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Ambrose McCall brings more than three decades of experience to his robust employment, commercial and professional liability litigation practice …

Showing 25 posts by Ambrose V. McCall.

The Affordable Care Act’s Contraceptive Care Mandate Applies to Covered For-Profit Corporate Employers

October 28, 2013 by Ambrose V. McCall

On October 24, 2013, the U.S. Court of Appeals, Sixth Circuit, held that a for-profit natural foods corporation could not establish that it can exercise religion, and therefore could not use the Religious Freedom Restoration Act, (RFRA), as a vehicle to challenge the contraceptive care requirements created by the Affordable Care Act. Eden Foods, Inc. v. Sebelius, No. 13-1677 (6th Cir. Oct. 24, 2013). In addition, the Sixth Circuit held that the plaintiff corporation's chairman, president and sole shareholder lacked standing to challenge the obligations solely imposed upon the corporate employer. The framing of the issues by the Court points out that what tripped up plaintiffs' attempt to obtain a court order exempting the employer from the contraceptive care requirements did not arise from the U.S. Constitution. More ›

New Jersey Federal Court Finds that SCA Exception Applies to Facebook Posting Shared by Co-Employee

August 26, 2013 by Ambrose V. McCall

In the case of Ehling v. Monmouth-Ocean Hospital Service Corp., Civ. No. 2:11-cv-03305 (WJM) (D. N.J. Aug. 20, 2013), a federal district court in New Jersey granted an employer's motion for summary judgment, and thereby dismissed the employee's claims of violations of the federal Stored Communications Act, (SCA"), the Family Medical Leave Act, and other claims the employee made under New Jersey law alleging discrimination, invasion of privacy, and protected "whistle blowing" activity. We will focus today on the court's analysis and application of the SCA to the sharing of screen shots from the employee's Facebook postings. Before reaching that discussion, however, the court first had to review the relevant facts.  More ›

Jury Issue Exists over Employment Termination Following Funeral Attendance Overseas

August 1, 2013 by Ambrose V. McCall

In Adeyeye v. Heartland Sweeteners, LLC, (7th Cir. July 31, 2013), the Seventh Circuit reversed a summary judgment that a trial court granted in favor of the employer. Title VII of the Civil Rights Act of 1964 bars employment discrimination on the basis of religion. As a result, employers must reasonably accommodate employees who make requests to partake in religious practices or acts (Slip op. at 1-2). In this case, the employee sought several weeks of unpaid leave to attend his father's funeral overseas in Nigeria, and to lead the performance of the burial rites.  Id. at 2. The employee explained that his attendance at the funeral rites was "compulsory" and that if he did not show up to perform the rites, he and his family would sustain a spiritual death. Id. The employer denied the requests for unpaid leave. The employee attended the funeral ceremony in Nigeria and his employment was terminated upon his return appearance at his workplace. The trial court granted the employer summary judgment based on its finding that the employee's two letters failed to provide any notice of the religious character inherent in his requests for unpaid leave. Id. at 2. The Seventh Circuit disagreed and found the same letters and record adequately created disputed issues of material fact over whether the employer had notice of the religious matter associated with the request for leave, and whether the employee had a sincerely held religious belief, as well as over causation and the employer's claimed undue hardship. More ›

U.S. Supreme Court Upholds Arbitrator’s Decision Finding that Contract Provides for Class Arbitration

June 26, 2013 by Ambrose V. McCall

One U.S. Supreme Court decision has not received great attention from the media, but it may have considerable impact on how employers structure their relationships with employees. In this instance, the issue is what authority does an arbitrator have to interpret contractual terms so as to provide for class arbitration. Justice Kagan, without dissent, explained that the Court viewed arbitration clauses that provide for all civil actions to be arbitrated as giving arbitrators the authority to find a contractual basis to support class arbitration. More ›

Seventh Circuit Clarifies how to mtet Injury Requirement of the Computer Fraud and Abuse Act

April 29, 2013 by Ambrose V. McCall

Employers who encounter the option of pursuing a current or former employee or independent contractor under the Computer Fraud and Abuse Act have at times passed on this option due to the specific injury requirement imposed by the Act. Fortunately, the Seventh Circuit of the U.S. Court of Appeals has recently provided guidance on how to satisfy the injury requirement imposed by the Act so as to avoid the entry of an adverse summary judgment that bars the pursuit of a claim under the Computer Fraud and Abuse Act ("CFAA"). More ›

11th Circuit Affirms Denial of Temporary Reinstatement Sought By NLRB

April 26, 2013 by Ambrose V. McCall

In NLRB v. Hartman & Tyner, Inc., Case No. 12-14508 (11th Cir. April 16, 2013), the 11th Circuit of the U.S. Court of Appeals affirmed a trial court ruling that denied the NLRB's request to have six employees temporarily reinstated to their jobs. The Board charged the employer with discharging the employees because of their involvement in a union organizing campaign. Of interest to employers, the ruling focused on whether the temporary reinstatement of the employees, sought by the Board, qualified as "just and proper" relief under the National Labor Relations Act. 29 U.S.C. sec. 160(j).  More ›

11th Circuit Affirms Summary Judgment in ADEA case where Plaintiff used "Cat’s Paw" Theory

January 23, 2013 by Ambrose V. McCall

Not all well-designed plans succeed. In the area of employment terminations, however, the practice of having termination decisions made independently by someone other than the employee's immediate supervisor increases the odds of obtaining summary judgment and avoiding trial. More ›

11th Circuit Overrules Summary Judgment in ADEA Case Based On Vice-President’s Reputed Statement

January 2, 2013 by Ambrose V. McCall

The case of Kragor v. Takeda Pharmaceuticals America, Inc., No. 11-16052 (11th Cir. December 20, 2012) reminds employers how easily summary judgment can slip away in a discrimination case based on statements attributed to senior management. The court started its analysis with a quote from the mathematician, physicist, and philosopher Blaise Pascal. "Contradiction is not a sign of falsity, nor the lack of contradiction a sign of truth." Given that plaintiff appealed a summary judgment granted to the employer, such words signaled a reversal on appeal. More ›

Thirteen Month gap Between Protected Activity and Alleged Retaliation Leads To Summary Judgment For Employer

October 29, 2012 by Ambrose V. McCall

In Anderson v. Donahoe, a U.S. Postal Service employee suffered from asthma. The employee claimed his employer failed to accommodate his disability which allegedly arose due to flare ups of his condition that he experienced while working as a part-time mail processor. For seven years, from 2002 through 2009, the employee filed multiple complaints with the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) in addition to union grievances, requesting a reasonable accommodation of his disability. During the same seven-year period, the employee had extended periods of absences from work. The employee sued his employer claiming that it had violated the Americans with Disability Act (ADA), the Family Medical Leave Act (FMLA), and the Rehabilitation Act. The trial court granted the employer summary judgment. The employee appealed. The Seventh Circuit of the U.S. Court of Appeals affirmed the granting of summary judgment against the employee. More ›

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