September 30 is the deadline for EEO-1 Reports. Under the law, you are to file an EEO-1 report if

• You are a private employer subject to Title VII with at least 100 employees, or
• You are an employer with federal government contracts of $50,000 or more and have 50 or more employees.

The report describes the gender and racial/ethnic/gender make-up of your employees (not applicants). There are very specific categories and definitions that must be used.

For more information, click here.

By Kristen L. Brightmire, kbrightmire@dsda.com

Philip Estrada was an employee of Port City Properties, Inc. He worked in the warehouse unloading freight. He sued Port City Properties alleging he was terminated for filing a workers' compensation claim and for retaining an attorney to represent him regarding the claim. Estrada injured his ankle tripping over a steel beam. Estrada's doctors restricted his work on three different occasions and finally recommended surgery on the ankle. After returning from surgery, Estrada was allegedly told that there wasn't any more work for him. A week later, he filed and began receiving unemployment benefits.

The jury found in favor of Estrada and awarded him monetary damages.

During trial, the court applied the "collateral source rule," refusing to allow the jury to consider evidence that the employee received unemployment benefits as a collateral source. Under the common law collateral source rule, benefits received by the plaintiff (Estrada) from any source other than the defendant (Port City Properties) will not reduce the amount of damages recoverable. Accordingly, the jury was not allowed to reduce the amount of damages awarded to the employee because of his receipt of unemployment benefits. Port City Properties argued that evidence of the employee's unemployment benefits should be admissible for impeachment purposes when an employee claims financial hardship caused by the alleged retaliatory discharge.

On appeal, the Oklahoma Supreme Court agreed with the trial court. It held that because the common law collateral source rule was codified in the Workers' Compensation Act and incorporated into traditional Workers' Compensation proceedings, it extends to Workers' Compensation retaliatory discharge proceedings. The Oklahoma Supreme Court noted that had the Oklahoma Legislature intended retaliatory discharge actions to be exempt from the collateral source rule, it could have easily carved it out.

Bottom Line. In Workers' Compensation retaliatory discharge actions, evidence that the employee received collateral benefits through unemployment compensation, or the like, will not be admissible to reduce an employee's recovery, regardless of whether the employee claims financial hardship.

By Ken T. Short, kshort@dsda.com

The Vietnam Era Veterans' Readjustment Act, better known as VEVRAA, requires all Federal contractors and subcontractors to report annually to the Secretary of Labor the number of employees and new hires in their workforces, by job category and hiring location, who are qualified covered veterans under VEVRAA.

Federal contractors and subcontractor are required to fill out either a VETS-100 or VETS-100A form.

• The VETS-100 form applies to employers with Federal contracts that were entered into before December 1, 2003 and have a value of $25,000.00 or more.
• The VETS-100A form applies to employers with federal contracts entered into on or after December 1, 2003 in the amount of $100,000.00 or more.

Employers with Federal contracts that do not meet the applicable monetary thresholds are not required to file VETS forms. Employers with contracts which fall into both categories are required to file both forms. A government contract means any agreement or modification thereof between any person and a department, agency, establishment or instrumentality of the United States for the purchase, sale, or use of personal and nonpersonal services.

The DOL anticipates that its online system will be ready to go on October 1.

For answers to other frequently asked questions regarding VEVRAA, visit: http://www.dol.gov/vets/contractor/main.htm

For 2010 VETS-100 and VETS-100A forms, visit: http://www.dol.gov/vets/programs/fcp/main.htm

By Kristen L. Brightmire, kbrightmire@dsda.com

Meritas has invited DSDA to join the Meritas global alliance of independent law firms. The invitation from Meritas said, "The depth of your practice areas and the level of professionalism demonstrated by your firm convinced the Committee that your firm is an excellent fit for Meritas. We sincerely believe the enthusiasm displayed by both your firm and Meritas members will lead to a long standing and valuable relationship for both of us."

Currently, the global alliance of Meritas includes 90 law firms in the United States, seven in Australia/New Zealand, 11 in Canada, 28 in Europe, 22 in Latin America/Caribbean, and 13 in Asia. Meritas maintains high standards of quality and carefully vets each law firm before extending an invitation.

If you are interested in additional information about Meritas, you can visit its website at http://newsletters.dsda.com/employment/www.meritas.org.

DALLAS FERGUSON - 2011 POWER ATTORNEY