State

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Recent Developments

• State Federal Case Law Update
• Jill Gerdrum
• Axilon Law Group, PLLC

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Federal Case Law Equal Pay

• Ledbetter v. Goodyear Tire Rubber Co., Inc.,
  550 U.S. 618 (2007)
• Outcome Wage discrimination claims must be
  filed within 180 days of a discriminatory
  pay-setting decision.

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Federal Law Response to Ledbetter Decision

• Congress passed the Lilly Ledbetter Fair Pay Act
  of 2009 in January this year.
• Under the Act, an individual subjected to
  compensation discrimination under Title VII, the
  ADEA, or the ADA may file a charge within 180
  days of any of the following
• When a discriminatory compensation decision
  affecting compensation is adopted
• When the individual becomes subject to a
  discriminatory compensation decision or
• When the individuals compensation is affected by
  the application of a discriminatory compensation
  decision or other discriminatory practice,
  including each time he or she receives
  compensation that is based on that decision or
  practice.

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Federal Case Law Retaliation

• Crawford v. Metropolitan Gov. of Nashville, 129
  S.Ct. 846 (2009) Retaliation claim based on
  report during internal investigation. The claim
  was dismissed on grounds that it did not fall
  under either the opposition clause or the
  participation clause of the Title VII
  anti-retaliation law because the employee had not
  instigated the complaint and the investigation
  was not being done as a result of a pending EEOC
  charge.
• Outcome The U.S. Supreme Court reversed the 6th
  Circuit and held the employees actions fell
  under Title VIIs opposition clause. The Court
  reasoned that an employee need not engage in
  active, consistent behavior in order to oppose
  an unlawful practice and that her apparent
  disapproval of the behavior was enough to trigger
  the anti-retaliation statute.

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Federal Case Law Electronic Monitoring/Privacy

• U.S. v. Ziegler, 474 F.3d 1184 (9th Cir.) MT
  employer turned employee computer over to FBI.
• Outcome The U.S. District Court (D. Mont.) and
  the 9th Circuit held the employee had a
  reasonable expectation of privacy in his office
  space but not his computer.
• Employers should consider informing employees
  that they should not expect privacy when using
  the office e-mail and voicemail systems.

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Federal Case Law Age Discrimination

• Meacham v. Knolls Atomic Power Lab., 128 S. Ct.
  2395 Laid off employees brought disparate
  impact age discrimination claims under the ADEA
• Holding Employers can assert reasonable
  factors other than age (RFOA) defense, but it is
  an affirmative defense for which the employer has
  the burden of production and the burden of
  persuasion.

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State Case Law Wrongful Discharge

• Fenno v. Mountain West Bank, 2008 MT 267 Bank
  employee brought wrongful discharge claim. Bank
  argued WDEA was preempted by national at
  pleasure act that allows banks to discharge
  officers at their pleasure.
• Outcome WDEA not preempted.

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State Case Law Wrongful Discharge/Discrimination

• Vettel-Becker v. Deaconess Medical Center, 2008
  MT 51- Chaplain at Deaconess brought
  discrimination complaint and wrongful discharge
  claim after being terminated.
• Outcome WDEA claim not barred by MHRA.

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State Case LawDiscrimination Sexual Harassment

• Williams v. Lowther Ins. Agency, 2008 MT 46
  Leave job or resume sexual relationship
• Outcome-No extra burden to prove quid pro quo
  sexual harassment when prior consensual
  relationship.

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State Case Law Discrimination/
Employment-related Torts

• Saucier v. McDonalds Restaurants of Montana, 2008
  MT 63- Disabled employees claims dismissed on
  the basis that they were barred by the
  exclusivity of the MHRA.
• Outcome Tort claims not barred by MHRA.
• The Court implicitly recognized the torts of
  negligent hiring and supervision.

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State Case Law Wage Claims

• Clouse v. Lewis Clark Co., 2008 MT 271, -
  Sherriff deputies wage claim.
• Outcome Repeated violations, means more
  than one violation. The Court also held the 55
  penalty was proper because no evidence prior
  claim was substantially similar.

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State Case Law Wage Claims

• Kuhr v City of Billings, 2007 MT 201
  Firefighters brought wage claim against City.
  They argued for a 110 penalty because the City
  had destroyed payroll records they allege
  supported their claim.
• Outcome The MT Supreme Court refused to adopt
  the 110 penalty because there was not
  substantial evidence that the employer falsified
  records or intentionally mislead the claimants.

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State Case Law Employment Contracts, Separation
Agreements Wages

• West v. Spanish Peaks, 2008 MT 183 Terminated
  employee brought suit against employer asserting
  a number of claims. Employee also alleged the
  reasons for his termination were a pretext for
  not paying his commissions. In support of his
  pretext allegation, West offered the separation
  agreement proposed by his employer upon his
  termination. After the jury found in favor of
  West on breach of his employment contract, the
  district court awarded a penalty under the wage
  statutes.
• Outcome The MT Supreme Court held submission
  of the parties intent was proper, admission of
  the separation agreement was proper because it
  was offered not to prove the employers liability
  (as prohibited in M.R.Evid. 408), but for the
  purpose of proving pretext, and imposition of
  the penalty under the wage statutes was
  inappropriate.
• Mont. Code Ann. 39-3-204 applies to employees,
  not former employees, and that Wests trailing
  commissions had not come due at the time of his
  termination.

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Other Montana Law Changes

• The 2007 Montana Legislature passed the following
  measures that substantially affect employment and
  labor issues in Montana
• House Bill 58, a measure which amends Mont.Code
  Ann. 39-51-2201-2202 to allow for increased
  unemployment benefits if the employee leaves
  their job because of their spouses military
  transfer
• Senate Bill 89, a measure requiring public
  employers to allow for break time and reasonable
  accommodations for breastfeeding mothers to
  express breast milk. The law also prohibits
  discrimination by any public employer on the
  basis that she expresses breast milk. The law is
  codified at Mont.Code Ann. 39-2-215-217.
• House Bill 76 revised portions of Montana Code
  Annotated Title 42 Chapter 2 to clarify the
  process of filing discrimination claims, adds the
  Department of Labor as a party of interest in
  temporary injunctions and enforcement orders, and
  revises various other procedures involved in
  filing a discrimination claim.

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2009 Montana Bills to Watch

• HB 435 An act to close the gender wage gap.
  Increases the penalties for wage discrimination
  based on gender, and provides equivalent service
  guidelines. This bill applies to private and
  public employers. Died in committee on 9 9
  vote motion to blast it out of committee died
  50-50.
• HB 590 An act to define domestic partners and
  establish benefits. Provides domestic partners
  with a variety of legal rights, including
  workers compensation benefits (for employees of
  both private and public employers) and insurance
  benefits (for public employees). Died in
  committee 9-9.
• SB 142 Repeal unisex insurance law. This bill
  would allow insurers to underwrite and rate
  insurance based on gender. This could impact
  group insurance plans. Passed Senate goes to
  House committee 3/25.
• HB 101 Extends timeframes to withhold employee
  wages when theft is suspected. Passed.

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2009 Montana Bills to Watch Cont.

• HB 450 Prohibits retaliation in relation to
  wage and discrimination claims or grievances.
  This provision would be in addition to the
  anti-retaliation laws in Title 49. Died in
  Committee 9-9.
• HB 496- Prohibits employers from employing
  unauthorized aliens and providing for suspension
  of business licenses for violation of the law.
  Died in committee tabled.
• SB 431 - Revise laws on employer drug testing.
  Expands employees allowed to be tested to include
  employees that work with protected health
  information, and clarifies that independent
  contractors are not included in those that may be
  tested. Narrowly passed Senate House committee
  hearing today.
• HB 579 Requires private employers with 10 or
  more employees to provide 1 hour of sick leave
  for every 30 hours worked. Also provides sick
  leave may be used to deal with domestic abuse or
  stalking issues. Dead tabled in committee.
• HB 625 Right to Work Allows employees to
  refuse to contribute union dues and prevents
  agreements that require union contributions.
  Dead tried to blast out of committee died
  49-50.
• HB 603- Require labor contract for public works
  projects This bill would have allowed public
  entities to require that contractors bidding on
  public works projects were union contractors.
  The bill failed in committee on a tied vote.
  Died in committee 9-9.

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