The teacher was hired by a small Christian private school and became pregnant a year after she was hired. Approximately a month after discovering she was pregnant, she married her fiancé. Several months later, when she disclosed her pregnancy and her need for maternity leave during the following school year to the school’s administrators, she was terminated. After receiving an EEOC right-to-sue letter, she filed suit in federal court alleging pregnancy discrimination and state law claims of marital status discrimination and invasion of privacy, but lost on summary judgment. She appealed only the pregnancy discrimination decision.

Although the school raised the affirmative defense of a ministerial exception to the employment discrimination laws in its answer and motion for summary judgment, this argument was rejected by the lower court, which granted summary judgment based solely on the teacher’s failure to establish a prima facie case of discrimination. The school, however, did not raise this defense on appeal and, therefore, the school had effectively “abandoned that exception as a defense,” noted the appeals court. As such, the appeals court refused to decide whether the ministerial exception might apply.

Title VII protects the right to get pregnant but not a right to engage in premarital sex, stated the appeals court. Rejecting the school’s argument that absent a showing that a nonpregnant comparator was treated differently there was insufficient evidence to reasonably infer intentional discrimination had occurred, the appeals court explained that the teacher need not provide a comparator “if she can show enough noncomparison circumstantial evidence to raise a reasonable inference of intentional discrimination … and she has done that.” The Eleventh Circuit determined that the teacher had provided proof that the school was more concerned with her pregnancy and her request for maternity leave than with the circumstances of her becoming pregnant based on the administrators’ reaction to her pregnancy before she disclosed when she became pregnant. Additionally, in her deposition she stated that she had asked one of the school administrators whether the issue was finding someone to cover for her during her absence or that she had engaged in premarital sex and the response was that both were issues.

Although the school’s purported reason for terminating the teacher was the premarital sex, the deposition testimony of one of the administrators indicated that had the teacher acknowledged her sin against God and the school and told school administrators she was sorry, she would not have been terminated. However, the teacher’s deposition testimony appeared to neutralize that contention: She stated that she had told the administrator that she was remorseful for doing “something so horrible against God” and that she had prayed to God, together with her husband, for forgiveness and that God had forgiven her. Thus, a genuine issue of material fact remained as to the actual reason she was fired.

Stronger than expected growth in the manufacturing sector, as well as increased consumer confidence heading into vacation season, are likely behind the busier summer hiring season. Employers in the following industries are expected to lead seasonal hiring:

• Manufacturing: 45 percent [plan to add summer workers]
• Hospitality: 44 percent
• Retail: 34 percent
• Finance: 31 percent

“Confidence is up among the employers we most closely associate with summer hiring. This is good news for job seekers, as seasonal work can often lead to full-time opportunities. A majority of employers told us they consider a summer position an extended job interview,” said Brent Rasmussen, president of CareerBuilder North America. “The forecast is also a strong indicator that the job market will continue to strengthen as we come closer to the second half of 2012.”

From seasonal to full-time. The possibility of full-time employment makes summer work a good opportunity for recent college grads, unemployed job seekers, and people who’ve left the workforce altogether. Seventy-one percent of employers hiring this summer said they’ll be considering some hires for permanent positions. In fact, 39 percent of employers said they’re less likely to hire someone who isn’t interested in working beyond summer.

What will summer jobs pay?A majority (64 percent) of employers will pay their summer hires $10 or more per hour — up from 58 percent last year. Twenty percent will pay more than $16 per hour; 29 percent will pay $8 to $10.

Employers still filling summer jobs. While 42 percent of employers report that they typically complete their summer hiring by April, 38 percent complete it in May and 19 percent will hire in June and beyond. And it’s not just retail, hospitality and manufacturing jobs available this summer. Employers also plan to hire seasonal help in the following areas: customer service, office support, information technology, research, engineering and sales.

The district court acknowledged that its decision not to address the merits of the dispute may be “unsatisfying,” but regardless of whether the board’s amended rules were desirable from a policy perspective, to do so would degrade the quorum requirement and its fundamental check on the board’s authority into an “easily surmounted technical obstacle.”

Previous votes don’t count. Two of the board’s three members voted in favor of adopting the final rule when published. The third member, Brian Hayes, did not cast a vote, but he previously had voted against the rule and against proceeding with its drafting and publication. Hayes voted in the agency’s November 30, 2011 decision to adopt a resolution providing that the final rule should be prepared, as well as its December 15, 2011 decision to issue a procedural order providing that the final rule should be published upon a majority vote to adopt it. In the board’s view, Hayes “effectively indicated his opposition” prior to the key vote, so all three members participated, and the quorum requirement was satisfied. The court disagreed, noting that the board’s focus on the earlier decisions was misplaced. The December 16 decision to adopt the final rule, not the earlier votes, was the relevant agency action. No rights or legal consequences derived from the December 15 action; it was simply a procedural order. And under the APA, the board “may not transform a procedural order into the relevant final action merely by its say-so.”

Hayes was not “present.” The NLRB also argued that even if his earlier votes did not suffice, Hayes was “present” for the pivotal December 16 vote to adopt the rule and should thus be counted toward the quorum. But “Member Hayes cannot be counted toward the quorum merely because he held office,” wrote the court. Hayes did not vote on the adoption of the final rule when it was circulated electronically on December 16; because the rule was sent for publication that same day, he would have had only a few hours to do so. And when no vote or other response was received from Hayes, no one requested that he provide one, per the agency’s usual practice. That Member Hayes issued a dissenting statement months later, furthermore, did not cure the quorum defect.

Not necessarily the end. The district court stressed that its decision today was not a final blow to the board’s election rule and that it expressed no opinion as to the remaining procedural and substantive challenges. “It may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful,” wrote the court, adding that nothing prevents a properly constituted NLRB quorum from adopting the rule if it so chooses. “In the meantime, though, representation elections will have to continue under the old procedures.”

Reaction. Today’s ruling is good news — for now, management attorneys note. “This whole process was an ambush of the employer, and now we are on the road back to a level playing field,” said Keith Watts, co-managing shareholder in the Costa Mesa, California office of Ogletree Deakins and member of the CCH Employment Law Daily Advisory Board. “The court said to the board on quickie elections: not so fast. It’s tremendous news for the moment, until the board decides to take a run at it another way.”

“The current board is quickly forging a reputation for sweeping policy changes but occasionally without regard to either its statutory limitations or procedural niceties — like having a quorum before it acts,” noted Brooke Duncan III, a partner in the New Orleans, Louisiana firm of Adams and Reese, LLP, and member of the CCH Employment Law Daily Advisory Board.

“To be sure, the court in its decision here emphasizes that the board can go right back and, with a quorum, enact the quickie election rule,” Duncan pointed out. “Nonetheless, the decision should hopefully serve to remind the board to act within its bounds.”

The 2012 Top 10 Best Companies for Multicultural Women are:

1. American Express
2. Cisco
3. Deloitte
4. General Mills
5. KPMG
6. The New York Times Company
7. Proctor & Gamble
8. PwC
9. State Farm Insurance
10. Verizon Communications

Working Mother Media President Carol Evans writes in the magazine, “We’ve built a dialogue that’s ongoing, that doesn’t stop, that includes women all over the country, that makes people comfortable talking about race and gender, that shifts the culture of our companies, that joins with other dialogues and other voices and stories to impact the culture of our country.”

Multicultural women make up 21 percent of total employees at the Best Companies, while multicultural men represent 15 percent of the total.

The Best Companies support initiatives specifically designed to recruit and retain multicultural women. A total of 92 percent of the winning companies design specific recruitment initiatives for multicultural women, 88 percent have special programs to retain minority women employees and 80 percent run professional development programs for women of color. Interestingly, 88 percent of the Best Companies offer mentoring programs specifically geared toward younger multicultural women or those early in their careers. And 84 percent of the Best Companies have performance appraisal objectives for managers that include their management of diversity issues, while 36 percent tie manager’s pay to advancing multicultural women.

“The Best Companies for Multicultural Women value the power of a diverse workforce and work hard to make sure their pipelines are filled with talented women of color,” says Jennifer Owens, director of the Working Mother Research Institute. “Even beyond mentoring and networking programs, these companies are reaching out to professional and school groups and sponsoring recruitment events to attract the best multicultural women talent.”

In denying the motion, the court pointed out that American General did not point to any facts showing that the misnomer created any reasonable doubt or confusion about who it was that the employee intended to sue. To the contrary, the record indicated that CSC knew exactly who the employee was suing. In addition, when the EEOC issued its right-to-sue letter, which it forwarded to American General, it identified the defendant as AIG Life Brokerage so the employer had a head’s up that it was likely going to be sued and that it might be under the name AIG Life Brokerage. In the end, the court concluded that American General was served with sufficient process.

The court also pointed out that there is no provision of law allowing a defendant or its authorized agent to reject a properly served summons.  Thus, CSC’s “rejection” of that service had no legal effect. The court upheld the default judgment and ruled that it could be enforced against American General, which had “been the defendant all along.”

With this illustrative tale in mind, in-house counsel should not assume that a court will find that a technical misnomer in a complaint and summons is sufficient reason to ignore it when counsel knows very well who is the intended defendant. In this case, it was an expensive lesson.

The state and territory data for fiscal year (FY) 2009 through FY 2011 is now posted on the commission’s website. These data detail EEOC charge receipts, broken down by the basis of discrimination, as well as the percent of total state and national charges.

A review of the new data shows that in FY 2011, more charges were filed by individuals in Texas than in any other state or territory. The 9,952 charges filed by those individuals accounted for 10.0 percent of charges filed nationally. Florida trails Texas with 8,088 charges, accounting for 8.1 percent of charges nationally, followed by California, with 7,166 charges amounting to 7.2 percent of charges nationally.

According to the EEOC’s data, Maine (33), Montana (21), and Vermont (35) were the states with the fewest number of private sector charges lodged — all accounting for a negligible 0.0 percent of charges filed nationally. The U.S. Territories American Samoa (4), Federated States of Micronesia (3), Guam (20), Marshall Islands (0), Northern Marianna Islands (31), Palau (1), U.S. Virgin Islands (19), and Wake Islands (1) had similarly negligible numbers of charge filings.

Despite the April decline, CEO turnover for the year is slightly ahead of last year’s pace. Through the first four months of 2012 a total of 411 CEO changes were announced, a 5.3 percent increase from 390 over the same period in 2011.

The health care sector and government/non-profit sector experienced the heaviest turnover last month, with 17 CEO changes each. Health care continues to lead all sectors for the year with 80 total departures, up from 55 total departures recorded by this point last year. The government/non-profit sector follows with 56 changes so far this year, up slightly from 49 through the first four months in 2011.

Firms in the computer industry have seen 40 changes so far this year, including 9 in April. Financial firms announced 35 CEO departures so far this year, with 4 last month.

As a rule, the majority of chief executives cite “resignation” as the reason for departure. Last month, 24 CEOs “resigned,” bringing the year-todate total to 118. Ninety-one CEOs have retired this year, while another 69 stepped down from their posts but remained with the company in some capacity; usually as a board member.

So far this year, 13 CEOs have left their positions involuntarily, amid scandal or under pressure from the board, including Best Buy’s Dunn. Three CEOs were ousted because of accounting or financial misconduct. Others were forced out due to strategic differences with the board or votes of no confidence.

A growing number of chief executives are finding new positions in other companies. For the year, 51 chief executives left their former posts for new ones, 16 in April. This is compared to 34 who left their positions for new ones in other companies through the same period last year.

One such chief executive was James Ferland, who was slated to begin his position as CEO of Westinghouse Electric of Cranberry, PA on April 1. He was on the job for approximately two days before announcing his resignation to take the top spot at industrial manufacturer Babcock & Wilcox in North Carolina.

Source: Challenger, Gray & Christmas, Inc.; www.challengergray.com.

A federal district court had ruled that the employee was the sole inventor of two patents, but that a “Employee Agreement” was a valid contract that required him to assign his ownership interests to the company. On appeal, the Federal Circuit certified the question of additional consideration to the Wyoming high court.

Employee inventions. Several months after the employee began his employment he signed a document entitled “Employee Agreement” which contained the intellectual property provision. It was undisputed that the employer did not provide any additional consideration to the employee for signing this document beyond continued employment. Approximately two months after the employee ceased his employment he filed a patent application for his invention of the baffle system. He was listed as the sole inventor. The employer filed a patent application for a similar invention that named both the employee and a former coworker as co-inventors. The employee filed suit for patent infringement and a declaration that he was the sole inventor of the patent awarded to the employer. The employer counterclaimed, asserting that the employee had agreed to assign his rights in the first patent pursuant to the employee agreement.

Generally an invention is the property of the inventor who conceived, developed and perfected it. Thus, the mere fact that the inventor was an employee at the time of the invention does not mean that the inventor is required to assign the patent rights to the employer. However, if job duties include the responsibility for inventing or for solving a particular problem that requires invention, any invention created by the employee during the performance of these responsibilities belongs to the employer. Typically, an employee who is not hired to invent is the owner of any invention discovered during employment. Nevertheless, when an employee who was not hired to invent does invent something as part of his work duties, the employer is given a “shop right” to use the invention.

In this instance, there was no indication that the employee’s specific job duties included inventing the baffle system. So, under the general rule, the employee would be the owner of his invention and the employer would be entitled to use the invention under the “shop right” principle. However, the “Employee Agreement” included the intellectual property agreement requiring him to assign his invention to the employer.

Adequacy of consideration. Thus, the Wyoming Supreme Court was faced with deciding whether an at-will employee’s assignment of intellectual property rights to his employer must be accompanied by additional consideration, beyond the continuation of his employment, to be enforceable. As an initial matter, the court noted that there is a split of authority on the question of whether additional consideration is required to support post-employment assignment of intellectual property. The court rejected the employee’s contention that its decision in Hopper v All Pet Animal Clinic, Inc, which involved a covenant not to compete given by an employee after commencement of her employment, supported his contention that consideration in addition to continued at-will employment is necessary to support a post-employment assignment of intellectual property rights.

Rather, the court noted that it closely scrutinized covenants not to compete, employing a rule of reason analysis, to ensure that there is a proper balance between the competing interests of the employer and employee. The court observed that the requirement that a covenant not to compete must be supported by reasonable consideration separate from continued at-will employment was based, in part, on the sanctity of the right to earn a living. Because restraints on trade that attend non-competition agreements that limit an employee’s ability to earn a living, are not present for intellectual property assignment agreements, no additional consideration is required to support an employee’s post-employment agreement to assign intellectual property to his employer.

With patent assignment agreements, employees remain free to work for “whomever they wish, wherever they wish, and at whatever they wish, subject only to the requirement that the employee assignment to the employer any work product relating to the employer’s business developed by the employee while he or she was employed by the employer. Because of those differences, agreements to assign patents do not have to be supported by separate consideration. Thus, the certified question was answered in the affirmative.

In recent months, news reports have surfaced detailing an increase in the number of employers requiring job applicants to provide usernames and passwords for websites like Facebook. Some employers have asked job applicants during interviews to log into their accounts and allow the employer-interviewer to browse the applicant’s profile, acquaintances, and other information.

The Password Protection Act of 2012 aims to end the practice. According to a statement that accompanied the introduction, the measure would strengthen existing law to bar employers from compelling or coercing employees into giving access to their private accounts. Under the bill, employers could not condition employment on gaining access to an employee or applicant’s private account. Employers would also be barred from either discriminating or retaliating against employees or applicants who refuse to provide the information. However, employers could still set their policies relating to employer-owned computer systems, hold employees liable for theft of data, and allow social networking within their offices. In addition, the legislation imposes financial penalties in some instances against employers who violate the measure.

The text of the legislation is not yet available.

Source: WKL&B Editorial Staff

The study measured responses from the International Foundation’s wide-ranging membership representing single-employers/corporations, multiemployer trust funds, and public/governmental employers.

While wellness programs have existed for decades, their prevalence has grown significantly over the past 10 years. Even the recent economic downturn has not slowed their growth, with nearly 60 percent of American employers implementing new wellness programs since 2008; 23.7 percent have started offering them since 2010. Additionally, nearly two-thirds of organizations increased their wellness budgets in the last five years.

“Without question, employers are beginning to understand the direct connection that wellness initiatives can have on both employees’ health and health care plan cost savings,” said Michael Wilson, Foundation CEO.

The survey suggests a definite decrease in health care costs when wellness initiatives are offered, according to the 21.6 percent who have analyzed return on investment (ROI). Of the organizations that are analyzing ROI, 83 percent indicated a positive return. For every dollar spent on wellness initiatives, most organizations see between $1 to $3 decreases in their overall health care costs.

“Determining ROI can be of great benefit for employers — leading to increased buy-in from organization leaders and workers,” explained senior information/research specialist Julie Stich. “However it’s not an easy process. ROI can be difficult to measure since health improvement may be influenced by a combination of factors and because it takes an average of three years to see cost-saving results.”

According to the survey, the most prevalent reasons that organizations provide wellness initiatives are:

• To help workers enjoy better overall physical health (45.6 percent); and
• To control health care costs (39.8 percent).

Of the respondents who presently do not have wellness programs but plan to implement them within the next 12 months, 50.7 percent say their motivation for adding the initiatives is to control health care costs.

Screening and treatment programs including flu shots (85 percent), health risk assessments (79.9 percent), and smoking cessation programs (67.5 percent) are some of the most popular wellness initiatives offered. Employers also make available fitness and nutrition programs such as walking/fitness challenges (58.6 percent), weight loss/management programs (52.5 percent), nutrition counseling (39.6 percent), and on-site fitness centers/equipment (36.4 percent).

“One measure of success for a wellness program is the participation rate, “ said Stich. “Organizations will not realize benefits unless there is sufficient participation.”

The survey found that the wellness initiatives with the highest participation rates are:

• Flu shot programs (49.6 percent)
• Health screenings (48.8 percent)
• Health risk assessments (48.2 percent)
• Health fairs (44.7 percent)

Nearly 90 percent of the organizations surveyed provide incentives to increase participation in their programs. The incentives that are most often tied to health risk assessments, health screening and fitness programs include:

• Gift cards and gift certificates (38 percent)
• Insurance premium reductions (36.7 percent)
• Non-cash incentives – e.g. prizes and raffles (30.9 percent)
• Cash rewards (26.9 percent)

Employers are often assisted in developing or managing their workplace wellness programs; more than 85 percent of the survey participants use an outside vendor such as an employee assistance provider or wellness consultant to implement or assist with the program.

About wellness programs and value-based health care. Survey responses were received from 646 individuals from the U.S. and Canada, including benefits and human resources professionals, financial managers, and other professionals. Respondents represented a variety of sizes, regions, and industries or jurisdictions. Of the 646 members who responded, 539 were from organizations in the U.S. with representation from single-employers/corporations (66 percent), multiemployer trust funds (23 percent), and public/government employers (11 percent).

Source: IFEBP; www.ifebp.org.