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EMPLOYEE PERMITTED
TO SUE EMPLOYER FOR ASSAULT BY CO-EMPLOYEE DESPITE WORKER'S
COMPENSATION CLAIM
COLLECT ME TO DEATH
COURT FINDS COUNSELING
SESSIONS COVERED UNDER WAGE & HOUR LAW
AN EMPLOYER MAY
BE SUBJECT TO TITLE VII LIABILITY FOR
RETALIATION FOR FIRING AN EMPLOYEE IT THOUGHT MADE A
FALSE SEX HARASSMENT CLAIM
LYING ABOUT
EXTRAMARITAL AFFAIR
DOES NOT CREATE MARITAL BIAS DISCRIMINATION CLAIM
COLLECTION AGENCY
SLAMMED WITH A $10.2 MILLION JUDGMENT
EMPLOYEE PERMITTED TO SUE EMPLOYER
FOR ASSAULT BY CO-EMPLOYEE DESPITE WORKER'S COMPENSATION
CLAIM
BY: ALLISON L. CANNIZARO,
METAIRIE OFFICE
The Virginia Supreme Court unanimously decided that
the Virginia workers' compensation law did not bar an
employee who was assaulted by a co-worker from suing
her employer for negligent hiring and retention, respondeat
superior liability, and intentional infliction of emotional
distress. Butler v. Southern States Cooperative,
Inc., 620 S.E.2d 768 (Va. 2005). The company was
aware of the co-worker's earlier rape conviction when
he was hired.
The co-worker assaulted plaintiff in a company delivery
truck. The co-worker told plaintiff that she was "getting
him all excited," ran his hand through her hair
and attempted to kiss her. After the plaintiff resisted,
he told her "well, you know what I want" and
"you just don't know me like that yet." Id.
at 770. Plaintiff reported the incident to the police,
resulting in the co-worker's conviction of misdemeanor
assault and battery.
Although the Virginia Workers' Compensation Act provides
the exclusive remedy to injuries by accident "arising
out of and in the course of" an individual's employment,
the court found separate liability for the employer.
The court ruled that while the assault "arose in
the course of her employment," as she was making
an authorized delivery for her employer, it did not
"arise out of" her employment.
The court stated: "We have consistently held
that when an assault 'is personal to the employee and
not directed against [her] as an employee or because
of [her] employment, the injury does not arise out of
the employment.'" Id. at 772, citing Richmond
Newspapers v. Hazelwood, 249 Va. 369, 373 (1995). Because
the plaintiff's allegations clearly established that
the assault was personal and not directed against her
as an employee or because of her employment, "her
injury cannot fairly be traced to her employment as
a contributing proximate cause." Id. at
773.
PRACTICE POINT: Employers should consider using
criminal background checks before hiring. An employee's
criminal history could bring company liability in the
future.
COLLECT ME TO DEATH
BY: BRIAN D. ROTH, METAIRIE
OFFICE
A federal district court in Kansas ruled in Burdett
v. Harrah's Kansas Casino Corp, et al., 311 F.Supp.2d
1166 (Kan. 2004) that the widow of a debtor who committed
suicide could state a claim for wrongful death against
the debt collectors.
The debtor had a pathological gambling disorder and
had amassed a considerable number of debts, which were
sent to collection agencies by Harrah's for collection.
Faced with mounting martial and financial problems,
the debtor committed suicide. His widow brought suit
under the Kansas wrongful death statute against the
collection agencies, alleging that her husband's suicide
was a result of the collection activities arising from
his gambling debts.
The collection agency argued that because plaintiff
did not allege that it had contacted the decedent on
the date of the suicide, plaintiff did not sufficiently
allege that the collection agency's wrongful conduct
resulted in immediate physical injury. The court rejected
this argument and stated that since the collectors'
conduct may have been the proximate cause of the injury,
the action could be maintained.
While the act of suicide is ordinarily considered an
independent intervening act where the original wrongdoer
could not have been expected to foresee, the Burdett
court ruled that because the conduct of the collection
agency may have caused the mental condition, which resulted
in an uncontrollable impulse leading to the suicide,
plaintiff could proceed with her wrongful death action
against the collection agencies.
PRACTICE POINT: Debt collection agencies may
face liability for damages under statutes beyond the
Fair Debt Collection Practices Act.
COURT FINDS COUNSELING SESSIONS
COVERED UNDER WAGE & HOUR LAW
BY: DAVID ISRAEL, METAIRIE
OFFICE
The federal appeals court in Chicago ruled that a
police dispatcher was eligible to be paid for her counseling
sessions and for her traveling time to those sessions.
Sehie v. City of Aurora, 432 F.3d 749 (7th Cir.
2005).
A former emergency dispatcher for the City of Aurora,
the plaintiff, Karie Sehie, handled 911 calls. After
7 years, she resigned effective June 12, 2001.
The case did not focus on her resignation, but instead,
involved her unscheduled absence from work. On December
14, 2000, the plaintiff was ordered to stay and work
a second shift because a co-worker was sick. Regardless
of her protest, Sehie was forced to work the second
shift. Thirty minutes into the new shift, the plaintiff
"became very angry and upset . . . and abruptly
left work." Id. at 750.
The plaintiff had been treated for psychiatric issues.
After she was forced to work the second shift, the plaintiff
was treated by her therapist and took medication for
her stress.
Recognizing the work-related injury to the plaintiff,
City of Aurora required the plaintiff to complete a
fitness for duty evaluation. The doctor who performed
the evaluation confirmed that Sehie was "fit for
duty, but recommended as a condition of her continued
employment that she attend weekly psychotherapy for
6 months." Id.
Between February 2001 and the plaintiff's resignation
in June 2001, the plaintiff "attended 16 sessions
with . . . [the therapist] spending an hour at each
session." The plaintiff "also spent 2 hours
traveling back and forth by car to each session."
Id. at 751.
Sehie sued the city under the federal wage and hour
law claiming that she should have been paid for the
time she spent attending her sessions and "commuting
back and forth to the counseling sessions . . . because
this time was beyond her normal 40-hour work week."
Id.
The court first determined that the attendance "at
the sessions was a mandatory condition of Sehie's continued
employment." Id. at 752. Regardless that
the plaintiff may have benefited from the sessions,
the court confirmed that the counseling sessions were
also for the city's benefit. The court noted that the
city would not allow the plaintiff to see her own therapist.
The court reviewed various regulations issued by the
Department of Labor (DOL) interpreting the federal wage
and hour law. Section 785.43 of the federal regulations
detailing wage and hour requirements describes when
an employee receiving medical attention during the employee's
normal working days should be paid for the hours spent
during this treatment. The court affirmed various opinions
issued by the DOL and found that when "an employer
requires an employee to attend physical or mental examinations,
including psychiatric examinations, during non-working
hours as a condition of continued employment, the time
spent undergoing such examinations constitutes 'hours
worked' and is therefore compensable under . . ."
the federal law. Id. at 753. Travel time was
included.
PRACTICE POINT: Whenever an employer requires
medical treatment that is part of the workday, the employer
will be responsible for paying the employee's regular
rate of pay.
AN EMPLOYER MAY BE SUBJECT TO TITLE
VII LIABILITY FOR
RETALIATION FOR FIRING AN EMPLOYEE IT THOUGHT MADE A
FALSE SEX HARASSMENT CLAIM
BY: MAYAS D. ERICKSON,
METAIRIE OFFICE
In Gilooly v. Missouri Department of Health and
Senior Services, 421 F.3d 734 (8th Cir. 2005), Mr.
Gilooly claimed that he was sexually harassed and retaliated
against. The 8th Circuit permitted the plaintiff to
pursue his retaliation claim, even though the trial
court dismissed the underlying sexual harassment lawsuit.
The plaintiff, Mr. Gilooly, was transferred to a new
office. During his exit interview before he was transferred,
he told his supervisor that he requested the transfer
because his female co-workers were harassing him, "overly
dependent on him," and making it difficult for
him to do his job.
The plaintiff never filed a formal harassment complaint.
Both female co-workers told their supervisor that they
were having sexual relationships with Mr. Gilooly. The
plaintiff denied the relationships.
Mr. Gilooly was later suspended for visiting a client
in a mental hospital without supervisor approval and
providing the psychiatric patient with pepper spray.
The plaintiff was ultimately terminated for arming the
patient with pepper spray, although his termination
letter stated that "[t]he reason for [your] dismissal
[was] that [you] made false [sex harassment] statements
during the investigation and grievance hearing which
followed [your] accusations against two former co-workers."
Id. at 737.
Because the stated reason for Mr. Gilooly's termination,
arming a patient with pepper spray, was different than
what was used in the termination letter, the Court found
"a necessary inference of retaliatory motive."
Id. at 740. The trial court dismissed the sex
harassment claim. The 8th Circuit confirmed the trial
court's dismissal of the plaintiff's sex harassment
claim, but remanded the case for determination of the
retaliation claim.
PRACTICE POINT: To establish a retaliation claim,
a plaintiff does not have to win his underlying discrimination
claim. Employers must be cautious when terminating an
employee who has made discrimination and retaliation
claims, by investigating both carefully. If the employee,
regardless of whether it is accurate, believes the discrimination
claim accurate a retaliation claim may still be actionable.
LYING ABOUT EXTRAMARITAL AFFAIR
DOES NOT CREATE MARITAL BIAS DISCRIMINATION CLAIM
BY: DAVID ISRAEL, METAIRIE
OFFICE
A married male executive fired after lying about an
affair with a subordinate female customer service representative
had no discrimination claim.
In Freeman v. Ace Telephone Ass'n d/b/a Ace Communications
Group, 404 F.Supp.2d 1127 (D. Minn. 2005), the company's
former co-chief executive officer was terminated during
October 2003 after having an affair with a subordinate.
The former co-CEO, David F. Freeman, was married.
Mr. Freeman alleged that it was discriminatory for
male executives to be punished by being discharged for
having workplace affairs, while female employees involved
in the same affair were not fired, nor even investigated.
After learning of the affair, the company's board
of directors terminated Freeman. The board had doubts
regarding Mr. Freeman's ability to lead the company
and about potential liability.
There was no evidence that Freeman's discharge was
due to his being married. The court noted: "The
termination letter states that Freeman was terminated
for 'business necessity' based upon his lack of 'the
judgment and professionalism' Ace expects . . ."
of its executives. Id. at 1138. The judge continued:
"Companies are entitled to hold executives to a
higher standard than lower level employees." Id.
During an investigation of Freeman's relationship
with his subordinate, Freeman was found to have bought
Viagra using a company credit card. Freeman lied to
the board of directors about his relationship with his
subordinate. The subordinate was not discharged.
Analyzing whether the subordinate was "similarly
situated" to Freeman, the court found that there
were significant differences. The judge ruled: "For
example, there was no evidence that Thomas [the subordinate]
had a fiduciary duty . . . [to the company] or that
she deceived the board." Id. at 1137-38.
All discrimination claims were dismissed.
PRACTICE POINT: The more senior a company
official, the higher the standard of care, loyalty,
and fiduciary obligations that the executive has toward
his employer. A company has the right to expect its
managers and executives to set the proper "tone
at the top" and to be held responsible for not
setting the proper example in their leadership role.
COLLECTION AGENCY SLAMMED WITH A
$10.2 MILLION JUDGMENT
BY: MICHELLE H. LYON,
METAIRIE OFFICE
The Federal Trade Commission (FTC) won a $10.2 million
judgment against National Check Control and its principals
for violations of the Fair Debt Collection Practices
Act (FDCPA).
This is the largest judgment in FTC history for FDCPA
violations. The federal district judge permanently banned
National Check Control from ever again acting as a debt
collector.
In FTC v. Check Investors, Inc., Case No. 03-2115,
the federal court in New Jersey found FDCPA violations
against National Check for harassing and threatening
consumers with claims that they owed money for checks
returned for insufficient funds. National Check made
repeated calls to consumers, sent threatening letters
and falsely threatened that consumers could face civil
or criminal charges if they did not pay their debts.
The FTC alleged that many consumers did not owe any
money, or owed significantly less than claimed.
The court enjoined National Check from violating the
FDCPA in the future, including harassing consumers with
repeated phone calls, obscene language, or threats of
legal action, misrepresenting the amount a consumer
owe, failing to notify consumers of their right to dispute
the debt, and misrepresenting that the person contacting
the consumer is a lawyer. National Check Control was
further barred from selling or transferring any consumer
accounts.
PRACTICE POINT: The FTC has jurisdiction over
debt collectors. Debt collection companies must regulate
its collectors to ensure FDCPA compliance or risk steep
penalties, including being barred from the industry.
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