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KM&M 2001 Practice Highlights

December 31, 2001

Summarized below is a sampling of the Firm's accomplishments during 2001. Please contact any of our attorneys if you would like further information regarding these matters or any other aspect of our practice.

Publications

Kyle C. Frazier was a contributor to two "Action Guides" published by the California Continuing Education of the Bar – Handling A Wrongful Termination Action , as well as Preparing For Trial. Kyle also contributed to Maureen McClain's publication entitled "The Personnel Policy Manual and Other Writings," a chapter in the Employment Law Desk Book For Human Resources Professionals, published by West Group.

An article authored by Dennis Lalli, entitled "Differences Between Disability Claims Under Federal, State and City Law" was published in the June 2001 edition of New York Employment Law & Practice.

Speeches and Presentations

Dennis Lalli participated in the "Workshop on Employment Law for Federal Judges," co-sponsored in March 2001 by the Institute of Judicial Administration, the Federal Judicial Conference, and the Center for Labor and Employment Law at NYU Law School. Forty-five federal judges attended the Workshop, where Dennis addressed the topic of summary judgment in age discrimination cases during the eight months since the Supreme Court's decision in Reeves v. Sanderson Plumbing.

In March 2001, Roger Jeanson was a panelist at a seminar entitled "Time Off: State And Federal Laws On Employee Leave, Vacations And Holidays." The seminar was sponsored by Lorman Education Services and was attended by human resources professionals, managers, and business owners.

Keith Chrestionson served as a guest speaker in March 2001 for UC Berkeley's Certificate in Human Resource Management Program. Keith spoke to a class of human resources managers on the subject of legislative and case law updates in the area of employee relations.

Dennis Lalli participated in the Employment Law Litigation Institute at St. John's University School of Law, held on May 11 and 12, 2001, and sponsored by the Labor and Employment Law Section of the New York State Bar Association. In addition to serving as a member of the committee that planned this Continuing Legal Education program, Dennis gave a presentation at the program addressing the differences between disability discrimination claims under federal, New York State, and New York City Law.

Maureen McClain chaired a panel on Age Discrimination Law and Theory as part of the Program on Employment Law and Mediator Skills Training sponsored by the Center for Labor and Employment Law at the NYU School of Law, held on June 18-22, 2001. The audience consisted of prominent mediation practitioners from all over the United States, including senior private sector and public sector mediators and arbitrators.

In October, John Farrell served as a Team Leader at the National Institute for Trial Advocacy's ("NITA") Pacific Regional Program in San Francisco. John also taught at NITA's San Francisco Teacher Training Program in November, and he has lectured on the subject of evidence to various District Attorneys' offices in 2001 as well.

On November 9, 2001, Ken Margolis addressed a meeting of CFO/Arts, an organization of chief financial officers of major artistic and cultural institutions, on the subject of Workplace Harassment and Discrimination. The meeting, held in Atlanta, Georgia, was attended by representatives of dance and opera companies, museums, and other cultural organizations throughout the United States.

On December 12, 2001, Ray McGuire chaired a panel of national safety experts at the annual Building Trades Employers Association safety conference held in New York City. The panel addressed the innovative responses evolved by the construction companies and craft unions working at the World Trade Center recovery site to the difficult safety issues faced by workers at the site. Secretary of Labor, Elaine Chao, and Occupational Safety and Health Administration Director, John Henshaw, attended and spoke at the conference.

On December 14, 2001, Jeff Polsky was a panelist at a Lorman Seminar entitled "Keeping the Employer Out of Court: How to Hire, Train, Promote, Discipline and Terminate Employees Without Becoming the Target of a Lawsuit in California." This all-day seminar in San Francisco was attended by human resources professionals, business owners, and managers. Jeff delivered remarks on the subjects of recruiting and hiring, and he also participated in various other panel discussions.

Client Training

The Firm's attorneys conducted numerous workshops and training sessions throughout 2001 on subjects such as harassment and discrimination in the workplace, handling terminations, record-keeping and I-9 compliance, conducting reductions in force, background investigations and the Fair Credit Reporting Act, and union awareness. Training was conducted for high-tech, manufacturing, sales, construction, broadcasting, entertainment and restaurant clients, among others.

The Firm's Construction Industry practice group conducted training sessions for virtually all of the project executives, project managers, superintendents and assistant superintendents who oversee construction projects for the seven construction management firms that comprise the membership of the Contractors Association of Greater New York ("CAGNY"), a multi-employer bargaining association the Firm has represented since 1984. The sessions addressed the day-to-day problems faced by on-site superintendents in administering the CAGNY's five collective bargaining agreements and in handling jurisdictional disputes.

The Firm's Labor/Entertainment practice group continues to provide specialized training to business affairs personnel, producers and production managers on production issues arising in the unique environment of employing performers, writers, directors and technical personnel on programming produced for cable television and Internet exhibition.

Reductions in Force

As businesses and industries across many sectors of the economy continued to grapple with a challenging economic climate in 2001, the Firm was called upon repeatedly to assist in the creation and implementation of expense reduction programs, including reductions in force. Our work in this regard has run the gamut from counseling senior executives on the legal implications of staff reductions; to coaching managers on making sound business judgments regarding position eliminations; to drafting severance plans, separation agreements, WARN notices, press releases and Board resolutions. By working closely with the Firm throughout all stages of this emotionally trying and administratively complex process, our clients have been able to move beyond layoffs to the business of charting their future success rather than defending RIF-related litigation.

Collective Bargaining

The following are some of the collective bargaining agreements negotiated by KM&M attorneys in 2001:

  • McAllister Towing & Transportation Co., Inc./Seafarers International Union - covering tugboat employees in the ports of Philadelphia, Baltimore and Norfolk;
  • WETA/Local 1200, IBEW - covering all technical/engineering employees at the Washington, D.C. public television station;
  • WQXR/AFTRA - covering all radio announcers employed by the "Radio Station of the New York Times;"
  • Jazz at Lincoln Center/Local 802, AFM - covering the Lincoln Center Jazz Orchestra and all other musicians engaged in Jazz at Lincoln Center in New York;
  • American Ballet Theatre/Independent Artists of America - covering the dancers of American Ballet Theatre for performances at the Metropolitan Opera House and City Center in New York and on tour worldwide;
  • American Ballet Theatre/Local 802, AFM - covering the orchestra employed by American Ballet Theatre for performances at the Metropolitan Opera House and City Center;
  • Metropolitan Lithographers Association/Local 1, GCIU - covering press and pre-press departments employed by the unionized lithographic industry in the New York metropolitan area;
  • WNYC/AFTRA - covering all non-supervisory employees employed by the New York public radio station;
  • WOR/National Association of Broadcast Employees and Technicians - covering all technical/engineering employees employed by a New York radio station;
  • New York Gilbert & Sullivan Players/Actor's Equity Association - covering actors employed in performances at Symphony Space and City Center in New York and on tour;
  • Competitive Media Reporting/Local 155, United Electrical, Radio and Machine Workers Union - covering clerical and technical employees engaged in the business of gathering, packaging and licensing advertising data; and
  • Contractors' Association of Greater New York/Mason Tenders District Council - covering all general laborers working for the Association's seven members on New York City construction projects.
  • Organizing Campaigns

    The Firm successfully represented a major New York City shipyard whose employees were the subject of an attempted organizing campaign by the New York District Council of Carpenters.

    Labor Arbitration

    Arbitrator sustains discharge in noose incident: KM&M's client, a prominent major league sports franchise, discharged a long-term employee with an unblemished record who admitted to tying and hanging a large noose in the Stadium's upper concourse shortly before the Martin Luther King holiday. The noose was seen by several black security employees, who were offended and frightened. The union protested the discharge and the matter proceeded to arbitration. The union claimed that the discharged employee intended no harm, that he did not appreciate that the noose might be racially offensive, and that he took it down and apologized when he learned that people were upset by it. The union further argued the noose was not a symbol of racial intolerance or violence. Nevertheless, the arbitrator denied the grievance and sustained the discharge.

    Arbitrator denies seniority claim by temporary employee: A temporary, on-call employee of KM&M's client, a university club, claimed a right to preference in waiter work assignments under the governing collective bargaining agreement. The club argued that as temporary waiters were specifically excluded from coverage under the agreement, the club's work assignment practices were entirely within its discretion. The arbitrator denied the grievance and sustained the club's position.

    Arbitrator sustains discipline for sexual harassment: A telephone technician employed by KM&M's client, a national teledata interconnect company, worked full-time at a customer's medical facility, maintaining the telephone system of a suburban hospital complex. The hospital employee overseeing the technician's work complained that he had made several suggestive remarks to her in the six months they worked together and blocked her from leaving his office on one occasion, claiming he needed her assistance in mastering the e-mail function of a newly installed computer. Upon her complaint, the Company suspended the employee and transferred him to a different site. Based on the testimony of the hospital employee, her manager and the hospital security official to whom the technician initially complained, the arbitrator sustained the suspension and discharge.

    Arbitrator sustains discharge of 25-year employee: A tape operator employed for 25 years by a television station, and assigned to work a late night talk show, was discharged when his error caused an on-air problem of approximately 20 seconds in duration. The employee, who was working under a "last chance" agreement because of earlier performance problems, claimed he did everything right, and that another employee, the Broadcast Operations Coordinator ("BOC"), could have switched to a back-up tape to avoid the on-air problem. The BOC testified that after he observed the error, he contacted the tape operator on an intercom and directed him to correct the problem before the show aired, but that the tape operator failed to do so. The arbitrator sustained the discharge.

    Employment Litigation

    Second Circuit confirms that former St. John's University graduate assistant has no viable federal claims: In October 2001, the Second Circuit Court of Appeals affirmed the dismissal of a lawsuit filed on behalf of a former St. John's University graduate assistant. The plaintiff claimed in the lawsuit that he was forced to resign from his position as a graduate assistant in the University's soccer program after the University agreed to accept funding and athletic uniforms from Nike. The plaintiff criticized Nike's labor practices as inconsistent with the University's Catholic mission, and he declined to wear the trademark Nike "swoosh." His lawsuit included claims for violations of his federal civil rights, criminal conspiracy to deprive him of those rights, defamation, religious discrimination in violation of the New York State and New York City Human Rights Laws, and breach of contract. In September 2000, the District Court dismissed the complaint in its entirety, simultaneously denying the plaintiff's motion for leave to file an amended complaint adding several RICO claims.

    On appeal, the Second Circuit agreed with the lower court's reasoning for dismissing all of the plaintiff's federal claims, finding that his civil rights claims were merely conclusory, and that confirming he had no private right of action for alleged criminal conspiracy. The Court of Appeals also concurred with the lower court's denial of leave to amend the complaint. Finally, because it affirmed dismissal of all of the federal claims, the Second Circuit ordered that the state law claims be dismissed for lack of jurisdiction.

    KM&M wins summary judgment on behalf of alleged "joint employer": In March 2000, our client (a leading entertainment conglomerate) was among several defendants sued in federal court in New York by the former employee of a company providing security services to our client. The complaint alleged that, while on assignment at our client's premises, the plaintiff was sexually harassed by a fellow employee of the security company. She further alleged that she was unlawfully discharged after she reported the alleged harassment to her employer, and that KM&M's client was liable as a "joint employer" under Title VII and under the New York State and City Human Rights Laws. Plaintiff also claimed that our client was liable under state and city law for "aiding and abetting" discrimination and retaliation.

    The Court initially directed the parties to engage in discovery limited to the sole issue of whether our client was a "joint employer" with the security company, such that our client could be held liable for the security company's allegedly unlawful acts. At the close of the limited discovery period, Plaintiff withdrew voluntarily most of her claims against our client, including her joint employer claims. However, Plaintiff refused to withdraw her "aiding and abetting" claims under state and city law, and we filed a motion for summary judgment on those claims. In essence, we argued that our client had nothing to do with the sexual harassment the plaintiff claimed to have suffered, nor was our client directly involved in either the security company's investigation of that harassment, or its subsequent decision to terminate Plaintiff's employment.

    In February 2001, the Court granted our motion and dismissed the case against our client. Specifically, the Court concluded that there was no evidence our client was actually involved in any discriminatory or retaliatory conduct, and therefore could not be held liable for aiding and abetting.

    Courts stay litigation and order plaintiffs to arbitrate their claims: The enforceability of mandatory workplace arbitration agreements is a developing area of the law, especially in California. Throughout the year, the Firm has been successful in enforcing such agreements and requiring plaintiffs to resolve their employment-related disputes via arbitration rather than in court before a jury. As a result, the employer in each case avoided the substantial expense of taking a case to trial and avoided the risk of a runaway jury verdict.

    Suspended attorney's effort to evade New York's employment at will doctrine successfully opposed by KM&M: In June 2001, the New York Supreme Court, Dutchess County, granted the Firm's motion to dismiss a breach of contract action filed against our client by its former in-house immigration attorney. While plaintiff conceded that his employment was at will, he nonetheless argued that his discharge gave rise to a cognizable claim for breach of contract under the "Wieder doctrine," the exception to New York's employment at will doctrine announced in Wieder v. Skala, 80 N.Y.2d 628 (1992).

    The plaintiff in Wieder alleged (and the court found) that, although he was employed at will as an associate attorney at a law firm, his discharge nonetheless constituted a breach of contract because he was wrongfully terminated for reporting the misconduct of another attorney at the firm. In our case, the plaintiff claimed that he was discharged for refusing to file allegedly fraudulent visa applications on behalf of our client. We moved to dismiss the complaint on the basis of information we acquired following plaintiff's discharge: namely, that his license to practice law had been suspended throughout his employment with our client. Therefore, we argued (among other things) that the plaintiff could find no refuge from the employment at will doctrine under Wieder. The court agreed, concluding that because the plaintiff had failed to reveal the suspension of his law license, the situation did not fall within the Wieder exception to the employment at will doctrine. Accordingly, the plaintiff's lawsuit against our client was dismissed by the Court.

    California Court of Appeal affirms dismissal of sexual harassment case: The California Superior Court granted summary judgment on sexual harassment claims against our client brought by a female health care employee who complained of a physician's profanity and unfounded criticism. The California Court of Appeal affirmed the judgment on appeal. While there was evidence of vulgarity on the part of the physician (some of which he directed at the plaintiff), we successfully argued that the conduct was too isolated or sporadic to constitute actionable sexual harassment. The law does not impose "zero tolerance" for offensive language in the workplace. Instead, the conduct, to be actionable, must be sufficiently severe or pervasive to create an abusive work environment. We successfully persuaded both the trial and appellate courts that the conduct at issue did not rise to that level.

    Arbitrator rules for employer on wrongful termination claim by 30-year employee: Following her termination for poor performance and abusive behavior toward co-workers, the plaintiff sued her employer for wrongful termination, claiming she could not be terminated without "good cause." The Firm succeeded in persuading the court that the case belonged in arbitration pursuant to the employer's mandatory arbitration policy. Then, following discovery and a two-day arbitration hearing, the arbitrator ruled that the employer did not need good cause to terminate this employee, that the employer had good cause in any event, and that, having removed herself from the job market, plaintiff had no actual damages. While it would be extremely difficult arguing to a jury that an employee with 30 years of service could be terminated at will, the arbitrator was able to apply the law to the facts without being swayed by sympathy or emotion. The employee's claims were denied in their entirety.

    Federal court grants KM&M's motion to dismiss ADA complaint: Plaintiff's position was eliminated shortly after he returned to work from a medical leave of absence. He filed suit in federal court in New York, alleging that he was discharged in violation of the Americans With Disabilities Act (the "ADA"). Plaintiff attached to his Complaint a doctor's note he presented to his employer when he returned to work; the note stated that Plaintiff could not lift more than thirty pounds. On the basis of this doctor's note and the fact that his absence from work was precipitated by a shoulder injury which required surgery, Plaintiff claimed he was "disabled" under the ADA.

    In lieu of answering the Complaint and commencing discovery in the case, we filed a motion to dismiss the Complaint. We argued in our motion that Plaintiff's 30-pound weight restriction did not substantially limit any major life activity and thus, he was not "disabled." In March 2001, the Court granted our motion to dismiss.

    Arbitrator rejects disability discrimination claim where plaintiff fails to substantiate need for accommodation: After being notified of deficiencies in her performance, plaintiff informed her employer that she was disabled and required certain ergonomic equipment as an accommodation. While she provided a note from her chiropractor, the note did not specify what accommodation she required. Despite repeated requests that she substantiate her need for the equipment she sought, plaintiff refused to provide that information and adopted a confrontational posture, accusing her employer of discriminating against her and seeking to infringe upon her privacy rights. Following the closure of the operation in which she worked (while she was on disability leave), plaintiff sued for disability discrimination and wrongful termination. The Firm successfully compelled arbitration under the employer's mandatory workplace arbitration program, thereby removing the case from the court system. Following a two-day hearing, the arbitrator ruled in the employer's favor on all counts. He determined that plaintiff, having refused to substantiate her need for the requested accommodations, could not now accuse the employer of failing to provide them. In reaching his decision, the arbitrator relied heavily on inconsistencies between plaintiff's testimony in this case and in a separate workers' compensation action.