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STATE OF THE LAW 2008: Trends, Observations, and Cases

June 10, 2008. STATE OF THE LAW 2008: Trends, Observations, and Cases. W. Gary Fowler Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214.953.5922 214.953.5822 (fax) gfowler@jw.com. Trends: EEOC. 2007: Retaliation Continues to Grow

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STATE OF THE LAW 2008: Trends, Observations, and Cases

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  1. June 10, 2008 STATE OF THE LAW 2008:Trends, Observations, and Cases W. Gary FowlerJackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214.953.5922 214.953.5822 (fax) gfowler@jw.com

  2. Trends: EEOC 2007: Retaliation Continues to Grow 2008: More Charges Reflecting a Slowing Economy More Cause Findings in a Slowing Economy

  3. EEOC: Total Charges Rising Again

  4. EEOC: Retaliation – All Statutes

  5. EEOC: Age Charges Rise

  6. NLRB • Use of email in union activity: NLRB holds that employees do not have right to use company email for union related activity • Undocumented workers are still “employees” for purposes of union election

  7. Federal: Supreme Court Pro-Employee Decisions: -- Section 1981 Permits Retaliation Claims --ERISA Fiduciary Duties Extend to Plan Beneficiaries -- Employee’s Affidavit Was a “Charge” --Federal Employees May Sue for Age Retaliation

  8. Federal: Supreme Court Pro-Employer Decisions: --Domestic Service Exemption Applies to Third-Party Agency Employees --District Courts Have Discretion Whether to Admit Testimony by Other Employees --Employer Did Not Breach Fiduciary Duties in Rejecting Merger with Multi-Employer Plan

  9. Federal: Supreme Court Cases Still To Be Decided: --Kentucky Retirement System Case: Use of Age in Disability Plan --MetLife v. Glenn: Deference to Plan Administrator --Meacham v. Knolls Atomic Power Lab: Who Bears Burden of Proof on RFOTA?

  10. Federal: Supreme Court 2008-09 Term: --Crawford v. Nashville: Does Title VII Anti-Retaliation Extend to Participants in Investigation? --14 Penn Plaza v. Pyett: Effect of Arbitration in a CBA on Title VII Claims

  11. Federal: Fifth Circuit and Courts of Appeals • Taylor v. Progress Energy: Settlement of FMLA Retaliation Claims • Conne v. Speede Cash: Deduction of Wages Did Not Destroy Salary Test for Fluctuating Work Week • Burrell v. Dr Pepper: Unexplained Inconsistencies in Employer’s Reasons = Evidence of Pretext

  12. Federal: Fifth Circuit and Courts of Appeals • EEOC v. Nexion Health: Abusive Comments by Mental Patient Did Not Create HWE for Nurse • EEOC v WC&M: Taunts Were Based upon National Origin • Arismendez v. Nightingale: “I Don’t Have Time to Deal with a Pregnant Woman”

  13. Texas Supreme Court • Igal v. Brightstar: TWC Pay Day Proceeding Bars Lawsuit • Texas Mut. Ins. Co. v. Ledbetter: Comp Carrier’s Subrogation Claim to Personal Injury Settlement • Fairfield Ins. Co. v Stephens Martin: Punitive Damages for Gross Negligence Insurable

  14. Texas Supreme Court • County of Dallas v. Wilan: Employee Handbook Created Property Right in Employment • In re RLS Legal Solutions: Duress Defense Did Not Defeat Arbitration Clause • In re AutoNation: Choice of Forum Clause Enforceable on Covenant Not to Compete

  15. Texas Courts • LeBlanc v. Lamar State College: Texas Courts Recognize Disability Harassment Claim • Waffle House v. Williams: Employer Liable for Co-Worker Harassment Under Negligent Supervision Claim

  16. The Texas Legislature • Volunteer Emergency Responders (Passed) • Reemployment of Service Personnel (Passed) • 2009 Session: Concealed Handguns Act?

  17. Congress • Genetic Information Non-Discrimination Act of 2008 • Prohibits Request, Use, Discrimination of Genetic Information • “Manifested Disease or Disorders” of Family Members • FMLA Amendments • 26 Weeks of Care for Family Member in Armed Services • 13 Weeks for “Qualifying Exigency Leave” (Regulations Not in Effect)

  18. Congress—Minimum Wage Reminder • Minimum Wage Increased in 2007 • July 24, 2007 - $5.85July 24, 2008 - $6.55July 24, 2009 - $7.25

  19. Congress: 2009 • Ledbetter Fair Pay Act (Proposed) • Reverse Supreme Court’s Ledbetter Decision • Compensation Decisions Subject to Review, Even If Made Well Before 180/300 Day Deadline • Employment Non-Discrimination Act (Proposed) • Sexual Orientation Protected

  20. Congress: 2009 • Employee Free Choice Act • Easier for Unions to Obtain Recognition • Increase Penalties on Employers • Requires Binding Interest Arbitration if No CBA • RESPECT Act • Raise the Standard for “Supervisor” • Bill Would Increase the Number of Potential Union Members

  21. June 10, 2008 STATE OF THE LAW 2008:Trends, Observations, and Cases W. Gary FowlerJackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214.953.5922 214.953.5822 (fax) gfowler@jw.com

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