Year-end employment law roundup -- happy 2015!

NOTE: On January 15, this post was updated and one correction made (see "Nipped in the bud" and "Jury clobbers Catholic diocese," below). 

Happy New Year, everyone! While I've been out for the holidays, the courts and government agencies have stayed busy with employment law matters. Here are the developments that I thought were especially noteworthy:


Twenty states raised their minimum wage effective yesterday. This article in The Washington Post has the details.

Nipped in the bud: Court strikes down part of new rule on minimum wage, overtime requirement for home health care workers. A federal judge in the District of Columbia Circuit has found that the U.S. Department of Labor, which issued the rule in 2013, overstepped its bounds. The rule was scheduled to take effect January 1 (although the DOL did not plan to start enforcing it until July 2015) and was challenged by trade groups representing employers of home-health care providers. The DOL is almost certain to appeal the court's decision.

UPDATE AND CORRECTION (1/15/15): Contrary to what I had originally reported on January 2, the D.C. court struck down only part of the rule in December, and I have amended the heading to this item accordingly. However, on January 14, the court struck down the rest of the rule. (No harm, no foul?)


FMLA retaliation claims will go to trial, even though plaintiff was fired for falsification of time records. Very interesting decision from a federal court in Michigan. Kimberly Hartman, a paralegal for Dow Chemical, was terminated about six weeks after returning to work from FMLA leave. Dow had strong evidence that Ms. Hartman might have been falsifying her time records -- she was caught leaving work 2 to 2 1/2 hours early on a daily basis, and although she claimed to be making up the work when she got home, the tasks she claimed to be doing (organizing email and reading instruction manuals) should have taken about 5-10 minutes a day. To make matters worse, computer log-on records showed that she logged into the company's VPN only twice during the period that was reviewed.

Do we have enough now to take action? Please?

So, how is this going to trial? It was a close case, but the court noted that no one raised any issues about Ms. Hartman's timekeeping until after she had requested FMLA leave, and then, of course, she was terminated only a short time after coming back. Most damning, in the court's view, was an email from her immediate supervisor to his boss asking, "Do we have enough now to take action? Please?" The court found that a jury might think this was evidence of a retaliatory motive. I still would have sided with Dow, but the case is yet another good example of why managers and supervisors need to be careful about the way they express themselves in emails and texts.


EEOC wins a big "battle" over attorneys' fees (how much of "the war" remains to be seen). A three-judge panel on the U.S. Court of Appeals for the Eighth Circuit* vacated an attorneys' fee award of nearly $4.7 million against the Equal Employment Opportunity Commission (CORRECTION 12/9/15: The $4.7 million award included both fees and costs) in its long-running and almost completely unsuccessful sexual harassment class action against CRST Van Expedited, Inc. After all claims on behalf of more than 200 employees were dismissed on summary judgment (two claims were reinstated on appeal, and one of those was subsequently settled), a federal district judge in Iowa had awarded attorneys' fees to CRST, contending that the EEOC had pursued its claims knowing that the lawsuit was groundless.

*The Eighth Circuit hears appeals from federal courts in Arkansas, the Dakotas, Iowa, Minnesota, Missouri, and Nebraska.

But the Eighth Circuit panel disagreed, saying that CRST was not entitled to fees with respect to 67 of the claims because those claims were dismissed for administrative reasons and not on the merits. Fees related to a "pattern or practice" claim were also unwarranted, the court said, because the EEOC had not asserted such a claim. With respect to claims that were dismissed on the merits, the District Court will have to go back and make individualized determinations about which claims were frivolous and how much CRST had to expend in defending against only the frivolous parts. 2015 looks to be a long year for the Honorable Linda R. Reade, who will have to sort through this mess.

Jury clobbers Catholic diocese for $1.9 million over termination of teacher who underwent fertility treatments. This case has been going on a while, and I've reported on it before (scroll down to "Faux Pas No. 3"). Emily Herx, a language arts teacher at a Catholic school in the Diocese of Fort Wayne-South Bend (Indiana), began in-vitro fertilization after she and her husband had difficulty conceiving a second child. IVF is forbidden under Catholic teaching, and Ms. Herx had signed a contract agreeing to conduct herself in accordance with such. Ms. Herx was non-renewed when her contract for the 2011 school year expired. She sued under the Americans with Disabilities Act and Title VII (sex discrimination), but only her sex discrimination claim went to a jury the week before Christmas. About $1.5 million of the $1.9 million award, rendered on December 19, was for her physical and emotional distress. (The court will presumably reduce the "distress" award to $300,000, the most that can be awarded under Title VII. Ms. Herx's back pay was only $28,000.)

UPDATE (1/15/15): Law360 reported this morning that the court did reduce Ms. Herx's compensatory damage award to $299,999, but also increased her back pay award. As of now, her total award is just under $550,000. But she has also filed a motion to recover $750,000 in attorneys' fees.

How did this happen? Doesn't a religious school have the right to require teachers to abide by the teachings of its faith?

Well, yeah, but . . . Ms. Herx claimed that she didn't know the Catholic Church had a problem with IVF. And her assertion seemed pretty credible. The evidence at trial was that Ms. Herx had promptly informed her principal about the IVF treatments as soon as she started, and that the principal had expressed her full support for Ms. Herx. For a couple of years. (As was revealed later, not even the principal knew that the Church thought anything was wrong with IVF.)

So there's that.

Also, Ms. Herx's health insurance -- issued through the Diocese! -- covered her IVF treatments, at least in part, providing further support for Ms. Herx's belief that she was not doing anything in violation of her contract or Catholic teaching.

So, there's that, then, too.

In addition to the credible evidence that Ms. Herx may not have realized she was violating Catholic teaching/her contract, there was also evidence that two male teachers and a male staff member had gone to a strip club and had not been reprimanded. (A highlighted copy of the morals clause was left in their mailboxes.) And apparently there were no known males who had been "parties to" IVF treatments with their wives or significant others.

Oh, yeah - and the (female) principal was divorced and remarried, which is also a no-no in the Catholic Church unless you have the previous marriage annulled by the Church.

So, given all this, the jury apparently decided that the requirement that school employees conduct themselves in accordance with Catholic teaching at all times was less than consistent in practice, and resulted in disproportionately harsh treatment of childbearing women.

The Diocese has already said that it will appeal, and one ground is certain to be whether the "ministerial exception" to the federal anti-discrimination laws should have applied. If the exception is found to apply, then the Diocese will win in the end.* But that may be a hard sell because Ms. Herx was a language arts teacher and doesn't appear to have served a "religious" or "ministerial" function at the school.

*The Diocese tried to get this issue resolved before trial, but was unsuccessful. The trial court found in Ms. Herx's favor (in other words, that the ministerial exception did not apply), and the U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, declined to hear the issue on appeal before trial. 


Finally, some random employment news from the holidays . . .

Should you "Quit Whining About Your Sick Colleague"? According to this New York Times editorial, the science of contagion is dubious, and maybe we're too hung up on the wrong things anyway.

Bartender at Bikinis "breastaurant" is fired for covering up with t-shirt, while co-worker is promised a "C" cup if she keeps up the good work. This sounds like Employer of the Year. Kidding.

Wall Street Journal interviews Wage Hour Administrator David Weil. This will give you an idea of where his agency's "head" is. You may need a paid subscription to get access to the full article, but here is a summary of the interview that I hope will be available to everybody.


*Our November/December 2014 edition of the Executive Labor Summary is out! There is so much going on in the labor arena that it'll make your head spin, but David Phippen makes it all perfectly clear.

*It's not too late to register here for our webinar on the the "quickie elections" rule issued recently by the National Labor Relations Board. Labor practitioners Tim DavisJonathan Martin, and Dan Murphy will talk about quickie elections and also about the NLRB's new ruling on employee use of employer email systems for organizing. Thursday, January 8, from noon to 1 p.m. Eastern.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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