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Best (and worst) of 2011: Employment


The U.S. Supreme Court's June decision in Betty Dukes et al. vs. Wal-Mart Stores Inc. was the best development of the year in employment law for employers, one expert says.

In that decision, the court ruled against a proposed class of some 1.5 million members, with the majority holding that “respondents have not identified a common mode of exercising discretion that pervades the entire company.”

Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago, said the decision is “probably being cited more than any other Supreme Court decision this year, and it is a defining standard insofar as almost every lawsuit involving class action issues has to account for” how Dukes impacts the case.

“It's a win for employers,” said Mr. Maatman. “It's armed employers with arguments they didn't have before.”

Robin E. Shea, a partner with Constangy Brooks & Smith L.L.P. in Winston-Salem, N.C., said the best development was a June ruling by the 10th U.S. Circuit Court of Appeals in Denver in George Powell vs. Laborers Union #1271, in which the union was sued for passing over Mr. Powell's name on a hiring hall list after it received “no-rehire” letters from employers. The court upheld the union's move.

“I admire the courage of those employers who actually provided negative references on a bad employee so that future employers wouldn't get burned,” she said.

Ms. Shea said the worst development was Verizon Communications Inc.'s “unfortunate decision” to agree to pay $20 million to resolve a nationwide class disability discrimination lawsuit involving the company's “no fault” attendance plans with the Equal Employment Opportunity Commission in July. “I would have loved to see them force the EEOC to prove their case,” she said.

Mr. Maatman said the worst development was a July 6 case in federal district court in Columbus, Ohio, in EEOC vs. JPMorgan Chase Bank N.A. in which, he said, the judge gave a “free pass, so to speak, to the EEOC's litigation tactics.” Mr. Maatman said the EEOC's lawsuit had exceeded the scope of its investigation.