Friday, October 17, 2003

Summary for week of October 13, 2003 Under Resources, don't miss the exciting project from UC's California Digital Libray on understanding the California governor recall election and a new GAO report on single-employer pension insurance programs. News includes posts about a recent decision allowing the Carpenters the right to elect regional council officers, a federal appeals court ruling that an employee cannot be required to work while on family medical leave, and a Ninth Circuit court decision that employers can require employees to sign mandatory arbitration agreements for employment disputes. You can also find out about how rising health-care costs are at the heart of the supermarket strike in L.A.  A call for papers for an upcoming Canadian Industrial Relations Association conference on "Reformulating Industrial Relations in Liberal Market Economies" is described in Events. 1:37:15 PM    comment []

REQUIRING EMPLOYEE TO WORK WHILE ON LEAVE VIOLATES FMLA 10/17/03 A federal appeals court has ruled that an employee cannot be required to work while on family medical leave, and a termination arising from the employee's refusal to do so violates the federal Family Medical Leave Act (FMLA). Daniel Arban, a sales representative with the West Publishing Company (West), had a documented history of both personnel as well as medical problems. During December 1998, West management concluded that it would terminate him "after the holidays." Also during December, however, Arban and his direct supervisor, Wolfe, went on sales calls together, and no mention of the termination was made. On the contrary, according to Arban, Wolfe indicated he was satisfied with Arban's performance. Just before Christmas, Arban's medical condition flared up, and he requested FMLA leave. West approved, directing Arban to contact West's disability insurance carrier for benefits. While on leave, company representatives contacted Arban several times seeking information on pending sales activities. Arban explained that his doctor told him not to work and that working would jeopardize receipt of disability benefits. After several other similar phone conversations, West terminated Arban. Arban sued, claiming West interfered with his FMLA rights, and the jury agreed. West appealed, noting that it had already decided to fire Arban, regardless of his decision to take FMLA leave. The appeals court ruled that West's decision was based on Arban's refusal to work while on leave and that the company unlawfully interfered with his FMLA rights. Arban v. West Publishing, (6th Cir., September 24, 2003) No. 01-2278/01-2370 Source: Labor Law Extra, California Chamber of Commerce 11:58:59 AM    comment []

NINTH CIRCUIT UPHOLDS MANDATORY ARBITRATION October 17, 2003 The Ninth Circuit court, in a case that reviews an earlier decision by its own three judge panel, has ruled that employers can require employees to sign mandatory arbitration agreements for employment disputes without running afoul of federal anti-discrimination laws. Thus, employers do not discriminate when they require individuals to agree to mandatory arbitration. However, while the court ruled out discrimination, it left open the related question for employers, having to do with unlawful retaliation. In the case, applicant Donald Lagatree was offered a position as a legal secretary at the law firm, Luce Forward Hamilton and Scripps LLP (Luce, Forward). His offer letter contained a mandatory, pre-employment arbitration clause covering all claims related to his employment. Lagatree refused to sign it and Luce Forward revoked the job offer. Lagatree unsuccessfully sued in California state court, alleging the mandatory arbitration requirement was unlawful. He also filed a complaint with the federal Equal Employment Opportunity Commission (EEOC), which took the case to federal district court. The federal district court, relying on an earlier Ninth Circuit decision (Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998)), ordered the law firm to stop using the mandatory arbitration agreement and awarded Lagatree monetary damages. The Ninth Circuit has now overturned the district court's ruling, saying it was based on the Duffield case which was wrongly decided. Source: Labor Law Extra, California Chamber of Commerce 11:52:32 AM    comment []

Copyright 2003 Lincoln Cushing