I’m late / I’m late / For a very important date. / No time to say “Hello, Goodbye”. / I’m late, I’m late, I’m late. — White Rabbit, from “Alice in Wonderland” (1951) Let’s start with the premise, as the Second Circuit does, that “In many, if not most, employment contexts, a timely arrival is… Continue Reading
Tag Archives: second circuit
What Remedy Is Appropriate When a Jury Concludes Sexual Harassment Occurred?
Posted in CHRO & EEOC, Class Actions, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, LitigationA case out of the Second Circuit Court of Appeals (of which, Connecticut is part of) addresses an interesting question: When a jury finds that sexual harassment has been perpetuated by a single employee, is injunctive (non-monetary) relief required to be issued by the District Court? The EEOC argued yes and argued that remedies such as… Continue Reading
Taxes are Inevitable … Even on Judgments For Front and Back Pay in Discrimination Cases
Posted in Discrimination & Harassment, Highlight, LitigationEveryone knows that taxes are inevitable. Except perhaps one employee who won his Title VII case but complained that the employer shouldn’t have made withholdings for taxes when it paid out the judgment. The Second Circuit, in a decision released right before the Labor Day weekend, said the employer did the right thing. You can read the case, Noel… Continue Reading
When a Employer’s Decisionmaker is Unavailable, What Then?
Posted in Discrimination & Harassment, Highlight, LitigationA new case out of the Second Circuit answers a question that has perplexed employers: How can an employer defend itself from an employment discrimination claim when the person who made the decision becomes “unavailable?” (“Unavailable” can take many meanings such as, the witness is out of the country, but in many cases it means the witness… Continue Reading
Recipe for Success: Keep Accurate Time Records
Posted in Highlight, Human Resources (HR) Compliance, Litigation, Wage & HourAs Google was quick to remind us, today would have been Julia Child’s 100th birthday today. In cooking, lots of recipies call for seasoning with salt and pepper. In fact, its so common, that you might overlook it. For employers, the simple ingredient to success that might be overlooked is an accurate time record. A… Continue Reading
Second Circuit Affirms a Broader Definition of “Executive” FLSA Exemption
Posted in Class Actions, Highlight, Human Resources (HR) Compliance, Litigation, Manager & HR Pro’s Resource Center, Wage & HourThere are three major “white-collar” exemptions to the federal overtime rules that are, to some employers, a bit confusing to say the least. One of them — the “executive” exemption — is mistakenly understood to just include, well, senior executives of a company. A new case out by the Second Circuit (Ramos v. Baldor Specialty… Continue Reading
Second Circuit = The Avengers? Judges Create Alter Ego Liability
Posted in Discrimination & Harassment, Highlight, LitigationAlter 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
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
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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