Alter egos are all the rage right now with The Avengers well on its way to becoming one of the most popular movies of all time. Hearing about a new case out of the Second Circuit, it would be easy to conclude the Court was getting into the superhero business with the establishment of a new theory of liability… Continue Reading
Tag Archives: second circuit
Second Circuit: No Injunction for Expired Restrictive Covenants
Posted in Highlight, Human Resources (HR) Compliance, Wage & HourBack in June, I talked about a new district court case on restrictive covenants. My law partner, Joshua Hawks-Ladds, follows up today with results of the appeal. For employers who have a non-compete agreement, this decision emphasizes the need to seek an injunction quickly to protect the employer’s interests. Let’s say that you, as an… Continue Reading
Second Circuit Affirms Large USERRA Judgment Against Conn. Employer
Posted in Discrimination & Harassment, LitigationBack in 2009, I reported on a large verdict in favor of a reservist who was fired after he was called to duty after the 9/11 attacks. This month, the Second Circuit affirmed the verdict — making it one of the largest verdicts upheld under USERRA (the- Uniformed Services Employment and Reemployment Rights Act). The… Continue Reading
BREAKING: Second Circuit Allows Black Firefighter’s Suit Against New Haven To Proceed
Posted in Class Actions, Discrimination & Harassment, LitigationThe Second Circuit today reinstated claims brought by a black firefighter against the City of New Haven alleging that he was unfairly denied promotion to the position of lieutenant because of the city’s scoring of a 2003 promotional exam. (I covered the original lawsuit back in 2009 here.) The decision in Briscoe v. City of… Continue Reading
Employer Who Fired Returning Reservist Did Not Violate USERRA
Posted in Laws and Regulations, LitigationUSERRA (quick, name that acronym, answer down below) is a oft-misunderstood federal statute that addresses employment issues for reservists and active duty members of the armed forces. A recent Second Circuit decision (Hart v. Family Dental Group, decided May 31, 2011), arising from a federal court filing in Connecticut demonstrates the difficulties employers may have… Continue Reading
Court: Class-wide Arbitration May Be Allowed, Even if Agreement Is Silent
Posted in Class Actions, Human Resources (HR) ComplianceEarlier this month, the Second Circuit (Jock v. Sterling Jewelers, Inc.) affirmed an arbitrator’s decision, concluding that the arbitrator’s analysis should be upheld even if the District Court disagreed with the legal analysis. Such a decision is entitled to “substantial deference”. The case rests on the principle that arbitrations are not going to be going… Continue Reading
Court Approves Expedited Appeal for Decision Mandating Exotic Dancers Arbitrate
Posted in Class Actions, Litigation, Wage & HourLast month, I discussed a very notable decision in D’Antuono v. Service Road Corp. in which the federal court — relying in part on the Supreme Court’s decision in AT&T Mobility — ordered two exotic dancers to arbitrate their employment-related claims. A few days ago, the same district court allowed the dancers to take an… Continue Reading
Second Circuit Revisits Standards for “Working” Time vs. Off-the-Clock in Reviving Wage & Hour Class Action
Posted in Class Actions, Litigation, Wage & HourWhen does the workday begin? When does it end? These were among the questions that the Second Circuit addressed and resolved in an important wage & hour decision last week. The case, Kuebel v. Black & Decker, can be downloaded here. The court held that an "employee’s commuting time is not compensable as part of his… Continue Reading
Back Again? After Remanding Case Once, Second Circuit This Time Finds for Employer on First Amendment Claims
Posted in LitigationIn broad terms, the First Amendment prohibits public employers from retaliating against employees who engage in "protected speech". (Connecticut has a statute, Conn. Gen. Stat. Sec. 31-51q that purports to apply the First Amendment to private employers too.) But proving these cases remains difficult for employees. And even victories may later end up as defeats… Continue Reading
Quitters Rarely Win…In Constructive Discharge Claims
Posted in LitigationWhile fans of the long running television reality show Survivor may suggest the timing of this post is geared to the events of last night’s episode that featured two players who quit, there are actually two recent and noteworthy cases in Connecticut that show that employees who quit their jobs rare win discrimination claims that… Continue Reading
Second Circuit Throws Out Demoted Dean’s First Amendment Claim
Posted in LitigationThe Second Circuit ruled Friday that the University of Connecticut is entitled to "qualified immunity" on a School of Engineering Dean’s claim that he was demoted in violation of his First Amendment rights to free speech. The case has very important ramifications for public employers on how they can deal with criticism from managerial-level employees…. Continue Reading
Second Circuit: Repeated Use of “Bitch” May Be Enough to Create Hostile Work Environment
Posted in CHRO & EEOC, Discrimination & Harassment, LitigationIf you’re an employer with an appeal to the Second Circuit, having the EEOC write a brief on behalf of the Plaintiff-employee is not one of those things that portends well for the case. So, when the Second Circuit issued its decision in Pucino v. Verizon Communications (download here), perhaps the writing was already on the… Continue Reading
Musings from the Second Circuit
Posted in LitigationToday, I had the opportunity to argue in front of the Second Circuit Court of Appeals in downtown Manhattan. (Hence the reason for the sparseness of posts lately). Although I have been there before, it continues to rank among the most professionally rewarding experiences in my career. Every attorney who dreams of an oral… Continue Reading
New Second Circuit Decision Takes Some of the “Judgment” Out of the “Business Judgment Rule”, Particularly for Union-Related Matters
Posted in UncategorizedLet the politicians and the newspapers cite a new Second Circuit decision as being important for "saving jobs" in Connecticut. It makes for good press, but for employers, the decision is more important for a different reason than highlighted in the press: The Court has weakened one of the arguments that employers use to support their… Continue Reading
Second Circuit: What is an Adverse Employment Action? It’s Not a “Failure to Investigate”
Posted in Discrimination & HarassmentOn Friday, the Second Circuit held that a company’s failure to investigate an in-house race discrimination complaint is not an "adverse employment action" that can subject. (H/T Wait a Second). The case, Fincher v. Depository Trust (download here), provides some much needed guidance on what rises to the level of an action that an employee can… Continue Reading
Second Circuit: No Individual Liability Under ADA Retaliation Provisions
Posted in Discrimination & Harassment, LitigationIt has long been the rule in the Second Circuit, that individual supervisors do not have liability under Title VII claims, based on the case of Tomka v. Seiler Corp. But can supervisors be sued individually under the ADA for retaliation? The Second Circuit last week held that individual supervisors may not be held liable under the… Continue Reading
Second Circuit Reinforces the Limits of First Amendment Protected Speech for Employees
Posted in Human Resources (HR) Compliance, LitigationEarlier this year, the Second Circuit came out with an important, wide-ranging decision that clarified the protections that public employees have under the First Amendment. Specifically, any speech that is "pursuant to" an employee’s duties is not protected. In a summary order last week arising out of Connecticut, the Second Circuit reinforced that fact. In… Continue Reading
Employer’s Affirmative Defense in Sexual Harassment Cases Gets a Trimming by Second Circuit
Posted in Discrimination & Harassment, LitigationIn sexual harassment cases, the U.S. Supreme Court (in what’s known as the Faragher/Ellerth cases) over a decade ago laid out the rules for when an employer could use an "affirmative defense" — in Monopoly terms, a "Get Out of Jail" free card. This defense can be used by employers in hostile work environment cases…. Continue Reading
Progressive Discipline Policies: What They Are And Understanding Risks and Benefits to Them
Posted in Discrimination & Harassment"Progressive Discipline" is a policy or practice that, over the years, has fallen out of favor with some employers. What is it? It’s a practice — found also in some collective bargaining agreements — that typically provides a multi-step disciplinary process for many employment policy violations: a verbal warning, a written warning, a suspension, and… Continue Reading
You Can Still Fire Poorly Performing Employees, Says Second Circuit
Posted in Discrimination & Harassment, LitigationAn oft-repeated and only sometimes rhetorical question of employers is: I have an employee that is not meeting performance expectations. I can still fire them, right? A recent Second Circuit case strongly suggests the answer to that question: Yes. In Chukwurah v. Stop & Shop Supermarkets (Nov. 25, 2009), an employee appealed a District of… Continue Reading
Supervisor’s Dislike of Employees Not Proof of Retaliation or Discrimination
Posted in Discrimination & Harassment, LitigationAn employee who is passed over for promotion — time and again — may feel like the whole world is against them. Even so, the fact that supervisors and coworkers may "dislike" a particular employee is not enough to prove that the employer retaliated against the employee for participation in a discrimination claim. So… Continue Reading
Second Circuit Defines Employers’ Obligations in Sexual Harassment Claim; Reverses Summary Judgment for Employer
Posted in Discrimination & HarassmentReading the Second Circuit’s decision in Duch v. Jakubek (decided on Friday, December 4th), a distinct image came to mind: The ostrich who sticks its head in the sand. Why the ostrich? Because, the Duch case discusses what to do with a supervisor who purposely ignores evidence of sexual harassment. And the court concludes that the… Continue Reading
Second Circuit Orders Release of Records to EEOC, Says Some Financial Services Workers May be Entitled to Overtime
Posted in CHRO & EEOC, Class Actions, Human Resources (HR) Compliance, Litigation, Wage & HourThe Second Circuit Court of Appeals (which includes Connecticut) recently ruled on two cases of keen interest to employers. The first relates to enforcement of EEOC subpoenas and the second relates to the classification of some financial services workers. First, in EEOC v. United Parcel Services, the Court allowed the EEOC to press forward with its… Continue Reading
Second Circuit: Employers May be Liable for Discrimination By Third Parties
Posted in Discrimination & Harassment, Human Resources (HR) Compliance, LitigationEarlier today, I was fortunate to hear Second Circuit Judge Guido Calabresi speak at a Connecticut Bar Association Young Lawyers Section event as the 2009 Distringuished Speaker Award. He can weave a great story and mixed telling us tales of his interactions between Justices Sotomayor and Roberts, and of working for a United States Supreme Court … Continue Reading
About Daniel Schwartz
Trusted advisor. Experienced employment law attorney. Bar leader. Award-winning author. Noted Speaker. "Legal Rebel". All can be said to be apt descriptions of Daniel Schwartz, a member of Pullman & Comley. More +
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