Opus Group LLC

It usually takes a catastrophe to stir into action those in charge and responsible for public safety. So it is in the wake of the train collision between a Southern Pacific freight train and a Metrolink commuter train on September 12, 2008 in Chatsworth, California. Twenty five people were killed and over 100 seriously injured when the passenger car was crushed and thrown off the tracks during the early evening northbound. Among the dead-at-the-scene was the Metrolink engineer, 46-year old Robert Sanchez.

The investigation headed by the NTSB found evidence that Mr. Sanchez was “texting” – sending text messages – to two teenagers a very short time before the collision with the southbound freight train. The inference drawn from this fact alone is that Mr. Sanchez was paying attention to the keystrokes on his PDA instead of watching for the safety signals placed along the rails that would have alerted him that the Southern Pacific was heading toward it on the same single track.

The improper use of cell phones by Mayor Kwame Kilpartick and his Chief of Staff, Christine Beatty, issued by their employer, the City of Detroit, led to the downfall of both after a series of legal proceedings. Kilpatrick agreed to resign as Mayor of Detroit effective September 18, 2008, as part of a plea agreement on charges of perjury, obstruction of justice, and official misconduct, filed after hundreds of sexually explicit text messages, printed in local papers, proved that he had committed perjury when he testified in a civil trial that he had not had an affair with Beatty.

In a whistleblower suit Kilpatrick was Read the rest of this entry »

A federal appellate court¹ recently ruled that an employee who was deemed ineligible for leave under the Family and Medical Leave Act (FMLA) is nonetheless entitled to take the leave because the employee satisfied all conditions for FMLA leave set forth in the employee handbook.

To be eligible for FMLA leave, an employee must Read the rest of this entry »

Under certain circumstances employers can avoid vicarious liability or even certain damages for a supervisor’s sexual harassment of a subordinate worker. This happens when (1) the employer had a meaningful anti-harassment policy, (2) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (3) the victim Read the rest of this entry »

Prompt investigation of sexual harassment complaint avoids $1 million punitive damages.

Sexual harassment in the workplace is the source of significant liability for employers. An employer may be found liable for discrimination if it is notified of sexual harassment in the workplace and fails to take adequate remedial action. However, a firm company policy against harassment coupled with a prompt, thorough and unbiased investigation process brings important benefits for the employer.

In a recent appellate decision in Massachusetts¹, Read the rest of this entry »

In a unanimous decision handed down on January 26, 2009, the United States Supreme Court expanded the ability to sue for retaliation under Title VII of the Civil Rights Act of 1964. In the case of Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, a discharged employee of the school district claimed that she was fired after she told internal investigators of the school district about the inappropriate conduct and sexual harassment by its Read the rest of this entry »

On January 30, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 (“Ledbetter Act”). The new law amends the following statutes already on the books: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (“ADEA”) the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973. It is an unusual piece of legislation because the Ledbetter Act applies retroactively to claims pending on or after May 28, 2007 and it also overturns the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., in which the justices held that an unlawful employment act occurs only when the discriminatory compensation decision is made and not each time Read the rest of this entry »

Employers are regularly sued by disaffected employees claiming to be the target of racial discrimination or sexual harassment by supervisors or coworkers. The allegations usually allege that the employer failed to

• institute a clear and comprehensive anti-harassment policy
• disseminate the anti-discrimination and anti-harassment policy to employees
• establish a complaint procedure
• conduct a prompt, thorough and unbiased investigation
• provide remedial action and protection for the victim
• impose meaningful and appropriate discipline on the violator

In the recently decided case (D.M. v. Walgreen Pharmacy, Inc.) the court examined these allegations and affirmed the Read the rest of this entry »

The Department of Labor (DOL) issued new regulations interpreting The Family and Medical Leave Act (FMLA). The FMLA was enacted in 1993 and is codified at 29 U.S.C. § 2601 to § 2654. The new final regulations were issued on November 17, 2008 and became effective on January 16, 2009 and also incorporate the military family leave entitlements enacted as part of the National Defense Authorization Act for Fiscal Year 2008. The regulations are expansive and take up 200 pages in the Federal Register (29 CFR Part 825). The new regulations were developed in response to several U.S. Supreme Court and lower court cases invalidating portions of the prior regulations. The new regulations apply to all employers covered by the FMLA.

It is very important that the newly advanced Family and Medical Leave Act regulations and notice provisions be Read the rest of this entry »

Reduced Risk for Employers when Employee Fails to Follow Complaint Procedure

Under certain circumstances employers can avoid vicarious liability or even certain damages for a supervisor’s sexual harassment of a subordinate worker. This happens when (1) the employer had a meaningful anti-harassment policy, (2) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (3) the victim unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or avoid harm.

When an employer adopts an anti-harassment policy with complaint procedures and disseminates it to employees, the workers are on notice that the company will respond by conducting a prompt, thorough and unbiased investigation of the complaint, impose appropriate discipline if a violation is found, and provide a meaningful remedy for the victim.

Read the rest of this entry »