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McKenna Employment Bulletin – October 2013


Even Your Bad Investigation Stops Punitive Damages

In Bennett v. Riceland Foods, Inc., 2013 WL 3766816 (8th Cir. 2013), the plaintiff requested punitive damages in her complaint. Before the employer had reached its decision to terminate the plaintiff as part of a reorganization plan, the head of human resources conducted an independent review of the plan in light of the plaintiff’s complaints about a supervisor’s racially offensive language. The head of human resources’ investigation was not sufficient to absolve the employer of fault. However, the Court held it constituted a good faith effort to prevent discrimination. Therefore, the Court held that the plaintiff’s Title VII retaliatory termination case should not go to the jury on punitive damages.

You Won’T Get A Permanent Injunction Where You Are Not Protecting Trade Secrets

In Tradesman International, Ins. v. Black, Nos. 11-3715 and 12-2032 (Cons., August 1, 2013) the Seventh Circuit affirmed the denial of the plaintiff’s request for a permanent injunction where the plaintiff employer sought to enforce a covenant not to compete against the defendant-former employees. The defendants established a competing company shortly after they had resigned from the employer. The Court found that the employer had not suffered irreparable harm arising out of the ex-employees’ conduct for two reasons. First, the company information used by the defendants was not a trade secret or good will and was, therefore, not subject to any confidentiality protections. Second, enforcement of the excessive geographical restrictions would have precluded the ex-employees from working anywhere in the United States.

You May Have To Share Witness Statements With A Terminated Worker And The Union

In American Baptist Homes of the West, 2012 WL 6673080 (N.L.R.B. 2012), an employee nurse informed the facility’s HR director that a co-employee was sleeping while on duty. The HR director asked the nurse to submit a statement containing her observation and assured her it would be kept confidential. Two other employees in the co-employee’s unit also provided statements they expected to be kept confidential. The employer terminated the co-employee. The co-employee filed a grievance with his union and the union representative requested the employer to provide the statements that were part of the employer’s investigation. The employer refused and the union filed a grievance with the NLRB. The NLRB sided with the union and required the employer to provide copies of the statements to the union and to the terminated co-employee. The NLRB held that if the employer wants to prevent turning over statements obtained in an investigation, the employer must show that sharing an individual’s witness statement would subject that witness to physical harm or harassment and the employer has to make that determination very early in the investigation. If an employer cannot make that substantial risk determination, they may not be able to promise confidentiality to the witnesses. The NLRB’s ruling may result in employees deciding not to provide statements for an investigation.

If You Require A Medical Exam Prior To Termination, You May Have Retaliated

In Brooks v. Pactiv Corp., No. 12-1155, September 6, 2013, Seventh Circuit, the employer demanded just prior to terminating the plaintiff that the plaintiff verify his ability to perform his job duties as a condition of his continued employment. The Court found that this requirement to verify his ability could have been motivated by the employer’s desire to undermine the plaintiff’s pending workers’ compensation claim in which the plaintiff alleged total disability. The Court further held that the termination took place just after the employer began receiving the plaintiff’s extensive medical bills that were being paid either through workers’ compensation proceedings or through the company’s health insurance. The Court found that this evidence could support a claim of retaliation against the employer.

An Employee Must Make The Employer Aware Of Their Disability To Be Protected By The Ada

In Heatherly v. Portillo’s Hot Dogs, Inc., 2013 WL 3790909 (N.D. Ill. 2013), the employer failed to ask for a doctor’s note from the pregnant employee to support her claim that she could not work outside, before denying her request not to work outside. The Court found this was not a failure to accommodate the employee under the Americans with Disabilities Act Amendments Act. The Court found that the burden was on the employee to make her employer aware of her disability in order to claim that the employer failed to accommodate the employee’s disability.

This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

Categories Employment Bulletin Publications

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