Lawyer Joke Friday

It's Friday again. This week, instead of a typical lawyer joke, I thought I'd share with you an observation made by former U.S. Supreme Court Justice Sandra Day O'Connor. The right honorable former Justice said:

"There is no shortage of lawyers in Washington, D.C. In fact, there may be more lawyers than people."

'Nuff said, eh?

Sometimes, It Doesn't Matter What The Contract Says

Just when I got finished lecturing on the need to observe the express terms and conditions of contractual language (see my post entitled You, Me And The Contract Makes Three), I read about the case of Kravar v. Triangle Services Inc., 06 Civ. 7858 (S.D.N.Y. - 9/17/07). Talk about incongruity.

In Kravar, the Plaintiff brought an action against her former employer alleging national origin and disability discrimination under Federal and State law. The Amended Complaint sought damages, reinstatement to Plaintiff’s former position and ancillary relief. The Defendant moved to dismiss or stay the action on the ground that the Plaintiff, as a member of Local 32BJ, had waived her right to bring such discrimination claims since the operative collective bargaining agreement with Plaintiff’s union provided that arbitration was the sole and exclusive remedy available to Plaintiff.

The District Court denied the Defendant’s Motion, and held that the clause in the union-negotiated collective bargaining agreement mandating arbitration of Plaintiff's claims was unenforceable under both Federal and State law. In so holding, the Court looked to the U.S. Supreme Court’s opinion in Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974) which held that a collective bargaining agreement cannot waive an employee's right to bring a Title VII claim in Federal court. It also looked to the Second Circuit’s holding in Rogers v. New York University, 220 F.3d 73, 75 (2d Cir. 2000) which affirmed a District Court ruling that a union-negotiated arbitration clause purporting to waive a plaintiff's right to bring a discrimination claim in Federal court under the Americans with Disabilities Act was unenforceable. Those cases, together with other recent Supreme Court and Second Circuit precedent cited by the District Court (which applied non-arbitrability to both Federal and State claims), supported its holding in Kravar.

In cases such as this, the question arises as to whether judicial intrusion into the collective bargaining process is appropriate. Such interference, despite its good intentions, may serve to undermine significantly the sense of certainty which parties require in the labor-management arena as individual union members may act unilaterally and without any impediment in contravention of the collective bargaining agreement. Can anyone say “chaos?”

You, Me And The Contract Makes Three

Sometimes, people are weird about contracts. They spend enormous amounts of time negotiating the obligations of each party and spend lots of money on attorney's fees. Then, they proceed to ignore the contract specifics and wonder why they are denied relief. Such is the case with Techon Contracting, Inc. v. Incorporated Village of Lynbrook (Supreme Court, Nassau County, 1-1557/2003, Decided 8/27/07).

In Techon, the Plaintiff entered into a municipal contract with Carlo Lizza & Sons Paving ("Lizza") to perform asphalt and concrete work. Lizza moved for summary judgment asserting it performed work in accordance with the contract and that the Plaintiff failed to pay for same. Accordingly, Lizza suspended its work. The Plaintiff claimed that Lizza failed to perform the work properly and to provide certified payrolls for work performed.

In denying the Motion for summary judgment, the court found that the parties' contract contained certain conditions precedent to Lizza's receipt of payment, that Lizza failed to satisfy any of those conditions, and that Lizza failed to provide proof that its work was performed in accordance with the contract documents. Although Lizza submitted an Affidavit from the municipality's superintendent attesting to its proper and timely performance of its work, the court did not credit the document as it was extrinsic to the contract.

This is yet another in a litany of cases which should hammer home the point that the express terms of a written agreement are controlling. A failure to follow the specific conditions contained in the written document can be fatal as it was in Techon. Further, even if a verbal, handshake "deal" is made, it's only as good as the paper on which it is written.

Lawyer Joke Friday

I'm in the process of moving my office ... it's simply a tremendous hassle and extremely distracting. Thus, the lack of any substantive post this week. Sorry folks, I'll try to be a good boy going forward. As a start, here's this week's number from the lawyer joke hit parade:

Q. What can a goose do, that a duck can't and that a lawyer should?

A. Stick their bill up their ass.

See ya next week.

Lawyer Joke Friday

I know, I know ... there was no joke last Friday. I actually heard a complaint from a loyal reader. Go figure! Unfortunately, life and business got in the way. So, here's this week's ditty:

Q. Where do vampires learn to suck blood?

A. Law School.

I prefer types "O" and "AB-" myself. They have an intriguing bouquet.

See y'all next week.

Shifting The Healthcare Risk

More and more companies are now linking health factors to what employees pay for health insurance benefits. With the implementation or revision of employer-sponsored wellness programs, those employees having health risks such as high blood pressure, cholesterol or obesity are being required to pay more toward their health insurance premiums than their healthy counterparts. Is this fair? That depends on whether one believes an employee should bear some responsibility for his/her health and the attendant costs of their health insurance coverage.

The battle lines are being drawn as healthcare costs continue to skyrocket. On the one hand, companies are attempting to reduce their costs for high-risk, "unhealthy" employees by imposing penalties in the form of insurance surcharges, and rewarding good health through the use of reduced paycheck deductions, insurance discounts or rebates. On the other hand, the argument is made that such employer actions violate employee privacy rights by attempting to control private behavior, and may also violate anti-discrimination laws such as the Americans with Disabilities Act (the “ADA”).

In February of this year, new Federal regulations went into effect that apply to group health plans for plan years beginning on or after July 1, 2007. The Regulations amend and clarify the non-discrimination provisions under the Health Insurance Portability and Accountability Act (“HIPAA”) which must be considered in relation to other federal and state laws. Despite the effort at clarification, the Regulations remain confusing. Compliance with the new Regulations does not necessarily mean that an employer is in compliance with other provisions of HIPAA or any State or other Federal law. For example, wellness programs and related health assessments which comply with the new Regulations may violate the ADA and/or other anti-discrimination laws. Many employers who believe they are in compliance with the new Regulations may find that they've run afoul of other laws.

Confusing? You bet. Is it a good thing? Maybe. Will monetary incentives and penalties motivate employees to get healthy or maintain good health? Probably. Will lawyers benefit from the litigation and related work which is bound to result from all of this? Definitely!

Anger Management Training and Reasonable Accommodation

In Recovery Racing LLC v. Abate - 017764/2005 (Nassau Co. Supreme Court, 8/10/07), the Court held that under New York Executive Law §296, an employer was not required to engage in anger management counseling to accommodate an employee's disability because such a requirement went beyond "reasonable" accommodation in the workplace.

In Abate, the Defendant moved and was granted leave to reargue a prior order which dismissed his counterclaim against the Plaintiff for discrimination. The Defendant alleged that he suffered from Parkinson's disease, the effects of which were exacerbated by a superior’s volatile and irascible personality which included yelling, throwing things and slamming doors. The Defendant argued that his superior assured him that he would curb his angry behavior so as to avoid causing Defendant undue stress, but did not do so. Thus, the Defendant resigned from his $350,000 a year position with the Plaintiff. The Plaintiff thereafter commenced an action to recover monies advanced to the Defendant under an employment agreement, and the Defendant counterclaimed for discrimination.

The Defendant's counterclaim under New York’s Executive Law alleged that the employer failed to provide reasonable accommodation for his disability since Plaintiff’s superior (a third-party defendant in the case) was not required to attend anger management training as a condition of continuing employment. The Court noted that no authority had been presented or uncovered which mandated counseling for an employer in order to accommodate an employee's disability activated by stress. Accordingly, the court adhered to its prior determination and the counterclaim was dismissed.

I'm sort of on the fence with this one.