Let’s start this story with a basic truth: it’s generally a bad idea to tell a pregnant woman that her hormones will make her “get emotional” and get “caught up in things” in a way that affects her judgment.
You need not take this from me as a lawyer-blogger. Take it from me as a guy whose wife is pregnant with our first child. Blaming anything in our house on pregnancy hormones is a one-way ticket to the basement couch.
It’s also a bad idea to say this to a pregnant employee, as department-store chain Target Stores is learning. We’ve written about the Pregnancy Discrimination Act of 1978 before, and in some high-profile contexts. But the case of Spigarelli v. Target, which will move forward in federal court in Pennsylvania now that Target has lost its summary judgment motion, shows that this lesson continues to bear discussion.
Following up on an item from yesterday’s Inbox, Marjorie Censer of the Washington Post reports that incoming Lockheed Martin CEO Christopher E. Kubasik will receive a $3.5 million separation payment after being asked to resign last week following revelations that he had engaged in a “lengthy, close, personal relationship with a subordinate employee.”
In the run-up to last night’s elections, we discussed a number of suits by suits with political implications, including ousted Florida Republican Party chairman Jim Greer’s suit against the Florida GOP, as well as two posts (here and here) discussing the implications of Gallaudet University’s decision to suspend its Chief Diversity Officer, Angela McCaskill, for political speech she engaged in outside the workplace opposing same-sex marriage in Maryland (which passed last night, by the way). We also discussed the controversial whistleblower protection provision (§ 922) of the 2010 Dodd-Frank Act in considerable depth (here, here, and here).
Of course – however it may have seemed if you lived in a swing state like Virginia, Ohio, Florida, or Colorado – there was more to October of 2012 than the impending election, and we were on top of those issues as well. In particular, we discussed the strange case of former Goldman Sachs VP Sergey Aleynikov, who was charged twice with stealing Goldman Sachs' intellectual property (in this case, proprietary computer code) but who nevertheless sought indemnification and advancement of his ongoing defense costs from Goldman Sachs. (We also discussed the D&O insurance implications of Aleynikov's lawsuit.)
Here's the full roundup of all of our posts from October:
On Thursday, a 4-3 majority of the Virginia Supreme Court held in VanBuren v. Grubb that individuals such as supervisors or managers could be sued as individuals and held personally liable for the common law tort of wrongful termination (also known as wrongful discharge) in addition to whatever corporate liability the employer may have.
As a practical matter, this gives plaintiffs and their lawyers additional leverage when bringing suits that contain a cause of action for wrongful termination in Virginia by being able to name the former employee’s boss as a co-defendant. From the boss's perspective, this decision means that you, personally, could be named as a defendant and ultimately forced to satisfy a judgment for improperly firing an employee from your own pockets -- not just your company's. It also means that employers and their executives who operate in Virginia need to review their D&O insurance coverage with this potential exposure in mind.
In short: whether you're an executive or an employer, you need to know about this case and its implications on the employment relationship.
Starbucks connoisseurs appreciate the difference between a Venti Half-Caf Americano and a Single Grande White Chocolate Mocha. But, when they drop change in the tip box before walking away with their morning caffeine fix, do they appreciate the differences between a barista and a shift supervisor? How about between a shift supervisor and an assistant store manager (“ASM”)? How about between an ASM and a store manager? Starbucks customers may not know these differences, but they are the key to resolving questions that the U.S. Court of Appeals for the Second Circuit has just certified to the highest New York state court in two cases brought against Starbucks. One of the cases was brought by baristas; the other by ASMs.
A recent decision from a federal court in Richmond should serve as a reminder to employers and employees that, even though they may think that they put a dispute behind them with a settlement agreement, in fact, the dispute can be resurrected like a zombie on Halloween. At stake in the Richmond case is a $5,000 settlement payment and fairly serious allegations about sexual harassment by a supervisor at a car washing business. However, the court’s ruling on basic principles of rescission of contract , could have relevance for the Vikram Pandits and Citigroups of the world.
Our hurricane-proof edition of the latest in Suits by Suits news:
In yesterday’s post, we promised to talk more about the potential conflict that defendants have identified in the Dodd-Frank Act’s whistleblowing provision, Section 922.
As we’ve previously discussed, Section 922 changed whistleblower law in two important ways. First, it created a bounty program, under which qualified whistleblowers can receive payments from the SEC for submitting information about violations of the securities laws. In the first fourteen months of the program, the SEC has handed out the grand total of one award.
Second, Dodd-Frank enhanced the legal remedies for whistleblowers who are victims of retaliation, expanding the scope of prior protections found in the Sarbanes-Oxley Act of 2002 and creating new ones.
Employers, however, have identified a tension in Section 922 that they are seeking to use to defeat whistleblower retaliation claims.
The Dodd-Frank Act, passed in 2010, has been a hot issue on the campaign trail. One provision of Dodd-Frank that hasn’t gotten a lot of play, politically speaking, is Section 922 – the law’s whistleblower protection provision.
But in the federal courts, Dodd-Frank whistleblower law is heating up. We previously covered how a New York federal court allowed one such whistleblower’s claim to proceed. Now, the District of Connecticut brings us the case of Kramer v. Trans-Lux Corp.
As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.
Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.
John J. Connolly
Partner
Email | +1 410.949.1149
Andrew N. Goldfarb
Partner
Email | +1 202.778.1822
Sara Alpert Lawson
Partner
Email | +1 410.949.1181
Nicholas M. DiCarlo
Associate
Email | +1 202.778.1835