Showing 11 posts from September 2012.

Connecticut Court: Dodd-Frank "Whistleblower" Protection Extends to Informal SEC Complaints

September 28, 2012 by Hinshaw & Culbertson LLP

A federal district court in Connecticut this week held that the federal Dodd-Frank Act protects a larger class of “whistleblowers” than many previously thought. In allowing the claimant’s “whistleblower" retaliation claim to survive a motion to dismiss, the judge ruled that Dodd-Frank’s definition of “whistleblower” was broad enough to protect not only those who file official complaints with the Security and Exchange Commission (SEC), but also those who provide the SEC with informal letters complaining of unlawful practices. The judge rejected concerns that such an interpretation would allow Dodd-Frank’s anti-retaliation provision — with its longer statute of limitations and double-pay awards – to effectively swallow the corresponding provisions of the (less claimant-friendly) Sarbanes-Oxley Act: “the Dodd-Frank Act appears to have been intended to expand upon the protections of Sarbanes-Oxley,” the judge noted, “and thus the claimed problem is no problem at all.” More ›

Sixth Circuit Affirms: Certain Severance Payments are Exempt from FICA Tax

September 27, 2012 by Hinshaw & Culbertson LLP

In United States v. Quality Stores, Inc., No. 10-1563 (Sept. 7, 2012), an employer operating a chain of retail stores closed a number of facilities prior to entering bankruptcy proceedings. As part of this reduction in force, the employer provided certain severance benefits to terminated employees. The employer treated the severance benefits as income and reported them as wages on Forms W-2, with Federal Insurance Contributions Act (FICA) taxes withheld. After remitting the taxes to the Internal Revenue Service (IRS), the employer filed a claim for refund to recover more than $1 million in FICA taxes, arguing that the severance payments were not properly treated as "wages" for FICA tax purposes. More ›

Transferring Employee to Different Geographical Location for Better Access to Medical Care Found to Be Reasonable Accommodation

September 27, 2012 by Hinshaw & Culbertson LLP

Recently, the United States Court of Appeals for the Tenth Circuit held that an employee’s request for a transfer to a different geographical location in order to have better access to medical treatment was not unreasonable. More ›

Right-to-Sue Letter Directed to Attorney Constituted Notice to Employee for Purposes of Filing Timely Lawsuit

September 25, 2012 by Hinshaw & Culbertson LLP

After she was denied sick leave, a doctor filed a complaint with the anti-discrimination unit of the Puerto Rico Department of Labor and Human Resources, alleging unlawful discrimination and unwarranted refusal to make a reasonable accommodation for her disability. The local agency referred the matter to the Equal Employment Opportunity Commission (EEOC), and without considering the merits, the EEOC issued a right-to-sue letter. The notice was sent to the doctor, her attorney, and to the employer, and stated that the doctor had 90 days in which to file a Title I action against her employer. Approximately 144 days after the right-to-sue letter was sent, the doctor sued her former employer for violations of the Americans with Disabilities Act. The employer argued that the case should be dismissed because the doctor’s claim was time barred. More ›

Employer did not Discriminate or Retaliate Against Disabled Employee who was Unable to Perform In-Person Supervision Tasks

September 24, 2012 by Hinshaw & Culbertson LLP

A supervisor of released adult offenders suffered from sacroiliac joint dysfunction, a condition causing pain in the joints that limited her ability to walk and forced her to work from home. After surgery, she made a full return to work, but roughly a year and a half later she fell down stairs at work and the symptoms of her condition returned. She had a second surgery and took leave under the Family and Medical Leave Act (FMLA) to recover. She was terminated after her FMLA leave expired. More ›

Are Bonuses part of "Earnings" for the Purposes of Calculating Disability Benefits?

September 19, 2012 by Hinshaw & Culbertson LLP

The Ninth Circuit Court of Appeals recently had cause to consider this very issue. Unfortunately, we did not get a clear answer, as the matter was sent back down for the district court to reconsider a whole host of issues before deciding whether the insurance company had the right to calculate benefits based on salary alone. More ›

NLRB: Employer’s Overbroad Social Media Policy Violates Employees’ Rights

September 19, 2012 by Hinshaw & Culbertson LLP

In its first decision involving an employer’s social media policy, the National Labor Relations Board (Board) found that an employer's policy violated employees’ rights under the National Labor Relations Act. The Board reasoned that the policy was written in overly general terms and therefore had “a reasonable tendency to inhibit employees’ protected activity.” This decision follows a series of social media reports issued by the Board over the past year, and appears to confirm what many employers had feared based upon those reports: the Board appears ready to reject all broad prohibitions on what employees may say online. More ›

Employee Failed to State Valid First Amendment Claim Because she was Speaking Pursuant to her Official Duties

September 14, 2012 by Hinshaw & Culbertson LLP

A former school payroll employee reported incidences of fiscal irregularities to the superintendent, and later reported the same concerns to an outside consultant. Thereafter, she was suspended when it was discovered she falsified her employment application. In response, the employee wrote a personal letter to individual board members expressing frustration with how the superintendent responded to fiscal concerns, and that her suspension was in retaliation for reporting fiscal malfeasance. The superintendent recommended the employee’s termination, which the board approved, and the termination was later made official following a disciplinary hearing. More ›

Compensation System Found to be Race-Neutral and not in Violation of Title VII

September 12, 2012 by Hinshaw & Culbertson LLP

A group of brokers filed suit against their employer firm claiming race discrimination under Title VII and 42 U.S.C. §1981 on the grounds that the firm’s “teaming” and account-distribution policies prevented black brokers from obtaining lucrative assignments and earning greater compensation. Thereafter, the firm was acquired by a bank, and the companies commenced a “retention-incentive program” which was designed to compensate brokers based upon their previous levels of production. A second lawsuit was filed against both the bank and the firm, alleging that the new program was similarly violative of Title VII because the new plan incorporated policies which were derivative of the prior firm’s discriminatory practices. More ›

Physicians Allowed to Proceed with Discrimination Claims Against Health System, Despite Being Employed by Physician Service

September 11, 2012 by Hinshaw & Culbertson LLP

A recent decision out of a federal court in Pennsylvania demonstrates that large corporate health systems who rely on the use of subsidiaries to limit liability for employee misconduct do so at their own peril. In Ginsburg v. Aria Health Physician Services, E.D. Pa., No. 2:12-cv-1140 (Aug. 31, 2012), the federal judge found that a health system qualified as an “employer” for purposes of state and federal discrimination laws —— even though the plaintiffs' direct employment relationship was with a subsidiary of the health system — because the health system exerted control over the plaintiffs through work rules and discipline. More ›

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