Wednesday, July 18, 2007

West Virginia: The Heart of Legal Innovation?

A few months ago, the Wall Street Journal's Law Blog declared Wheeling West Virginia the "law-firm capital of the world." Now, a recent study also reveals that West Virginia played a prominent role in the birth of the legal blogosphere (a/k/a the "blawgosphere").

Thanks to Bob Coffield, another fine West Virginia legal blogger, for pointing out that West Virginia is home to two of the longest running legal blogs in the country: Rory Perry's Weblog and the blog you are reading.

Saturday, July 14, 2007

Fourth Circuit reaffirms its position on FMLA settlements

Back in 2005, a three member panel of the Fourth Circuit held that "without prior DOL or court approval, 29 C.F.R. § 825.220(d) bars the prospective and retrospective waiver or release of the FMLA’s substantive and proscriptive rights." Taylor v. Progress Energy, Inc. , No. 04-1525 (4th Cir. July 20, 2005) (PDF).

Following the decision, the DOL filed an amicus brief in support of the employer's motion for rehearing. The Fourth Circuit vacated its decision and ordered a rehearing to consider the DOL’s arguments. The DOL argued that 29 C.F.R. § 825.220(d) should not apply to releases or waivers included in post-dispute settlements. The regulation reads "Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA." The court rejected the DOL's interpretation, finding it inconsistent with the plain language of the regulation.

The Court explained that there are three types of rights and two types of waiver under the FMLA. The three types are rights are:

(1) substantive rights, which include an employee’s right to take a certain amount of unpaid medical leave each year and the right to reinstatement following such leave. 29 U.S.C. §§ 2612(a)(1)(D), 2614(a)(1).
(2) proscriptive rights, which include an employee’s right not to be discriminated or retaliated against for exercising substantive FMLA rights. Id. § 2615(a)(2); and
(3) remedial rights, which refer to an employee’s "[r]ight of action," or "right . . . to bring an action" or claim, "to recover [ ] damages or [obtain] equitable relief" from an employer that violates the Act. Id. §§ 2617(a)(2), (a)(4).

The two types of waiver are prospective, or pre-dispute, and retrospective, or post-dispute.

The DOL argued that the regulation only prohibits prospective waiver of substantive rights. This was the holding of the Fifth Circuit in Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003). To justify this interpretation, it argued that the word "rights" as used in the regulation does not include "claims." The court rejected the argument, holding that "rights under FMLA," refers to all three categories of rights under the FMLA, including the right to bring suit for a violation of the Act (i.e. a "claim").

The Fourth circuit held that the Fifth Circuit's interpretation would permit an employee to waive prospectively his or her prescriptive and remedial rights under the FMLA. "This interpretation would undermine the purpose of the FMLA and section 220(d) and turn the FMLA’s substantive rights into empty and unenforceable pronouncements." In other words, what good is a substantive right if you can't sue to enforce it and you can be retaliated against for exercising it?

The Court held that the only reasonable interpretation of the regulation is that "waive" means both prospective and retrospective waiver of the full panoply of rights: “Because the word ‘waive’ has a retrospective connotation, the regulation applies to the retrospective waiver of claims.”

Thus, the Fourth Circuit reinstated its holding in Taylor I requiring employers to obtain approval from either a court of law or the DOL to obtain an effective waiver of an employee's FMLA rights. The new opinion can be found here.

I would be shocked if a request for an en banc rehearing did not follow.

Friday, July 13, 2007

Some new e-discovery resources I just learned about

E-discovery is maturing, and this year, we are finally seeing some helpful, dare I say practical, guidance from authoritative sources.

For those of you looking for a good nuts and bolts discussion of e-discovery in plain English, check out Managing Discovery of Electronic Information: A Pocket Guide for Judges (2007) (PDF), produced by the Federal Judicial Center. The handbook is designed to help federal judges manage e-discovery in their courts, but practitioners will greatly benefit from its concise, straightforward discussion. It comes with a handy glossary that defines such jargon as legacy data, metadata, and hash value.

Another great resource that is bound to make a splash is the Sedona Principles, Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production (2007) (PDF). Jonathan Redgrave, chairperson of the Steering Committee of The Sedona Conference® Working Group 1, which drafted both editions of "The Sedona Principles," said "the second edition provides helpful and timely guidance for the issues and circumstances that the amended civil rules, by their nature, cannot address."

For instance, principle 5 acknowledges that not all relevant ESI will be preserved
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.

Principle 11 acknowledges that the responding party does not have to "lay eyeballs" on every shred of electronically stored information in order to meet the good faith obligation to produce relevant records. Using electronic searches to locate relevant documents may suffice:

11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.

Although the 14 principles are stated on a single page, the document contains over 100 pages of additional material including extensive commentary on each principle.

Lynndie England lands a new position

Oh boy! I can't wait until Jay Leno gets a hold of this headline...

Lynndie England appointed to hometown recreation board

Monday, July 09, 2007

Hallelujah! Pepperoni Rolls are Coming to the Panhandle!

Finally! I will be able to get a fresh pepperoni roll in the Eastern Panhandle!

Where I grew up in Harrison County, everyone ate pepperoni rolls. They sold them at gas stations, at the concession stands at Lincoln High School football games (where you could get them served hot, split open, and loaded with sauce and cheese), and they even served them what I swear was once a week in the school cafeterias. The biggest debate was "sliced or stick"? Some people liked them with piles of sliced pepperoni, while some preferred stick pepperoni. I like mine with stick pepperoni, and sometimes with hot pepper cheese.

When I went "off to college"--45 miles up I-79 to WVU--it was still easy to find a good pepperoni roll. So naturally, I assumed you could find one anywhere in West Virginia. Boy, was I wrong!

When I moved to the Eastern Panhandle, I was simply heartbroken to learn that finding a good pepperoni roll was nearly impossible. None of the local bakeries made them. So, every time I go home to visit my Mom & Dad in Lumberport, Mom has a bag of pepperoni rolls waiting for me. I bring them back and freeze them, thawing them out one by one when I get a craving. My wife (who is a McDowell County native) doesn't quite get it. But my kids do.

I was as pleased as I could be to learn that now "about 10 locations in Martinsburg, including Wal-Mart and a variety of convenience stores," will be carrying "the five different varieties of Rogers & Mazza’s Pepperoni Rolls." The bakery sells both stick and sliced pepperoni rolls.

If you don't know what a pepperoni roll is, go to the bakery's web site and order some, www.pepperonirolls.net.

Now, my kids will be able to enjoy pepperoni rolls in their lunches, too.

Tuesday, July 03, 2007

Hospital Comparison Tools

George Lenard at Geroge's Employment Blawg points out that the U.S. Department of Health and Human Services' now has a Hospital Compare tool that provides you with information on how well the hospitals in your area care for all their adult patients with certain medical conditions such as heart attack, heart failure, and pneumonia. As George notes,
This type of healthcare information does not facilitate price-shopping; ultimately it should be coupled with price information. But it encourages hospitals to follow recommended medical care practices (so as to look better in such comparisons).

BUT, if you do want to comparison shop for health services in West Virginia hospitals, another new site is just for you. Using the CompareCare West Virginia Web site, you can simply type in a medical procedure and a zip code, and the database will produce a chart with the names of hospitals and what they charge. Total cost is broken down by hospital charges and physician charges.

As this article in the Charleston Gazette notes, the site was the brainchild of Governor Manchin, who couldn't make heads or tails of the medical bills he received when he had his knee-replacement surgery last year. So, he directed the West Virginia Health Care Authority to develop this Web site listing the costs of common medical procedures so consumers could know up front what they can expect.

The hope is that more health information on the internet will both help improve the quality of care and reduce the costs.

Monday, July 02, 2007

W.Va. Human Rights Commission decisions now online

The West Virginia Record points out here that "the West Virginia Human Rights Commission [has] placed final decisions rendered in complaints filed with the Commission on its Web site."

Unfortunately, because the Commission chose to publish the decisions in image-only PDF format, they are not searchable by keyword. However, the opinions can be sorted by year of decision, complainant's name and respondent's name. I applaud the Commission for making these important opinions available online. In the past, they have only been available through FOIA or direct request to the Commission. Now, everyone can keep abreast of the latest developments online with ease.

Link: Index the Final Decisions/Orders of the West Virginia Human Rights Commission