Click Here for Printable Version   Schiff Hardin's Labor and Employment Group Welcomes Eric L. Barnum We are pleased to announce that Eric L. Barnum has joined Schiff Hardin as a partner in the Labor and Employment Group. He will be based in our Atlanta office. Mr. Barnum is an experienced trial lawyer practicing in all areas of employment law and employment litigation, including wrongful discharge, discrimination and hostile environment harassment litigation, labor arbitration, and analysis of personnel practices and procedures. He also has extensive experience in multiparty, complex civil litigation, including class actions, wage and hour claims, unfair competition, and administrative investigations and hearings. [Full Story]

Welcome to the newest version of Schiff Hardin's online Labor & Employment Update. To provide you with quick and simple access to updates on labor and employment issues, we have prepared a summary of noteworthy items with links to the full articles on the Schiff Hardin website. If you prefer, you may see and print the full text of the newsletter by clicking here or by clicking on the link at the top right of the Update.

The United States Supreme Court recently clarified a plaintiff's burden in establishing race discrimination under Title VII and 42 U.S.C. § 1981. In Ash v. Tyson Foods, Inc., the Supreme Court considered, and rejected, the Eleventh Circuit Court of Appeals' new qualifications standard, which would have required the plaintiff in a failure to promote case to establish that he or she was far superior to the successful candidate. Of particular interest in the Supreme Court's decision was its rejection of the Eleventh Circuit's suggestion that disparity of qualifications need be "so apparent as to virtually jump off the page and slap you in the face," and its finding that the use of the word "boy" could evidence discriminatory intent.
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The Illinois Supreme Court has joined several federal courts in finding that the enforceability of mandatory arbitration agreements for certain employment claims should be analyzed according to general contract standards. In Melena v. Anheuser-Busch, Inc., the court rejected the heightened "knowing and voluntary" standard advocated by the employee in favor of the more employer-friendly approach of viewing an arbitration agreement like other contracts. Following these principles, the court enforced the agreement to arbitrate, requiring the employee to arbitrate her workers' compensation retaliation claim against her former employer. The Melena decision could have broad-reaching effects on the utilization and enforceability of employer arbitration programs in Illinois.
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The U.S. Court of Appeals for the Seventh Circuit recently addressed how employers can protect themselves against the misuse, deletion and destruction of valuable company information stored on employer-owned computers. In International Airport Centers, LLC v. Citrin, an employer sought to hold its employee liable under the Computer Fraud and Abuse Act ("CFAA"), the federal statute enacted to protect companies from destructive and fraudulent acts to their computers. The Act provides for civil and criminal penalties against an individual who "'knowingly causes the transmission of a program, information code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer..."
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Although courts in Georgia have historically disfavored post-employment covenants that restrict the ability of former employees to engage in competitive activities, a recent ruling from the Georgia Supreme Court illustrates that employers can protect their customer relationships through a reasonable non-solicitation provision, even if it lacks a geographic restriction.
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In a decision widely welcomed by employers, the California Supreme Court recently clarified what an employee alleging sexual harassment under California law must establish to support her claim. In reaching its finding, the court relied upon the premise that the creative nature of a workplace necessarily impacts the strength of a sexual harassment claim. In Lyle v. Warner Brothers Television Productions, a writing assistant on the Friends television show complained that sexually graphic and vulgar language used by male and female writers created a hostile work environment. The California Supreme Court rejected her claim and upheld the lower court's grant of summary judgment in favor of the employer.
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The Third Circuit Court of Appeals recently sounded a cautionary note for employers seeking to improve the health and safety of their workplaces by requiring job rotations or modifying work stations. In Turner v. Hershey Chocolate USA, the court found that a modification to a workstation system which was designed to enhance safety and health overall could violate the American with Disabilities Act ("ADA") if the modification fails to accommodate employees with disabilities.
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Employee lockouts and the proper standards for reviewing their legality have received significant attention in recent years by the National Labor Relations Board and federal circuits. The United States Court of Appeals for the District of Columbia Circuit recently provided yet another look at this complex area of labor law when it questioned whether bearings manufacturer Bunting Bearings' lockout of non-probationary unit members, while allowing workers in their 90-day probationary period to continue working, was an unfair labor practice. Depending on the NRLB's decision and analysis on remand, this case could have a far-reaching impact on how the NLRB and courts assess the legality of lockouts and partial lockouts.
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A recent decision from the U.S. Court of Appeals for the District of Columbia suggests that the four-part prima facie case that courts have utilized to analyze discrimination claims since the Supreme Court's landmark 1973 McDonnell Douglas Corp. v. Green decision may be changing. In Chappell-Johnson v. Powell the court relied on a three-part prima facie case, allowing an employee to meet her burden by showing that she suffered an unfavorable employment action which "gives rise to an inference of discrimination." The approach set forth in Chappell-Johnson considerably broadens the ways in which employees can satisfy their prima facie burdens in failure-to-promote — and possibly other — cases.
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Employers who seek to enforce agreements with employees that contain post-employment non-competition or non-solicitation covenants should be aware that a "one size fits all" agreement may be difficult, if not impossible, to enforce, particularly if the provisions are not revised over time to fit an employee's changing duties and responsibilities. A recent federal district court ruling in a disputed restrictive covenant matter aptly illustrates the potential pitfalls in attempting to enforce an agreement that was not revised as an employee progressed up the ladder in the organization.
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