Front Pay Too Speculative

By Vance Knapp What does it take to convince a court that a plaintiff should not collect front pay as well as back pay? Here’s one way – a substantial reduction in force for the workplace, combined with the plaintiff’s inexperience in the job. In Dollar v Smithway Motor Xpress, Inc., No. 11-2093, (8th Cir. […]

Truth Seekers Are Exempt

By Andy Volin The administrative exemption is one of the major “white collar” exemptions from overtime pay under the Fair Labor Standards Act (“FLSA”). Recently, the Sixth Circuit affirmed a trial verdict that fraud investigators met the exemption requirements, both under the FLSA and similar state law. Foster v. Nationwide Mut. Ins. Co., No. 12-3107 […]

Beware of Being Well

By Emily Keimig Recently, an employer asked the EEOC for an opinion on the employer’s proposed health plan. The plan would permit eligible employees (e.g. employees with diabetes) to participate, on a voluntary basis, in certain programs promoting health and healthy habits and, in exchange, the plan deductible would be waived. The EEOC’s response was […]

A Cautionary Tale about Electronically Stored Information

By John Alan Doran An employer may be held responsible for failure to preserve e-mails and other electronic documents relevant to anticipated litigation. That’s the message from a federal judge in Arizona, in Kenneth Day v. LSI Corporation, No. CIV 11-186-TUC-CKJ(2013). Day alleged that LSI lured him to work for it using various false promises […]

Supreme Court Invalidates Plaintiffs’ Class Action Trick

By John Alan Doran Congress passed the Class Action Fairness Act (“CAFA”) in 2005, in part, to cut back on “forum shopping” by plaintiffs’ class action attorneys. Forum shopping is the practice of filing class actions in remote state court jurisdictions that are infamous for supporting class actions, and more importantly, for awarding massive damages […]

LinkedIn Trial Produces No Damages

By Bill Wright After almost two years, the trial over a LinkedIn account is over. Eagle v. Morgan, No. 11-4303 (E.D. Pa. March 12, 2013). Dr. Eagle founded Edcomm, a banking education company. Edcomm encouraged its employees to create LinkedIn accounts for company marketing purposes. Dr. Eagle created an individual LinkedIn account and used it […]

Corruption Possible in RLA Special Adjustment Board

By Bill Wright The Railway Labor Act (“RLA”), applicable to railroads and certain other transportation systems, provides for resolution of grievances by special adjustment boards. Dissatisfied parties may appeal the decisions of an adjustment board to court, but only for a limited set of reasons that include “fraud or corruption” by a member of the […]

Undocumented Workers Are FLSA Eligible

By Bryan Stillwagon In 2002, the Supreme Court ruled that the NLRB cannot award backpay to undocumented workers even if their employer discharged them for union activity. Awarding backpay to undocumented aliens, the Court said, would encourage future immigration violations. The same ruling does not extend to Fair Labor Standards Act (“FLSA”) violations, according to […]

Can you hear the whistle blowing?

By Bill Wright The courts continue to explain the burdens applicable to certain whistleblower statutes enforced by the U.S. Department of Labor (“DOL”). The statutes that use the procedure adopted by the Sarbanes-Oxley Act require the complainant to prove by a preponderance of the evidence that protected activity was a contributing factor to an adverse […]