Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

In another case in which better employer documentation could have made the difference,  the U.S. Court of Appeals for the Sixth Circuit reversed earlier this month a district court's grant of summary judgment in favor of employer Kmart.  Based largely upon contradictory and unclear documentation, the court found that Kmart’s former employee, Susan Cutcher, presented sufficient evidence to allow a reasonable juror to find that Kmart terminated Ms. Cutcher in retaliation for taking leave under the Family and Medical Leave Act.

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A recent decision out of the Pennsylvania courts is a caution to employers who are required to produce employee personnel information in responding to court or agency proceedings.  Jane Doe v. Wyoming Valley Health Care System, Inc., (PA Super., December 18, 2009) raised the issue of how much privacy employees can expect in the information provided to their employers and kept in their company personnel files.

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In Mohawk Industries, Inc. v. Carpenter, the Supreme Court resolved a circuit split and held that an order requiring the disclosure of documents arguably protected by the attorney-client privilege does not qualify for immediate appeal under the “collateral order doctrine.”  The collateral order doctrine allows litigants to appeal a small class of orders that (1) conclusively determine a disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) are effectively unreviewable on appeal from a final judgment.  Orders that do not fit within these parameters can be challenged only after a final judgment is rendered in the case or by other procedural means.

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