Sixth Circuit Dismisses FMLA Claim of Employee Hit By Car for Lack of Specific Medical Evidence Despite Employer’s Own FMLA Violation.

This morning, a divided federal Sixth Circuit Court of Appeals affirmed the dismissal of an FMLA claim, but on different grounds than the trial court. Stimpson v. UPS, 08-2263 (6th Cir. 11/3/09). The Court found that the employee did not qualify for FMLA leave because he failed to show that he suffered from a serious health condition even though he had been injured when his bicycle was hit by an automobile, visited an emergency room, was prescribed medication and produced statements from two different physicians that he was unable to work for several weeks. Rather, the Court was influenced by the plaintiff’s failure to fill the drug prescription given to him in the ER and the lack of specificity by his medical providers. Nonetheless, the Court also rejected the argument that the plaintiff failed to give sufficient notice of his need for FMLA leave and noted that the employer violated the FMLA when it only gave the employee 72 hours to produce a medical statement under the collective bargaining agreement because the FMLA gave the employee 15 days to produce such a statement. However, the employer’s violation did not save the employee’s FMLA claim because he failed to produce the requested medical statement within fifteen days.

As described by the Court, the plaintiff was riding his bicycle (while intoxicated) when it was struck by a car around 3:30 p.m. on April 29, 2006. The motorist was cited for following him too closely. He denied medical treatment at the scene, but later visited an ER where he was prescribed medication after complaining about lower back pain and the physicians noted extensive bruising where he had collided with the road pavement in the earlier accident. He was also diagnosed with an acute lumbar strain. He was discharged 2.5 hours after checking in. Even though he never filled the medical prescription, he returned to the ER the next day because of his back pain and was promptly discharged for failing to fill his earlier prescription. There was evidence that he also notified his supervisors at UPS about his accident, but he did not return to work for about three weeks, failed to call off daily under regular UPS procedures and failed to provide medical documentation of his inability to work before May 22. UPS claims that it verbally requested medical documentation and sent him a letter requesting medical documentation to be submitted within 72 hours (as required under the CBA). When the plaintiff failed to submit medical documentation before May 12 (because, as he claimed, he had moved and did not receive the UPS letter until May 22), he was terminated.

On May 23, the plaintiff filed a grievance with the union and submitted three medical statements that he could not work until May 20. When his grievance was denied, he filed an Unfair Labor Practice Charge with the NLRB on the grounds that he was being retaliated against for his prior union activities (in that he had previously been terminated by UPS for union activities and was reinstated by court order in September 2005 after an earlier ULP Charge he filed with the NLRB). However, unlike his prior ULP Charge, the NLRB dismissed this Charge. He then filed his FMLA lawsuit.

The District Court granted summary judgment to UPS because it concluded that the plaintiff was not eligible for FMLA leave in that -- even disregarding his earlier unlawful termination – he had not worked 1250 hours in the prior 12 months and had failed to give proper notice of his need for FMLA leave. In addition, the trial court questioned whether he suffered from a serious health condition under the circumstances.

The Court of Appeals agreed with the plaintiff that there was a material factual dispute about how many hours he would have worked in the prior 12 months if he had not previously been unlawfully terminated. Even though the NLRB only required payment of a certain amount of back pay (less than 1250 hours), it failed to address the plaintiff’s claim that he would have worked additional hours and such evidence had been submitted to the District Court. Accordingly, summary judgment on that issue was inappropriate.

The Court also found sufficient evidence that the plaintiff had properly notified UPS of his accident and potential need for FMLA leave. The Court also noted that UPS acted entirely properly by notifying the plaintiff in writing that it wanted more medical information before designating FMLA leave. The Court did not address the question of whether the plaintiff was required to call off each day as required by UPS internal procedures.

However, the Court found that UPS violated the FMLA by only giving the plaintiff 72 hours written notice of the need for medical documentation:

The regulations state that “[t]he employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so.” 29 C.F.R. § 825.305(b). While UPS argues that its labor agreement with the Teamsters allows it to provide a shorter time period of seventy-two hours, the FMLA expressly provides that no collective bargaining agreement, such as that UPS has with the Teamsters Union, may diminish any protection granted by the FMLA. 29 U.S.C. § 2652(b). The fifteen-day period expired on May 20, 2006, two days before [the plaintiff] submitted his medical information. However, UPS terminated [the plaintiff] on May 12, 2006, well before the expiration of the fifteen-day period. [The plaintiff] missed the deadline, but UPS had first terminated him under a mistaken understanding of the applicable deadline.

Section 2652(b) of the FMLA provides that: “The rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.”

Ultimately, the Court majority concluded that UPS’s mistake was irrelevant because even if he had submitted the information within fifteen days, the plaintiff failed to show that he suffered from a serious health condition. The plaintiff had never been admitted as an inpatient. His failure to fill his ER prescription also meant that he could not show a regiment of continuing care. “For example, an outpatient procedure with a follow-up appointment is not a “regimen of continuing treatment.” See Morris v. Family Dollar Stores of Ohio, Inc., No. 07-3417, 2009 U.S. App. LEXIS 6852, at *17-18 (6th Cir. Mar. 31, 2009).”

Surprisingly, the Court also found the medical statements submitted by his physicians to be deficient:

While [the plaintiff] has produced three separate notes from physicians stating that he could not return to work, the most detailed notation given on the forms is that [the plaintiff] cannot work “for medical reasons.” These notes fall far short of the requirement that any doctor’s certification must contain at a minimum “(1) the date on which the serious health condition began, (2) the probable duration of the condition, (3) the appropriate medical facts within the health care provider’s knowledge, and (4) a statement that the employee is unable to perform [his] job duties” in order to be valid.

The Court was also influenced by the fact that the plaintiff failed to follow his physician’s treatment advice:

[The plaintiff] also has not provided any other medical evidence to counter the emergency treating physician’s final diagnosis of bruises and mild back pain. Importantly, none of the medical information [the plaintiff] has provided suggests that his back pain significantly limited his movement or lifting ability, particularly when treated with the prescription [the plaintiff] refused to take. Because [the plaintiff] cannot demonstrate that he suffered from a serious health condition, he is not eligible for FMLA leave.

In short, even though two different physicians indicated that the plaintiff should not return to work for three weeks and even though there was no contrary medical evidence offered by the employer, the Court disregarded their expert medical opinions of the treating physicians and focused, instead, on the particular diagnosis and the fact that the plaintiff failed to follow medical advice (which presumably lengthened his period of disability).

In contrast, the dissent concluded that UPS would be required to first notify the plaintiff why his medical certification was deficient before he could be terminated for failing to satisfy his burden of proof. The majority dismissed this concern on the grounds that the plaintiff failed to submit any medical documentation within fifteen days. Thus, only when medical certification has been timely submitted would an employer be required to permit an employee to cure a deficiency.

The dissent also noted that while bruises probably are not serious health conditions, an acute lumbar strain could be:

Symptoms vary depending on the severity of the strain, but “[t]ypically, the patient with a low back strain moves with care, particularly when sitting down or standing up.” Id. Treatment “includes patient reassurance, brief bed rest during the acute phase of low back pain, a firm mattress with a bed board, and the judicious use of analgesics or nonsteroidal anti-inflammatory drugs (NSAIDs).” Id. ¶ 15A.46. Additionally, “the patient should be instructed to avoid activities that intensify back pain.” Id. The recovery period depends upon the severity of the strain. Although “[t]he acute back strain patient generally experiences gradual improvement over a period lasting approximately two weeks,” patients with severe strains may not recover for up to three weeks. Id. ¶ 15A.47. Finally, there is a “significant likelihood of recurrence,” and “[w]hile the first episode of back pain is usually the briefest and least severe, the vast majority of such patients are at risk of developing another episode of back pain that will be more severe and longer lasting.” Id. Clearly, an acute lumbar strain can be a “serious health condition that makes the employee unable to perform the functions of [his] position.” 29 U.S.C. § 2612(a)(1)(D).

The majority dismissed this concern as merely hypothetical in light of the lack of evidence and specificity in the medical statements.

Insomniacs may read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0712n-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

New Act Expands Servicemember and Caregiver Leave under the FMLA.

As discussed in the February 13, 2008 posting at Servicemember Leave Amendments to the FMLA: Overdue or Raising More Questions Than Answered? , on January 28, 2008, President Bush signed the National Defense Authorization Act of 2008, § 585 of which amended the FMLA to create two new forms of family leave: exigency leave and caregiver leave for members of the families of military servicemembers. Yesterday, President Obama signed the National Defense Authorization Act for Fiscal Year 2010, which amended the NDAA Amendment to the FMLA. In this very long Act, section 565 amends the FMLA in a number of respects.

In short, the new FMLA amendments delete references to “contingency operations,” replaces “active duty” to “covered active duty,” expands exigency leave coverage to members of the families of active members of the regular armed forces (instead of just members of the reserved forces and national guard) and expands coverage of the 26-week servicemember leave to families of veterans who served in covered active duty at any point in the prior five years and were injured in the line of covered active duty.

First, the new amendment deletes the “newish” subsection (16) of the amended FMLA and amends the “newish” subsections (14), (15), and (19):

(14) ACTIVE DUTY.—The term ‘active duty’ means duty under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) CONTINGENCY OPERATION.—The term ‘contingency operation’ has the same meaning given such term in section 101(a)(13) of title 10, United States Code.
(16) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
. . .
(19) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’, in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.

These “newish” subjections have been replaced by the following language:

(14) COVERED ACTIVE DUTY.—The term ‘covered active duty’ means—
‘‘(A) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
(B) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means—
(A) a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
(B) a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
. . .
(18) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’—
(A) in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating; and
‘‘(B) in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (15)(B), means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred
by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.

The “newish” subsections (16) through (19) have now been renumbered as paragraphs (15) through (18), respectively. In other words, the language of “newish” subjections (17) and (18) has not changed, but they have been renumbered to (16) and (17) and “newish” subjection (16) [on contingency operations] was deleted entirely.

Second, the new amendment modified 29 U.S.C. § 2612(a)(1)(E), which currently provides:

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

To the following language:

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

Third, 29 U.C.S. § 2612 (e)(3) has been amended as follows:

From the current language:

NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on active duty, or because of notification of an impending call or order to active duty in support of a contingency operation, the employee shall provide such notice to the employer as is reasonable and practicable.

To the new language:

NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on covered active duty, or because of notification of an impending call or order to covered active duty, the employee shall provide such notice to the employer as is reasonable and practicable.

Fourth, the new Act inserts the following language for 29 U.S.C. § 2611(19):

(19) VETERAN.— The term ‘veteran’ has the meaning given the term in section 101 of title 38, United States Code.

Finally, the employee’s duties regarding foreseeable leave under 29 U.S.C. § 2612(e)(2)(A) have been amended as follows:

(2) Duties of employee.
In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) of this section is foreseeable based on planned medical treatment, the employee -
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer,subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, parent, or covered servicemember of the employee, as appropriate; and

Revised FMLA regulations are sure to follow at some point . . . .

Insomniacs can read the new Act in its entirety at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2647enr.txt.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court of Appeals: Employer Not Entitled to Self-Help By Keeping Employee’s Pay Check When He Removed Information from the Company’s Laptop.

Last month, the Ohio Court of Appeals for Richland County affirmed a trial court judgment which held that an resigning employee was entitled to his salary and final paycheck which his former employer withheld when it discovered that he had deleted information from the employer’s laptop. Bush v. Signals Power and Grounding Specialists, Inc., 2009-Ohio-5095 (9/25/09). However, the court remanded the case in order for the trial court to determine whether the employee should be liable for converting the employer’s property by wiping clean the laptop’s hard drive.

According to the court’s opinion, the plaintiff was employed to train his co-workers and to design and make presentations about the defendant’s business. In doing so, he developed a library of research which he stored on the laptop issued to him by the employer. When he decided to resign, he removed and/or wiped clean the hard drive of the laptop, erased the internet history and changed his password before returning it. Upon discovering that the information was missing, the employer emailed the plaintiff complaining about these actions and stating that he would not receive his final paycheck until this was all straightened out.

The employee then sued for his unpaid wages, unpaid vacation pay and unreimbursed employment expenses. The employer brought a counter-claim for conversion. The employee was ultimately awarded over $16,000 plus interest by the trial court, which dismissed the employer’s conversion counterclaim. The employer appealed.

Conversion consists essentially of retaining another’s property after its return has been requested. The trial court concluded that the employer could not prevail in this case because it had never demanded the return of its property. The employer argued both that it was not required to demand the return of its property under the circumstances and that, in any event, it had done so. The court of appeals agreed that the employer’s demand was a necessary element of the conversion claim, but that its email complaining about the deletion of the information and threatening to withhold the final paycheck until the matter was resolved could arguably constitute a demand for the return of its property under the circumstances. Therefore, the employer’s counterclaim was remanded back to the trial court to resolve on the merits.

The court of appeals also affirmed the verdict in favor of the employee’s wage claim. The employer argued that it was entitled to retain the employee’s wages because he had been a “faithless servant” by deleting/keeping the information library, etc. However, the court distinguished this situation from where an employee embezzles from his employer over time and the employer recoups his unpaid wages earned during the period of criminal faithlessness in order to minimize the amount of the theft. In this situation, the employee abruptly deleted the information in the minutes before he resigned and it was not accomplished over a lengthy period of time. Thus, retaining the wages he earned over the prior month was disproportionate to an action which took only a few minutes.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/5/2009/2009-ohio-5095.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Proposes New Regulations Under ADAA.

Last week, the EEOC proposed new ADA regulations to implement the Americans With Disabilities Amendment Act (ADAA) which took affect on January 1, 2009. The new regulations were published this morning in the Federal Register. The EEOC published a Q&A brochure about the new regulations on its website last week. Among other things, the new regulations indicate the existence of per se disabilities and per se non-disabilities.

Impairments. The proposed regulations indicate that certain “impairments will consistently meet the definition of disability,” and assessment of the existence of a disability can be conducted quickly and easily in these situations, such as when the individual has cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, major depression, PTSD, etc. By way of comparison, other impairments may be disabling for some and not for others. Still others will typically not be considered disabilities, such as the common cold, seasonal or common flue, sprains, non-chronic gastrointestinal disorders, etc.

Major Life Activities. As discussed in a prior summary at Congress Passes ADA Amendments Act to Abrogate Pro-Employer Supreme Court Decisions, the ADAA broadened the definition of “major life activity” and provided that disability should be broadly construed in favor of coverage. With that in mind, the new proposed regulations specify that major life activities include “concentrating, thinking, communicating, interacting with others”, etc. and that an individual is substantially limited in a major life activity if that person is limited in any one of those activities, regardless of whether the individual is substantially limited in the ability to work or limited “in the ability to perform activities of central importance to daily life.” Rather, “an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.” Moreover, “[t]he comparison of an individual’s limitation to the ability of most people in the general population often may be made using a common sense standard, without resorting to scientific or medical evidence.”

That being said, the EEOC still proposes a regulation on what it means to be substantially limited in the major life activity of working. An impairment will be considered to substantially limit the ability to work “if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue” which “includes the job the individual has the individual has been performing, or for which the individual is applying, and jobs with similar qualifications or job-related requirements which the individual would be substantially limited in performing because of the impairment.”

While there is a “transitory and minor” exception to “substantially working” for impairments which are not expected to last more than six months, this exception “does not establish a durational minimum for the definition of ‘disability’” for an actual disability or record of disability. “An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.” Notably, “the focus is on how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.” In addition, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples may include . . . asthma, . . . psychiatric disabilities, such as depression,” etc.

Mitigating Measures. The ADAA removed the “mitigating measures” doctrine from the consideration of what constitutes a covered disability, except with respect to the use of contacts or eye glasses. As stated in the proposed regulations, an individual who would be substantially limited in a major life activity without the use of medication or other mitigating measure would be considered to be disabled. By way of example, “[a]n individual who is taking a psychiatric medication for depression, . . . has a disability if there is evidence that the mental impairment, . . if left untreated, would substantially limit a major life activity.”

Record of Impairment. An individual has a covered record of disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” For example, “[a]n employee who in the past was misdiagnosed with bipolar disorder and hospitalized as the result of a temporary reaction to medication she was taking has a record of a substantially limiting impairment, even though she did not actually have bipolar disorder.”

Regarded As Disabled. An individuals will have a covered disability

if the individual is subjected to an action prohibited by this part, including . .denial of any other term, condition, or privilege of employment based on an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. Proof that the individual was subjected to a prohibited employment action e.g., excluded from one job, because of an impairment other than an impairment that is transitory and minor . . . ) is sufficient to establish coverage. . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.

(emphasis added).

“[C]overage can be established whether or not the employer was motivated by myths, fears, or stereotypes. . . an individual is regarded as disabled when an [employer] takes some action prohibited by the ADA . . . because of an actual or perceived impairment” or symptoms or “mitigating measures, such as medication that an individual uses because of an impairment.”

Proof that the individual was subjected to a prohibited employment action . . . is sufficient to establish coverage under the ‘regarded as’ definition . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.

Employers are not required to provide reasonable accommodations to employees who are merely regarded as disabled, but are to employees who are actually disabled or have a record of disability.

Defenses. Employers may still defend accusations of disability discrimination by showing that the employee did not establish that he or she was otherwise qualified for the position based on a “qualification standard” that is “job related and consistent with business necessity,” or that she or she poses “a direct threat to health or safety based on the best available objective medical evidence and an individualized assessment of the risk if any, posed.” Employers may also argue that the impairment was both transitory and minor.

The EEOC will accept written comments on the proposed rules until November 23, 2009.

Insomniacs can read the proposed regulations at http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf and the EEOC’s Questions and Answer brochure at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Obtains $4.5M Settlement Based on ADEA Disparate Impact Claim When Insurance Company Adopted Year-Long Hiring Freeze

On Friday, the EEOC announced “a major settlement of an age discrimination class lawsuit against Allstate Insurance Company, one of the nation’s largest insurers, for $4,500,000 to be paid to approximately 90 older former employees, in addition to significant remedial relief.”

The EEOC filed a lawsuit under the ADEA against Allstate in October 2004alleging “that in the year 2000 Allstate adopted a hiring moratorium for a period of one year, or while severance benefits were being received, that applied to all its employee-sales agents who were part of its Preparing For The Future Reorganization Program. The program was part of Allstate’s reorganization from employee agents to what the company considered independent contractors. The EEOC alleged that the policy had a disproportionate impact on Allstate’s employees over the age of 40 because more than 90 percent of the agents subjected to the hiring moratorium were 40 years of age or older. Allstate denies that its hiring moratorium violated the ADEA.” Disparate impact claims were recognized by the Supreme Court’s 2005 decision in Smith v. City of Jackson.

The terms of the settlement, which is “pending approval by U.S. District Judge E. Richard Webber in U.S. District Court for the Eastern District of Missouri (Civil Action No. 4:04CV01359 ERW), Allstate will pay former employees who sought employment -- or would have sought employment with the company in the absence of its policy -- a total of $4.5 million to be divided among the class via a settlement fund. The order, in effect for three years, also provides for discrimination prevention training, posting of notices, reporting and monitoring, and other relief designed to educate Allstate managers in order to prevent future violations of the ADEA.” A 2007 settlement for $250,000 of disparate treatment claims under ADEA brought by two individual employees is not part of this larger settlement agreement.

Insomniacs can read the full press release at http://www.eeoc.gov/press/9-11-09a.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.