The U.S. Senate passed a defense appropriations bill on Sunday morning that includes an extension of unemployment benefits and other provision that will help many in Michigan during these tough economic times. The House had voted for the same bill earlier last week.

The bill includes an extension of the time the federal government will subsidize COBRA payments to allow unemployed workers to keep their health insurance from nine months to 15 months. It also fixed a glitch in an earlier unemployment extension bill that should help about 70,000 Michigan workers become eligible for an extension of their benefits.

An associate professor at Missouri State University has filed an age discrimination lawsuit against the college after she and three other members were reassigned to non-teaching duties, allegedly without cause. According to the lawsuit, Mary Ann Jennings, a social work professor, was removed from the School of Social Work in May 2008 in the midst of a program overhaul. The lawsuit claims she was not given a hearing as required by the faculty handbook, and that the only faculty that were reassigned were 50 years old and older. She is seeking actual damages plus $1 million in punitive damages. Didi Tang, News-Leader 12/21/2009

In one of our cases our plaintiff contended that her co-worker kissed her without her consent.  The plaintiff immediately complained to her supervisor and believed that she was retaliated against for her complaints of harassment in that the district manager repeatedly accused her of lying and also reduced her hours.  As a result of the harassment, the employer’s failure to conduct a proper investigation, continual badgering of plaintiff and cutting her hours, the working conditions became intolerable and plaintiff felt compelled to resign.  

On the other hand, the defendants contended that the kiss was consensual and even if it was not, that the employer took all necessary steps to investigate the harassment and prevent further harassment by separating the harasser from plaintiff and later by suspending him for one week.  The employer  contended that the reduction in plaintiff’s hours was not retaliatory. 

The trial last approximately 2.5 days and the jury deliberated for approximately 7.5 hours.  The Plaintiff was awarded a total of $226,208.00 in damages.

Associated Press

US jobless rate reaches 9.8 percent in September

By CHRISTOPHER S. RUGABER

According to Bloomberg News, the U.S. economy lost fewer jobs in August as unemployment climbed to a 26-year high, indicating the recovery from the worst recession since the 1930s will be slow to gain speed.

Companies cut payrolls by 216,000 workers, less than forecast, after a 276,000 drop in July, Labor Department data showed yesterday in Washington. The jobless rate rose to 9.7 percent, higher than anticipated, from 9.4 percent.

The figures stoked concern that a turnaround in the labor market will not begin until well after the recovery is forecast to take hold in the second half of the year. With the ranks of long-term unemployed nearing 5 million, workers are at risk of losing skills, making it difficult to eventually find a job.

In Hernandez v. Hillsides, Inc., S147522,  a residential facility for abused children, installed a hidden video camera in an office from which it believed someone was accessing pornographic websites after hours.  Two clerical employees worked in the office during the day, but were never told about the camera nor did they consent to its use.  After discovering the camera, the sued Hillsides for invasion of privacy- a common law tort requiring them to prove an intrusion into some private place, conversation or matter, and in a manner that a reasonable person would find highly offensive.  The California Supreme Court will soon decide whether an employer may have invaded the right to privacy of two of its employees when it installed a hidden camera in their office without their knowledge or consent.

Olvera v. El Pollo Loco (April 27, 2009) 173 Cal.App.4th 447

Plaintiff was the general manager of a restaurant owned and operated by El Pollo Loco.  Salvador Amezcua filed a class action complaint against El Pollo Loco.  A first amended complaint was filed, adding another Plaintiff to the action.  The suit alleged failure to pay overtime, failure to provide meal breaks, unlawful deductions from earnings, failure to provice accurate itemized wage statements, unfair business practices, and conversion.  Defendant moved to compel arbitration.  The trial court ruled that the arbitration agreement was procedurally and substantively unconscionable.  Following Gentry, the Court of Appeal  (2nd App. Dist., Div. 3) readily identified procedural unconscionability.  The court concluded that inequality in bargaining power between the low-wage employees and their employer makes it likely that the employees felt at least some pressure to sign the acknowledgment and agree to the new dispute resolution policy, whatever they understood that policy to be.  Also, the employee’s agreement to be bound by the new dispute resolution policy was not an informed decision.  The explanatory materials provided to the employees stated that the new dispute resolution policy was that employees should first contact management to resolve any problem and then, if the problem was not resolved in that manner, mediation was required.  The Court of Appeal also found substantive unconscionability. 

This is another example of the courts recent decisions to marginalize employer-drafted arbitration agreements .

We recently met with over 500 California Workman’s Compensation attorneys at their bi-annual summer convention at Squaw Creek Resort. The meeting provided many new insights into the laws (which are evolving almost daily!) protecting “applicants”, those workers injured in both the “course” and “scope” of their employment. Fortunately for our mutual clients, Labor Code 132a continues to provide dual tracks of protection: a 132a claim in work comp for being terminated for filing a claim and a parallel right to file a civil action in court for termination in violation of public policy. It is this latter tort that our firm specializes in. Interestingly, a small non-permanent injury can provide the basis for a wrongful termination case if it is work-related. As opposed to the Government Code definition of discrimination, which requires a permanent or semi-permanent injury.

I look forward to using this space to discuss upcoming developments, new cases and new ideas in employment law which you can use in your professional/work life. Today’s topic will be on Buy Out Agreements.

Many large Fortune 500 companies offer employees a voluntary package of benefits for them to consider in lieu of continuing employment at the company. Perhaps the work force is being reduced, manufacturing or services are being outsourced, or the company is merging with the inevitable consequence of duplicate jobs.

A true “buy out” gives you the employee the option to take the money and (literally!) run or continue working. Each decision carries with it certain implications. Perhaps the most important is, assuming you want to continue working, how much longer your job remains post-buy out offer. One has to assume that the employee may still be laid off on an “at will” basis, at least in the absence of a contract. So, evne though you may wish to continue working, the company may be sending you a not-so-veiled message that job security is a thing of the past.

Also consider the “fine print”. Somel buy outs may attempt to limit your right to continue to work in the industry, for a competitor, supplier, or customer. In California (where we have our offices) employers may not limit employees from continuing to work in the same field, and any buy out that has this agreement made be unenforceable by the employer. This is not legal advise since we don’t give legal advise in this column and a complete answer would depend on reviewing the particular buy out agreement.

In many cases, employers are required by law or other contractual agreements to give certain benefits (COBRA conversion rights re health insurance), defined employer-contribution retirement plans, etc., and a buy out agreement should not require an employee to specifically agree within a buy out to benefits that are already owed that employee.

In many cases, a buy out can be specially negotiated. For example, a job placement agency who is already under retainer to the company could be added on. Health insurance could be paid for into the future. Don’t hesitate to ask for sweetners!