Thursday, October 18, 2012

Second Circuit Strikes Down DOMA

Today, the Second Circuit Court of Appeals struck down the Federal Defense of Marriage Act as unconstitutional. In Windsor v United States, the New York based appellate court decided that DOMA violates the Constitution's Equal Protection Clause.

The Second Circuit joins the First Circuit in finding the law unconstitutional. That said, these decisions are likely only stepping stones to the Supreme Court, as the land's highest court will undoubtedly take up DOMA.

What does this mean in the Employment Law context? Federal law does not consider sexual orientation to be a protected class in the same way race, gender, and religion are---at least not yet.

A telling line from the opinion reads as follows: "Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public." The Second Circuit seems to be putting this issue on a tee for the Supreme Court to knock out of the park by finding sexual orientation to be a protected class. If and when that happens, those discriminated against or harassed because of their sexual orientation should have the same rights in the workplace as everyone else.

Currently, seventeen states and the District of Columbia consider sexual orientation a protected class. Neither Missouri nor Kansas are included in that number. Ultimately, the decision the Supreme Court makes may very well expedite the process of ensuring that all are entitled to the same protections in Missouri and Kansas. We will just have to wait and see.

Have a question regarding your rights in the workplace or how this decision might affect you? Call the Paulus Law Firm at (816)581-4040 for a free consultation.


Jordan Bergus
Paulus Law Firm, LLC
Ex-CSC Employeee Sues Over Unpaid Wages, OT Pay

by Dan Rivoli

Law360, New York (April 14, 2011)--A former employee at information technology giant Computer Sciences Corp.'s Kansas Operation center hit the defense contractor with a class action Thursday for denying workers wages and overtime pay for work done off the clock.

Jennifer Tommey, a former consultant and account services assistant, accused CSC of denying nonexempt employees who are paid hourly at an Overland Park, Kan., facility wages for work-related activities performed during lunch breaks, and before and after their shift, according to a complaint filed in U.S. District Court in the District of Kansas.

If you believe that you are not being paid for all the hours you work, Please contact the Paulus Law Firm at 816-581-4040.

Appeals Court Overturns Injunction Keeping Lee's Summit Twins in School

Yesterday the 8th Circuit Court of Appeals overturned the Western District Court’s grant of a preliminary injunction that allowed Lee’s Summit twin brothers to stay in School. In the case titled S.J.W., et al. v. Lee’s Summit R-7 School Dist., et al., the brothers challenged their 180 day suspension for creating a bullying website. The twins argued that the suspension was a violation of their rights to free speech. The trial court agreed to halt the suspension until a trial could be had on the merits of the case. The 8th Circuit overturned that decision stating that the district court’s findings did not support the relief granted and that the twins were unlikely to succeed on the merits under the relevant caselaw.
Ryan M. Paulus
Paulus Law Firm L.L.C.

Friday, October 12, 2012

Age Discrimination Summary Judgment Overturned

In Acevedo-Parrilla v. Novartis Ex-Lax, Inc. Docket 10-2276, October 10, 2012, the 1st Circuit Court of Appeals overturned the district court’s grant of summary judgment in an age discrimination in violation of the Age Discrimination in Employment Act claim. On appeal the Appeals court noted that inconsistencies between the Company’s stated reasons for dismissal and the Plaintiff’s performance record together with that fact that the company took no disciplinary action against the Plaintiff’s younger replacement for similar conduct was sufficient to show pretext. The Court held that there was sufficient evidence presented on summary judgment from which a jury could draw the permissible inference that the Company’s claimed reasons for terminating the Plaintiff were pretextual and that the decision was a result of discriminatory animus.
Ryan Paulus
Paulus Law Firm

Tuesday, October 9, 2012

Former Coach Mike McQueary of Penn State University Files Whistleblower Suit Against University

Former Penn State University Assistant Coach Mike McQueary has filed suit against the University alleging that he was terminated because he was effectively a whistleblower in the Sandusky case. It is well known at this point that McQueary saw Sandusky engaging in illegal actions at the football facilities and reported the incident to Head Coach Joe Paterno. McQueary also reported the incident to ivestigators from the Pennsylvania Attorney General's Office.

McQueary is alleging that he was the only the Penn State Assistant Coach to not be allowed to interview when now-Head Coach Bill O'Brien took over after Paterno's resignation. Essentially, McQueary is alleging that he was wrongfully terminated for whistleblowing, which is a practice that public policy encourages.

Both Missouri and Kansas have adopted causes of action for Wrongful Termination in Violation of Public Policy. Several practices, including whistleblowing, are considered to be viable causes of action, although this is an area of law that is rapidly evolving.

If you have been terminated for engaging in conduct that public policy would encourage or for refusing to take part in illegal conduct, please contact the Paulus Law Firm to see what rights you may have.

Jordan Bergus
Paulus Law Firm

Kansas Supreme Court Upholds Noneconomic Damage Cap in Tort Cases

In Miller v. Johnson (No. 99818), a case handed down just this past Friday, the Kansas Supreme Court upheld the constitutionality of the Kansas Tort Claims Act.

The KTCA caps noneconomic damages in tort claims to $250,000. The trial jury returned a verdict $325,000 excess of this amount, but the trial court set it aside in favor of the statutory cap. The opinion is very lengthy and does not break down easily into component parts, but it appears that the KTCA is here to stay for good. Long story short, the Court said that the legislature's imposition of limits in awards does not violate the separation of powers, in that it does not invade the province of the jury. On the plus side, the Court did reinstate $100,000 for future medical expenses.

Aside from the noneconomic cap, the KTCA also imposes a punitive damages cap of $5,000,000 at best, depending on the circumstances.

For information on how this decision may affect you, please give us a call at the Paulus Law Firm.

Jordan Bergus
Paulus Law Firm

Wednesday, October 3, 2012

Pregnancy To Become A Protected Disability Requiring Reasonable Accommodation?

On September 19, 2012, Senator Robert Casey of Pennsylvania proposed a bill that, if passed, would seek to end discrimination in the workplace based on pregnancy.

The Pregnant Workers Fairness Act would make it unlawful for an employer to: 1) deny employment; 2) fail to make reasonable accommodation; 3) require an employee to accept an accommodation she does not wish to accept; or 4) require an employee to take leave, if another reasonable accommodation is available.

Here is a link to the full text of the proposed legislation: Pregnant Workers Fairness Act.

Check the blog in the coming months for an update on the status of the Pregnant Workers Fairness Act.

In the meantime, please contact the Paulus Law Firm with any questions that you have regarding pregnancy in the workplace or any other disability.
Jordan Bergus
Paulus Law Firm