Illegal assassination, or justified wartime killing?

Here is an article with additional background information on the situation involving the killing of Anwar al-Awlaki.  Regardless of your position on the issue, it's a brave new world.  NY Times Article

Could it be retaliation under the FMLA to not return an employee's phone call?

Having recently defended a discrimination lawsuit that also involved a retaliation claim by the former employee under the FMLA, I found this blog post (by a lawyer in Chicago) to be particularly interesting.  By the way, the answer is - maybe. 

Here is the link to the blog post: Blog Post

NLRB Administrative Law Judge finds that company violated the National Labor Relations Act for terminating employees based on Facebook posts.

On September 2, 2011, an NLRB Adminstrative Law Judge issued a decision finding that a nonprofit organization violated the National Labor Relations Act (the "Act") and unlawfully discharged five employees based on comments made on Facebook.

Hispanics United of Buffalo, Inc. is a non-profit company in Buffalo, New York, that provides social services to disadvantaged clients. An employee of the company posed a question on her Facebook page, as follows: "Lydia Cruz, a coworker feels that we don't help our clients enough at HUB I about had it! My fellow coworkers how do u feel?" Four of her co-workers replied to the Facebook post, and a discussion ensued, in which the discussion generally focused on work and staffing issues.

The Facebook posts were all made on a Saturday morning, and from the home computers of each employee. Three days later (on October 12, 2010), the company fired all five of the employees, on the grounds that the posts constituted bullying and harassment, and violated the company's harassment policy. The company did not dispute that the Facebook posts were the sole reason that the five employees were terminated.

In the NLRB's first case involving Facebook to go to a hearing and result in a Judge's decision, the Judge determined that the Facebook posts related to working conditions, that the employees had engaged in activity protected by the Act, and that the nature of the Facebook posts did not rise to the level of misconduct that should forfeit the protections of the Act. Specifically, the Judge found that "[e]mployees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected [by the Act]."

Accordingly, the Judge determined that the company violated the Act and discriminatorily discharged the five employees. The Judge ruled that the company must offer the five employees reinstatement, and pay them for all of their lost earnings and other benefits, with interest compounded daily. The Judge also ruled that the company must post a certain notice regarding employee rights under the Act and the details about the violations that had been found. The company, of course, has the right to appeal the Judge's decision.

A full copy of the ALJ's decision (including a complete copy of the Facebook discussion) can be found here.

Yes, you should actually read and comply with your insurance policies!

On August 23, 2011, the Supreme Court of Ohio issued a unanimous decision in the case of Dominish v. Nationwide Insurance Company, reversing the decision of the 11th District Court of Appeals (Lake County, Ohio), finding that a provision in an insurance contract requiring the homeowner to "start" "any action" against Nationwide within one year of the date of loss was not ambiguous, and had not been waived by Nationwide. 

The background facts are quite simple.  A tree fell on the homeowner's house, causing damage.  The homeowner filed a claim with Nationwide.  Nationwide sent a letter to the homeowner which contained the language "Partial Denial of Coverage."  The letter explained that part of the damage was covered by the insurance policy, but part was not covered.  Nationwide included a check for the amount of the damage that it admitted was covered by the policy.  The homeowner wrote "void" on the check, and returned it to Nationwide.  Nationwide sent another letter to the homeowner, along with another check, only to have the homeowner "void" and return the check a second time. 

The letters from Nationwide to the homeowner each included a reminder of a certain provision in the insurance policy that provided as follows:  "Suit Against Us.  No action can be brought unless there has been full compliance with the policy provisions.  Any action must be started within one year after the date of loss or damage."

Nationwide and the homeowner were ultimately unable to resolve their coverage dispute, and the homeowner sued Nationwide.  The lawsuit, however, was filed nearly two years after the date of the accident. 

Nationwide defended the lawsuit, claiming that the lawsuit was barred by the provision in the policy that required suit to be brought within one year.  The trial court agreed with Nationwide, and granted Nationwide's motion for summary judgment.

The 11th District Court of Appeals reversed the trial court, finding that (1) the policy language was ambiguous, and (2) that Nationwide's actions constituted a waiver of the applicable policy language.

The Supreme Court of Ohio reversed the decision of the Court of Appeals, and held that Nationwide could enforce the one-year requirement, i.e., the homeowner was out of luck.

On the issue of ambiguity, the Supreme Court specifically acknowledged that the policy language "could have been written more clearly," but also found that the language was "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with."  In addition, the Court cautioned against reading any word or phrase "in isolation" and, when read as a whole, the quoted language was not ambiguous.

On the issue of waiver, the Supreme Court reiterated a rule that it had articulated in 1981, and held that in order for Nationwide to have waived the one-year requirement, it must have (1) "either recognized liability" or (2) "held out a reasonable hope of adjustment and by doing so, induced the insured to delay filing a lawsuit until after the contractual period of limitation had expired."  In reviewing the correspondence between Nationwide and the homeowner, the Court found that Nationwide had "clearly stated" that it was not liable to the homeowner for the disputed amount.  Furthermore, since Nationwide did not participate in any further negotiations with the homeowner after sending the partial denial letters, the Court found that Nationwide had not taken any other action that would have led the homeowner to believe that he might be paid for the disputed portion.

A simple lesson to be learned - if you believe that you have an insurable loss, read your insurance policies, and comply with all of the policy requirements, including the the requirements to pursue and perfect a claim.  If you do not, you may end up with nothing. 

If you would like to discuss any insurance related issues with an attorney, feel free to contact me at my office at (216) 635-0002.

The link to the full case/decision can be found here:  Dominish v. Nationwide Insurance Co. (2011-Ohio-4102).

Federal Communications Commission does away with the "Fairness Doctrine"

Notwithstanding the political banter on the topic in the last few months, the FCC's media bureau announced yesterday that the long-ignored "Fairness Doctrine" will be officially eliminated from the federal regulations. 

A link to yesterday's Wall Street Journal article on this topic is here: 
Wall Street Journal Article, August 22, 2011.

NLRB Report on Social Media Cases

On Thursday, August 18, 2011, the Acting General Counsel of the National Labor Relations Board released a report detailing the outcome of cases from the prior year involving employer-employee issues arising from the use of social media outlets and social and general media policies.  It is a must-read for all labor/employment practitioners, as well as employers dealing with such issues. 

Although the reader will have to determine if the various cases were consistently resolved, they certainly present insight into a rapidly expanding field of labor and employment law. 

The pdf report can be found by following this link:  NLRB Report on Social Media Cases