Employment Litigation Research Articles

Union Lawyers and Employment Law

A major challenge facing labor activists and scholars today, given the small percentage of the private sector workers who are union members, is to find a new role for unions in attaining decent working conditions for the vast majority of the American workforce that is not unionized. Many unions have launched major efforts to enforce employment law in nonunion workplaces where statutory violations are rampant. The lower the wages, the more likely that fundamental employment laws, including safety, wage and hour laws, will be violated. Low-wage employees are apt to lack the knowledge and the resources to enforce their rights, and there are too few government inspectors to ensure compliance in workplaces all over the country. The article examines the labor law, constitutional, and ethical implications of this important new union strategy. The National Labor Relations Act (NLRA) has been interpreted to prohibit employers and unions from conferring benefits on employees during the critical period prior to a union certification election. The provision of legal representation (except assistance in filing unfair labor practice charges with the National Labor Relations Board (NLRB)) has been deemed to be an unlawful pre-election benefit. Although the NLRB has insisted that the provision of such services is not an unlawful benefit nor grounds to set aside an election, the D.C. and Sixth Circuit courts of appeals disagreed and set aside elections. Because employers may seek review of any union election in the D.C. Circuit, no union can confidently provide pre-election legal representation. The article also shows that to prohibit unions from providing legal assistance to non-member employees in employment law matters while allowing them to do so for unfair labor practice charges is an unconstitutional content-based restriction on First Amendment activity. In addition, forcing employees to choose between exercising their right to union representation for collective bargaining and their right to union lawyers' representation for employment litigation impermissibly requires employees to sacrifice important First Amendment rights as a condition of obtaining an NLRB-sponsored election. Finally, the article also critiques recent cases holding that union lawyers cannot ethically represent non-union members. The article explores the relevant law on conflicts of interest and shows that unions' new effort to bring employment law litigation is consistent with the highest standards of professional ethics.

Sexual Harassment: Psychiatric Assessment in Employment Litigation

Sexual Harassment: Psychiatric Assessment in Employment Litigation

Sexual Harassment: Psychiatric Assessment in Employment Litigation

Back to table of contents Previous article Next article Book ReviewsFull AccessSexual Harassment: Psychiatric Assessment in Employment LitigationJ. Scott Stanley M.D.J. Scott Stanley M.D.Search for more papers by this authorPublished Online:1 Jul 2006https://doi.org/10.1176/ps.2006.57.7.1053AboutSectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InEmail The Equal Employment Opportunity Commission reports that there has been a dramatic increase in sexual harassment complaints since the early 1980s. In the first five years of the 1980s only a handful of complaints were filed. But since 1986 there has been a virtual explosion in the number of filings, plateauing this decade at around 15,000 new complaints each year ( 1 ). Yet, if one reviews the major forensic psychiatry textbooks, the subject of sexual harassment is mentioned rarely if at all ( 2 , 3 , 4 ). This is not a criticism of these textbooks; it is merely a reflection of how rapidly this field has exploded. Indeed, it is doubtlessly a fact that many past graduates of good forensic psychiatry programs were able to complete their fellowships without working on a sexual harassment case. This lack of experience is precisely why this book is an important contribution to the forensic literature. In this well-researched and highly readable textbook, Dr. Gold draws a roadmap for clinicians to get "up to speed" on this topic. She introduces the reader to the relevance of psychiatry in sexual harassment complaints and places this in an historic and legal context while gently reminding the reader of the ethical principles of forensic practice. Ethics are detailed in most forensic textbooks, but these principles cannot be repeated often enough. Dr. Gold's chapter on bias in cases of sexual harassment is particularly helpful. Bias is involved in any highly emotional case, and the examiner must be aware of his or her own preconceptions and assumptions as well as those of others involved in the case. In the next chapter she introduces some conceptual frameworks that the evaluator may use to keep the case within an objective context. Her chapter on the science of sexual harassment and issue raised by Daubert vs. Merrell Dow Pharmaceuticals is particularly strong. Because many of the cases are filed in federal court, the expert must always be mindful of the admissibility standard for testimony, and this chapter is very helpful. Later chapters on the use of psychiatric diagnosis and the assessment of damages are useful reading for anyone who works in the field as an expert witness, not only those who accept sexual harassment cases. And the framework for conducting an examination will be especially useful for the less experienced examiner.Dr. Gold's references are well considered, broad, and accurate, and her use of landmark cases is extensive and well researched.I could find few criticisms, and those that I have are perhaps matters of personal taste. Her use of landmark cases is appropriate, and most cases are well explained. Some were cited only with name and holding. I find landmark cases are most helpful when a fuller context is provided, but again, this is mostly a matter of personal taste. I also found her chapter that discusses sexual harassment in context at times tentative and almost apologetic. Her points in this chapter are all well taken, and I would have liked for her to either elaborate a bit on them or steer the reader to further research. Finally, Dr. Gold warns less experienced clinicians that there is much to know before accepting sexual harassment cases. She cautions the reader to extensively study the subject matter and recognize the need for experience. A few lines about how a clinician could gain experience—by mentorship, for example—would be helpful. But these criticisms are minor and do nothing to take away from the work's fulfilling its goals.This textbook should be considered required reading for all forensic mental health experts. Some parts should also be considered by general psychiatry residency directors. People working in the legal field and in risk management may also find it useful. Overall it is an excellent read and fills a substantial gap in the literature very nicely.Dr. Stanley is assistant professor of psychiatry in the Divisions of Forensic Neuropsychiatry and Child and Adolescent Psychiatry of Tulane University School of Medicine. He is medical director of the forensic sexual offender evaluation and treatment program.

Phantom Benefits

In an effort to avoid the rising costs and risks of employment litigation, some companies in the United States have implemented employment contracts that require employees to submit any legal disputes with their employer to final and binding private arbitration. The assumption of such companies, as well as scholars and practitioners who have studied the matter, has been that a company should impose final and binding arbitration on its employees, if it may lawfully do so. An examination of that assumption indicates that mandatory employment arbitration is not necessarily the most advantageous method of employee dispute resolution. Indeed, despite what appears to be a rising popularity of mandatory employment arbitration, such a policy should not be viewed as a panacea for rising employment litigation risks and may not even be appropriate or helpful for many businesses.

Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment, 2nd edition

Back to table of contents Previous article Next article Book ReviewsFull AccessPosttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment, 2nd editionRenee Sorrentino, M.D.Renee SorrentinoSearch for more papers by this author, M.D.Published Online:1 Apr 2005https://doi.org/10.1176/appi.ps.56.4.496-aAboutSectionsView EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InEmail Robert Simon, M.D., is clinical professor of psychiatry and director of the program in law and psychiatry at Georgetown University School of Medicine in Washington, D.C. Simon's stated goals for this second edition of Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment are to bring direction and discipline to the assessment of posttraumatic stress disorder (PTSD) in litigation and to continue the dialogue sparked by the first edition among mental health professionals, the legal community, and third-party payers concerning ways to improve the psychiatric and psychological assessment of PTSD claimants. The book is divided into nine chapters that address the use of PTSD claims in the courtroom. Each chapter provides guidelines for forensic assessment that can serve both plaintiffs and defendants in litigation involving PTSD. The chapters' authors are nationally known experts.The topics covered include disability determinations in PTSD litigation, PTSD in employment litigation, forensic laboratory testing for PTSD, forensic psychiatric assessment of claimants, guidelines for diagnosing PTSD among children and adolescents, forensic psychological assessment, detection of malingering among persons with PTSD, and a review of PTSD research findings.Simon's chapter on the forensic assessment of PTSD claimants is well written and comprehensive. He outlines five basic questions that the forensic examiner should consider in the evaluation of the PTSD claimant. Each question is explored, and guidelines are proposed. Simon emphasizes the importance of using official diagnostic manuals and the professional literature when diagnosing PTSD.The chapters by Green and associates and Pitman and associates provide a useful review of the scientific findings in the area of PTSD. Several authors reference the severe psychological injury caused by the terrorist attacks on the World Trade Center and the Pentagon. However, none of the authors addresses the recent research on the aftermath of the attacks. One chapter's authors, Green and Kaltzman, identify the level or severity of exposure to stressors as the primary risk factor associated with the development of PTSD. According to a longitudinal survey in the Journal of the American Medical Association, the risk of PTSD was not directly associated with the exposure to or loss from the trauma but rather to use of specific coping strategies (1). Data from studies of the September 11 attacks suggest that individuals who are not present at a traumatic event may experience stress reactions (2).The book includes a thorough analysis of the problem areas in the forensic assessment of PTSD litigants. The guidelines proposed in each chapter are practical and clearly written. This book is recommended for both clinicians and attorneys who work in the area of PTSD litigation. Simon has done an excellent job of providing the reader with a comprehensive review of PTSD litigation in easy-to-understand terms.Dr. Sorrentino is director of forensic psychiatry at the E. Lindemann Mental Health Center and clinical assistant in psychiatry at Massachusetts General Hospital in Boston.by Robert I. Simon, M.D.; Arlington, Virginia, American Psychiatric Publishing, Inc., 2003, 272 pages, $49.95

Avoiding a "Pounding" in Employment Litigation: A Few Ounces of Prevention.

The article provides trial lawyers' insights into common workplace management issues that may stimulate avoidable complaints or become obstacles in defending an employer in litigation. It reviews and provides examples of problems in performance evaluation, inconsistent application of workplace conduct policies in diverse work environments, documentation of training and receipt of policies, and management of inappropriate behavior that can help or hinder a company's defense against inevitable employee claims. The importance of proper investigation practices is examined as it relates to fact finding, claim prevention and litigation appearance. These subjects are illustrated with examples of the authors' actual trial experiences in defending employers in various employment litigation contexts. Recommendations are provided on how to avoid these common management pitfalls and increase the employer's credibility and chances of prevailing when facing disgruntled employees in court.

Juror perception of employment litigation.

The article provides an overview of how jurors process information and determine verdicts in employment litigation. It is written from the perspective of one who has served as expert witness and interviewed many jurors after the fact to understand better their thought processes in making decisions. The article presents general observations about jury behavior and decision making and identifies what juries typically require to render verdicts and the importance of providing psychological anchors for that task. Reactions to adverse expert testimony are discussed as well as the specific cross examination tactics that should be avoided in the attempt to mitigate this testimony. The article highlights the implications and cautions for risk management professionals, attorneys, and psychologist-managers. Finally, the sensitive issue of identifying and responding to juror bias in the service of ensuring a fair trial is discussed.

Human Resources Management Comes of Age in the Courtroom: California Formally Enshrines the Importance of Human Resources Expert Testimony for Employment Litigation.

This article provides some background on testimony about human resources management practices in the courtroom. The author, a plaintiff's counsel, contends that a milestone was reached recently when the California Court of Appeal expressly accepted such testimony as relevant subject matter in an employment-related civil case. Prior to that in California, oftentimes human resources experts were limited in testimony, or altogether excluded, because testimony about personnel matters was considered junk science. The appellate court, however, also set some parameters on this type of expert testimony. The article provides further detail on some of the issues surrounding expert testimony in this field.

Ahead of the class—Two cases serve as a warning for increased class-action employment litigation

Employment Relations TodayVolume 31, Issue 4 p. 77-80 Key Court Cases Ahead of the class—Two cases serve as a warning for increased class-action employment litigation Scott J. Witlin, Scott J. Witlin scott.witlin@ogletreedeakins.com Ogletree Deakins, Nash, Smoak & Stewart, P.C., Los AngelesSearch for more papers by this author Scott J. Witlin, Scott J. Witlin scott.witlin@ogletreedeakins.com Ogletree Deakins, Nash, Smoak & Stewart, P.C., Los AngelesSearch for more papers by this author First published: 14 January 2005 https://doi.org/10.1002/ert.20043AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume31, Issue4Winter 2005Pages 77-80 RelatedInformation

The relationship of workers' compensation to the Americans with Disabilities Act and Family and Medical Leave Act.

This article examines the intersection of workers' compensation laws with the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Much ADA and FMLA litigation stems from work-related injuries or illnesses. Knowledge of the ADA and FMLA may help prevent workers' compensation cases from resulting in costly employment litigation. Employees who are absent from work for a work-related condition often have rights under other laws, besides workers' compensation laws, such as the ADA and FMLA. Employers need to be cognizant of this while addressing these cases. First, the goals of state workers' compensation laws and the ADA and FMLA are reviewed. Then specific issues involving the intersection of workers' compensation, ADA,and FMLA are discussed.

Industrial/organizational psychology and the federal judiciary: expert witness testimony and the Daubert standards.

This research examined judicial perceptions of the field of industrial/organizational (I/O) psychology, explored how judges evaluate and weigh I/O psychology expert witness testimony, and scrutinized the use of the Daubert factors in judicial assessments (of social scientific evidentiary reliability. In a mail survey, federal judges were randomly presented with one of four prototypical descriptions of I/O psychology expert witness testimony in civil age discrimination in employment litigation. Judges were found to be relatively unfamiliar with the field of I/O psychology, and few had previously heard or read the testimony of an I/O psychologist. Sixty-six percent of the federal judges rated themselves at least moderately likely to admit the expert's testimony at trial, regardless of the testimony scenario presented. Judges rated the evidence overall as relevant, moderately reliable, moderately probative, and prejudicial. Both judicial familiarity with the field of I/O psychology and prior experience with I/O testimony were found to be positively related to likelihood of admitting the evidence. Manipulations of the scientific foundation for the expert testimony did not substantially affect admission decision. Judges ascribed the most importance to the general acceptance Daubert factor in their evaluation of evidentiary reliability. Implications for the science and practice of I/O psychology in the legal system are presented and discussed.

Capital Report: Senate Passes Genetic Nondiscrimination Bill

Although few abuses in genetic discrimination have been documented so far, on October 14, 2003, the Senate passed a bill banning the use of genetic information by insurance companies or employers to restrict coverage or to make hiring decisions. bill presses for quick action, citing several historical abuses of genetics, including state laws that provided for the sterilization of persons having presumed genetic defects. Senate also seemed concerned about the fact that genetic conditions and disorders are associated with particular racial and ethnic groups and gender, which could lead to the type of stigmatization and discrimination seen in the early 1970s with the appearance of some state-sanctioned mandatory screening programs for sickle cell anemia. The Genetic Information Nondiscrimination (S.1053) was a tripartisan effort. Although many news outlets described the measure as sailing through the Senate because of the 95-0 vote, the details of the bill were over six years in the making, and a companion bill faces an uphill battle in the House. tone of the proposed law implies that individuals should not be discouraged from making personal use of genetic information. It would protect people who might be disinclined to undergo genetic testing became they fear that the information could be used against them. Where the sponsors of the bill draw the line is how others might use that same information. legislation bars use of genetic information in employment decisions, including hiring, firing, job assignments, or promotions. It also prohibits a company from collecting genetic information from an employee or family member except in special cases, such as monitoring the health effects of toxins in the workplace. Those claiming discrimination by an employer could take their case to the Equal Employment Opportunity Commission. rights and remedies that would flow for a genetic employment discrimination case would be the same as those provided for other forms of employment discrimination, including race or disability. Concerns about lawsuits stalled the bill in the Senate, and this could be a hurdle in the House. A spokesman for the National Association of Manufacturers said his group has concerns about the bill because of the apparent lack of evidence of a problem in this area and because of its potential for excessive employment litigation. Another confounding issue in drafting the bill was how it would overlap, replicate, or fill gaps in the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which prohibits employer-sponsored group health plans from using genetic information to refuse coverage, cancel coverage, charge higher premiums, or impose pre-existing conditions. …

Employment Arbitration and Litigation: An Empirical Comparison

Policy debate rages over mandatory employment arbitration. Using a unique database of American Arbitration Association employment dispute awards, this article compares court-tried employment cases and arbitrated employment claims. It compares adjudicated and arbitrated outcomes in the class of disputes most often the subject of arbitration, non-civil rights employment claims. For higher paid employees, we find little evidence that arbitrated outcomes materially differ from trial outcomes. Employee win rates in both forums exceed 55% and median awards in both forums exceed $65,000. We find no statistically significant differences between arbitration and litigation in employee win rates or in median or mean award levels. These results are consistent with the belief that lower pay employees lack systematic, realistic access to court. We also report evidence that arbitrated disputes conclude more quickly than litigated disputes.

Issues in employment litigation

Cites that discrimination, wrongful termination and sexual harassment account for over 60 per cent of all claims. Looks at the Title VII of the Civil Rights Act 1964 and considers the position particularly in California. Discusses preventative measure including the statutory defences which employees must claim have been breached in order to make a claim. Covers alternative dispute resolution and provides a brief case study of a frivolous claim.

Not to worry: directors and officers claims can be managed.

Directors and officers claims have become more prevalent due to the employment litigation surge in this country. This article provides examples of real claims, offers suggestions in managing claims, discusses trends in litigation and provides recommendations for loss prevention.

Workplace bullying: myth or reality ‐ can we afford to ignore it?

Introduces workplace bullying and examines the nature of actions associated with it as well as recent UK data on incidence. Develops a cost‐benefit argument for organizations to deal with the issue and comments that despite the overwhelming benefits, few organizations appear to have workplace bullying on their agenda. Highlights evidence that bullying is the single largest category identified in employment litigation connected to stress at work ‐ even though it may not be specifically named. Concludes that more knowledge is needed in this area and that it is an ideal focus for academics and practitioners to investigate jointly.

State regulations update: Self‐critical analysis by employees: Trusted privilege or recipe for liability?

Employment Relations TodayVolume 24, Issue 2 p. 87-96 Department State regulations update: Self-critical analysis by employees: Trusted privilege or recipe for liability? William C. Martucci, William C. Martucci William C. Martucci is a partner in the law firm of Spencer Fane Britt & Browne, in the firm's Kansas City office. He practices exclusively in the area of employment law.Search for more papers by this authorEric W. Smith, Eric W. Smith Eric W. Smith is an associate with the firm, also in the Kansas City office, concentrating in the areas of employment litigation and dispute resolution.Search for more papers by this author William C. Martucci, William C. Martucci William C. Martucci is a partner in the law firm of Spencer Fane Britt & Browne, in the firm's Kansas City office. He practices exclusively in the area of employment law.Search for more papers by this authorEric W. Smith, Eric W. Smith Eric W. Smith is an associate with the firm, also in the Kansas City office, concentrating in the areas of employment litigation and dispute resolution.Search for more papers by this author First published: 31 January 2011 https://doi.org/10.1002/ert.3910240211 AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume24, Issue2Summer 1997Pages 87-96 RelatedInformation

Book Section: Essay and Review: Mental and Emotional Injuries in Employment Litigation

Book Section: Essay and Review: Mental and Emotional Injuries in Employment Litigation

The Temptation of Performance Appraisal Abuse in Employment Litigation

The Temptation of Performance Appraisal Abuse in Employment Litigation

Mental and Emotional Injuries in Employment Litigation

Back to table of contents Previous article Next article ArticleNo AccessMental and Emotional Injuries in Employment LitigationRobert SadoffRobert SadoffSearch for more papers by this authorPublished Online:1 Apr 2006https://doi.org/10.1176/ps.46.8.840AboutSectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InEmail "Mental and Emotional Injuries in Employment Litigation." Psychiatric Services, 46(8), pp. 840–841 Access content To read the fulltext, please use one of the options below to sign in or purchase access. Personal login Institutional Login Sign in via OpenAthens Purchase Save for later Item saved, go to cart PPV Articles - Psychiatric Services $35.00 Add to cart PPV Articles - Psychiatric Services Checkout Please login/register if you wish to pair your device and check access availability. Not a subscriber? Subscribe Now / Learn More PsychiatryOnline subscription options offer access to the DSM-5 library, books, journals, CME, and patient resources. This all-in-one virtual library provides psychiatrists and mental health professionals with key resources for diagnosis, treatment, research, and professional development. Need more help? PsychiatryOnline Customer Service may be reached by emailing [email protected] or by calling 800-368-5777 (in the U.S.) or 703-907-7322 (outside the U.S.). FiguresReferencesCited byDetailsCited ByNone Volume 46Issue 8 August 1995Pages 840-841 Metrics PDF download History Published online 1 April 2006 Published in print 1 August 1995