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Generally, an employer is not responsible for criminal acts of its employees unless there is a special relationship between the employer and the third party who is injured by the employee. In Kaltreider v. Lake Chelan Community Hospital, 153 Wn. App. 762 (2009), the Washington Appellate Court held that the local community hospital had no duty to protect a former patient from having an affair with her nurse because the patient was not a vulnerable adult and the nurse's sexual misconduct was not foreseeable (and, in fact, was consensual). In Kaltreider, the patient had voluntarily sought in-patient treatment for alcohol dependency. While in the hospital, she struck-up a consensual affair with a male nurse and they ended up in having sexual relations at the hospital. After the nurse failed to show for a prearranged July 4th rendezvous with the patient, their relationship was terminated. The patient then sued the hospital, claiming that as an alcohol dependent patient she had been assaulted in the storage room and that the hospital was responsible for the male nurse's conduct. Read the full article.

In a recent decision, the Washington Court of Appeals held that a CEO could be personally liable for unpaid wages, double damages and attorney's fees arising out of a breach of a severance agreement. In Moore v. Blue Frog Mobile, Inc., 153 Wn. App. 1 (2009), a former Chief Operations Officer sued to enforce a severance agreement with his former employer, which entitled him to severance payments in excess of $167,000. The company's current CEO had terminated the severance payment because the former executive had, in his opinion, violated a non-disparagement clause in the severance agreement by signing a declaration in favor of a competitor in unrelated litigation. That declaration had caused the former employer to settle the litigation. The CEO made this decision to terminate the severance only after consulting with counsel. A non-disparagement clause is a common provision in many severance agreements and can be used protect the employer from future damage inflicted by an ex-employee airing his or her grievances. Read the full article.

In Elliott v. Custom Apple Packers, 153 Wn. App. 296 (2009), the Washington Court of Appeals held that a salaried shipping supervisor at an apple packing facility in Eastern Washington was exempt from overtime under the Washington Minimum Wage Act. Generally, employers must pay any employee who works over forty hours in a defined work week time and a half (1.5) his or her regular rate as an overtime premium. Certain exempt employees such as executives, administrators and professionals are not entitled to overtime if they are paid a salary of $455 per week and perform primarily exempt duties. In Elliott, the ex-employee had initially been hired as an apple packer but had been promoted to a shipping supervisor. He was paid a $4,000 month salary. He was later terminated for poor performance, failure to lead and manage his shipping department. Then, two years after his termination, he filed an overtime lawsuit against the company, claiming that he was not an exempt executive and was entitled to overtime because, although he was paid a salary, he did not hire, fire or discipline employees, and instead was in charge of loading, order verification and quality control. He claimed that he spent the majority of his time on the forklift, moving and loading apple crates. These job duties that are not normally considered "executive" for purposes of being exempt from overtime. The company admitted that the ex-employee did perform manual labor in loading trucks (as he was a "working supervisor"), but defended that he was primarily responsible for supervising the shipping workers and tracking order paperwork. Essentially, the ex-employee was responsible for fulfilling apple shipping orders. Read the full article.

In a recent decision, Cox v. Oasis Physical Therapy, 153 Wn. App. 176 (2009), the Washington Appellate Court held that a plaintiff's failure to timely assert her claims against her former employer resulted in her losing the majority of her claims without considering the merits of those claims. In Cox, the plaintiff was a physio-therapist assistant who had been treated by her employer and claimed that he had engaged in inappropriate touching during the treatment. She terminated the treatment, but remained employed with the clinic for three more years until she quit after a state investigation into the therapist and the clinic. She claimed that she did not file her claims immediately because the therapist had told her his treatment was medically necessary and she did not understand until after the state investigation that he had violated the law. She filed numerous claims: medical negligence, gender discrimination, hostile work environment, wrongful discharge, unlawful retaliation, negligent hiring, retention and supervision, outrage, negligent infliction of emotional distress, and assault and battery. At summary judgment, the trial court dismissed the claims as time barred without addressing the underlying merits of her allegations. The plaintiff appealed. Read the full article.

In a recent appellate decision, Weiss v. Lonnquist, 153 Wn. App. 502 (2009), a well-known local attorney, who represents employees against companies, experienced the pain of employment litigation arising from terminating her associate because the associate had allegedly failed to bill a sufficient number of hours in order to be profitable. As can be expected, the associate disagreed with the employer's perspective as to the reasons for her termination and filed suit, claiming that she had been terminated because she refused to file false evidence with the court, that she was owed unpaid wages, that she had been defamed when the attorney posted the false reasons for her termination on two attorney websites, and that she had suffered severe emotional distress. In response, the employer sought to compel arbitration which would keep this dispute out of the public record, and in all likelihood, prevent public disclosure of the alleged request to submit false evidence to the court. The basis for her arbitration demand was that the parties had signed an employment contract requiring cause termination and containing an arbitration provision. Such a provision calls for resolution of any employment dispute outside of the courts and the jury system and in a confidential manner with a paid, private arbitrator. Read the full article.

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