Freedom of Speech to Complain About Your Termination to Your Best 30,000 Friends At Your Last Place of Work?

Maybe, but can you do it through the company's e-mail? GigaLaw has the story about the ongoing litigation to resolve just that question. Former Intel engineer Ken Hamidi is trying to convince the California Supreme Court that he does. Two lower courts have agreed with Intel's position. How Appealing has a couple of references to the oral argument that was heard yesterday.


Hamidi is not alone as such prestigious groups as the Electronic Frontier Foundation have filed friends of the court briefs. If you are really interested check out their brief [pdf], or for those truly interested go to the website devoted to this case. If nothing else, this should make employers aware of what can await in the way of internet communications when they take on a dedicated and technologically savvy employee.

SARS and the Workplace - One Canadian Province Responds

Even before the war in Iraq ends, SARS may be the next major issue that American is forced to deal with. The workplace is not immune, and so ultimately it will raise questions for employers. In Ontario, the provincial government has already issued a news alert pointing out the interaction between WORKPLACE LAWS AND SARS. Since so many companies now have employees who travel globally on a regular basis, questions are being raised not only about policies with respect to their travel, but also as to whether employees who have traveled should immediately return to the workplace. Tech companies with Asian operations seem to be in the vanguard of those affected according to a Washington Post story. For up to date information, check out the CDC webpage related to SARS.

Sweeney's Successor At the AFL-CIO?

Businessweek has a profile on Bruce S. Raynor, the President of UNITE, touting him as one union leader who seems to be making things happen. It's his union that is behind the class action wage and hour against Cintas that was noted here last week.

Textbook Application of Standard for Disability Under ADA - 5th Circuit

Yesterday's opinion by Judge Smith is a classic examination of the three part test that a plaintiff must pass before establishing the presence of a disability under the ADA. The claim was based on plaintiff's chronic pancreatitis. In Waldrip v. General Electric Co. (5th Cir. 4/1/03) [pdf], the court turned first to whether or not it was an impairment. The court found that chronic pancreatitis had been found to be an "impairment" in its own precedent, as well as the EEOC regulations. Additionally, GE did not contest that it was an impairment. Turning to the second requirement, the question was -- did the impairment affect a "major life activity." Here plaintiff claimed it affected eating, which the court held met the Supreme Court standard of "an activity of central importance to daily life", was more important than many other activities found to be major by prior 5th circuit cases, that three other circuits had found eating to be a major life activity with no contrary decisions, and the argument was supported by the EEOC's regulations.


But it was the third issue, which the court labeled the "linchpin" of the determination, that was the stumbling block for the plaintiff. The question is -- did the impairment "substantially limit" the activity of eating. Here, plaintiff's proof completely failed. His only proof was that he occasionally had to miss a few days work when his pancreatitis acted up. At most it showed only a temporary limitation which is not sufficient. Although breaking no new ground, this decision is a reminder of the heavy burden a plaintiff bears to establish the initial foundation of an ADA case -- that there is a disability as defined in law, not just a serious, even dangerous, health condition.

Request For Indefinite Leave Doesn't Cut It Under the ADA - 11th Circuit

The 11th Circuit seeks out a middle ground on whether or not an individual is qualified if he needs an indefinite leave of absence to recover in order to do the essential functions of his position. In Wood v. Green (11th Cir. 3/31/03), the Court did not rule a request for a leave might not be appropriate under other circumstances, but that it is not where there are no temporal limits. In doing so it relied on the regulations which focus on a present ability to do the essential functions, not a future ability.

3rd Circuit Severs Offending Cost Provisions and Enforces Arbitration Agreement

Weighing in on an issue that has arisen in several circuits, the 3rd Circuit finds that the determination of whether a provision that requires that attorneys' fees be borne by each party, regardless of other statutory law, and that the employee should pay 1/2 the cost of the arbitration, makes an arbitration agreement unenforceable is a question of state law. Applying, Pennsylvania law, they find the test is whether the primary purpose of the contract can be carried out after the offending provisions are struck. In Spinnetti v. Service Corp. International (3rd Cir. 3/31/03) [pdf], the answer is yes. After striking the offending provisions, the primary purpose, resolving disputes through arbitration rather than traditional litigation, could still be accomplished. The court upheld the district court's striking the provisions which left the employer responsible for the costs of the arbitration and subject to responsibility for attorneys fees under applicable statutes, like Title VII, if appropriate.

Oh Those I-9's, and the Criminal Law - Another Case Where the Employer is In The Middle

In 1986 (could it really have been that long ago?), the Immigration Reform Control Act was passed making it illegal for an employer to hire undocumented aliens, but also increasing penalties for discriminating against individuals because of their national origin. The way to avoid being caught in the middle was the now infamous I-9. [pdf]. But what was not accounted for was the tremendous boon in the false document market. Or at least that was what a jury apparently believed in acquitting Tyson Foods' of criminal charges of conspiring to hire illegal workers. As reported by the AP part of the company's defense was the Department of Justice brochure, Look At The Facts, Not the Faces. [pdf]. As one juror noted, there was just too much "gray area" for employers. Too often when society has goals that are not aligned -- prevent illegal immigration but don't discriminate because of national origin -- employers are left to sort it out. When it becomes criminal for getting it wrong, it may be time to rethink the issue.