Hawaii’s prohibition of employment discrimination based on arrest and court record allows employers to consider convictions within the last 10 years that have a rational relationship to the duties and responsibilities of the position. Home Depot in Kahului terminated an employee when it found that he had been convicted six years prior for drug possession. The Court concluded that the employee’s probation record, subsequent negative drug tests with Home Depot, and good work performance while he was at the company were sufficient to state a claim to be decided by the lower court.

The employee had declined to sign the release as part of her layoff severance package and subsequently filed discrimination charges with the EEOC. Then the company conditioned her severance benefit receipt on her withdrawal of the EEOC charges. According to the court decision, the broad language of the release was “facially retaliatory.”

The company had voluntarily turned over the employee’s work computer to the FBI during a child pornography investigation. The employee later claimed this violated the Fourth Amendment, and sought to suppress the evidence in his criminal prosecution that he had downloaded child pornography. “Social norms suggest that employees are not entitled to privacy in the use of workplace computers, which belong to their employers and pose significant dangers in terms of diminished productivity and even employer liability,” the appeals court noted. It held that a disseminated computer-use policy is “entirely sufficient” to defeat any expectation of privacy that an employee might harbor.

An employer hiring someone who lacks job qualifications cannot use the absence of those same qualifications in another applicant as a basis of rejection, the Court ruled. A female had twice applied for a locksmith position along with male applicants; none of the applicants had the requisite work experience. Although the Equal Employment Opportunity Commission and a lower court had rejected her discrimination complaint, the Third Circuit said that she had established enough of a case to go to trial.

A General Motors customer activities manager with multiple sclerosis was forced to take disability leave after reports that he had skipped required meetings, failed to return calls to customers, had his assistant performing some of his job duties, and was seen driving too slowly on the highways. The Court said that although placing the employee on disability leave was an adverse employment action, he was not meeting the company’s legitimate expectations and that “GM did not have to wait [for him] to get a ticket or have an accident before it could evaluate his fitness to drive one of its vehicles.”
Timmons v. General Motors Corporation.

Four of the seven cases involve the Age Discrimination in Employment Act, including cases to clarify whether an Equal Employment Opportunity Commission intake questionnaire and complainant’s affidavit is equivalent to filing a timely ADEA charge and whether an ADEA suit brought by a laid-off employee should allow the testimony of other laid-off employees about perceived age discrimination experienced in the company. The other three employment cases raise questions about the application of retaliation claims under a federal law prohibiting race discrimination in contracts; whether an employer breaches a fiduciary duty by not implementing an employee’s chosen investment strategy in his 401(k) account, and whether the Federal Arbitration Act preempts a state law giving a state labor commission exclusive jurisdiction over a contract pay dispute. The Supreme Court opened its 2007-2008 term Oct. 1.

Federal labor law does not preempt union members’ state tort claims against their employer, the Ninth Circuit rules. The case involves a workers’ meeting at a Las Vegas casino that was interrupted by security guards when the participants started chanting and shouting. The employees were ejected, and subsequently sued the company for assault and battery, false imprisonment, intentional and negligent infliction of emotional distress, negligent entrustment, and negligent hiring, training and supervision. In reversing the lower court’s decision in favor of the company, the Ninth Circuit ruled that since the tort claims did not require court interpretation of the collective bargaining contract, the lawsuit was not preempted by the Labor Management Relations Act. Ward v. Circus Circus Casinos Inc.

The Supreme Court has agreed to review several significant employment cases in its October term, including one which will determine whether the anti-retaliation provision in Title VII of the 1964 Civil Rights Act protects a worker from being dismissed because she cooperated with her employer's internal investigation of sexual harassment. The case at issue is a Sixth Circuit decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee holding that the employee was not engaged in a protected activity, and that participation in an internal investigation initiated by the employer in the absence of any pending Equal Employment Opportunity Commission charge was also not protected.

Another case will determine whether arbitration clauses negotiated in a collective bargaining agreement can waive the union members' right to go to court for statutory discrimination claims. The Second Circuit had decided in Pyett v. Pennsylvania Building Co., 14 Penn Plaza , LLC that a collective bargaining contract clause requiring the parties to arbitrate an age discrimination claim was unenforceable.

A third case involves a Ninth Circuit decision in Hulteen v. AT&T Corp. that held the company in violation of Title VII when it failed to restore pension service credits to female employees who took pregnancy leave prior to the passage of the Pregnancy Discrimination Act in 1978. The Supreme Court will decide whether an employer engages in a current violation of Title VII when, in making post-PDA eligibility determinations for pension and other benefits, the employer fails to restore service credit that female employees lost when they took pregnancy leaves under lawful pre-PDA leave policies; and whether the Ninth Circuit's finding of a current violation of Title VII in such circumstances gives impermissible retroactive effect to the PDA.

In a 2-1 ruling, the Ninth Circuit upholds a lower court class action certification for approximately 1.5 million women who worked or had worked at Wal-Mart since 1998. The class action involves allegations that the women were paid less than men in comparable positions, despite having higher performance ratings and greater seniority, and that they received fewer—and wait longer for—promotions to in-store management positions than men. Wal-Mart argued that the large size of the class would deny it due process, eliminating its ability to respond to individual claims. “Although the size of this class action is large, mere size does not render a case unmanageable,” the Court majority held. The dissenting judge pointed out that the class lacked “typicality” because the claims of the representative parties were not typical of the claims of the class. Dukes v. Wal-Mart, Inc.

U.S. companies now anticipate an uptick in new lawsuits and government probes, as well as the need to hire more in-house litigation staff to help manage the expected rise in disputes, according to a survey of corporate legal departments by Fulbright & Jaworski, an international law firm.

Fulbright says that employment cases “perennially” take up the largest portion of corporate dockets. According to the law firm, survey respondents reported the greatest spike in wage-and-hour suits – in which employees allege underpayment for overtime, meal and rest times. Nineteen percent of U.S. companies cited an increase in wage-and-hour cases in the past year compared to only one percent noting a decrease. “Retailers, which frequently call on part-time or seasonal workers, appear to have the most exposure: One-third of retail firms saw an increase in wage-and-hour litigation, with none reporting a drop,” Fulbright says.

After wage-and-hour cases, companies saw pronounced increases in five other areas of workplace litigation: general discrimination suits, followed by privacy, claims under the Employee Retirement Income Security Act, disability claims, and age discrimination, says the law firm. Fulbright says that of 10 major types of employment litigation, U.S. companies pointed to race discrimination cases as creating the highest financial exposure, followed by claims stemming from sexual discrimination; wage-and-hour violations; ageism; harassment; retaliation; disability; non-compete disputes; and violations of the Family and Medical Leave Act.

A $1.08 million award to an immigrant employee who was assured by management that his job would be “secure as long as he continued to perform well” and was terminated after his visa became invalid, will stand, rules the Ninth Circuit. According to the Court, Fendi North America was not compelled by the Immigration Reform and Control Act to terminate the employee, who needed time to change his visa status. “Fendi could lawfully have taken action other than discharge, and been in compliance with IRCA,” the Court noted, pointing out that the company could have granted the employee’s request for temporary, unpaid leave so he could resolve his work authorization problems. Giancarlo Incalza v. Fendi North America, Inc.

A security guard company distributed an employee handbook containing work rules prohibiting employees from 1) complaining to clients, 2) solicitation and distribution of literature “at all times while on duty or in uniform,” and 3) fraternizing on or off duty with other employees. All three rules violate federal labor law which makes it an unfair labor practice for employers to interfere with, restrain, or coerce employees in exercise of their right to organize and enlist support, according to the Court. Guardsmark, LLC v. National Labor Relations Board

A jury must decide whether a supervisor’s racial insults and other behavior toward a Hispanic employee constituted a hostile work environment, the Tenth Circuit rules, remanding a lower court summary judgment decision back for trial. The employee worked in a service center, where evidence suggested that profanity and ethnic jokes were the “norm.” The Court said that if that was all the employee had complained about, it might have agreed that the environment was just a “rough-and-tumble” one. However, evidence also showed racially derogatory treatment “well beyond being sworn at and joked with,” the ruling noted. Herrera v. Lufkin Industries, Inc.