3. Employee Can Seek
Indemnification of Defense Costs for Action Brought by
International Airport Centers, LLC v. Citrin, 455 F.3d 749
(7th Cir. 2006):
sued former employee for deleting data from his laptop in
violation of the Federal Computer Fraud and Abuse Act.
n Court held
employer required to advance money for attorney fees
employee incurred in defending against fraud suit.
TPO's Thoughts: While we
are used to the idea that employers must indemnify employees
for expenses incurred in the course of employment, this case
broadens that requirement to include an employee's defense
of a claim.
4. Employer Liable for
Statutory Rape of Teenage Worker
Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006):
strictly liable for sexual harassment because of the girl's
n The girl's
refusal to cooperate in the EEOC investigation did not
constitute a failure to exhaust remedies.
TPO's Thoughts: Though
the minor employee had engaged is some of the behaviors with
the shift leader, it was not considered consensual due to
her age. Additionally, while usually an employer reduces
liability where the employee did not follow
employer/administrative procedure, due to her age, this was
limited. This case emphasizes a substantial area of
liability when employing minors.
5. Employer's Lack of
Enthusiasm Over Pregnancy Evidence of Discrimination
Asmo v. Keane, Inc., 2006 U.S.App. LEXIS 31057 (6th Cir.
did not congratulate the employee on her pregnancy.
interpreted as discriminatory animus [deep-seated dislike or
TPO's Addition: For all
of you who have gone to TPO's training in the past, you know
that our recommended response to an employee's comment of, "I'm pregnant" is
"Congratulations." This case emphasizes
the importance of making sure the words, tone and body
language all match the message you intend to send.
6. General Release
Invalidated by Failure to Carve-Out Exception for
Edwards v. Arthur Anderson (CA Ct. App. 2006):
signed standard general release.
release held invalid because release impliedly included
waiver of employee's right to indemnity under CA Labor Code.
TPO's Thoughts: General
Releases (Separation Agreements) have come under scrutiny
and the savvy employer does not want to find that an
omission or incorrectly worded statements invalidate the
entire document. All General Releases should be re-reviewed
by a qualified labor law attorney…we can provide an
excellent recommendation to Littler Mendelson!
7. Employee Need Not be
Recorded to Claim Invasion of Privacy
Hernandez v. Hillsides, Inc., 142 Cal.App.4th 2477(2006):
installed a hidden video surveillance system to catch
employees accessing porn on work computers.
never actually viewed or recorded.
n Court said
mere possibility they could have been viewed was an invasion
of their privacy.
California has very strong privacy rights and employers are
wise to make sure that practices/policies recognize those
8. Employee Entitled to
Proceed with Age Discrimination Claim Despite Proof Employer
Unaware of His Age
Erpenbeck v. Premier Golf Management, Inc., (S.D. Ohio
terminated at the age of 48 sued for age discrimination.
introduced evidence decision maker unaware of employee's age
at time of termination.
rejected employer's "self-serving assertions" and allowed
claim to go to trial.
TPO's Thoughts: Make
sure that information which could be perceived as having
been used in a discriminatory way is privately held by a
central person/department in the organization.
9. Terminated Employee
Entitled to $640,000 in Front Pay Even Though She Rejected
Offer of Reinstatement
Hagman v. Washington Mut. Bank, Inc., DOL ALJ (2006):
was SOX [Sarbanes-Oxley] Whistleblower.
offered to reinstate after an investigator ordered
nonetheless entitled to front pay because bank continued to
maintain she was terminated for cause.
Employee's have numerous "whistleblower" protections and
such situations should be handled with care.
10. Break in Employment
Does Not Disqualify Employee from FMLA Leave
Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006):
left company for many years.
FMLA leave after seven months of re-employment.
counted original employment period towards 12-month
TPO's Addition: When
counting 12 months of service, it includes all service
stacked end-on-end, however, the employee must also have
actually worked 1250 hours in the previous 12 months to
Again, we would like to
thank all of our cosponsors for their assistance with
spreading the word about the conference: Monterey County
Herald, Monterey Peninsula Chamber of Commerce, Santa Cruz
Sentinel and SantaCruzJobFinders.com, and the Morgan Hill
Chamber of Commerce!
to all of you who attended!
If you weren't there, you
truly missed and outstanding
Click here for Monterey County Herald's feature article
covering the day.
We look forward to seeing
you all at the
TPO/Littler 2008 Annual Employment Law
& Leadership Conference!