Management Update Newsletter

Volume 8, Issue 5

May 2019

Reservation of Rights? You Have the Right to Select Counsel

Unfortunately, accidents and claims arising out of projects will occur and are a major cost of doing business in the construction industry. Construction companies spend enormous sums on layer after layer of liability policies in order to address claims. Often, the coverage is dictated by the Owner of the Project. When premiums are paid, there is an expectation that claims will be covered. However, a troubling trend has developed in the insurance industry whereby a large percentage of claims are effectively denied at the initial stages of litigation so that the insurance company can investigate the claim. In the meantime, the insurance company agrees to provide a defense through the issuance of a reservation of rights letter. This has always presented a dilemma for contractors. The same insurance company that is denying coverage is also selecting and paying for the attorney that will be representing the contractor. More importantly, while the contractor may not have to pay for attorney's fees and costs presently, the contractor is exposed to an uninsured claim pending the insurance company's final decision on coverage. To read the full article, click here.

April 24 U.S. Supreme Court Ruling on Arbitration Agreements Is a Win for Employers

Almost a year ago the U.S. Supreme Court affirmed the enforceability of class action waivers in arbitration agreements between employers and employees (see Epic Systems Corp. v. Lewis https://www.scotusblog.com/case-files/cases/epic-systems-corp-v-lewis). Last week the Court issued an opinion that further solidified the enforceability of class action waivers in the employment context.

In Lamps Plus, Inc. v. Varela, a 5-4 decision issued on April 24, the Court held that arbitration may proceed as a class basis only if the arbitration agreement explicitly provides for such a process. Employers utilizing arbitration agreements should almost never include language allowing for class-wide arbitration. To read the full article, click here.

Employee Privacy--What Should Employers Know?

The Federal and Louisiana Constitutions recognize a right to privacy. Louisiana Constitutional Article 1 Section 5 provides that every person shall be secure in his person, property, communications, houses, papers and effects against unreasonable searches, seizures, or invasions of privacy.

Many employee lawsuits involving invasion of privacy pertain to allegations of unreasonable intrusion into a zone of privacy or unreasonable publicity of an employee's private affairs. The employee must generally show a reasonable expectation of privacy and highly offensive intrusion or disclosure by his employer. A court will determine whether the employee had an actual or subjective expectation of privacy and whether society is prepared to recognize that expectation as reasonable.[1] Courts must balance the employee's expectation of privacy against the employer's interest in its operations. To read the full article, click here.

Am I Disabled If My Boss Really Annoys Me?

As with most questions arising under the ADA, the answer is a firm "it depends on the facts." Under the facts of a Sixth Circuit case decided on March 20th, the answer was "no."

In this case the Plaintiff, Ms. Tinsley, worked as a Business Analyst for Caterpillar Financial. She thought that the stress of her job was causing her to suffer health issues. She initially requested, in writing, that she be removed from specific projects, stating that her "many [work] responsibilities ... [were] causing [her] to be stressed beyond what [she was] physically able to handle," which "negatively impact[ed her] work, sleep, and overall health." Her supervisor met with her and said that he would look into her request. A week later Tinsley submitted a doctor's note requesting four days off for a "confidential medical condition." To read the full article, click here.