Monthly Archives: September 2012

Fuzzy Math: How 93=89 in the 4th Circuit

In an interesting reversal by the Fourth Circuit, a pro se plaintiff gets to move forward with his race and age discrimination claims.

The plaintiff filed an EEOC charge and received a right-to-sue letter, a prerequisite to filing a lawsuit. Plaintiffs have 90 days from the date they receive the right-to-sue letter to file a lawsuit. In this case, the plaintiff himself alleged in his complaint that he received the letter on August 28, 2011, making his lawsuit four days late.

But the Fourth Circuit found that, based on the exhibit to his complaint, the letter actually wasn’t mailed until August 29, 2011, a day after the plaintiff claimed to have received it. Further, by adding on the presumption that mailed documents are received three days after being sent, the Fourth Circuit found that his complaint was actually filed on day 89, not day 93.

When it comes to the law, things are not always as simple as they seem.


Group Healthcare Costs Up, Coverage Down

Two new surveys show the changing role employment-based health insurance may play after the massive federal overhaul of health insurance.

One found that group healthcare costs continued to rise; the other found that employer-based coverage is declining. Interestingly, even though employment-based coverage is dropping, the overall percentage of people insured is rising based on increased public coverage.

We’ll have to wait a few more years to see how the individual mandate–the core of the Supreme Court’s headline decision last year–will impact these numbers.

NFL Refs Back on Field After Pension Fight

After weeks of poor calls on the field, NFL referees are back on the field. The main driver? An agreement on whether refs would continue to participate in pension plans or switch to defined contribution 401(k) plans.

Like many employers, the refs will now phase out of the generous pension plans offering fixed income for life. A more typical 401(k) will take its place.

So You’ve Violated the NLRA

With all the news about social media policies and the National Labor Relations Board delving into topics it’s long ignored, it’s good to look at the consequences of having an unlawful policy.

Take an example: an employer has a social media policy completely prohibiting employees from discussing working conditions online. It violates the National Labor Relations Act, which protects employees’ rights to discuss their collective working conditions, wages, etc.

Simply having the policy isn’t a big problem–if an employee complains to the NLRB, you may have to fix the policy.

The big problem comes when you use that unlawful policy to justify firing someone. If the fired employee complains to the NLRB, you’ll not only have to fix your policy, but likely rehire the employee, give them back pay and benefits, and, quite possibly, be forced to post the NLRB opinion where all your employees can see it.

The important part is not the policy itself, but how you use it.

Does Money Matter?

An interesting article in the Wall Street Journal highlights not only a technological shift, but also sparks an interesting question: will a raise entice a valued employee to stay?

The article examines complex computer models fed with data from former employees. Looking at the collected data, the computer model will look at why employees leave, and what companies can do to keep them. Importantly, it can also tell employers what won’t work.

A recent study of one large employer found that paying employees at the midpoint of their salary range–a slight bump up–helped keep those employees. But another pay raise past the midpoint didn’t help any more.

So it seems money matters–but only to a point.

Walk the Walk

Because according to one federal appeals court, simply talking the talk isn’t enough to avoid $3.5 million in punitive damages.

In a hostile work environment case, the Seventh Circuit said Chrysler was so relaxed in its response to three years of severe harassment that punitive damages were warranted. It took few concrete steps to actually stop the harassment–by all accounts extremely caustic–over the course of three years.

Once employers learn of harassment, they have to take reasonable steps to remedy or prevent it. Here, the court said, Chrysler talked the talk, but didn’t walk the walk, hence the punitive damages.

IRS Awards Whistleblower $104 Million

In the largest tax whistleblower payout ever, the IRS awarded a former UBS employee $104,000,000 for helping uncover the bank’s illegal role in helping U.S. citizens evade taxes. He was just released from more than two years in prison for his role in the scheme.

The investigation he triggered resulted in UBS paying $780 million in penalties and led to Switzerland significantly revamping its banking laws. It also persuaded more than 14,000 people to participate in a voluntary tax amnesty program that brought in more than $5 billion in unpaid taxes.