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Supervisors’ Failure To Install A Safer Saw That Was On The Premises Is Not Equivalent To A Removal Of A Safety Guard For Purposes Of Liability Under The Alabama Workers’ Compensation Act

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In Saarinen v. Hall, 26 ALW 36-8 (1160066), 9/1/2017, the Supreme Court held that the failure of the employee’s supervisors to install a safer saw that was on the employer’s premises was not the equivalent of removing a safety guard from an existing saw so as to subject the supervisors to liability under the Alabama…
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Ninth Circuit Provides Guidance On Certainty And Finality Requirements In Cercla Contribution Actions

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The Ninth Circuit Court of Appeals vacated a District Court’s summary judgment in favor of the defendant in a contribution action under CERCLA, finding mining company Asarco timely brought a claim to recoup compensation from Atlantic Richfield.  Asarco, LLC v. Atlantic Richfield Co., No.14-35723 (9th Cir., August 10, 2017).   CERCLA § 113(f) provides that after…
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Eleventh Circuit Holds Gender Nonconformity Claims To Be A Distinct Avenue Of Relief Under Title Vii

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An Eleventh Circuit Court of Appeals panel held that a “gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’” but is instead a “separate, distinct avenue for relief under Title VII.” The majority opinion explained that Title VII recognizes discrimination based on a failure to conform to a gender…
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Substantial Completion Is Determinable By Courts Despite Architect’s Opinion

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In Parkcrest Builders, LLC v. Housing Authority of New Orleans, 2017 WL 3394033 (E.D. LA. 2017), the United States District Court for the Eastern District of Louisiana held the Court could determine whether substantial completion had been achieved, despite a contract provision assigning this determination to the Architect. The Housing Authority of New Orleans (“HANO”)…
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October Is Finra Mediation Settlement Month

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Every October, FINRA’s Office of Dispute Resolution significantly reduces mediation prices in order to encourage mediation and settlement of customer and industry disputes.  The goal of Settlement Month is to encourage parties to experience the benefits of mediation for the first time and to reinforce its value and effectiveness for those who have been through…
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Employee Bears The Burden Of Establishing Medical Causation And Conflicting Evidence Does Not Have To Be Resolved In Favor Of Employee

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In Wyatt v. Baptist Health Sys., Inc., No. 2160280, 2017 WL 3096691, at *1 (Ala. Civ. App. July 21, 2017), the Alabama Court of Civil Appeals clarified that the Plaintiff bore the burden of establishing medical causation and that the fact finder did not have to resolve all reasonable doubts in conflicting medical evidence in…
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The Return To Work Statute Must Be Plead As An Affirmative Defense Or Is Deemed Waived

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In Grieser v. Advanced Disposal Services Alabama, LLC, 26 ALW 33-4 (2160290), 8/11/17, the Court of Civil Appeals reversed a trial court’s refusal to consider the employee’s vocational disability and held that separate circumstances relieving an employer’s liability under the “Return to Work” statute are affirmative defenses which must be plead or are deemed waived….
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The Department Of Labor Seeks An 18 Month Delay On The Fiduciary Rule’s Exemptions

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The Department of Labor (“DOL”) recently submitted a proposal to delay implementation of the remaining parts of its fiduciary rule from January 1, 2018 until July 1, 2019.  Two provisions of the rule, which greatly expands the definition of who counts as a fiduciary under the Employee Retirement Income Security Act and the Internal Revenue…
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Federal Court Holds An Alabama Subcontractor Without A Proper License Cannot Enforce Its Contract With A Roofing Supplies Distributor

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In Am. Builders & Contractors Supply Co. v. Precision Roofing & Consulting, LLC, No. 2:17CV97-WHA, 2017 WL 3431844, (M.D. Ala. Aug. 9, 2017), the United States District Court for the Middle District of Alabama dismissed a breach of contract claim filed against a distributor that provided supplies to a roofing subcontractor in light of the…
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Ups Pays $2 Million To Settle Disability Claims

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The United Parcel Service (“UPS”) recently agreed to pay $2 million to settle the claims of approximately 90 disabled employees.  Approximately 70 employees were parties to a lawsuit filed by the EEOC and the remaining 20 had pending administrative Charges.  The lawsuit, which was filed in federal court in Illinois, alleged that UPS discriminated against…
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