Employment Disputes

Trial Court Has Discretion Not to Award Treble Damages Against an Employer that Fails to Pay Wages

Kent Berk — Thu, 12 Apr 2012 16:39:09 +0000

In D’Amico v. Structural I Company, the Arizona Court of Appeals recently held that a trial court has discretion not to award treble damages against an employer that fails to pay wages in accordance with A.R.S. § 23-355(A). An employer may lawfully withhold wages under the statute if the employer has a reasonable good faith dispute as to the amount of wages due. But in D’Amico, the jury found that the employer only had a reasonable good faith dispute as to $229,000 of the $753,000 worth of wages found to be owing. Thus, D’Amico argued that she was entitled to treble damages on the $500,000 or so of wages the jury found were due and owing and for which there was no good faith dispute. Despite their being no good faith dispute as to those unpaid wages being due, the Court of Appeals held that the trial court did not err as a matter of law by not awarding treble damages. The Court of Appeal’s rationale was simply based on the language of the statute, which does not make an award of treble damages mandatory. However, the Court of Appeals remanded the case back to the trial court for what appears to be a reconsideration of D’Amico’s request for treble damages. The Court of Appeals found the trial court’s stated reasons for not awarding treble damages to be flawed and provided some factors the trial court may find relevant to its determination.

Question of Fact As to Whether Auto Parts Driver On Personal Errand Was In “Course and Scope” of His Employment” at Time of Accident

Kent Berk — Wed, 28 Mar 2012 19:42:19 +0000

Last month, the Arizona Court of Appeals published an opinion holding that there was a question of fact for a jury to decide as to whether an employee was in the “course and scope” of his employment at the time he was involved in a serious auto accident despite the fact that at the time of the accident he was on his way home to get cigarettes and was traveling in the opposite direction from his place of employment. Higginbotham v. AN Motors of Scottsdale, (Ariz. App. February 2, 2012). The Court’s rationale was that the employer (an auto dealership) knew that the employee took refreshment breaks and ran personal errands during his downtime and authorized him to do so. His job involved picking-up auto parts and delivering them to the dealership by designated times. At the time of the accident, the employee still had the auto parts he had picked up earlier that morning in his vehicle and had time remaining before he and the auto parts were due at the dealership. If a jury were to find the employee was in the “course and scope” of his employment at the time of the accident, then his employer could be liable for any negligence attributed to the employee under the doctrine of respondeat superior. This could prove significant especially for the husband whose wife was killed in the accident and was suing the employee and employer to recover wrongful death damages. This opinion appears to have originally been a Memorandum Decision decided in August of 2011. Thus, it appears that this decision now has precedential value and may be cited as such, unless of course, a higher court were to review and over turn the decision.

U.S. Supreme Court Rules that Fired Fiance Is Protected By Title VII’s Anti-Retaliation Provision and Had Standing To File Suit Under That Provision.

Kent Berk — Tue, 25 Jan 2011 21:24:19 +0000

Eric Thompson and his fiance Miriam Regalado both worked for the same employer. Three weeks after the employer was notified that Miriam had filed a charge of sex discrimination with the EEOC, the employer fired Eric. Eric then filed a charge with the EEOC and ultimately a lawsuit in federal court alleging that he was retaliated against in violation of Title VII because his fiance filed a charge of discrimination with the EEOC. The trial court granted summary judgment in favor of the employer finding that Title VII did not permit third-party retaliation claims. The Sixth Circuit Court of Appeals agreed. However, on January 24, 2011, the U. S. Supreme Court, in Thompson v. North American Stainless, reversed the Sixth Circuit Court of Appeals, and held that Eric had standing to sue under Title VII. Although the Supreme Court refused to set a fixed class of relationships that would encompass the third-party protections of Title VII’s anti-retaliation provision, the Court did state that the firing of a close family member will likely always fit the bill unlike lesser discipline against a mere acquaintance which would likely never fit the bill. The Court went on to hold that an “aggrieved” party with standing to sue under Title VII’s anti-retaliation provision needs to be within the “zone of interests” – i.e., have an interest “arguably sought to be protected by the statutes . . . while excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.” Because Eric was employed by the same employer as his fiance and, taking his allegations as true that hurting him was the intended means of harming her, the Court held he was within the “zone of interests” and thus had standing to file suit.

Click here for a copy of the decision.

Yes, A Man Can Be Sexually Harassed by a Female Co-Worker

Kent Berk — Thu, 07 Oct 2010 18:10:54 +0000

The Ninth Circuit recently overturned a district court judge’s ruling that a female’s sexual harassment of a male co-worker was not severe or pervasive enough to be actionable. EEOC v. Prospect Airport Services, Inc., No. 07-172221 (9th Cir. Sept. 3, 2010). In doing so, the Ninth Circuit rejected the stereotype that most men welcome sexual advances by a woman, stating “[s]ome men might feel that chivalry obligates a man to say yes, but the law does not.” This held especially true under the circumstances of the case at hand where the male co-worker’s wife had recently died and he simply was not interested in having a sexual relationship with a married co-worker. Perhaps he feared she would file a sexual harassment claim against him that would cause him to lose his job. Perhaps he feared her husband. Perhaps he believed adultery to be immoral given his Christian background and simply was not sexually attracted to her. In any event, it was based on these possible explanations that the Ninth Circuit found a question of fact as to whether the sexual advances were welcome. Unfortunately for the male co-worker, his complaints were laughed at and not taken seriously by his supervisors. Other co-workers mocked him by suggesting he was homosexual. The harassment persisted unabated for months. His performance deteriorated for which he was demoted and eventually fired.

HP Settles Suit Against Former CEO

Kent Berk — Tue, 21 Sep 2010 15:57:30 +0000

HP has settled the lawsuit it brought against its former CEO which sought to preclude him from going to work for competitor Oracle. The terms of the settlement are not known to Berk & Moskowitz, but the case seems to have been resolved relatively quickly.

HP Sues Former CEO

Kent Berk — Wed, 08 Sep 2010 15:51:06 +0000

The AP is reporting that HP is suing its former CEO to try and stop him from going to work for competitor Oracle. HP is alleging that its former CEO that it recently let go, could not work for Oracle without disclosing trade secret information and violating a Confidentiality Agreement that was part of the former CEO’s severance package. Apparently the two companies worked in unison for years (Oracle provided software for HP’s computers), but that relationship has somewhat changed since Oracle got into the server business when it purchased Sun Microsystems last year. HP and Oracle now compete in that line of business.

Claims Under the Computer Fraud and Abuse Act?

Kent Berk — Mon, 30 Aug 2010 15:58:12 +0000

The ABA is reporting that the federal circuits are split on whether an employee who is authorized to access her employer’s computers but does so for improper purpose(s) is liable under the Computer Fraud and Abuse Act. The Ninth Circuit apparently only permits recovery where the access is completely without any authorization. Other circuits apparently permit recovery if the access is abused contrary to the employer’s interests or the parties’ contractual agreement. It will be interesting to see if the U.S. Supreme Court gets a say in the matter.

Out of Town Employee Traveling To/From a Restaurant Is Within Course and Scope of Employment

Kent Berk — Wed, 25 Aug 2010 04:31:26 +0000

The Arizona Court of Appeals has rendered a decision holding that an employee on an out of town work assignment is acting within the course and scope of his/her employment while going to and from a restaurant for a regular meal for purposes of respondeat superior liability. McCloud v. Kimbro, 2 CA-CV 2009-0116 (March 23, 2010). The Court’s rationale – but for the out of town work assignment, the employee would not be required to eat away from home.

Apple Sues Former Manager for Trade Secret Misappropriation

Kent Berk — Tue, 17 Aug 2010 14:26:59 +0000

Apple Inc. has filed a civil lawsuit against a former manager indicted for allegedly accepting kickbacks from certain suppliers of the company. The manager has pled not guilty to the criminal charges. The civil action alleges that the former manager breached his contract and misappropriated Apple trade secrets.

U.S. Supreme Court Upholds Reasonableness of Employer’s Search of Employee’s Text Messages

Kent Berk — Mon, 02 Aug 2010 19:03:10 +0000

City of Ontario v. Quon, No. 08-1332 (Slip Op. June 17, 2010)

The ABA reports that the U.S. Supreme Court upheld a search by the City of Ontario of one of its employee’s text messages because the search was motivated by a legitimate work-related purpose and the scope of the search was not excessive. For example, the search did not involve any texts sent or received while the employee was off-duty. Only those texts sent or received while the employee was working were searched. The Ninth Circuit had previously found the search to have violated the employee’s Fourth Amendment Rights. The U.S. Supreme Court disagreed.