July 2, 2009

"Cloud" computing and employment law

Daniel Schwartz points out angles that might become traps for the unwary:

For example, Connecticut's wage and hour laws require employers to keep track of various records of the employee including hours worked, etc. The catch? Such records need to be kept at the employer's place of business for three years. Does storing the information in "the cloud" satisfy that?

And suppose an employee is fired for improper use of the Internet and you want to "image" (or copy) the computer that the employee has worked on to preserve the evidence. How do you do that when the computer you want to image may be in a server thousands of miles away?

Or consider the lawsuit filed by an employee and the call that needs to go out to your IT department to put a "litigation hold" on your data. How do you do that when it's based in the "cloud"?

July 1, 2009

Jim Copland on Ricci/firefighters case

At City Journal: "The Supreme Court's commendable Ricci verdict won't change the Catch-22 logic of discrimination law. ...It won't happen in this Congress, but ultimately, let's hope that disparate impact finds itself in the dustbin of history."

Some other noteworthy reactions to Ricci: Ilya Somin at Volokh (decision may increase costs of litigation and compliance for employers, shedding further doubt on critics' contention that Roberts Court is "pro-business"); Michael Fox (noting Ginsburg language about majority ruling lacking "staying power"); Daniel Schwartz (rounding up reactions) and followup (five things employers can learn from case); Marc Alifanz, Stoel Rives "World of Work" (Congress may undo, as it undid Wards Cove); NYT "Room for Debate". And as mentioned earlier, I've discussed the decision in pieces for Forbes.com and the New York Post.

June 30, 2009

"Court: Discriminate -- with discretion"

I'm in today's New York Post with a second take on yesterday's Ricci (New Haven firefighters) case. Link thanks: Instapundit. My first take on the decision, at Forbes.com yesterday, is linked here, and see also comments on it by Daniel Schwartz, Jon Hyman, Ohio Employment Law (to whom thanks for the kind comments as well), and Scott Greenfield (cross-posted, slightly adapted, from Overlawyered).

June 29, 2009

Now up at Forbes.com: my reactions on Ricci

I've got an opinion piece up at Forbes.com on today's Supreme Court decision in Ricci v. DiStefano, the New Haven firefighter reverse-discrimination case. The title: "Sued If You Do, Sued If You Don't: Through the Looking Glass on Affirmative Action" (cross-posted from Overlawyered).

June 26, 2009

"States, Strapped for Cash, Ramp Up Employment Classification Audits"

"Is a worker an employee or independent contractor? The legal distinction between the two often is clear as mud, but the consequence for guessing 'independent contractor' when the answer is 'employee' can be a huge bill to employers for back wages (especially overtime) and back taxes." And states, just like class action lawyers, stand to make a fortune through aggressive efforts to convince courts that employers have guessed wrong [Workplace Prof, Slate "BizBox"]

June 24, 2009

Reassigning worker from fifth-floor to first-floor office

It (along with some other grievances) was held to support a claim of retaliation -- but not discrimination -- in a recent Seoond Circuit case, because the standards for claiming retaliation are lower. [Wait a Second, blog on civil rights in the Second Circuit, via Daniel Schwartz]

June 19, 2009

Supreme Court on mixed-motive age cases

A high court divided 5-4 gives employers a surprise victory, ruling that plaintiffs cannot prevail on the same "mixed-motive" analysis under which they could win a race or sex discrimination suit. But Congress could override the Court as it did with Ledbetter and ADA rulings, and Daniel Schwartz warns that "vast majority of ADEA cases never used the mixed motive analysis anyway. If there is circumstantial evidence of discrimination, courts traditionally allow those claims to proceed to trial."

June 11, 2009

Museum Guards Wanted Bulletproof Vests...

CBS news reports that a union official asked for protective vests for guards at the U.S. Holocaust Memorial Museum two years ago, but that the vests were never purchased by Wackenhut Security, the guards' employer.

The racist pig who killed Stephen T. Johns (of blessed memory) will very likely prove to be insolvent. Will we see a lawsuit against Wackenhut, testing the Workers' Compensation immunity doctrine? Or maybe a suit against the museum itself (if it "negligently" declined to pay Wackenhut extra to purchase vests), testing sovereign immunity doctrines?

Insolvency of the bad guy is at the root of the expansion of many a tort doctrine...

June 8, 2009

Around the web, June 8

• Overexposure to zinc from denture cream eyed as new mass tort [Maryland Injury Lawyer, WSJ Law Blog, Qualters/NLJ]
• The donations of Madison County: "Metro East Litigation Giant Floods [Illinois] Senate Candidate Giannoulias with Cash" [Post-Dispatch courtesy American Towns, Madison County Record]
• Proposed expansion of federal gratuities statute could criminalize much innocuous behavior in dealings with public officials [Brian Walsh, Heritage]
• "Supreme Court of Canada Deals Setback to Nationwide Class Action Settlements" [Karlsgodt]
• Wachovia pays $39 million to settle stockbroker overtime class action [Bronstad, NLJ]
• Noteworthy amicus brief in Santa Clara case: California District Attorneys Association weighs in against government retention of contingent-fee counsel [Lisa Perrochet, Nuisance Blog]

June 4, 2009

Sotomayor and the ADA/bar-exam case

As I mentioned last week:

The one case of [Sotomayor's] of which I've been most sharply critical over the years is Bartlett v. Bar Examiners, the famously long-drawn-out disabled-rights case in which Judge Sotomayor ruled that a seriously learning-disabled bar applicant who'd already failed the bar exam several times with extensive accommodations was legally entitled to yet further chances and accommodations. I wrote up the case here and here, among other places....

Now a post by Anthony Dick at NRO "Bench Memos" gives a quick summary of why the case is so controversial:

you might think that, since reading ability is an important part of practicing law, and the bar exam is designed to ensure minimal competence among lawyers, papering over a test-taker's lack of reading ability would somewhat defeat the purpose. It would seem clear to most people that, in the language of the ADA, compromising the standards of the test regarding a basic legal skill would not qualify as a "reasonable accommodation." But that would be a decidedly unempathetic point of view. Such an attitude is in fact "invidious," according to Sotomayor's opinion.

It is far from clear that any of this will constitute so much as a speed bump on the path to Senate confirmation for Sotomayor, since lawmakers on the Hill have shown little or no interest in reining in adventurous interpretations of the Americans with Disabilities Act -- indeed, when the Supreme Court moved on its own to rein some of them in, Congress responded with legislation to overturn the decisions and re-liberalize rights to sue under the law. (cross-posted, slightly adapted, from Overlawyered). A different view: Larry Ribstein.