Monday, October 29, 2007

Fourth Circuit rules employer did not violate WARN Act

Today, in Long v. Dunlop Sports Group Ams., Inc., No. 06-2143 (4th Cir. Oct. 29, 2007) (PDF), the Fourth Circuit held that a golf ball manufacturer that ceased all production without the required 60 days notice to its employees did not violate the WARN Act where it continued to pay the employees for 60 days or until they took jobs with the successor entity, whichever occurred sooner.

The Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C.A. §§ 2101-2109, requires that certain employers provide their employees with written notice 60 days before a plant shutdown causes the employees an employment loss, including an employment termination other than discharge for cause, voluntary departure, or retirement.

In this case, the employer, provided notice of the shutdown at the time of shutdown and for the next 60 days continued to pay full wages and benefits to all but 22 employees. The employer stopped payments to those 22 employees when they began full-time employment with the successor entity.

Those 22 employees sued, asserting that the employer violated the WARN Act and should pay their wages and benefits for the entire 60-day notice period. They raised two arguments.

Argument #1. Plaintiffs suffered an employment termination at the time of the plant shutdown, and Dunlop violated the WARN act by failing to provide them with 60 days notice.

Not so, said the court:

The ordinary meaning of "employment termination" does not encompass a situation in which an employer continues to pay its employees full wages and benefits. Rather, "employment termination" is a "permanent cessation of the employment relationship." . . . When an employer commits to continue payment of wages and benefits to its employees, the employment relationship has not ended.
* * *
in the regulations promulgated pursuant to the WARN Act, the Department of Labor noted that "neither WARN nor the regulations dictate the nature of work to be performed — or whether work must be performed — during a period of employment after notice of an impending plant closing or mass layoff has been given." Worker Adjustment and Retraining Notification, 54 Fed. Reg. at 16,048 (emphasis added).
* * *
Dunlop’s decision to continue paying all benefits and wages for 60 days without requiring work in exchange entirely accords with the language, purpose, and structure of the WARN Act, as well as the Department of Labor’s authoritative interpretation of it. That decision did not constitute an "employment termination" under the Act.

Argument #2. (Alternatively) the Plaintiffs did not voluntarily depart the company when they were "kicked off the rolls" after they accepted new employment with the successor, but rather Dunlop constructively discharged them and thus caused them an "employment loss" at that time.

Again, the courts disagreed:

Although we agree that an "employment termination" occurred at this point, no "employment loss" occurred because the termination resulted from a voluntary departure. See 29 U.S.C.A. § 2101(a)(6).
* * *
the WARN Act requires that covered employers, like Dunlop, provide notice 60 days prior to termination resulting from a plant shutdown. If this notice of termination would make workplace conditions "intolerable," then every employer that adhered to the WARN Act notice requirement would constructively discharge its employees at the moment of notice and so violate the WARN Act. Obviously, Congress did not pass legislation in which an employer’s very compliance with the statute constitutes a statutory violation.

And again, the regulations promulgated pursuant to the WARN Act fatally undermine the employees’ position. In these regulations, the Department of Labor states that it "does not . . . agree that a worker who, after the announcement of a plant closing or mass layoff, decides to leave early has necessarily been constructively discharged or quit ‘involuntarily’." Worker Adjustment and Retraining Notification, 54 Fed. Reg. at 16,048.

The only problem I see with this opinion is that the analysis under argument #1 could be construed to apply outside the WARN Act context. For instance, if an employee who is discharged on August 1 and is given a letter that says it is "effective August 1," but is given two weeks of additional pay and benefits to "soften the blow," would the date of his "adverse employment action" (i.e. his termination) for statute of limitations purposes be August 1 or August 14? I can see employees suing under Title VII using this to try to extend their limitations period.

Friday, October 26, 2007

W.Va. Supreme Court Forces Jefferson County to Approve Annexations

In State ex rel. City of Charles Town v. County Commission of Jefferson Co., etc., No. 33454 (Oct. 26, 2007), the West Virginia Supreme Court granted a writ of mandamus forcing the Jefferson County Commission to enter the annexation orders of the City of Charles Town. In a nutshell, here is the ruling:
We reject the Commission's argument that it has a duty to determine whether ornot the annexation complies with the applicable statutes. As we explained in City of Morgantown, “Article six sufficiently identifies those who have an interest in annexations as including the governing body of the municipality and the qualified voters and freeholders of the municipality and of the territory to be annexed.” 159 W.Va. at 794, 226 S.E.2d at 904. “A county commission . . . has no interest, personal or official, in the municipal annexation matters which come before it other than to administer the law[.]” Syllabus Point 5, in part, City of Morgantown. Thus, the County Commission of Jefferson County should have entered the Annexation Orders presented to it by the City of Charles Town.

The Jefferson County Commission has been searching for ways to stop growth in the county, and they have rejected annexations from both Charles Town and the City of Ranson, which filed an amicus brief supporting Charles Town's suit. This case confirms they have no right to reject annexation orders.

Northern District of West Virginia to Realign its Divisions

The following announcement came through the Northern District's CM/ECF system today:

United States District Court
Northern District of West
Divisional Realignment

Effective November 1, 2007

Due to numerous changes in the thirty-two counties of the
Northern District, the Court is realigning four counties in the Divisions as

1) Tyler County will move from the Clarksburg Division and
become part of the Wheeling Division;

2) Preston County will move from the Elkins Division and
become part of the Clarksburg Division;

3) Lewis County will move from the Clarksburg Division and
become part of the Elkins Division; and

4) Mineral County will move from the Elkins Division and
become part of the Martinsburg Division.
I'm not sure what the "numerous changes" are in the 32 counties that comprise the Northern District, but I think the realignment makes sense.

W.Va. Supreme Court finds employer not liable for discrimination, retaliation

In the first employment decision of the Fall 2007 term, the West Virginia Supreme Court overturned a Human Rights Commission decision that found Colgan Air liable for discrimination against a Muslim Pakistani pilot. Colgan Air v. West Virginia Human Rights, No. 33355 (October 25, 2007). As you may have seen, the case garnered some attention because Justice Starcher commented from the bench during oral argument on the presence of a Pakistani defense lawyer, and later called her "window dressing" and an "argument prop" in his written response to the defendant's motion to recuse.

The per curiam opinion does not blaze any new ground. The Court found that although the plaintiff was subject to harassment due to his national origin and religion, the employer took swift and decisive remedial action against the harassers once it learned of the harassment. A later decision to terminate the plaintiff was due to his failure of a proficiency test, and not because he complained, the court held.

Wednesday, October 24, 2007

Blankship drops suit against democrats

This article in today's Charleston Daily Mail notes that Massey CEO Don Blankenship is withdrawing his defamation suit against the West Virginia Democratic Party and its chairperson.

The suit alleged that a democratic TV ad misrepresented a comment he made after 14 miners were killed in the Sago disaster in 2006. Blankenship's attorneys said he felt he made his point, according to the article.

Friday, October 19, 2007

How to create an index of files in the blink of an eye

Occasionally, lawyers need to send large batches of files to a client or other counsel on CD. Creating an index of those documents in Excel can be a time-consuming endeavor, even if you already have descriptive filenames. Wouldn't it be nice if you could automate the processs?

Enter a free application called DirHTML. This program will automatically generate an index of files from any windows folder on your computer. As an added bonus, the filenames in the index are automatically hyperlinked to the actual files. So, when you click on the filename in the index, the file loads in its native application on your PC.

The program has a number of settings allowing you to sort the index by filenames, dates, extensions or (everyone's favorite) random. It has all sorts of settings that allow you to customize the index to look just the way you want it.

I have used this program to create indexes of hundreds of discovery documents saved as separate PDFs. You simply put the PDFs to be indexed into a folder on your desktop, run DirHTML to create the index, and the index by default will be saved in the same folder as your documents. (The index opens in your web browser.) Then, simply burn a copy of the folder to CD. The program does in one second what would take a secretary or paralegal hours to accomplish. The program works so fast, you'll ask yourself, "Could it possibly have indexed all those files already?"

Obviously, if your files are all named "XR1001," or something similar, your index would be meaningless. But, for those of you in the habit of giving your files meaningful file names such as "10-19-07 Letter to Dr. Smith," this program works great.

The application can be downloaded free from c|net.

Friday, October 12, 2007

W.Va. Supreme Court Releases First 6 Opinions of the Fall Term

The West Virginia Supreme Court of Appeals released six new opinions today, the first of the new term.

Amanda A. Frymier v. Higher Education Policy Commission, Nos. 32163, 33296, is a "bumping rights" case under W. Va. Code § 18B-7-1. Ms. Frymier, a Glenville State College employee argued unsuccessfully that she was entitled to bump a less senior employee, and that GSC committed favoritism in the treatment of its employees and the decisions made regarding their respective status. The court affirmed.

Christopher Lee Davis v. Thomas McBride, No. 33199, is a criminal case in which the court upheld the State's exercise of a peremptory strike to remove the only African-American juror from the jury panel where the juror announced that she could not be impartial because she had a close relationship with two of the defense witnesses.

Donna Joan Blankenship v. Ethicon, Inc., No. 33224, is a class action arising from defective surgical sutures. The trial court dismissed the case for noncompliance with the Medical Professional Liability Act. The court found that the MPLA did apply, but that dismissal was unduly harsh. In footnote 1, Justice Davis, author of the majority opinion, again invited someone (anyone) to challenge the constitutionality of the pre-suit notice and certificate of merit requirements of the MPLA. Two new syllabus points were announced.
4. The failure to plead a claim as governed by the Medical Professional Liability Act, W. Va. Code § 55-7B-1, et seq., does not preclude application of the Act. Where the alleged tortious acts or omissions are committed by a health care provider within the context of the rendering of “health care” as defined by W. Va. Code § 55-7B-2(e) (2006) (Supp. 2007), the Act applies regardless of how the claims have been pled.

5. Pursuant to W. Va. Code § 55-7B-2(e) (2006) (Supp. 2007), “health care” is defined as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement.”
In Debbie Plumley v. WVDHHR/Office of Health Facility, No. 33287, the court affirmed an order issued by the Department of Health and Human Resources requiring Ms. Plumley to close her “legally unlicensed health care home” because she is prohibited by law from operating such a facility due to her prior conviction for felony incest.

In State of West Virginia v. Thomas Joseph MacPhee, No. 33297, the court affirmed the sentencing of the defendant to the penitentiary for murder of the first degree and conspiracy to commit murder. The court reviewed the evidence and found the sentencing was adequately supported.

And finally, in State of West Virginia v. Richard Allen Haines, No. 33304, the court affirmed the trial court's order amending an indictment to alter the type of controlled substance at issue from one that falls within Schedule I to more accurately reflect that the substance at issue is set forth in Schedule II. The court found that the grand jury did not have the exclusive authority to amend the indictment.

Wednesday, October 03, 2007

Man with case of beer strapped to mower charged with DUI

Okay, this case of MUI (mowing under the influence) is almost certain to make the national headlines ... or at least Leno.

Monday, October 01, 2007

Video lottery parlors win injunction

Video lottery parlors in West Virginia will be allowed to advertise their games openly if Judge Goodwin's decision in WV Association of Club Owners and Fraternal Services, Inc. v. John C. Musgrave (PDF) stands.

In a 40-page opinion, the Court held:
The issue presented is whether the ban on limited video lottery advertising imposed by the Limited Video Lottery Act violates the plaintiff’s First Amendment right to freedom of speech. As a doctrinal matter, the advertising ban does not directly and materially advance a substantial government interest, and is therefore an impermissible restriction on commercial speech under the First Amendment. The advertising ban infringes upon the limited video lottery retailers’ right to speak and impedes the public’s ability to engage in informed political discourse.

I predicted back in November 2003 that we would be seeing litigation on this one, though I was off by about 3 years in the time frame.

This article in the Gazette notes that the suit was filed by the ACLU on behalf of the WV Association of Club Owners.

U.S. Supreme Court to Decide 7 Employment Cases

The BNA Daily Labor Report (subscription required) notes that the U.S. Supreme Court will open its 2007-2008 term with seven employment cases. Here is a quick overview of the docket:

1. In Federal Express Corp. v. Holowecki, No. 06-1322, the Court will consider whether the submission of an “intake questionnaire” and a notarized affidavit to the EEOC is equivalent to filing a charge of discrimination under the ADEA.

2. In Sprint/United Management Co. v. Mendelsohn, No. 06-1221, the Court will consider a recurring question of proof in employment discrimination cases: whether a district court must admit “me, too” evidence - testimony, by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff. (In West Virginia, we call them "McKenzie witnesses.")

3. In LaRue v. DeWolff, Boberg & Associates, Inc., No. 06-856, the Court will decide whether under ERISA an employee can recover losses allegedly caused by his employer’s failure to carry out his investment instruction for his 401(k) retirement savings plan. The Fourth Circuit held that Section 502(a)(2) does not permit a 401(k) plan participant to sue for plan losses caused by a breach of fiduciary duty when the losses only affected the individual participant.

4. In Kentucky Retirement Systems v. EEOC, No. 06-1037, the Court will review whether the EEOC showed a prima facie case of age discrimination where a disability retirement plan disqualified employees from receiving benefits where (a) they became disabled after reaching age 55 (b) they held hazardous jobs such as Deputy Sheriff, or (c) they reached age 65, but worked in nonhazardous jobs.

5. In Gomez-Perez v. Potter, No. 06-1321, the Court will consider whether the ADEA prohibits federal government employers from retaliating against employees who file complaints of age discrimination. The Fourth Circuit decided that the ADEA does not include or imply a prohibition against retaliation in federal sector cases as it does private sector cases.

6. In CBOCS West, Inc. v. Humphries, No. 06-1431, the Court will consider whether Section 1981, as amended, allows an employee alleging race discrimination to also bring a retaliation claim.

7. In Preston vs. Ferrer, No. 06-1463, the Court will consider whether the Federal Arbitration Act and Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204 (2006) preempt the holding in this case, voiding an interstate arbitration agreement under the California Talent Agencies Act. If he loses, the defendant, former Florida Judge Alex Ferrer, stands to lose 12% of his compensation gained from his television reality show, Judge Alex, to his manager pursuant to their contract. The appeal is from a California Court of Appeals decision (the state supreme court refused the case) in 2006 that Ferrer did not have to arbitrate the dispute under an arbitration clause in the contract because the California Talent Agency Act gives the state labor commissioner exclusive original jurisdictioneen to determine the legality of contracts between “artists” and their agents. Does the FAA preempt the state law administrative procedure? Tune in and see how the judges rule.