Gordillo & Gordillo, LLC.

Lawsuits over a job loss or a pay loss are never pleasant.  That does not mean the civil lawsuit has to be uncivil.  But the responsibility for keeping the animosity that exists between the lawsuit embroiled employee and employer out of the lawsuit belongs to their lawyers.  Without such responsible lawyers, fighting the dispute can be as costly as resolving it.

I was compelled to publish this thought by an article I read today about a discovery fight in a New Jersey case about lost overtime pay.  The employer's attorney was questioning one of the employee-plaintiffs at deposition.  The questions were about the employee's immigration status.  The employee's immigration status obviously had nothing to do with the dispute about whether overtime pay was owed.  So the lawyer for the employee sought a protective order from the judge to stop the questioning.  The judge denied the request.  The employee's lawyer appealed, and the appellate court said the trial judge should have stopped the questioning.

When interviewed about the decision, the employer's attorney gave this reason why the appellate decision was wrong and why he should have been allowed to ask his questions about the employee's immigration status: "he doesn't care about whether the plaintiffs are in the country legally or not. What does matter, he says, is whether they lied during their depositions. If it can be shown that they did, the jury should be allowed to hear that because it impacts on their credibility when it comes to their allegations that they were not paid the prevailing wage or worked overtime."

So t

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Professor Marcia McCormick at the Workplace Prof Blog wrote an interesting analysis of the United States Supreme Court's Hulteen pregnancy discrimination decision that I wrote about in a post yesterday.  Her comments cause me to respond below.

Prof. M:

Your analysis is thought provoking, but I think mistaken to the extent you believe the Hulteen Court "implicitly concludes that Congress did not define sex discrimination in the PDA, but simply added an additional classification." If the majority intended such an implication, then most certainly the Court would have addressed not only General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) but also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 (1983).

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The Pregnancy Discrimination Act amendment to Title VII has again been interpreted by the United States Supreme Court. Yesterday, the Court announced AT&T v. Hulteen. The Court ruled that decisions made by an employer that were adverse to pregnant employees and based on pregnancy are not unlawful if made before the Pregnancy Discrimination Act became law.

The Pregnancy Discrimination Act was passed in 1978. It became effective in 1979. Congress passed the Pregnancy Discrimination Act to overrule a prior Supreme Court decision, General Electric v. Gilbert, 429 U.S. 125 (1976), which had held that disability plans could exclude pregnancy-related disabilities without violating the law against sex discrimination.

Before 1979, AT&T had a pension plan that effectively penalized employees for pregnancy caused absences. The plan did not give pregnant employees as such service credit as other employees who were absent due to non-pregnancy related conditions. Under Gilbert, the AT&T penalty against pregnancy leave was not a prohibited form of discrimination. But when Congress changed the law, AT&T changed the pension plan to conform to the new law in 1979.

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Whether employees should be paid for using company issued Blackberry devices was a question posed over at LinkedIn. I answered the question because I thought it was an especially timely one these days. Lawsuits for unpaid overtime are growing increasingly common. The Fair Labor Standards Act that governs federal overtime law has long been one of the most frequently violated laws in America. As mobile technologies become more commonly used by employees, the wage and hour laws are becoming even more difficult for employers to correctly apply.

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Employment retaliation was the subject of my posts right before the holiday weekend. I return to continue discussing the anti-retaliation statute in Title VII. This is the employment retaliation law addressed by the United States Sixth Circuit Court of Appeals in the interesting and important Niswander v. Cincinnati Insurance Co. case.

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Retaliation lawsuits have been on the rapid rise in the recent past. The Niswander v. Cincinnati Insurance Company decision from the Sixth Circuit Court of Appeals demonstrates why both employees and employers should take care to hire only skilled employment lawyers to fight retaliation lawsuits. Retaliation lawsuits are among the trickiest for employees and most dangerous for employers to fight. This one arose under Title VII's law against retaliation.

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Earlier today, I posted about a retaliation lawsuit won by an employer. These are truly significant cases. Look at what just happened in a Cleveland, Ohio retaliation lawsuit. Hours ago, a jury awarded an employee $46.6 million dollars. The case is Luri v. Republic Services, of Ohio LLC in the Cuyahoga County Court of Common Pleas.

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