. The managers were instructed to perform an adverse impact analysis for minorities, females, and older workers. The guidelines recommended using the four-fifths rule.

The selections were reviewed by a “review board,” and then again by the general manager and chief counsel for the employer.

The process was probably all right in theory, but the company did not follow it in all respects. Although the guidelines had recommended use of the four-fifths rule, the human resources representative instead merely compared the average age of the units before the RIF and after the proposed RIF, which the Second Circuit found was “grossly inadequate.” According to the court, some of the selection criteria were “imprecise at best,” and the legal review was “far from systematic.”

The Second Circuit, affirming the jury’s verdict, said that a RIF could violate the ADEA based on a disparate impact theory if the selection criteria were subjective, and (1) older workers were disparately affected; (2) the employer saw that the disparity was “gross and obvious”; and (3) the employer did nothing to audit or validate the results. The only possible defense under these circumstances would be that there was no equally effective alternative.

So, what should an employer do? First, it is difficult to make selections for a RIF without some subjectivity. But subjective criteria need to be stated and applied as objectively as possible. A word like “flexibility” can be interepreted a “code word” for “youth.” Using “flexibility” as an example, it would have been wiser to use more-objective alternatives like “degree to which employee is cross-trained” or “breadth of expertise”—or even “willingness to perform a variety of tasks.” Of course, the employees should actually be rated in this more-objective way, too, but the mere change in terminology is itself a “teaching tool” for functional management.

Second, the managers making the selections should be trained in furthering the company goals without inadvertently discriminating against employees.

Third, the legal/human resources review of the decisions of functional management should be aggressive. This is not to say that the attorney or human resources professional should be nasty or rude, but rather that he or she should closely scrutinize every decision and not be afraid to cross-examine the manager. The reviewer should have the authority to put a decision on “hold” until a better justification is provided or an alternate selection is made. The Meacham court implied that a thorough legal review might have uncovered some of the problems and might have resulted in a more defensible RIF.

Fourth, adverse impact analyses should ideally be run under the supervision of counsel, so that they can be protected by attorney-client privilege. Second best is to let human resources do the analyses. The worst idea is to let functional managers perform the analyses. Such analyses will not be privileged, and functional managers are not trained in doing them or interpreting them.

Fifth, it is a cardinal rule in any employment litigation that an employer should follow its own published guidelines. The employer in Meacham got slammed because it failed to follow its own guidelines on using the four-fifths rule.

Sixth, if you are going to statistically analyze your selections (and you should), use a method that is sound and appropriate for your pool. Comparing average age pre-RIF with average age post-RIF is one of the least reliable methods. (See “Fibbing With Statistics,” page 3.)

Finally, don’t over-rely on a statistical analysis, especially with small pools or with pools of employees who do not have the same jobs or backgrounds. For these pools, you will have to take a “micro-look” as well—comparing the qualifications of each employee selected for RIF with those of each employee who is retained.

Jena Tarabula (Atlanta, GA) practices in the areas of employment litigation prevention and defense.

FIBBING WITH STATISTICS

The Meacham court slammed the employer for merely comparing the average age of the departments before the RIF with the average age of the departments after the RIF. This may seem like a reasonable way to smoke out discrimination, but it really is not. An example will illustrate:

Let’s take “Unit A.” Unit A has five employees, ages 20, 30, 40, 50, and 60. The average age of Unit A is 200 divided by five, or 40 years old. If the company eliminates the 60 year old and the 20 year old, the average age remains unchanged. “Statistically,” then, the decision looks fine. But obviously there may be legal issues associated with terminating the 60-year-old.

Now let’s compare “Unit B.” Unit B also has five employees, all of whom are 40 years old. The average age of Unit B is also 40 years old. But the manager of Unit B could probably terminate any of her employees without incurring liability for age discrimination. (Of course, she would still have to be careful to avoid other forms of unlawful discrimination.)

Jena Tarabula

GETTING TO KNOW US

NEIL WASSER (Atlanta, GA, occupational safety and health) received his bachelor’s degree in psychology magna cum laude from Tulane University and his law degree from the University of Georgia. Neil is a frequent speaker for several national associations including the Society for Human Resources Management, the American Meat Institute, and the Association for Corporate Counsel. He is also a member of the board of the Atlanta Humane Society. When he is not practicing law, Neil enjoys biking and racquetball. Neil and his wife, Valerie, have four sons.

TIM DAVIS (Kansas City, MO, labor relations) is chair of Constangy’s health care business practice group. Tim received his bachelor’s degree in political science from Iowa State University and his law degree with high distinction from the University of Iowa. Tim is active in the Kansas and Missouri chapters of the Society of Human Resource Management as well as the Hotel and Motel Association of Greater Kansas City, the Council on Education in Management, Employer Health Services, and Lorman Education Services. When he is not practicing law, he enjoys hunting, fishing, hiking and mountain biking as well as coaching children’s softball, soccer and basketball. Tim and his wife, Rachel, have two daughters.

ASHLEE MANN LIGARDE (Austin, TX, employment litigation prevention and defense) received her bachelor’s degree in communications from the University of Virginia and her law degree from Emory University. Ashlee worked in the firm’s Atlanta office before moving to Texas and opening an office there. While in Georgia, Ashlee was a member of the Employers’ Duties and Problems Committee of the State Bar of Georgia; the Litigation Section of the Atlanta Bar Association; and the Atlanta Legal Aid Society. Ashlee’s dad was a career Army officer, so she moved 13 times before graduating from high school. She is glad to be settled in Texas with her husband, Jeff. Ashlee enjoys sports, sewing, gardening and cooking.

JONATHAN YARBROUGH (Asheville, NC, employment litigation prevention and defense, affirmative action compliance) received his bachelor’s degree in history from Wake Forest University and his law degree from the University of Louisville. Before attending law school, Jon managed a rock band, hung sheetrock, and worked as a painter. While in college, he once drove a limousine as part of the motorcade of then-vice president George Bush (the elder). Now that he’s a lawyer, Jon speaks on a wide variety of employment law topics and is a co-author of North Carolina Employment Law, published by Lexis. In his spare time, Jon enjoys politics, reading, sports, and spending time with his wife, Betsy, and their two daughters.

JILL WALDMAN (Kansas City, MO, employment litigation prevention and defense) received her bachelor’s degree in journalism cum laude from the University of Georgia and her law degree from the University of South Carolina, where she was a member of the Environmental Law Journal and the Order of Wig and Robe. She has an L.L.M. in labor and employment law from the Georgetown University Law Center. Before attending law school, Jill played professional tennis and was the assistant women’s tennis coach at the College of Charleston. When she is not practicing law, Jill enjoys running, tennis, travel, reading and spending time with her husband, Barry.

WHAT WE’VE BEEN UP TO: NEW TEXAS OFFICES, AND IMMIGRATION TEAM

Austin City Limits. Ashlee Mann Ligarde opened the Austin office after practicing in Constangy’s Atlanta office since 1998. (See more about Ashlee in this edition’s Getting to Know Us, on page 4.) Mark Flora, who has 29 years of experience, including 15 years as a labor lawyer with General Motors, focuses his practice on representing manufacturers, automakers and suppliers. He appeared in the Employment Law Section of the Best Lawyers in America and has been recognized as a Texas Super Lawyer for 2003 and 2004 in Texas Monthly magazine.

Our “San Antonio Rose.” The new San Antonio office is led by Reid Meyers, formerly Senior Vice President and Chief Labor Counsel for financial services giant USAA. Larry Gee, who works with Reid, is a board certified labor and employment lawyer. Reid and Larry practice in all areas of labor and employment law, and serve the entire state.

Immigration problems? Call Penni! Constangy is delighted to announce that Penni Bradshaw, an eminent employment and immigration lawyer, joined the firm’s Winston-Salem, North Carolina, office in February. Penni will be heading Constangy’s immigration practice, and will handle some employment matters as well.

Penni is a magna cum laude graduate of Randolph-Macon Woman’s College and a member of Phi Beta Kappa. She received her law degree with honors from the University of North Carolina at Chapel Hill, where she was a Morehead Scholar and a member of the honor society Order of the Coif.

She is a Board-certified Specialist in Immigration Law and was recently named the top employment lawyer in North Carolina in the 2004 “Legal Elite” published by Business North Carolina.

Penni is joined by attorney Jeanette Phelan and paralegal Lainey Bowen. All three will work out of Constangy’s office in Winston-Salem, but they will serve all of the firm’s immigration clients.

QUARTERLY QUIZ

Bill, a union employee, is fired on January 1, 2003. He arbitrates his discharge and is reinstated per the arbitrator’s order on December 1, 2003. On January 1, 2004, Bill develops appendicitis and wants to take leave under the Family and Medical Leave Act. The employer refuses his request for FMLA leave because Bill has not worked 1,250 hours in the past 12 months. Bill files suit under the FMLA. Who wins?

ANSWER: Bill may be the winner—especially if Bill lives in Michigan, Ohio, Tennessee, or Kentucky. The Sixth Circuit Court of Appeals, which covers these states, has recently held that time out of work because of a wrongful termination should count toward the 1,250 “hours worked” requirement for FMLA eligibility. The case is Ricco v. Potter, No. 03-3294 (6th Cir. July 27, 2004).

EMPLOYER ALERT

Courts have also held that military service time should count toward fulfilling the 1,250-hour requirement.

LEARN A TON OF STUFF! CONSTANGY REGIONAL WORKSHOPS 2005

Seems there’s a new “reality show” cropping up on TV every day. Meanwhile, in the real world, many employers have experiences in dealing with their employees that have turned out to be expensive lessons in what not to do. Constangy, Brooks and Smith presents its annual one-day seminar to assist employers with real-world lessons. This is an interactive program designed for corporate counsel and human resources professionals. It includes a continental breakfast, sit-down lunch, and a seminar manual.

Registration costs $175 per person, and $150 for each additional attendee from the same company. Sessions include an update on the year’s developments in labor and employment law, managing diversity, corporate ethics, employer investigations, the FMLA and FLSA, benefits, and immigration.

Selected locations will also have an optional half-day program on Affirmative Action (see below). Locations offering the optional program are designated with an asterisk.

CLE credit is offered in several locations. Please confirm when you register. Our workshops also qualify for continuing education credits with the Society of Human Resource Management.

  • * TAMPA, FLORIDA
    Thursday, March 31, 2005 (main program)
    Tampa Marriott Waterside
    To register: Email dkey@constangy.com
    or phone 813.223.7166> align="justify"
  • * JACKSONVILLE, FLORIDA
    Thursday, April 7, 2005
    Sawgrass Marriott Resort
    To register: Email bdarnofall@constangy.com
    or phone 904.356.8900> align="justify"
  • CHARLOTTE, NORTH CAROLINA
    Friday, April 29, 2005
    Charlotte Employers Association
    To register: Email astemper@constangy.com
    or phone 336.721.1001> align="justify"
  • NASHVILLE, TENNESSEE
    Friday, May 6, 2005
    Marriott Franklin Cool Springs
    To register: Email kdavidson@constangy.com
    or phone 615.320.5200 > align="justify"
  • KANSAS CITY, MISSOURI
    Wednesday, May 11, 2005
    Sheraton Overland Park Hotel
    To register: Email atomasich@constangy.com
    or phone 816.472.6400> align="justify"
  • * ATLANTA, GEORGIA
    Thursday, May 12, 2005
    Cobb Galleria
    To register: Email cflanders@constangy.com
    or phone 404.230.6763> align="justify"

OFF THE SHELF AND INTO PRACTICE: A GUIDE FOR BUILDING “ACTION” INTO YOUR AFFIRMATIVE ACTION PLAN
(Atlanta, Jacksonville, and Tampa only)

If you’re a federal contractor attending our Regional Workshops in Atlanta, Jacksonville, or Tampa, you might want to stay an extra half day and get the latest scoop from the world of Affirmative Action. Our optional half-day bonus seminar will have a segment on implementing your affirmative action plan, followed by an OFCCP update.

Putting “Action” in Your AAP! So your Affirmative Action Plan is done. Now what? Free until next year? What, are you kidding? In addition to the annual updating of Affirmative Action Plans, federal contractors and subcontractors have many additional obligations which can be and often are easily overlooked.

This segment of the seminar will provide instruction on implementing your AAP and related issues, including the following:

  • Components of an AAP
  • Communicating about the AAP
  • Training employees and management about the AAP
  • Documentation
  • Recordkeeping requirements

Attendees will receive written materials, plus sample forms in hard copy and on CD, and an “Affirmative Action Scrapbook" to ensure that all required documentation is maintained each Plan year.

OFCCP Update. It’s always good to know what is going on at this important federal agency. We’ll provide an update on all the latest developments, including proposed changes to the definition of an “applicant,” changes to the EEO-1 Report, and the Agency’s new and (truly!) improved compensation analysis.

When/Where/How? The cost of the Affirmative Action option is $50 (in addition to the registration fee for the main Regional Workshop). It will take place from 8:30 to 11:30 a.m. the day after the Regional Workshop, at the same location.

NOTE: This seminar does NOT provide instruction on developing an AAP.

 REASON PREVAILS…AND REASON FLAILS

“It’s all about me.” A federal court in New York threw out a pregnancy discrimination lawsuit filed by a woman who was terminated in a reduction in force after she took approximately a year and four months off for her new baby. The court found that it was reasonable for the employer to keep her male replacement, who had established customer relationships and was closing deals in her absence. Moreover, seven other employees – four of whom were male – were laid off at the same time as the plaintiff, and her replacement was laid off shortly afterward, and eventually the entire department was sold to another company.

C’est si bon. (It’s so good.) The U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, and the Dakotas) held that the Arkansas State Police department was not necessarily liable for sexual harassment based on a single incident when it acted promptly and effectively to end the harassment. The plaintiff alleged that her supervisor hit on her and made crude remarks on one night at work. She reported the incidents, and the Police immediately separated the plaintiff and her supervisor, and ultimately terminated the supervisor. The plaintiff contended that the Police should not be able to use the Ellerth/Faragher defense because she did not “unreasonably fail to avail herself of the employer’s preventive measures.” The Eighth Circuit said that this would be an “anomalous” result and found that this was not a requirement in a single-incident situation.

Firing employee for beating up boss is legal, court finds. The U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi, Texas) affirmed summary judgment for an employer that fired the plaintiff after he got into a fistfight with his supervisor. Earlier on the same day, the plaintiff had been in a fight with a co-worker. The plaintiff, who – not surprisingly – was representing himself, claimed to have been a victim of race discrimination.

Firing employee for calling boss a “redneck son of a b–tch” is legal, court finds. The U.S. Court of Appeals for the Fourth Circuit (the Carolinas, the Virginias, and Maryland) refused to enforce an NLRB decision that had held that the cussing employee was unlawfully terminated for engaging in "protected concerted activity." (What a shame that the case had to get that far before justice was done.)

FLAILS…

Maybe this guy hadn’t called the boss a “redneck son of a b–tch.” A federal court in New York held that a labor arbitrator was justified in ordering reinstatement of an employee who was terminated for “repeatedly expressing a desire to harm certain managerial and supervisory employees.” The court said that “the employer’s reluctance to permit him [the grievant] to return to work is understandable” but that the arbitrator’s decision did not violate public policy.

Umm...if a restroom assignment can’t be based on this, then ...umm...what can it be based on? A federal court in Arizona held that it was sex discrimination for a community college to refuse to allow a still-biological-male professor who was going through the sex-change process to use the women’s restroom. The school was willing to allow the professor to use the women’s restroom once the sex-change surgery was complete, and female students had complained about having to share their restroom with a biological male. Said the judge: “The presence or absence of anatomy typically associated with a particular sex cannot itself form the basis of a legitimate employment decision . . ..” Conditioning employment rights on having the “stereotypically expected genitalia” is unlawful, absent a “reasonably necessary” business purpose.

“Involuntary drooling”? “Restaurant employment”? Why, they go togther like a horse and carriage! A federal judge in Minnesota refused to dismiss a lawsuit brought under the Americans with Disabilities Act against the Fuddruckers restaurant chain by an employee with a disorder that resulted in involuntary drooling. The judge contended that the restaurant could have reasonably accommodated her by letting her bus tables or wash dishes.