Lilly Ledbetter Fair Pay Act of 2009 signed into law 1-29-09

Below I have reproduced the entire Act. But you might want to read the Act on the Library of Congress site here: (S. 181 ENR) Lilly Ledbetter Fair Pay Act of 2009.

Here is a brief summary of why the LLFPA was enacted:

The LLFPA was enacted to amend the discrimination laws in order to render the Supreme Court’s Ledbetter v. Goodyear decision obsolete.

Background: A couple of years ago the US Supreme Court issued a controversial decision in a pay discrimination case. The case was Ledbetter v. Goodyear, decided by the US Supreme Court on May 29, 2007.

In the Ledbetter v. Goodyear case, the Supreme Court decided that Lilly Ledbetter had waited too long to bring her pay discrimination case, even though the discriminatory pay practice was continuing (through her current paychecks).

The Court reasoned that the illegal conduct did not consist in Lilly merely feeling the effects of pay discrimination (through her current paychecks), but rather, the illegal conduct consisted of the original decision by management to pay her less than males. And the decision to discriminate was made years ago. Accordingly, Lilly waited too long to file her charges and the 300-day statute of limitations had run out, and her case could not be brought in court.

Outrage ensued, and Congress took action, resulting in the LLFPA.

The LLFPA changes the law to give people like Lilly a new statute of limitations when they currently feel the effects of earlier pay discrimination, but limits their backpay to two years:

(1) The LLFPA clearly provides that a new act of illegal compensation discrimination is deemed to occur whenever the person feels the effects of an earlier act of compensation discrimination. For one example, each new paycheck starts a new statute of limitations. Here is the list of the things that will now start a new statute of limitations for compensation discrimination:

• when an individual becomes subject to a discriminatory compensation decision or other practice
• or when an individual is affected by application of a discriminatory compensation decision or other practice
• including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such decision or other practice.

(2) The LLFPA appears to limit the backpay remedy for compensation discrimination to two years prior to the filing of a charge of pay discrimination.

Here’s the two year limit provision: “… including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.” You can read it for yourself below.

Other than the provisions I have just summarized, the LLFPA contains what we might call “housekeeping” provisions that apply the new law to all the various big discrimination statutes.

Below is the entire text of the what I believe to be the version of the Lilly Ledbetter Act that was signed by the President.

I got the text from the Library of Congress site here: (S. 181 ENR) Lilly Ledbetter Fair Pay Act of 2009.

S. 181

AT THE FIRST SESSION

Begun and held at the City of Washington on Tuesday,
the sixth day of January, two thousand and nine

An Act

To amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Lilly Ledbetter Fair Pay Act of 2009”.

SEC. 2. Findings.

Congress finds the following:

(1) The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.

(2) The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.

(3) With regard to any charge of discrimination under any law, nothing in this Act is intended to preclude or limit an aggrieved person’s right to introduce evidence of an unlawful employment practice that has occurred outside the time for filing a charge of discrimination.

(4) Nothing in this Act is intended to change current law treatment of when pension distributions are considered paid.

SEC. 3. Discrimination in compensation because of race, color, religion, sex, or national origin.

Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–5(e)) is amended by adding at the end the following:

“(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

“(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.”.

SEC. 4. Discrimination in compensation because of age.

Section 7(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(d)) is amended—

(1) in the first sentence—

(A) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; and

(B) by striking “(d)” and inserting “(d)(1)”;

(2) in the third sentence, by striking “Upon” and inserting the following:

“(2) Upon”; and

(3) by adding at the end the following:

“(3) For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.”.

SEC. 5. Application to other laws.

(a) Americans with Disabilities Act of 1990.—The amendments made by section 3 shall apply to claims of discrimination in compensation brought under title I and section 503 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 12203), pursuant to section 107(a) of such Act (42 U.S.C. 12117(a)), which adopts the powers, remedies, and procedures set forth in section 706 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–5).

(b) Rehabilitation Act of 1973.—The amendments made by section 3 shall apply to claims of discrimination in compensation brought under sections 501 and 504 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 794), pursuant to—

(1) sections 501(g) and 504(d) of such Act (29 U.S.C. 791(g), 794(d)), respectively, which adopt the standards applied under title I of the Americans with Disabilities Act of 1990 for determining whether a violation has occurred in a complaint alleging employment discrimination; and

(2) paragraphs (1) and (2) of section 505(a) of such Act (29 U.S.C. 794a(a)) (as amended by subsection (c)).

(c) Conforming amendments.—

(1) Rehabilitation Act of 1973.—Section 505(a) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)) is amended—

(A) in paragraph (1), by inserting after “(42 U.S.C. 2000e–5 (f) through (k))” the following: “(and the application of section 706(e)(3) (42 U.S.C. 2000e–5(e)(3)) to claims of discrimination in compensation)”; and

(B) in paragraph (2), by inserting after “1964” the following: “(42 U.S.C. 2000d et seq.) (and in subsection (e)(3) of section 706 of such Act (42 U.S.C. 2000e–5), applied to claims of discrimination in compensation)”.

(2) Civil Rights Act of 1964.—Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16) is amended by adding at the end the following:

“(f) Section 706(e)(3) shall apply to complaints of discrimination in compensation under this section.”.

(3) Age Discrimination in Employment Act of 1967.—Section 15(f) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(f)) is amended by striking “of section” and inserting “of sections 7(d)(3) and”.

SEC. 6. Effective date.

This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

BOO - Missouri Court of Appeals rules Jan 2009 that the “exclusive cause” standard applies to proving a “public policy discharge” case

The case is Fleshner v. Pepose Vision Institute, where the appeals court reversed an employee’s jury verdict because the trial court did not use the “exclusive cause” standard

(We hope the Missouri Supreme Court will fix this problem one day)

You can read Fleshner v. Pepose Vision Institute (PDF file) for yourself.

Here’s why I am writing about this – For many years, the courts of Missouri have applied this absurd “exclusive cause” standard to Workers Comp Retaliation cases. See that article for a criticism of the exclusive cause standard.

Now, the courts have clearly expanded the reach of the “Exclusive Cause” standard – expanded it to reach the type of Wrongful Termination case that we call “Public Policy Discharge”. You can read about Public Policy Discharge in my Wrongful Termination article linked above.

“Exclusive Cause” is a court-created concept that does not appear in the written laws.

I’m not going to repeat all of my harsh critique of the Exclusive Cause standard that I put in my Workers Comp Retaliation article, but I do want to say something about it: Hardly anything has an “exclusive cause” - everything has multiple causes, some of which are major and some of which are minor.

The concept of “Exclusive Cause” is more of an academic philosophical subject than it is a real world standard of proof that has meaning to real people. Here’s a hypothetical —

Let’s say a man and his boss had an argument and the man killed his boss, and the man was fired. This firing would be perfectly legal. Even so, let’s talk about whether the killing was the “Exclusive cause” of the firing. I would argue that the killing was a major cause, but not the “Exclusive Cause.” For example, let’s say the boss treated the employee rudely, provoking him, and that the man would not have killed his boss if the boss had treated him considerately. For another example, maybe the employee has a deficiency in his brain such that he lacks normal ability to control his temper, making it easier for him to be provoked to violence, etc etc —- you see how it goes? So it is possible to argue that there were multiple causes for a firing, even though the major cause was the killing of the boss.

A much better standard would be “Direct Result”. In our example, the employee’s firing was clearly the direct result of having killed his boss.

I hope you can see that the term “Exclusive Cause” is unworkable.

END OF RANT

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

New FMLA Regulations effective January 16, 2009

The US Department of Labor (DOL) has revised and re-published the regulations governing how the Family and Medical Leave Act (FMLA) must be administered.

According to the DOL, the new regulations have taken into account 15 years of experience with FMLA, including many court decisions.

Here’s an executive summary factsheet about the new FMLA regulations, from the DOL (PDF file)

Here is a link to a HUGE PDF file containing the entire set of FMLA regulations

I will publlish a critique of the new regulations at a later time.

The new regulations also cover the latest amendments to the FMLA, giving new rights related to military service

The Family and Medical Leave ACT (FMLA) was amended in 2008 to provide for the following new rights, according to the US DOL:

• (1) Up to 12 weeks of leave for certain qualifying exigencies arising out of a covered military member’s active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation, and
• (2) Up to 26 weeks of leave in a single 12-month period to care for a covered servicemember recovering from a serious injury or illness incurred in the line of duty on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave during the single 12-month period.
• Reference: US DOL FMLA Final Rule page.

The DOL has set up a special website to help people get information about the new FMLA regulations.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

Voting Rights for Missouri Employees - RSMo 115.639 - employers are sometimes required to give 3 paid hours off work to vote, but not always. You must request time off BEFORE election day, and meet the conditions I describe below.

Missouri employee voting rights are described in Missouri Law RSMo 115.639 . I have copied the law down below in this article. By the way, the Missouri Secretary of State put up a website - Vote Missouri - of general info about voting, but I could not find any mention on that site of the rights of Missouri employees to time off to vote.

According to RSMo 115.639, employers must grant you three hours off work to vote, without reducing your pay, under the following conditions:

• 1. You make a request for the time off, BEFORE ELECTION DAY.
• 2. Your work schedule is such that you will not have 3 consecutive hours, outside of work, in order to vote. The polls are open 6AM to 7PM, so if your work day starts at 9AM or later, OR it ends by 4PM or earlier, you are not eligible for the special 3 hours off work.
• 3. The employer gets to dictate which 3 hours you can leave.
• 4. The employer must not reduce your pay because you leave for those three hours.
• 5. You must use the time to actually vote.
• UNANSWERED QUESTION: The law says the employer must give you 3 hours to vote, if the above conditions are met. But some employers might try to give you less than 3 hours off. Here’s how: Imagine that your normal workday ends at 5PM, leaving 2 hours of voting time remaining before the polls close at 7PM. Can your employer merely give you ONE hour off, ending your day at 4PM instead of 5PM, so as to allow you 3 hours in which to vote? This question has not been answered by the Missouri Appellate Courts. I think employers are obligated to give you 3 hours, because 115.639 is a penalty statute, calling for criminal prosecution for violation, and therefore must be “strictly construed”. Under a strict interpretation, since 115.639 does NOT say “up to 3 hours” - it says “3 hours” - 3 hours are required to be granted if you meet the conditions. I cannot find any Missouri Appellate Court cases regarding RSMo 115.639, and so it’s very possible my opinion will turn out to be wrong once such a court makes a ruling.

Here is the text of RSMo 115.639, as of October 2008:

Three hours off work to vote-interference by employer a class four offense.

115.639. 1. Any person entitled to vote at any election held within this state shall, on the day of such election, be entitled to absent himself from any services or employment in which he is then engaged or employed, for a period of three hours between the time of opening and the time of closing the polls for the purpose of voting, and any such absence for such purpose shall not be reason for the discharge of or the threat to discharge any such person from such services or employment; and such employee, if he votes, shall not, because of so absenting himself, be liable to any penalty or discipline, nor shall any deduction be made on account of such absence from his usual salary or wages; provided, however, that request shall be made for such leave of absence prior to the day of election, and provided further, that this section shall not apply to a voter on the day of election if there are three successive hours while the polls are open in which he is not in the service of his employer. The employer may specify any three hours between the time of opening and the time of closing the polls during which such employee may absent himself.

2. Any employer violating this section shall be deemed guilty of a class four election offense.

(L. 1977 H.B. 101 § 15.025)

Effective 1-1-78

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

ADA employment provisions semi-fixed!!! On 9/25/08 President Bush signed S. 3406, The ADA Amendment Act of 2008

The 2008 Amendments to the ADA are effective January 1, 2009. Here are some links to more info:

• Read the news report of the passage of Senate 3406. This report has a photo of President Bush signing the bill, with his father Bush1 looking on. Bush1 signed the original ADA into law in 1990.
• Read the Bill Summary of Senate Bill 3406 here.
• Download a copy of Senate 3406, The ADA Amendment Act of 2008 - pdf file.

We hope the ADA Amendments eliminate the infamous “Tightrope”:

The Tightrope kills almost all ADA employment cases. For many years, due to court decisions, few workers could qualify as “disabled”. (With some exceptions) Only those few who could walk the tightrope were disabled.

Here’s what “the tightrope” refers to: To be protected by the ADA at work, you have to be very very limited, despite your medicines, leg braces, or other helpful measures, and yet you have to still be able to do the job. The more limited you are, then the less likely it is that you can do the job (and therefore you are not covered by the law) — The more able you are, then you are probably not disabled enough to be covered by the law. So, those who are covered are those who can walk the tightrope - they are sufficiently disabled, yet they can still do the job. Few people can walk the tightrope.

Here’s a portion of the Bill Summary describing the most important employment-related changes in S. 3406 —

ADA Amendments Act of 2008 -
Section 4 -

Sets forth rules of construction regarding the definition of “disability,” including that: (1) such term shall be construed in favor of broad coverage of individuals under the Act; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; (3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (4) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.

To conclude - Predictions for changes due to The ADA Amendments Act of 2008:

• Companies will be likely to assume that significant long term health conditions are covered by the ADA. This is a complete 100% reversal of the existing situation, where companies now predict that the condition is NOT going to be a qualified disability
• Companies will be much easier to deal with when employees request accommodation of their health conditions.
• Companies should be very careful with employees whose job issues are related to their health conditions, whether or not the employees have requested accommodation of a disability.
• The EEOC will be very aggressive for a few years in enforcing the ADA amendments.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

The BJC health system is mandating flu shots, and I am getting calls and emails about it. Here are my quick and dirty thoughts —-

I am sorry to have to say the following:

• Assuming that BJC’s order for flu shots applies to everyone under its control, or at least to large groups rather then selected individuals, there isn’t much you can do.
• You can ask to be exempted on religious or disability grounds, if a flu shot conflicts with your religion or your disability.
• If you refuse the flu shot and quit, or refuse and get fired, you will probably not get unemployment benefits unless you have a good religious or medical reason to have refused the shot.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

Whistleblowers: On August 1, 2008, Congress sent President Bush a Consumer Product Safety bill with new whistleblower protections

I will write more about this bill later, H.R. 4040 (passed by both the House and Senate).

The law works kind of similar to the EEOC laws (discrimination laws), but the right to sue is not automatically granted.

The Bill provides an explicit right to file a whistleblower complaint with the US Department of Labor within 180 days of suffering retaliation for properly reporting (as specified in the law) a consumer product safety violation.

If the Department of Labor does not finish its processing within 210 days, then you can file a lawsuit.

Damages are — reinstatement, backpay, compensatory damages, attorney fees, but not punitive damages.

AND a little trap: The law permits the Department of Labor to award $1,000 in attorney fees to the Employer, if the Department finds that the complaint was frivolous.

Here’s the Thomas page for the Bill, H.R. 4040. If the link breaks, go to “thomas.loc.gov” and do a search for H.R. 4040. And, You can also go to Govtrack for H.R. 4040 information.

Here’s a news story: reports say Bush plans to sign the bill into law.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

The US and Missouri minimum wages have both changed in 2008

US Federal minimum wage increases to $6.55 on July 24, 2008, and will change again in 2009

Missouri minimum wage increased to $6.65 on January 1, 2008, and will change again in 2009

See my minimum wage article for details and links about the Federal AND Missouri minimum wages.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

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Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

US Supreme Court issued two nice Retaliation-related decisions on May 27, 2008

Here’s a quick summary of these two important pro-employee retaliation-related cases, along with links to the cases:

Oh, by the way, Here’s my general article about “retaliation”, to help you appreciate how important that subject is.

In Gomez-Perez v. Potter, the Court decided, once and for all, that Federal Employees can sue for retaliation for making age discrimination complaints under the ADEA, even though the ADEA does not mention “retaliation” in the section dealing with discrimination against government workers.

Gomez-Perez v Potter.

In CBOCS-West v. Humphries, the Court decided, once and for all, that the most important anti race discrimination law, 42 USC Section 1981, includes protection against retaliation even though Section 1981 does not specifically mention “retaliation”.

CBOCS West Inc v Humphries.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

Judge Romines’ promotion changed the way St. Louis County Court handles non-compete cases, creating new challenges

I’ve been meaning to write about this for a long time. Sorry for the delay.

In this article, I intend to discuss some changes to the way that St. Louis County Courts handle “Equity” cases. This issue affects Non-Compete cases mostly.

I cannot say with any certainty whether the changes benefit employers or employees more. It might be a complete wash, where both sides are equally affected.

A capsule summary of the changes: We used to have a special judge who was assigned to hear all “equity cases”. This judge was our Equity Expert. But he got promoted to the Court of Appeals.

Rather than assign another judge to be the “Equity Expert”, the County Court decided to let ALL judges hear equity cases, the same as they hear all kinds of other cases.

Before I discuss what this might mean, I want to introduce you to the concept of Equity.

”Equity” is a legal concept that is meaningless to laymen but very meaningful to lawyers trying to get relief for clients

Equity article at Wikipedia.

“Equity” differs from “the civil law” as regards the remedies the judge can impose. In a civil lawsuit, we usually seek money as damages - and the civil law provides a mechanism (a trial by jury) for us to seek such damages. But what if we need to have a judge order that someone do something, or stop doing something?

When we ask a judge to order that someone do something (other than pay money) or stop doing something, we are asking for “Equity”, rather than money damages. The Wikipedia link above offers the example of a plaintiff whose neighbor will not return his only milk cow, where the man wants his cow back rather than the value of the cow. A court of “equity” can order the neighbor to return the cow.

The type of equity case I most often deal with is the Non-Compete. case. Most commonly, an employer is suing a former employee for allegedly violating a non-compete agreement, and is trying to get an “Equity Judge” to issue an injunction prohibiting the employee from competing.

The former Equity Expert in St. Louis County was Judge Kenneth Romines

Judge Romines was promoted to the Court of Appeals. Here is his bio page: Judge Kenneth Romines.

When we had an equity expert, we had a greater degree of predictability in the outcome of cases. We knew how Judge Romines viewed the law, so we were better able to marshall evidence to address his concerns, in order to improve our chances of getting favorable rulings.

Judge Romines was a great equity judge. I do not mean that he was overly friendly to my clients’ positions. I mean that he knew the law very well, and he knew the tricks lawyers pulled, and he knew how to efficiently drill down to the core issues and facts in equity cases. And then he made well reasoned decisions (like them or not).

With Judge Romines, we knew the drill - we knew what we would have to show in order to have a decent chance of getting a ruling in our favor. We knew what he would ask us at the hearing, and we could be prepared to address his concerns.

Likewise, we knew when our circumstances would likely be a loser in front of Judge Romines, so we could be governed accordingly and often avoid litigation. Our clients benefited.

Anecdote about Judge Romines and his famous Equity lectures to the docket about “consulting the oracles”

Imagine a full courtroom early in the morning. Litigants and lawyers fill the room awaiting the start of “docket call” in Judge Romines’ courtroom. People with all manner of disputes are waiting to ask Judge Romines to issue orders to make someone honor a roofing contract, or make someone trim a tree or something.

The bailiff calls the courtroom to order. Judge Romines takes the bench.

Judge Romines is a great raconteur, and an effective and efficient legal pragmatist. He loves to tell stories, and his stories are full of humor. He often brought his humor into the courtroom. He would begin to address the crowd —-.

(The following is a paraphrasing of an actual speech I heard Judge Romines deliver to the docket one day:)

Who am I?
What do I know about roofs?
I studied law, not construction.
I’ve never replaced a roof.
Oh, I’ll be happy to listen to both of you.
And after I listen, I’ll go and consult the oracles. [Yes, he actually says such things]
And then I WILL make a decision.
And one or both of you will be very unhappy.
But you don’t want ME making the decision, I assure you, because I don’t know anything.
Here’s what you should do - Go out into that hallway, and you offer to pay a little more money, or you offer to do a little more, and you get this dispute settled, because you probably won’t like what I’m going to do.

You’ve got to respect Judge Romines’ approach. He was uniquely effective.

In the post-Romines world of St. Louis County Court, the judges now ALL hear equity cases. There are 20 circuit judges in St. Louis County.

So, we have many people hearing equity cases now. Each judge will have his or her own unique background and interest as regards Non-Competes. Maybe some judges will have a great deal of knowledge about that area of law, or maybe not.

Maybe some judges will be philosophically opposed to issuing injunctions that prevent employees from working. Or maybe some judges will be reluctant to deny injunctions, thinking that there’s little harm in issuing an injunction for a short period (until a formal hearing in two weeks) .

The chance is small that a lawyer is going to see a particular judge, sitting on a non-compete case, with sufficient frequency to become confident about how the judge will view a particular set of circumstances.

And so, we have less ability to predict what an equity judge is likely to do nowadays, in Non-Compete cases.

This lack of certainty means greater risk for our clients. It’s certainly possible that *some* Non-Compete cases will be easier to settle due to the uncertainty. But it’s equally possible that *some* Non-Compete cases will go to court now, rather than settle, because one party wishes to try their luck with the new judges (whereas they would have been confident that Judge Romines would have ruled against them).

Actually, it’s probably a good thing that the court is spreading around the responsibility to handle equity cases. I would have hated to see Judge Romines be replaced by a judge whose decisions I did not particularly respect. I would then have been stuck with that judge for many years, to the detriment of my clients. At least now, my clients will have plenty of opportunity to get a fair shake, even though an occasional judge will be unsatisfactory.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

Missouri Legislature attempting to stifle civil cases in St. Louis by firing 6 judges, in order to clog up the court system.

I got an email alert from the Bar Association warning about our Legislature’s plan to clog up the St. Louis civil court system. By removing a bunch of judges, cases cannot get heard, and fewer trials and judgments will occur. Why do you think the legislature wants to do that?

Here is the Alert I got, verbatim:

S.B.976 Amended in Judiciary Committee

Dear BAMSL Member:

S.B.976 has been amended in the Judiciary Committee with provisions that would eliminate 6 circuit judge positions in the 22nd Judicial Circuit and is now on the House Calendar for debate.

If this bill passes as currently amended, six of our current sitting judges would be removed at the expiration of their current terms in November, assuming that no other vacancies are created by retirement or resignation.

The terms of seven circuit judges will expire this year. They are Judges John Riley, Steven Ohmer, Thomas Grady, Julian Bush, David Dowd, Michael Calvin (who has since announced his resignation), and Timothy Wilson.

As the largest voluntary bar association in the St. Louis metropolitan area, we feel it is imperative that we take a strong stance against these measures.

Not only would we stand to lose 6 outstanding judges, but the ability of the 22nd Judicial Circuit to administer justice through the timely resolution of cases would be severely damaged.

The attorneys who have civil cases pending in the Circuit would be the most adversely affected by this bill.

Currently, the Circuit operates on a six week rotation with 3 weeks dedicated to criminal cases, 2 weeks to civil cases, and one week to handle motions, hearings and other administrative matters. If the Circuit loses six trial court judges, one of the civil weeks will need to be removed from the rotation to ensure that criminal defendants receive their constitutionally required speedy trial. This will potentially bring the civil docket to a grinding halt.

Supporters of the bill point to the Judicial workload survey which showed that the 22nd Judicial Circuit had four more judges than it needed to handle its caseload. The validity of the survey results have been called into question for many reasons. For example the survey assumes that 1% of felony criminal cases will be tried. While this may be true statewide, in the 22nd Judicial Circuit more than 2% of the felony cases are tried. If this adjustment is made the survey would allocate an additional 2.5 judges to the Circuit.

We are all concerned about the efficient allocation of judicial resources. However, it is our belief that the Supreme Court of Missouri is in the best position to determine the proper allocation of judges. In fact, the Supreme Court’s judicial transfer program is set to go into effect July 1, 2008. This program will move existing judges from circuits that are over-allocated to circuits that are under-allocated on an as needed basis. We believe that the Supreme Court’s plan should be given a chance before taking the drastic move of removing six sitting judges.

The legislative session ends Friday, May 16, 2008. We encourage you to contact your House member and share your opinion about how this legislation will impact St. Louis.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

Tuesday May 6, 2008 - Tim’s office internet access is down - we cannot access email. We expect to be back up by Friday May 9, 2008

Please call the office until we get the email fixed.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

Missouri Legislature is trying to weaken Employees’ legal rights in 2008

Two bills are being considered which threaten Employees’ rights, SB 1046 and HB 1858

The two bills are designed to make it more difficult for employees to win cases.

SB 1046 would weaken our whistleblower protections. In one part, it would take the “Exclusivity” standard of proof from case law and make it even more difficult to prove.. The exclusivity standard already makes no sense to me, as I rant and rave about in an article about retaliation. SB 1046 goes further and sets rigid standards for when someone has a whistleblower case.

SB 1046 info page. The Sponsor of SB 1046 is Rob Mayer, District 25 Republican.

Here’s the bill summary for SB 1046:

SB 1046 - Under this act, the employment-at-will doctrine shall not control when elements of a whistle-blower cause of action for wrongful discharge are established. This cause of action is established if an employee proves by a preponderance of the evidence that the employee reported to the proper authorities conduct that the employee had a good faith and reasonable belief violated a statute, constitutional provision, or regulation and a clearly mandated public policy; the employee was discharged; and the act of reporting was the exclusive factor in the discharge.

Similarly, the employment-at-will doctrine shall not control when elements of a refusal to commit an illegal act cause of action for wrongful discharge in violation of public policy are established. This cause of action is established if an employee proves by a preponderance of the evidence that the employer directed the employee to perform conduct that would, if completed, violate a statute, constitutional provision, or regulation and a clearly mandated public policy; the employee specifically refused to perform the act; the employee was discharged; and the refusal to perform the act was the exclusive factor in the discharge.

This act is similar to HB 1456 (2006) and SB 168 (2007).

Regarding HB 1858:

Do you know how corporations like to incorporate in Delaware (or other states)? Well, this means that when a Missouri resident sues the company, the case is heard in Federal Court rather than Missouri courts. Federal Courts usually dismiss employment cases rather than let them go to trial —- that’s what HB 1858 seeks to accomplish —- pushing employment discrimination cases into Federal Court so that they will be dismissed.

Here’s how HB 1858 accomplishes its goal: HB 1858 destroys our ability to sue the evildoing manager himself. We can still sue the company, but not the evildoer. Currently, we can often sue in Missouri Courts even if a company is incorporated in Delaware, if we ALSO sue the evildoing manager himself, because the manager is probably a Missouri resident. HB 1858 would prevent us from suing the evildoing manager himself.

HB 1858 would also eliminate our ability to win punitive damages from the State of Missouri when the State violates our civil rights.

HB 1858 info page. The chief Sponsor of HB 1858 is Edgar G. H. Emery, District 126 Republican.

Here’s the bill summary for HB 1858:

HB 1858 — Human Rights

Sponsor: Emery

This bill revises the definition of “discrimination” to an
adverse action motivated by race, color, religion, national
origin, ancestry, sex, or age as it relates to employment and
disability or familial status as it relates to housing. The bill
also removes any person directly acting in the interest of an
employer from the definition of “employer.”

Courts cannot award punitive damages to state governmental
agencies or corporations, including public school districts and
political subdivisions.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

FMLA was amended for 2008 to add a special Servicemember Leave entitlement

In 2008 FMLA was amended to add a Servicemember Family Leave entitlement.

FYI - See also my main FMLA article.

26 Weeks to care for a Servicemember, and you can get it if you are next of kin, spouse, parent or child

You can get the Servicemember leave entitlement if you are a next of kin, or if you are a spouse, parent or child of the Servicemember.

The new Servicemember leave entitlement is 26 weeks. BUT, you don’t get BOTH the 26 weeks to care for a Servicemember, AND the 12 weeks for the traditional FMLA reasons — you get a max of 26 weeks during a year in which you care for a Servicemember. So if you use 12 weeks for yourself, and then you have to care for a Servicemember, you only have 14 weeks left.

The Servicemember leave can only be used during one single year

It appears you can only use the Servicemember leave during one single 12 month period. It does not appear that you can claim a second Servicemember leave for the next year, even if your Servicemember still needs care. To quote from the law:” (3) SERVICEMEMBER FAMILY LEAVE.—Subject to section 103, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. The leave described in this paragraph shall only be available during a single 12-month period.”

We do not know for sure whether you can take a second Servicemember leave during a future year, if your Servicemember incurs a different qualifying event.

A “Qualifying Exigency” must occur to trigger your right to take Servicemember family leave, but we do not yet know what the “Exigencies” will be

Your right to take leave to care for a Servicemember is NOT absolute - A “Qualifying Exigency” must occur. We do not yet know what all the qualifying exigencies will be, but they will probably be limited to servicemembers who become incapacitated by war, or get sick or injured while in a war zone, or get sick or injured while preparing to go to the war zone.

The government has not yet published a list of approved “Qualifying Exigencies”.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

FMLA news: The FMLA law is updated in 2008 to expand coverage related to care for military members, and the Dept of Labor is proposing changes to FMLA regulations

FYI - See also my main FMLA article.

See my separate article on FMLA 26 week Servicemember family leave.

ISSUE 1 - Effective January 28, 2008, FMLA now provides 26 weeks of leave to care for a member of the military, and allows such military-treatment leave to be taken by anyone who is “next of kin”

The US Dept of Labor says the following about the 2008 amendment

”On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181. Among other things, section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (FMLA) to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” See the DOL announcement here.

Links to FMLA update related materials

• Dept of Labor announcement of FMLA update. The update occurred as part of Section 585 of the National Defense Authorization Act for FY 2008, Public Law [110-181].
• Contents of FMLA law, as updated

See my separate article on FMLA 26 week Servicemember family leave.

FYI - See also my main FMLA article.

ISSUE 2 - Dept of Labor proposes FMLA regulation changes that mainly benefit employers

The proposed changes hurt medical privacy, and make it easier for employers to deny FMLA leave, and deny reinstatement after leave, among other important changes

You will see from the proposed regulations linked below that the Dept of Labor is responding to the concerns of employers (mostly) in its proposed regulation changes. Download the pdf file containing all the explanations (linked below). The DOL gives a pretty good explanation of the problems it is trying to solve with the new changes.

I did not see much that benefits employees in the proposed changes. I did see a lot of fluff in the text accompanying the regulations, fluff that makes it appear that the DOL is concerned about employees’ problems. But the proposals do not offer any significant changes that help employees, in my opinion.

I will write more about the new regulations if they become effective. The regulations are in the public comment discussion phase right now.

Links related to the DOL’s proposed new FMLA regulations for 2008

• DOL info page on the proposed regulation changes for 2008
• Executive summary by the DOL of its proposed new FMLA regulations for 2008 - 3page PDF file.
• Download a 4 MB PDF file containing the full text of the DOL’s proposed new FMLA regulations for 2008.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

Missouri State Merit System Employees Can Demand Service Letter, under 36.470

Missouri State Government Merit System employees have a right that is similar to the more well-known Service Letter law. See MO Law 36.470 - Missouri State Employees are entitled to a Service Letter. The Law defines the Service Letter as “a letter setting forth the nature and character of service rendered by the employee, the duration thereof, and truly stating for what cause, if any, the employee has been discharged from or has quit such employment.”

BUT —- This special law for State Government Employees (36.470) is very different from the Service Letter Law that applies to private employees (290.140). See also My Service Letter article about 290.140.

How to qualify for a Service Letter under 36.470 if you are a State Merit System employee:

• Have worked at least 90 days before getting let go, or quitting.
• Make a written request for Service Letter.
• Send the written request to the “head of the department or division employing the employee”.

The key differences between MO Law 36.470 and MO Law 290.140:

• No Certified Mail Requirement: The State Employee does not have to send his request via certified mail. This is a major difference from 290.140. BUT the prudent State Employee WILL send his request via Certified Mail, just so that he has some proof.
• It’s a CRIME: Yes, it’s a CRIME for the “Head of a Department or Division affected” to refuse to provide a Service Letter when requested. It’s a Misdemeanor. This is a major difference from 290.140.
• Differences in Remedies: It’s possible to sue the State for failing or refusing to furnish a Service Letter, but only if the failure or refusal was willful and malicious. This is a meaningful difference in language from 290.140. But under either law, 36.470 or 290.140, you won’t win anything of significance in court unless you can prove willfulness or maliciousness.
• No specific deadline to provide the Service Letter. 36.470 does not specify the time period in which the State must issue the letter to you. However, give the Department at least 45 days before you even think about taking action.

That’s all I want to say about 36.470 (the Service Letter rights of State Merit System employees) at this time. To learn about the Service Letter rights for private employees, see My other Service Letter article, about 290.140.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

FMLA and Returning to Work on Light Duty

See also my main FMLA article.

Big WARNING: You might not be eligible for FMLA protection ——- To be eligible for FMLA protection, all of the following must apply:

• You have to work for a large employer of 50 or more people within 75 miles of your jobsite
• and you have to have been there for one year
• and worked 1250 hours in the prior 12 months
• and have a qualifying serious health condition
• and not have used up your 12 weeks of allowable FMLA time
• and have complied with the employer’s certification requirements
• ——— If all of those things apply, then FMLA will protect you if you want to refuse to return early on “light duty”, as long as you do in fact return to full duty before your FMLA time is used up.

See also my main FMLA article.

If you are eligible for FMLA protection, you do not have to agree to return on light duty.

Trying to force you onto light duty: What if the company doctor releases you to “light duty”, as in workers comp situations? When an employee injured himself at work, the employer may try to reduce his worker’s compensation payments by offering “light duty”. In workers comp injuries, some employers might force you to take light duty by telling you that you will be fired if you refuse. If the employer is covered by FMLA, and if you are eligible for FMLA protection (see above), with FMLA leave time remaining, the employer cannot force you to accept light duty.

If you are eligible for FMLA, You can stay out on full time leave until you are fit for full duty, as long as you do not exceed your 12 weeks of FMLA-protected time. You might lose a benefit, such as workers comp disability payments, by refusing light duty, but the employer cannot force you onto light duty against your will. Likewise the company’s short term disability plan might require you to accept light duty if offered by the employer, and so you might lose those disability payments if you refuse light duty. It’s ok under FMLA for the employer’s comp carrier, or those disability carriers, to stop paying you if you refuse light duty - that’s because the FMLA does not require paid leave.

The Law of FMLA and Light Duty: Federal Regulation 29 CFR 825.207 (d)(2)

There’s a federal regulation on the point of FMLA and light duty: 29 CFR 825.207 (see subpart d2), providing that an employee is NOT required to accept “light duty”. The employee can refuse light duty and merely stay out on leave until he is fit to perform the essential functions of his job —-

“(d)(2) … However, if the health care provider treating the employee for the workers’ compensation injury certifies the employee is able to return to a “light duty job'’ but is unable to return to the same or equivalent job, the employee may decline the employer’s offer of a “light duty job'’. As a result the employee may lose workers’ compensation payments, but is entitled to remain on unpaid FMLA leave until the 12-week entitlement is exhausted.”

From 29 CFR 825.207 (see subpart d2).

The US Department of Labor’s Q and A says that the employer cannot force you to accept a “light duty” assignment, and that you have the right to stay on full time leave rather than return to light duty. See FMLA Q and A, with a subsection about light duty Here’s a quote from the DOL’s Q and A page, as of Dec 2007: “Q: Can my employer require me to return to work before I exhaust my leave? A: [ …. ] The employer may not, however, require you to return to work early by offering you a light duty assignment..” (I omitted the part of the answer that talks about your duty to provide proper medical certification for your absence.)

Question: What happens if you are still not ready for full duty at the end of your 12 weeks of FMLA protected time?

Answer: You are vulnerable to being fired, and the FMLA will not care. BUT - the law of discrimination and wrongful termination might care, if the employer is treating you more harshly than he treats others. But if the employer always fires people who exceed their 12 weeks of FMLA time, and he fires you too, then the employer isn’t discriminating against you - he treats everyone badly.

In determining whether an employee is fit to resume his job, the courts tend to use the terms used in Americans with Disabilities Act cases: Can the employee perform the “essential functions” of his pre-FMLA job? If not, then the employer can deny reinstatement. If 12 weeks have been used up and you are still unfit to perform all of the essential functions of the job, you are vulnerable to being fired. If you have a qualifying disability (link goes to EEOC’s ADA pages) you can request accommodation of course, to help you perform the essential functions.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

On October 15, 2007, we moved the office.

See the bottom of each page of the website for the new contact info.

The Directions and Virtual Tour pages have been updated. Check them out.

The old phone number will continue to work for a long time.

I regret any inconvenience for those of you who are accustomed to coming to my old office. I hope you can appreciate that I’m very close to I-270 now, and so I’m easier to get to for just about everyone. No one will have to fight with all the I-64 (Hwy 40) construction hassles. Also, my new space is quite nice. Oh, I almost forgot to mention that my new space has the added appeal of being only 3 miles from home.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.

Federal Minimum Wage

Federal minimum wage increases to $6.55 effective July 24, 2008, and on July 24, 2009 the Federal minimum wage will be $7.25 per hour.

From July 24, 2007 to July 23, 2008, the Federal minimum wage was $5.85

Here is the Federal Dept of Labor’s Q and A page about the Federal minimum wage

NOTE: Missouri has a different Minimum Wage. See Tim’s Missouri Minimum Wage page.

The minimum wage is a political football for some reason. The Democratic majority (since Nov 2006) in Congress got a Federal minimum wage increase passed. The last time the Federal minimum wage increased was under the administration of Democrat Bill Clinton. In Missouri, our minimum wage is increasing due to a citizen referendum, not by action of our legislature.

How can Missouri have a higher minimum wage than the Federal Government?

The minimum wage laws of the Federal Government allow the states to set a higher minimum wage.

LINKS:

US Department of Labor Wage and Hour Division. This is where you can get some info about who is covered by the minimum wage and overtime laws.

US Department of Labor minimum wage info page

Missouri Department of Labor minimum wage info page

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Lawyer Directory.