Can’t we just get along

I love to watch lawyers act like children.

United States Court of Appeals

Yesterday I had the pleasure of arguing before the Ninth Circuit Court of Appeals.    One day later it is still hard for me to express how exciting it was.   

Here is the link to the recording of the argument.

Parker v YCWD

At issue was whether or not a public employee who serves at the will of the board may have his at will status changed to for cause.    Parker argued that the pleasure of the board was to enter into a contract that incorporated the personnel manual provisions of only for cause termination.    I argued that the employee’s status is set by statute and cannot be changed by contract.

2007-2008 US Supreme Court Employment Law Decisions

Below is a summary of US Supreme Court decisions during 2007-2008. 

 

LaRue v. DeWolff, Boberg & Associates, Inc.

The Court held that an individual pension plan participant could sue the plan administrator under ERISA for breach of fiduciary duty resulting in a loss to the employee’s retirement funds. 

 

Preston v. Ferrer

Where an agreement requires arbitration, The Federal Arbitration Act preempts California’s Talent Agencies Act (TAA) where the TAA grants exclusive jurisdiction to the Labor Commissioner to decide the validity of a contract between an actor and his talent agent. 

 

Sprint/United Management Company v. Mendelsohn

Mendelsohn alleged Sprint unlawfully discriminated against her on the basis of age.  She alleged she was selected for termination because of her age during a company-wide reduction in force.  In her appeal, Mendelsohn argued she should have been able to introduce evidence of discrimination against other employees, sometimes called “me-too” evidence.  The Court held that “me-too” evidence of discrimination is admissible at trial, but that the district court has discretion regarding whether to admit such evidence. 

 

Federal Express Corporation v. Holowecki

Holowecki completed an EEOC Intake Questionnaire alleging certain FedEx policies violated the ADEA.  She, however, did not file a formal charge with the EEOC.  The Court held that an employee need not use the EEOC’s official form to effectively exhaust the mandatory requirement of filing a charge.  It is sufficient that the employee has made a request for the agency to take remedial action. 

 

Hall Street Associates v. Mattel

Where an arbitration agreement allowed courts the right to vacate or modify an arbitration decision when the arbitrator’s conclusions of law are erroneous, the arbitration agreement is invalid.  The Court held that the Federal Arbitration Act provides the exclusive, limited grounds upon which an arbitration decision can be modified.  

 

Gomez-Perez v. Potter

Gomez-Perez worked for the U.S. Postal Service and claimed management took negative personnel actions against her in retaliation for a prior age discrimination complaint.  The Court held that the ADEA’s provisions applicable to federal employees include protection from retaliation. 

 

CBOCS West, Inc. v. Humphries

42 U.S.C. § 1981 prohibits race discrimination in the formation of contracts, including employment agreements.  This statute does not mention retaliation claims.  Humphries claimed he was fired due to his race and his discrimination complaint against a co-worker.  The Court held that a § 1981 retaliation claim could proceed even though the statute does not explicitly prohibit retaliation. 

 

Chamber of Commerce v. Brown

CA enacted a law prohibiting employers that receive funds from the state from using those funds to promote or deter union organizing.  The Court held that the National Labor Relations Act protected an employer’s right to communicate regarding unionization.  Because the CA law interfered with the employer’s right, the CA law is preempted by the NLRA. 

 

Meacham v. Knolls Atomic Power Laboratory

Knolls laid off 31 employees, 30 of whom were age 40 or older.  Meacham filed an age discrimination claim under the ADEA.  The Court held that the employer has the burden of proof to show that its decision was not age based, but rather was predicated on “reasonable factors other than age.” 

 

Kentucky Retirement Systems v. EEOC

Kentucky’s pension play provided benefits to employees who became disabled before retirement.  The plan added a certain number of years to a participant’s length of service if the participant became disabled before retirement age.  Once the employee reached 55, the plan no longer added the “imputed” years of service.  The EEOC alleged that the plan violated the ADEA because it failed to add imputed years for those 55 and older.  The Court held the plan did not violate the ADEA because it concluded that the purpose of the plan was assist disabled employees and not to penalize employees of a certain age. 

 

Pending Cases for the upcoming term

The Court will review several employment cases.  Among those are whether Title VII protects from retaliation those employees who participate in an organization’s internal investigations of unlawful discrimination or harassment, whether a divorcing spouse may waive her right to benefits under an ERISA retirement plan, whether a collective bargaining agreement may contain an arbitration clause waiving an individual employee’s right to sue in court under anti-discrimination laws, and whether employers are required to restore service credits under the Pregnancy Discrimination Act calculated before the passage of the PDA. 

 

SB 800

The proliferation and ever evolving nature of construction defect litigation signals - to those of us who are daily involved - a failure of efforts at attempted reform, early lauded as some a saving grace to both the Insurance and Construction Industries.  The very nature of these two behemoth industries seemingly equates well intended reforms efforts with attempts to “turn the Titanic”.  Afterall – the very careers of those involved daily with “construction defect litigation” suggest that such reforms have failed.  Indeed, such many reforms are directed at perceived insufficiencies in the legal process, itself.   

The Associated Defense Counsel of Northern California and Nevada recently sponsored a Seminar that included panelists’ discussion on the topic “Perspectives from the Construction Industry Post SB 800″.  The discussion proved enlightening and helped to dispel some of the cynicism stemming from seemingly inconsequential efforts at reform. 

Panelist, Barry Grant, Territory President for KB Homes reported that SB 800 is working!. Builders who pressed for and secured the “Right to Repair” find greater incentive to timely address homeowner warranty concerns.  SB 800 helps to define legitimate claims and otherwise provides an avenue to resolution for those “claims” that sometimes defy more informal resolution.

Panelists Holly Parrish Bezner, General Counsel, and Bruce Wick, Director of Risk Management – both for CalPASC reported that industry reviews are favorable.  Mr Wick noted that a CBIA survey revealed that virtually 70% of those involved in the SB800 process felt the need for guidance by a “neutral fascilitator” to make the process even more effective.

As a “Neutral” Judicial Referee – Special Master, Arbitrator, and Mediator, in Northern California and Nevada, I have seen benefits from both Early Neutral Evaluation and Fascilitation in resolving real property and construction disputes.  Notwithstanding the sometimes understandable cynicism that infects laudable attempts to secure resolution, SB 800 is proving to be effective in bringing resolution to those claims that previously served to seed burgeoning construction defect litigation.

Early Neutral Evaluation

     ENE is a method or tool within the larger context of Alternative Dispute Resolution.  For an excellent dissertation, I refer you to www.library.findlaw.com for an article by John S Blackman entitled “Early Neutral Evaluation – An ADR Technique Whose Time Has Come”.

In the context of construction disputes arising under SB 800; Calderon;  NRS chapter 40;  Warranty claims and backcharges; or disputed contribution under insurance WRAP-UP policies,  an “early” and “neutral” evaluation by an objective third party with relavent experience, should prove highly effective – if not to resolve the dispute, then to quickly posture the matter for meaningful negotiations. 

A well reasoned ENE overcomes the endemic distrust that typically exists between and among developer / general contractors, subcontractors, and owners.  The “neutral” analysis of the claims and defenses supplants the biased assignment of blame more often imposed by the party with the greater bargaining strength.

Like an express contractual requirement to arbitrate or mediate prior to litigation, a similiar contractual referral to an “Early Neutral Evaluation” will help to create the requisite dialogue and should ulitmately secure desired resolution short of the long and costly litigation process.

We are working to facilitate on-line submittals for ENE.  Please, give us your thoughts.   MHardy 

Happy New Year

It is said that a picture is worth a thousand words and I believe this picture of my son Sam says it all.    I hope everyone has as much fun in 2008 as Sam is having here.

 Robert

Did I miss the memo?

Three weeks ago, I was mediating an employment practices case for two very good lawyers.     As the negotiations were coming to the critical make or break point, the counsel for Plaintiff justified his demand by stating, “Well, Jim has nothing now.   He has gone as low as he ever thought he would.   Since he has nothing to lose he might as well roll the dice.“

Two weeks ago, I was trying to settle a flood case.    It was generally agreed amongst the attorneys that Plaintiffs were not going to be able to prove their case.   During the negotiations, again I heard, “Since they have nothing and nothing to lose they might as well roll the dice.”

 Then on Friday, I’m trying to settle an employment practices case and again I hear, “he’s living with his parents and has nothing to lose, so he might as well throw the dice.”

Was there a memo that I missed?    Did the consumer attorneys have a convention theme of rolling the dice?    Since when did rolling the dice become the best argument a plaintiff attorney can make.    The answer is that it’s not.   As a plaintiff’s counsel you owe your clients more than arguing he’s got nothing, you can’t recover from him, so you might as well pay him or he’ll make you spend a lot of money in trial.   Most plaintiff’s attorneys are better than that.   Be creative and put time into your case.  Talk with your client, he or she may have some unique point of view or experience that you can use to increase your bargaining position.   Find a nuance in a the case law that you can argue.   Work with your experts to try new theories.   Don’t be lazy.    Threatening to roll the dice doesn’t motivate the defense to settle.   It convinces the defense that they have correctly evaluated the case and it’s a winner.     Your job as Plaintiff’s counsel is to create doubt of success in the mind of the defense.    “He’ll roll the dice,” does not create doubt.      

And Defense Counsel, don’t put up with it.   I strongly recommend on cases that are strong for the defense, plead frivolous action in your answer.   Send a letter early on indicating that you intend to seek attorney fees from the attorney for pursuing this case.    If you represent a public entity, your answer should include a reference to CCP 1038.    Send the meet and confer letter and don’t back down.    

Be better lawyers.    I’ve said it before and it will continue to be my mantra as mediator or counsel for a party;  “Force the other side to make difficult decisions.”     That is the key to successful results.

Robert

LINT

A purpose for life? Search the sole came the reply;

Yet, through countless times of counting,

from my childhood mounting,

The answer is not found in the tarsils.

But, go I again, counting backwards from ten;

and finding there, a bit of hair; and, lint

from my old, gray, argyles  (mhardy – 1977)

Today’s LINT:   10/2/07 – Check  Youtube for Letterman’s interview of Paris Hilton.  No punches.  Very funny and dead on.  -enjoy MLH

Hello world!

Welcome to the Greenfield Hardy Blog.    Mark and I will try to provide a source of legal and non-legal information for your benefit and amusement.     We look forward to your comments.    Please check back often.

Thanks

Robert