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WRONGFUL DISCHARGE FROM EMPLOYMENT Thomas E. Hattersley Teri A. Walter Gough, Shanahan, Johnson & Waterman P. O. Box 1715 Helena, Montana 59624 (406) 442-8560 email@example.com firstname.lastname@example.org Dated Material -- October 15, 2001 _______________________ NOTE: Dated Material --The statutes, rules, and court decisions discussed within are subject to amendment and interpretation. This publication is a general summary of the legal principles discussed. Questions concerning specific issues should be addressed to legal counsel. TABLE OF CONTENTS I. INTRODUCTION: 1 II OVERVIEW OF THE WRONGFUL DISCHARGE FROM EMPLOYMENT ACT 3 III.SPECIFIC FEATURES OF THE WRONGFUL DISCHARGE ACT 6 A. Definition of "Discharge" 6 B. A Discharge is "Wrongful" Only If It Meets One or More of Three Criteria 7 1. Retaliatory Discharge--Public Policy 8 2. Terminations Without "Good Cause" 10 3. Violation of Personnel Policy 12 C. Limitation on Recoverable Damages 15 D. Interim Appeal Procedure Defense 17 E. Arbitration 18 IV.ALTERNATIVE AND RELATED CLAIMS 20 A. Defamation 22 B. Infliction of Emotional Distress 24 C. Invasion of Privacy 25 D. Intentional Interference with Contractual Relations 25 E. Fair Employment Practices (Discrimination) Claims 26 F. Workers" Compensation Retaliation/Wrongful Discharge/ Disability Discrimination: The "Bermuda Triangle" of Employment Law 27 G. Miscellaneous 31 H. Reducing the Risk of a Discharge Lawsuit 32 APPENDIX -- Montana Wrongful Discharge From Employment Act 36 I. INTRODUCTION Regulation of the employment relationship continues to be one of the most dynamic and rapidly evolving areas of law. The sources of that regulation are federal and state legislation, and court decisions which interpret that legislation, or supplement it with decisions involving common law rights and remedies. In addition, the EEOC, the United States Department of Labor, the Montana Human Rights Bureau, and the Montana Department of Labor, among other enforcement agencies, publish administrative rules and policies which implement those laws. The field of "traditional" labor law, involving union membership and collective bargaining agreements between employers and unions representing employees, is beyond the scope of this outline. The remaining employment laws which regulate the employment relationship can be divided into three general categories: One category involves the laws providing remedies for wrongful discharges from employment. A second category regulates safety and working conditions, wages, health and pension benefits, and other rights. The third category is best characterized as fair employment practices law, encompassing the many anti-discrimination rules which have been developed through legislation, court decisions, and enforcement agency guidelines. Those rules protect the rights of individuals to obtain and maintain employment and advance in employment, free from discrimination based on protected class status or personal characteristics, particularly those which are "immutable" (beyond the control of an individual) such as sex, race, national origin, and disabled status, or otherwise worthy of protection such as those based on religion, veteran status, wages, benefits, and overtime laws, safety, or the right to marry and raise children. When a legislative act includes a statute prohibiting discrimination against an employee because of a specified status (such as race, gender, etc.), or because of the exercise of a protected right (bankruptcy, wage complaint, safety complaint, etc.) that statute creates a "protected class status". Almost all federal acts include a standardized statute barring discrimination as a result of the exercise of the rights created by the act. This category of law requires employers to avoid employment decisions based upon stereotyped perceptions, or to make employment decisions based on individualized assessments of ability, or exclusive of the exercise of protected rights. All fair employment practices laws prohibit retaliation against employees who initiate or participate in discrimination claim proceedings. Retaliation is actionable as a separate and distinct claim from the underlying discrimination complaint. As a general principle, harassment on the basis of a protected class status is also prohibited. The focus of this outline is the first category of wrongful discharge law. Although these areas of law are generally separate, it is critical that employers appreciate their scope, and understand the interrelationship between them. Remedies available to a plaintiff in an employment lawsuit are often mutually exclusive in theory, yet discharged plaintiffs commonly file claims alleging alternative theories of wrongful discharge and discrimination arising from a single event of employment termination. II. OVERVIEW OF THE WRONGFUL DISCHARGE FROM EMPLOYMENT ACT Prior to 1987, the Montana Supreme Court developed a number of common law employment discharge remedies which provided greater protection for employee rights than available in many other states. Those remedies included actions for breach of the implied covenant of good faith and fair dealing, negligence, wrongful discharge based on violations of public policy, and breach of contract. In 1987, in response to a series of large damage awards in favor of employees, the legislature enacted the "Wrongful Discharge From Employment Act," §3 9-2-901, et seq., MCA. The Act balances the interest of an employee in job security, and the employer's interests in efficiency, greater certainty, and limiting risk in making employment decisions. Montana no longer recognizes the "employment-at-will" doctrine. Chapter 583, L. 2001. In a 1999 decision, the Montana Supreme Court held that the Act impliedly repealed the at will statute. Whidden v. Nerison, 981 P.2d 271. The legislature then amended the Act in 2001 (effective October 1, 2001) to eliminate all references to the at will doctrine with the exception of its application to probationary employees. See Section 93-2-904(2), MCA (Appendix). The Act abolished all common law forms of employment discharge remedies, replacing them with a single statutory action. The Act's "Remedies" clause substantially limited the scope and amount of damages available to a discharged employee. Section 39-2-905, MCA. The Act broadly defines the term "discharge" to include any termination of employment, constructive discharge, as well as failure to recall or rehire an employee. Section 39-2-903(2), MCA. It limited the types of claims allowed to "constructive discharge" authorizing an employee who voluntarily quits to sue for wrongful discharge, and claims for involuntary termination to circumstances where an employer discharges an employee if: (1)the discharge is in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (2)the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or (3)the employer violated the express provisions of its own written personnel policy. Section 39-2-904, MCA. The Act bars recovery of damages for pain and suffering, emotional distress, and any other compensatory damages other than lost wages and fringe benefits, and limits recovery of lost wages to a maximum of fours years, with a mandatory reduction for amounts an employee could have earned with reasonable diligence. Section 39-2-905, MCA. The Act is the exclusive remedy for a claim of wrongful discharge, but does not apply to discharges of employees who are: (1) covered by a collective bargaining agreement, (2) who have a written contract for a specific employment term, or (3) whose discharge is subject to a state or federal statute that provides a procedure or remedy for contesting the dispute. Exemptions clause, § 39-2-912, MCA. The Act expressly preempts all tort and contract remedies for claims of discharge. Preemption clause, § 39-2-913, MCA. It sets forth a special, short one-year statute of limitations during which a claim must be filed. Section 39-2-911, MCA. The Act also established an employer defense based on internal appeal procedures. If an employer establishes an internal grievance or appeal procedure, and a discharged employee does not initiate or exhaust the available internal appeal procedure, his claim may be barred. Section 39-2-911(3), MCA. Punitive damages are available only in narrow circumstances where the employee establishes that the discharge was in retaliation for a refusal to violate public policy, or for reporting a violation of public policy, and only if it is established to a high standard of clear and convincing evidence that the employer engaged in actual fraud or actual malice in the discharge. Section 39-2-905(2), MCA. Finally, the Act encourages arbitration of claims by providing for recovery of attorneys' fees for a party who requests that the case be arbitrated, and the opposing party rejects that request, if the party requesting arbitration then prevails at trial. Section 39-2-915, MCA. III. SPECIFIC FEATURES OF THE WRONGFUL DISCHARGE ACT A. Definition of "Discharge" The Act specifically authorizes claims for "constructive discharge". That term is defined to mean the "voluntary termination of employment by an employee because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative". However, the Act limits this type of claim by expressly providing that a constructive discharge may not be based upon a voluntary termination "because of an employer's refusal to promote the employee or improve wages, responsibilities, or other terms and conditions of employment". Section 39-2-903(1), MCA. The term "discharge" is broadly defined to include not only a constructive discharge, but "any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason". Section 39-2-903(2), MCA. Under this broad definition, discharged employees may theoretically challenge any employment discharge. The inclusion of "failure to recall or rehire" as an actionable discharge can result in claims where, for example, seasonal employees in outdoor occupations such as construction or mining are laid off with the expectation of returning the following spring. Often, those types of workers are reported as "job attached" by employers in the unemployment insurance process. Employees should take care to differentiate between temporary and permanent layoffs. SeeKneeland v. Luzenac, ___ Mont. ___, 961 P.2d 725 (1998). In Kneeland, the Montana Supreme Court affirmed a jury verdict in favor of the employer in the plaintiff's reduction-in-force wrongful discharge claim because the layoff was a permanent separation and the employer had no duty to rehire the plaintiff. B. A Discharge is "Wrongful" Only If It Meets One or More of Three Criteria Under the Act, an employee who voluntarily quits may sue an employer and recover damages if the termination meets the definition of a "constructive discharge". Claims for wrongful discharge involving involuntary terminations are limited to three categories. An involuntary termination is wrongful only if: (1) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (2) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or (3) the employer violated the express provisions of its own written personnel policy. 1. Retaliatory Discharge--Public Policy. Under the former law, a discharged employee could bring a claim for wrongful discharge if a public policy had been violated in connection with the termination. Keneally v. Orgain, 186 Mont. 1, 606 P.2d 127 (1980). The Act has retained this type of claim in theory, but limits its application to two narrow circumstances. Such a claim may only be brought if the discharge was "retaliatory", for either (1) refusing to do something which, if done, would violate "public policy" as defined in the Act, or (2) for reporting an employer's public policy violation (whistleblowing). Further, the Act more narrowly defines the concept of "public policy" to mean a policy "concerning the public health, safety, or welfare" which is established by "Constitutional provision, statute, or administrative rule". Thus, unless the policy is formally established in published form, it cannot serve as the underlying basis for a retaliatory termination claim. This type of wrongful discharge claim is particularly important because it is the only form of discharge which can support recovery of punitive damages. As a result, this type of allegation is often included in a complaint. The inclusion may be improper in many cases. This type of allegation is often used as the basis for a wrongful discharge claim when the factual circumstances underlying the claim are separately actionable under another state or federal statute providing a remedy for contesting the dispute. If so, the Act would not apply to such a discharge pursuant to the "Exemptions" clause of the Act. Section 39-2-912(1), MCA. For example, an employee who alleges discharge in retaliation for reporting sexual harassment has a remedy available under both Title VII of the Civil Rights Act of 1964, and the Montana Human Rights Act. A miner who alleges retaliatory discharge for refusing to perform an unsafe act, or for reporting unsafe work practices, has a complete remedy available under the federal Mine Safety and Health Act (MSHA). 30 U.S.C. § 1815(c)(1); Simpson v. Federal Mine Safety & Health Review Commission, (D.C. Cir. 1988), 842 F.2d 453. Similarly, the federal Clean Air Act (42 U.S.C. § 7401, et seq.) and the Toxic Substances Control Act (15 U.S.C. § 2601, et seq.) provide comprehensive remedies for retaliatory discharge for work refusals or whistleblowing involving environmental matters. In most cases, the remedies authorized in most federal acts are as comprehensive as those provided under Title VII and the Montana Human Rights Act. Most statutory remedies of that type have short (90-day or 180-day) statutes of limitations. Employers and their attorneys should carefully review retaliation allegations to determine whether the Exemptions clause bars the claim, and whether the plaintiff has failed to file a claim with an appropriate administrative agency within the required time frame. The Wrongful Discharge Act does not serve as a "remedy by default" due to a plaintiff's failure to invoke a specific federal or state statutory remedy. 2. Terminations Without "Good Cause". An employer will be liable for wrongful discharge under the Act if an employee is terminated without "good cause". The only exception to this principle is when the discharged employee is still within an applicable probationary period. The requirement that all discharges be based upon "good cause" is the fundamental concept of the Act. It was the primary benefit granted to employees when the legislature balanced their interests with those of employers, essentially repealing the concept of "at-will" employment under Montana law. "Good cause" is expressly defined in the Act to mean "reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason". Section 39-2-903(5), MCA. The requirement within the definition that a discharge be based upon "reasonable job-related ground for dismissal" incorporates the most salient and fundamental concept underlying all employment law: reasonableness. If there is one concept in employment decisionmaking which if adhered to will insulate employer's from liability it is that the grounds for a discharge be "reasonable". The balance of the definition establishes three categories of good cause which will justify a termination: (1) failure to satisfactorily perform job duties; (2) disruption of the employer's operation; and (3) other legitimate business reason(s). Section 39-2-903(5), MCA. Although many wrongful discharge complaints include allegations of retaliation and/or personnel policy violation claims, virtually all complaints allege lack of good cause for the discharge. The three categories are not necessarily mutually exclusive, although some circumstances clearly fall within specific categories. A secretary who can master neither typing nor spelling clearly will not be able to satisfactorily perform required job duties. An employee who harasses and demoralizes co-workers, is insubordinate to management, or misses work on a regular basis without calling to report an absence will clearly disrupt an employer's operation. An employer which loses a major customer or otherwise experiences substantial economic hardship may be required to reduce its workforce to survive, and the reduction in force will clearly fall within the category of a legitimate business reason for terminating one or more employees. However, the secretary's poor performance may also disrupt the production requirements of the office, and the duties of the employee who harasses and demoralizes co-workers, or fails to report to work may jeopardize important performance criteria, and his insubordination may be a "legitimate business reason" for discharge as well as a disruption to the workplace. Employers confronted by personnel issues which may justify a discharge should consider whether the problems arising from an employee's conduct or performance fall under more than one of the justifications for discharge recognized under the Act. 3. Violation of Personnel Policy. Under the Act, a discharge is wrongful if an employer violates the express provisions of its own written personnel policy. Section 39-2-904(3), MCA. This type of claim is frequently joined with a claim that the employee was discharged without good cause. It is often more difficult for an employer to defend against this type of claim than a claim of lack of good cause. This is because most jurors are employees, and can readily understand concepts of poor performance and disruptiveness among their own co-workers. However, personnel policies are similar to either contract provisions or statutes. They are often drafted in general terms, and usually contain procedural guidelines, resulting in the need for interpretation. Personnel policies can have multiple purposes, describing everything from company history and sweeping generalizations about the company's commitment to fair and equal treatment of all employees, explanations of benefits and leave policies, and finally, the company's basic rules concerning attendance, reporting off, standards of conduct, and disciplinary and termination procedures. The policies which create the greatest risk of wrongful discharge claims are those which either make general, unnecessary promises about commitments to fair and equal treatment of all employees, or those which establish complicated progressive discipline procedures, and promise employees extensive due process rights during an investigation. An employer's most effective strategy for avoiding liability under the former type of policies which make sweeping promises of commitments to fair and equal treatment of all employees, or longevity of employment if the employee performs satisfactorily, is to avoid using those types of policies. It is very difficult to dispose of a case on summary judgment without going to trial when the issue is whether the employer has afforded the discharged employee "fair and equal treatment", or is entitled to long-term employment based on satisfactory performance. Progressive discipline policies can also be troublesome. Some employers publish complicated discipline procedures whereby disciplinary violations will be cleared from a file in six months or one year, etc., and promise that cleared violations will no longer be held against the employee if subsequent violations occur. If the employee persistently engages in the same types of troublesome conduct, but his or her prior violations "clear" between events, it is easy for the employee to allege that the employer, despite having technically "purged" the record of past offenses from the file, is still holding them against the employee. A third problem area is where personnel policies place onerous obligations on management in the investigation and handling of a co-worker's complaint or an employee disciplinary matter. If complicated procedures are established, they must be followed. Otherwise, the discharged plaintiff can argue his personnel policy discharge claim as a de facto "negligent investigation" case. It is conceivable that an employer may have abundant good cause to discharge an employee, yet be held liable for wrongful discharge because the termination violates promises made to an employee through its personnel policies. Finally, employers must realize that a policy does not have to be contained within a published manual to be considered a "personnel policy". Any general memorandum, evaluation forms which contain statements of company policy, or other postings, may also constitute personnel policies which, if violated, may result in wrongful discharge liability. Although the Act expressly preempts claims for breach of an express or implied contract as allowed under the former law, the Act's authorization of a claim for violation of an express provision of a written personnel policy in effect reinstates a limited form of an action for breach of contract. C. Limitation on Recoverable Damages One of the most important tradeoffs for employers confronted by the Act's requirement of good cause for all discharges is the stringent limits placed upon damages which may be recovered by a prevailing plaintiff. Under the former law, plaintiffs routinely recovered past and future lost wages, awards for emotional distress, and in many cases punitive damages. The Act expressly bars damages for pain and suffering, emotional distress, or any form of compensatory damages other than limited lost wages and fringe benefits. Section 39-2-905, MCA, entitled "Remedies". The Act specifically provides that a prevailing plaintiff may be awarded lost wages and fringe benefits: . . . for a period not to exceed four years from the date of discharge, together with interest thereon. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages. Before interim earnings are deducted from lost wages, there must be deducted from the interim earnings any reasonable amounts expended by the employee in searching for, obtaining, or relocating to new employment. Section 39-2-905, MCA. This limitation on damages is profoundly important to employers. Unless the narrow circumstances authorizing recovery of punitive damages are present, most employers can generally calculate their risk of loss before discharging an employee, and in most cases can avoid the catastrophic results which sometimes occurred under the former law. The mitigation requirement is mandatory. The Act states that interim earnings "must" be deducted from the amounts awarded for lost wages. The Act also specifies that interim earnings include amounts an employee "could have earned with reasonable diligence". Although minimum wage replacement jobs are not particularly desirable to many workers, it is reasonable to assume that most discharged employees could obtain such a position, and significant aggregate earnings could be imputed to an employee who fails to reasonably obtain even minimum wage replacement employment. D. Interim Appeal Procedure Defense The Act allows employers the benefit of an important defense to liability if the employer maintains "written internal procedures . . . under which an employee may appeal a discharge within the organizational structure of the employer". The availability of this defense has important procedural requirements. The employer must establish a written appeal procedure which applies to discharges. It is critical that the employer "within seven days of the date of the discharge" notify the discharged employee of the existence of the procedure and supply the discharged employee with a copy of it. If that is not done, the discharged employee is excused from compliance with the procedure and the defense is lost. Section 39-2-911, MCA. The defense is only available if the employee, having properly been notified of the defense, fails to initiate or exhaust his rights under the internal procedure. If the employee invokes the appeal procedure, and the employer sustains the discharge, the defense is not applicable. It is only available if the employee fails to initiate or exhaust the procedure. Section 39-2-911, MCA. If the employee invokes the appeal procedure, but the employer fails to complete its review within 90 days from the date the employee initiated the appeal, the employee is free to file an action under the Wrongful Discharge Act, and the appeal procedure is deemed exhausted. Section 39-2-911, MCA. If the employee invokes the procedure, the one-year statute of limitations for bringing a claim is "tolled" (extended) until such time as the procedure is exhausted. However, the statute caps any tolling at a maximum of 120 days. Section 39-2-911, MCA. E. Arbitration The Act allows the parties to a wrongful discharge claim to voluntarily arbitrate the dispute. Section 39-2-914, MCA. Arbitration is a binding substitute for litigation in the court system. If an arbitrator rules on a case, one party "wins" and the other party "loses" just as if a jury rendered a verdict. Other than in cases of a procedural defect or other impropriety, there is no realistic basis for appeal from an arbitrator's decision. Either party may request arbitration. The significance of the availability of arbitration under the Act is largely due to the fact that a party demanding arbitration may recover "reasonable" attorneys' fees incurred after the offer is made if the opposing party rejects the demand and the party demanding arbitration prevails at trial. Section 39-2-915, MCA. Under the Act, offers to arbitrate must be made in writing, and must contain provisions concerning selection of the arbitrator, submission to the requirements of the Uniform Arbitration Act, and must bind the arbitrator to the law as established in the Act. If a complaint has been filed under the Act, the offer must be made within 60 days after service of the complaint, and must be accepted in writing within 30 days after the date the offer is made. If a "valid" offer to arbitrate is made and accepted, arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue a lawsuit under the Act. The arbitrator's award is final and binding, subject to limited grounds for review. Section 39-2-914, MCA. If the discharged employee offers to arbitrate, and the offer is accepted by the employer, and then the employee prevails in the arbitration proceeding, the employer will be obligated to pay the arbitrator's fee and all costs of arbitration. Although no statistics are available, arbitration of wrongful discharge claims is likely the exception, rather than the rule. It is often difficult for the parties to agree upon an arbitrator acceptable to both sides. If they can't agree, the court will select the arbitrator. Wrongful discharge claims are combined with tort claims, and there is uncertainty concerning what claims are subject to arbitration if the parties cannot agree in advance. It must be recognized that "arbitration" and "mediation" are very different procedures. Mediation is a mutual, voluntary submission of the dispute to a neutral third party, usually a retired judge or an attorney experienced in the field, who is not empowered to make a binding decision concerning the case, and who attempts to facilitate a settlement of the dispute. Arbitration is a binding, final substitute for a court proceeding where the purpose of the arbitrator is to review the evidence, apply the law, and decide the case. IV. ALTERNATIVE AND RELATED CLAIMS The Act is the "exclusive remedy for a wrongful discharge from employment". Section 39-2-902, MCA. The Act provides that there is "no right under any legal theory to damages for wrongful discharge" except as provided under the Act. Section 39-2-905(3), MCA. The Act specifically preempts all other claims "for discharge" which may arise from tort or express or implied contract. Section 39-2-913, MCA. However, despite the clear language of the Act, it is common for discharged employees to combine alternative or related claims with their wrongful discharge claim in their complaint, or to pursue alternative claims in other forums, such as enforcement agencies like the EEOC, Montana Human Rights Bureau, United States Department of Labor, etc. Part of the reason for that practice is uncertainty whether a discharge is more properly a claim for wrongful discharge under the Act, or whether it is actionable under one of a number of anti-discrimination statutes. Further, employment relationships are sometimes complex, involving ancillary agreements and obligations which may exist independent of an actual event of "discharge". In some cases, discharged employees allege that employers engaged in conduct well before the actual event of discharge, or after it, such as invasion of privacy, defamation, blacklisting, or intentional or negligent infliction of emotional distress, that they contend is separately actionable from the discharge itself. As noted above, the Act exempts certain types of claims from coverage. Section 39-2- 912, MCA, (Exemptions). In particular, claims which may be brought under state or federal statutes that prohibit discrimination based on race, sex, age, disability, etc., are exempt from coverage under the Wrongful Discharge Act. Under Montana law, the Human Rights Act is expressly deemed the "exclusive remedy" for discrimination of that type. Section 49-2-509(7), MCA. The legislature clearly intended that the two statutes be mutually exclusive, and that a discharged employee may not recover under both for the same event of discharge. Tonack v. Montana Bank of Billings, 258 Mont. 247, 854 P.2d 326 (1993). Although the Preemption clause of the Act bars tort and contract claims "for discharge", it does not bar all claims merely because they arise in the employment context. Beasley v. Semitool, 258 Mont. 258, 853 P.2d 84 (1993); Ruzicka v. First Health Care Corporation, 45 F.Supp. 2d 809 (Nov 1997); Kulm v. Mont. St. U., Bozeman, 285 MT 328, 948 P.2d 243 (1997). The Montana Supreme Court has stated that whether or not an employee's discharge "is subject to any other state or federal statute that provides a procedure for contesting the claim" may not be known when the claims are filed. Schultz v. Stillwater Mining, Co., 227 Mont. 154, 920 P.2d 486 (1996). The Court has held that the only proper defendant in a claim under the Wrongful Discharge Act is the actual "employer", and not managers or co-workers. Buck v. Billings, Montana, Chevrolet, Inc.., 248 Mont 27, 811 P.2d 537 (1991). However, discharged employees sometimes sue both the company and also a co-worker or supervisor alleging interference with contract, defamation, infliction of emotional distress, or blacklisting. A. Defamation Written (libel) and verbal (slander) false statements damaging the reputation of an employee may constitute a basis for a claim of defamation. Frigon v. Morrison-Maierle, Inc., 233 Mont. 113, 760 P.2d 57 (1988). Defamation claims are sometimes combined with wrongful discharge claims. Ruzicka. Insurance is at times a factor. Most employers do not purchase insurance for coverage of employment claims. Generally, employer liability policies contain employee practices exclusions from coverage. However, some general liability policies will provide coverage, and pay for the cost of defense of a claim, when defamation is alleged in the complaint. Montana has a special statute prohibiting blacklisting which may apply in post- termination communications. Section 39-2-801, MCA. Blacklisting is related to, but distinct from, defamation. The entire act reads as follows: TITLE 39. LABOR CHAPTER 2. THE EMPLOYMENT RELATIONSHIP PART 8. BLACKLISTING AND PROTECTION OF DISCHARGED EMPLOYEES 39-2-801. Employee to be furnished on demand with reason for discharge. (1) It is the duty of any person after having discharged any employee from service, upon demand by the discharged employee, to furnish the discharged employee in writing a statement of reasons for the discharge. Except as provided in subsection (3), if the person refuses to do so within a reasonable time after the demand, it is unlawful for the person to furnish any statement of the reasons for the discharge to any person or in any way to blacklist or to prevent the discharged person from procuring employment elsewhere, subject to the penalties and damages prescribed in this part. (2) A written demand under this part must advise the person who discharged the employee of the possibility that the statements may be used in litigation. (3) A response to the demand may be modified at any time and may not limit a person's ability to present a full defense in any action brought by the discharged employee. Failure to provide a response as required under subsection (1) may not limit a person's ability to present a full defense in any action brought by the discharged employee. 39-2-802. Protection of discharged employees. If any person, after having discharged an employee from his service, prevents or attempts to prevent by word or writing of any kind such discharged employee from obtaining employment with any other person, such person is punishable as provided in 39-2-804 and is liable in punitive damages to such discharged person, to be recovered by civil action. No person is prohibited from informing by word or writing any person to whom such discharged person or employee has applied for employment a truthful statement of the reason for such discharge. 39-2-803. Blacklisting prohibited. If any company or corporation in this state authorizes or allows any of its agents to blacklist or any person does blacklist any discharged employee or attempts by word or writing or any other means whatever to prevent any discharged employee or any employee who may have voluntarily left the company's service from obtaining employment with another person, except as provided for in 39-2- 802, such company or corporation or person is liable in punitive damages to such employee so prevented from obtaining employment, to be recovered by him in a civil action, and is also punishable as provided in 39-2-804. 39-2-804. Violation of part a misdemeanor. Every person who violates any of the provisions of this part relating to the protection of discharged employees and the prevention of blacklisting is guilty of a misdemeanor. Under the statute, an employer has a "duty" to furnish upon demand of a discharged employee a written statement setting forth a "full, succinct, and complete statement" of the reasons for the employee's discharge. If the employer refuses to do so within a "reasonable time", it is unlawful for the employer to later "furnish any statement of the reason for the discharge . . ." Subsection (1). "Truthful statements are not prohibited". Subsection (2). It is difficult to reconcile these two subsections. An employer who violates the statute is liable for punitive damages and potentially guilty of a criminal misdemeanor. Section 39-2-803, MCA. B. Infliction of Emotional Distress There had been long standing controversy over whether a claim for infliction of emotional distress could be asserted as a separate claim, as opposed to being an element of damages for some other tort claim. In Sacco v. High Country Independent Press, Inc., 271 Mont. 209, 896 P.2d 411 (1995), the Montana Supreme Court clarified the law, and held that a plaintiff may state "an independent cause of action for intentional infliction of emotional distress . . . under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant's intentional act or omission. Sacco, 896 P.2d at 428. C. Invasion of Privacy Many commentators suggest that claims for invasion of employee privacy will become one of the largest areas of employer tort exposure in the coming years. The law is not yet well established in Montana on this issue, and the anticipated groundswell has not yet materialized. However, employers should be exceedingly cautious about releasing information about their (current or former) employees to co-workers or third parties. This type of tort claim can have potentially dire consequences in the proper circumstances. D. Intentional Interference with Contractual Relations The most common circumstance where this claim is combined with a claim of wrongful discharge is when the plaintiff sues both his own employer, and another party who or which he contends wrongfully "interfered" with his employment relationship. For example, if a general contractor is displeased with the attitude or safety performance of the employee of a subcontractor, and complains to the employer/subcontractor, and the offending employee is thereafter discharged, the discharged employee may sue his own employer for wrongful discharge, and join the "interfering" general contractor as a co- defendant based on an interference claim. These types of claims are difficult, and can result in polarizing a relationship between the defendants. E. Fair Employment Practices (Discrimination) Claims It is a common practice for plaintiffs to allege claims of both wrongful discharge and discrimination and/or retaliation. The Montana Supreme Court nominally approved of this practice in the Tonack decision. Two completely distinct bodies of law apply to these distinct types of claims. Discrimination claims under federal law are particularly appealing for plaintiffs. Generally, anti-discrimination statutes allow a prevailing plaintiff to recover his or her attorneys' fee, and in cases subject to the Civil Rights Act of 1991, a prevailing plaintiff may recover general and compensatory damages well in excess of the limited damages recoverable under the Wrongful Discharge Act, including punitive damages in cases of intentional discrimination. In most cases, an employer is in a much less threatening situation if its exposure is only to a claim of wrongful discharge under the Act. Whether or not an employer is subject to the much more stringent and threatening provisions of many federal employment laws is generally dependent upon how many employees it has. Once an employer crosses the varying size thresholds for coverage by various federal acts, its potential risk of large damage exposure increases dramatically. Among the federal laws which are frequently implicated in employment discharge claims are the Americans With Disabilities Act, the Family Medical Leave Act, the Age Discrimination In Employment Act, the Worker Adjustment and Retraining Notification Act (WARN), Title VII, the Rehabilitation Act, and the Civil Rights Act of 1991. F. Workers' Compensation Retaliation/Wrongful Discharge/ Disability Discrimination: The "Bermuda Triangle" of Employment Law It is difficult to conceive of a more threatening and less certain combination of potential claims which can arise from an injury to an employee. The importance and complexity of the issues arising from this set of circumstances is of such magnitude and complexity that it warrants a separate seminar in its own right. Claims of this nature usually arise after a worker reports a debilitating injury. These cases frequently involve claims of back injury, and usually in industrial employment. The employee claims temporary total disability, and aggressively pursues a Workers' Compensation claim. Often, the claim is disputed. The plaintiff may claim permanent limitations, and request "reasonable accommodation" under the Americans With Disabilities Act. Issues of job transfers, light duty work, work hardening, and rehabilitation arise. Most larger employers have long term disability insurance, and the plaintiff will often apply for it, claiming total disability under the plan definition. Ultimately, the plaintiff settles the Workers' Compensation case, and is laid off when he can't return to the duties of his original position. The employer dutifully informs the discharged plaintiff that he will be granted the preference available to him under the Workers' Compensation Act to obtain reemployment for a "comparable position" that becomes vacant if that position is consistent with his physical condition and vocational abilities within two years from the date of his injury, provided he has received a medical release to return to work. Section 39-71-317, MCA. Thereafter, the plaintiff files suit alleging wrongful discharge without good cause, in violation of various personnel policies, and in retaliation for having filed a Workers' Compensation claim. He joins with that claim a distinct statutory tort claim arising from the reemployment preference statute, which provides that "an employer may not use as grounds for terminating a worker the filing of a [Workers'Compensation] claim . . . ." Section 39-71-317(1), MCA; Lueck v. U.P.S., 258 Mont. 2, 851 P.2d 1041 (1993). He also files claims alleging disability discrimination with the EEOC and the Montana Human Rights Bureau. When he receives his "right to sue" letters from those agencies, he joins those claims in the district court lawsuit, as well. 42 U.S.C. § 12111, et seq.; Section 49-2-101, et seq., MCA. A claim of this type gives rise to multiple issues of law and fact, and triggers issues which remain unresolved under both state and federal law, and which are presently the subject of controversy as a result of the publication of recent EEOC regulations. One issue is clear under Montana law. If the case is ultimately determined to be one of disability discrimination, the plaintiff's exclusive remedy lies with the Montana Human Rights Act. It is also clear that the remedies under the Montana Human Rights Act and the Wrongful Discharge Act are mutually exclusive. One of the uncertainties is whether § 39-71-317, MCA, actually creates a statutory "tort" claim, independent of the Wrongful Discharge Act. In 1993, the Montana Supreme Court in Lueck hinted, but did not expressly rule, that the statute creates an independent claim, and set forth the following elements necessary to prove a retaliatory discharge claim under the statute: 1. That the employee was discharged and 2. That the employer's motive in discharging the employee was to retaliate for his filing a claim under the Workers' Compensation Act. Lueck, 851 P.2d at 1045. Pursuit of a claim of this type presents a dilemma for the injured worker. To maximize his Workers' Compensation recovery, and potentially obtain long term disability benefits, an injured worker will often contend he is significantly disabled and unable to return to work. By doing so, he takes the risk that he will forfeit the ability to return to work with reasonable accommodation to perform the essential functions of his position. The employer also faces a dilemma. If the Workers' Compensation claim is disputed, the employer risks developing a record of skepticism and hostility toward the injury claim which may be used against the employer as evidence of retaliatory intent and malice in the later lawsuit. Although the employer, and the Workers' Compensation insurer, will both be motivated financially to return the employer to work, many employers are reluctant to engage in the practice of creating special, light duty positions for injured workers. Finally, benevolent employers who retain injured employees unable to return to work for extended periods of time may end up establishing a de facto policy of continuing expensive health insurance benefits through ad hoc decision making. The employer may end up carrying one injured worker as a nominal employee for an extended period of time, hoping the employee will recover and return, and may lay off another employee because it is apparent fairly soon that he or she will never be able to return. These cases are problematical, and any circumstances of this type should be carefully reviewed with an attorney. G. Miscellaneous Most federal employment-related acts contain remedial, anti-discrimination statutes. Employers should recognize the potential interrelationship of the remedies under the Wrongful Discharge Act, and those provided through anti-discrimination statutes. The following is a non-exclusive list of federal acts which contain employment remedies: • Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. See § 510 • Mine Safety and Health Act (MSHA), 30 U.S.C. § 801, et seq. See § 815 • Occupational Safety and Health (OSHA), 29 U.S.C. § 651, et seq. See § 660(c) • National Labor Relations Act (NLRA), 29 U.S.C. § 141, et seq. See 29 U.S.C. § 157, and Section 7, guaranteeing non-union employees the right to freely organize and assist labor organizations, and the right to engage in "concerted activities" for mutual aid or protection. Section 8 of the Act makes it an unfair labor practice for an employer to interfere with, or restrain, or coerce employees in the exercise of their rights. • Fair Labor Standards Act, 29 U.S.C. § 201, et seq. See § 215. • Immigration Reform and Control Act, 8 U.S.C. § 1324b. See 8 U.S.C. § 1324b(a)(g)(h). • Bankruptcy, 11 U.S.C. § 525(b) • Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. §§ 4321(b)(3); 4324(d) [formerly 2021(b)(3); 2024(d)] • Family and Medical Leave Act (FMLA), 29 U.S.C. § 2611, et seq. H. Reducing the Risk of a Discharge Lawsuit 1. Appreciate the magnitude and significance of an employment discharge. Employment problems, and in particular discharges, give rise to strong emotions. Pride, honor, self- worth, and self-esteem are usually on the line for the employee. The employee may have caused the problems himself or herself, but those considerations are present nonetheless. Depression, fear, extreme anger, vindictiveness, threats, and often violence, and occasionally suicide and homicide, can result from employment disputes. Recognize the risk, and try to prevent tensions from escalating. 2. Maintain privacy and confidentiality to the greatest extent possible. 3. Make effective use of evaluation procedures, and honestly and carefully document problems with performance and conduct. 4. Probationary periods are important. Evaluate a new employee's capabilities and demeanor carefully during the probationary period. Don't wait until it has expired to take action. 5. Avoid the perception that a personality dispute exists between a single manager and a problem employee. Involve more than one supervisor in the review of an employee's performance, or investigation of the complaints that arise concerning the employee. Failure to distribute this burden may result in a contention that a single supervisor was "out to get" the employee. 6. Supervisors should avoid excessive familiarity with the personal lives of their employees. This is one of the "burdens of management". 7. Avoid unnecessary and unduly complex personnel policies. The best personnel policies are the ones which place an employee on notice of company rules and standards of conduct. 8. Be candid with employees who have a "slim chance" of success. Circumstances may vary, but honesty and compassion can preserve a relationship and perhaps motivate a poor employee to voluntarily look for replacement employment before it is necessary to terminate. 9. Avoid a policy of "immediate termination". There is almost never a justification for discharging an employee "on the spot," regardless of their conduct or the circumstances. It is always a better practice to send an employee home (this does not have to be "disciplinary" in nature), investigate, and allow for an objective evaluation. A termination is not "discipline." It is a decision that the situation is beyond discipline. 10. Consider a formal "last chance" agreement to correct performance or conduct problems. 11. Last, but not least, be humane and reasonable at all times through the evaluation of a personnel issue. If a termination is required, a lawsuit may follow. 12. After the discharge: a) Promptly provide the final paycheck and comply with COBRA requirements, etc. See § 39-3-205, MCA. b) Don't withhold pay to leverage the return of company property or other assets. c) Watch for a request for a statement of the reasons for termination under the Blacklisting statute. Direct the letter to the appropriate person for response. Review the request and proposed response with a knowledgeable attorney. d) Carefully adhere to the company reference policy. e) Unemployment claims are inevitable. Discuss the proposed response with a knowledgeable attorney. UI benefits are a form of social insurance paid by a common fund. The benefits paid are not the employer's funds. The fact that good cause existed to justify a discharge does not mean that the employee is ineligible to receive UI benefits. An employee who is involuntarily discharged is entitled to receive UI benefits unless the employee engaged in "misconduct" connected with or affecting the employee's work. Section 39-51-2304, MCA. The test for whether an employer had "good cause" to discharge an employee is significantly different than the test for whether an employee engaged in "misconduct" under the UI statute. For example, an economic downturn, or poor performance, may constitute "good cause" to discharge an employee who did not engage in "misconduct". AP PENDIX MONTANA CODE ANNOTATED TITLE 39. LABOR CHAPTER 2. THE EMPLOYMENT RELATIONSHIP PART 9. WRONGFUL DISCHARGE FROM EMPLOYMENT 39-2-901. Short title. This part may be cited as the "Wrongful Discharge From Employment Act". 39-2-902. Purpose. This part sets forth certain rights and remedies with respect to wrongful discharge. Except as provided in 39-2-912, this part provides the exclusive remedy for a wrongful discharge from employment. 39-2-903. Definitions. In this part, the following definitions apply: (1) "Constructive discharge" means the voluntary termination of employment by an employee because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative. Constructive discharge does not mean voluntary termination because of an employer's refusal to promote the employee or improve wages, responsibilities, or other terms and conditions of employment. (2) "Discharge" includes a constructive discharge as defined in subsection (1) and any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason. (3) "Employee" means a person who works for another for hire. The term does not include a person who is an independent contractor. (4) "Fringe benefits" means the value of any employer-paid vacation leave, sick leave, medical insurance plan, disability insurance plan, life insurance plan, and pension benefit plan in force on the date of the termination. (5) "Good cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason. The legal use of a lawful product by an individual off the employer's premises during nonworking hours is not a legitimate business reason, unless the employer acts within the provisions of 39-2-313(3) or (4). (6) "Lost wages" means the gross amount of wages that would have been reported to the internal revenue service as gross income on Form W-2 and includes additional compensation deferred at the option of the employee. (7) "Public policy" means a policy in effect at the time of the discharge concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule. 39-2-904. Elements of wrongful discharge -- presumptive probationary period. (1) A discharge is wrongful only if: (a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or (c) the employer violated the express provisions of its own written personnel policy. (2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason. (b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire. 39-2-905. Remedies. (1) If an employer has committed a wrongful discharge, the employee may be awarded lost wages and fringe benefits for a period not to exceed 4 years from the date of discharge, together with interest on the lost wages and fringe benefits. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages. Before interim earnings are deducted from lost wages, there must be deducted from the interim earnings any reasonable amounts expended by the employee in searching for, obtaining, or relocating to new employment. (2) The employee may recover punitive damages otherwise allowed by law if it is established by clear and convincing evidence that the employer engaged in actual fraud or actual malice in the discharge of the employee in violation of 39-2-904(1)(a). (3) There is no right under any legal theory to damages for wrongful discharge under this part for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in subsections (1) and (2). 39-2-906 through 39-2-910 reserved. 39-2-911. Limitation of actions. (1) An action under this part must be filed within 1 year after the date of discharge. (2) If an employer maintains written internal procedures, other than those specified in 39- 2-912, under which an employee may appeal a discharge within the organizational structure of the employer, the employee shall first exhaust those procedures prior to filing an action under this part. The employee's failure to initiate or exhaust available internal procedures is a defense to an action brought under this part. If the employer's internal procedures are not completed within 90 days from the date the employee initiates the internal procedures, the employee may file an action under this part and for purposes of this subsection the employer's internal procedures are considered exhausted. The limitation period in subsection (1) is tolled until the procedures are exhausted. In no case may the provisions of the employer's internal procedures extend the limitation period in subsection (1) more than 120 days. (3) If the employer maintains written internal procedures under which an employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days of the date of the discharge notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of them. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (2). 39-2-912. Exemptions. This part does not apply to a discharge: (1) that is subject to any other state or federal statute that provides a procedure or remedy for contesting the dispute. The statutes include those that prohibit discharge for filing complaints, charges, or claims with administrative bodies or that prohibit unlawful discrimination based on race, national origin, sex, age, disability, creed, religion, political belief, color, marital status, and other similar grounds. (2) of an employee covered by a written collective bargaining agreement or a written contract of employment for a specific term. 39-2-913. Preemption of common-law remedies. Except as provided in this part, no claim for discharge may arise from tort or express or implied contract. 39-2-14. Arbitration. (1) A party may make a written offer to arbitrate a dispute that otherwise could be adjudicated under this part. (2) An offer to arbitrate must be in writing and contain the following provisions: (a) A neutral arbitrator must be selected by mutual agreement or, in the absence of agreement, as provided in 27-5-211. (b) The arbitration must be governed by the Uniform Arbitration Act, Title 27, chapter 5. If there is a conflict between the Uniform Arbitration Act and this part, this part applies. (c) The arbitrator is bound by this part. (3) If a complaint is filed under this part, the offer to arbitrate must be made within 60 days after service of the complaint and must be accepted in writing within 30 days after the date the offer is made. (4) A discharged employee who makes a valid offer to arbitrate that is accepted by the employer and who prevails in such arbitration is entitled to have the arbitrator's fee and all costs of arbitration paid by the employer. (5) If a valid offer to arbitrate is made and accepted, arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue a lawsuit under this part. The arbitrator's award is final and binding, subject to review of the arbitrator's decision under the provisions of the Uniform Arbitration Act. 39-2-915. Effect of rejection of offer to arbitrate. A party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under this part is entitled as an element of costs to reasonable attorney fees incurred subsequent to the date of the offer.  The definition was amended in 1993 to further provide that "legal use of a lawful product by a individual off the employer's premises during nonworking hours is not a legitimate business reason, unless the employer acts within the provisions of § 39-2- 313(3) or (4)." See §§ 39-2-313, 314, MCA.
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text:
Enjoy this healthy and harmonically composed pure juice made of carefully selected apples, grapes and pineapples in combination with a slightly spicy note of freshly pressed ginger.
Apple juice*, white grape juice*, pineapple juice*, ginger juice 1%* *from controlled organic agriculture
- Dairy Free
- Gluten Free
- Wheet Free

domain: food


text:
Lisa Vlaemminck Screensaver Error
ISBN 978 94 9126 252 4
€ 38 available
In her work, Lisa Vlaemminck explores the boundaries of painting, creating an exciting, vibrating and disorienting universe. In her images, she questions very classical phenomena in painting, such as the landscape and the still life, by freezing them behind semi-transparent layers of paint. We catch a glimpse that feels familiar, but soon find that nothing is what it seems. Vlaemminck’s work oscillates between the microscopic and the interstellar, as well as the amorphous spaces in between. Image, material, shape, texture and form mutate into compositional playgrounds floating in a newly created universe where different laws and rules apply.
The book ‘Screensaver Error’ is conceived as a symmetrical, folded stack of sheets with images of Lisa’s paintings and collages.
At the heart of the book is the sixty-metre long, worm-shaped textile sculpture, which runs like a stream through the book for many pages. The book consists of one section of 144 pages held together in the centre by coloured bookbinder’s thread. The ‘stack’ of sewn paper sheets are not trimmed on the cut, creating a convex shape that is entirely in keeping with the language of Lisa’s work. As an object, the book has the status of an autonomous work of art.
Dominique De Groen wrote an electrically charged shimmering poem tailored to the work. The introductory text was written by Simon Delobel.
In KIOSK, Lisa Vlaemminck presented a series of new paintings and a sixty-metre long textile sculpture that occupied the various exhibition spaces. For the design of the fabric, Lisa worked patterns that form a long colour gradient. At the end of the exhibition, the sculpture, Meat A Morph Hose, was cut into 35 separate, new sculptures that were offered as unique artworks.
The artist is reprented by gallery rodolphe janssen
The realisation of the book is supported by the Flemish Government.

domain: library


Filmmaker and producer Paul Davids' films are known for controversy, beginning with Roswell (starring Martin Sheen, Kyle MacLachlan & Dwight Yoakam), a 1994 nominee for Golden Globe as Best TV Motion Picture, which he executive produced and co-wrote as a Showtime original movie. It dealt with issues of extraterrestrial life and the purported "truth embargo" on the subject of ET contact.
Paul attended the American Film Institute Center for Advanced Film Studies in Beverly Hills.He began his career in film as a script reader for a Hollywood agent, Paul Kohner. After writing his first produced film called “She Dances Alone”, Paul’s career in film and television took off when he got his “first break” as production coordinator of the original “Transformers” TV show for Marvel Productions in 1985. Paul went on to produce and direct about 10 other feature films, many distributed by NBCUniversal International Television and most dealing with controversial topics. He's a prolific artist featured in galleries -- and has been a member of the Magic Castle (Academy of Magical Arts) in Hollywood for 30 years.
Frank Sheeran confessed to investigative author Charles Brandt that he handled more than 25 hits for the Mob, and for his friend Jimmy Hoffa. Joining George Knapp in the first half, Brandt shared evidence about Sheeran's involvement with Hoffa, new information on other famous murders, and the announcement of a film adaptation of his... More »
Pioneering promoter of sci-fi books and films, the late Forrest J Ackerman, never believed in an afterlife; nonetheless, he promised a few respected colleagues that he would try to send messages from the Other Side. Author, UFO researcher, and filmmaker Paul Davids joined George Knapp to describe in hair-raising detail Ackerman's... More »
Filmmaker and producer Paul Davids discussed his new documentary, The Life After Death Project, which chronicles possible after death communications that came from sci-fi luminary, Forrest J. Ackerman. Professor at the University of Arizona, More »
First hour guest, leader of the Raelian Movement, Rael, discussed his ET encounters which took place in 1973 at a volcanic crater in France. During these encounters, he said he learned that humans were not the result of random evolution, but deliberately created by the aliens through DNA experimentation. Rael, who is hoping to build an embassy for ETs by 2035, answered criticisms made of... More »


Raising Cane's Chicken Fingers, a Louisiana-based restaurant chain, has broken ground for its first El Paso location, the company announced Wednesday.
The restaurant at 1887 N. Zargoza in far East El Paso is scheduled to open in late November.
"We've been building momentum throughout Texas and in several other states, and we're excited to finally make it to El Paso," Todd Graves, Raising Cane's founder and CEO, said in a statement.
Raising Cane's serves chicken fingers, its secret-recipe sauce, crinkle-cut fries, coleslaw, Texas toast, freshly brewed sweet tea and fresh-squeezed lemonade.
Founded by Graves in 1996 and named for his yellow Labrador, Raising Cane, the rapidly growing chain now has more than 190 locations in 17 states. The chain expects to open several El Paso locations in the future, it reported.
More info: raisingcanes.com


text:
INDIANAPOLIS –Standing 6-6 and weighing 335 pounds, it is hard to get called out.
Yet late last season at Alabama, D.J. Fluker was called out by teammates Anthony Steen, Cyrus Kouandjio and A.J. McCarron. They wanted Fluker to be a better player.
"My right guard and my left tackle called me out and said, 'Hey, we need you for this.' They were like, 'Hey, you can do it. I believe in you.' That's what a team is. Everybody depends on one another. … When somebody calls your number, calls your name out, you've got to go out there and perform."
Fluker's teammates felt they needed him playing with an attitude. As talented as Alabama was across the board, it needed Fluker to dominate to get where it needed to go.
That would be past LSU, Georgia and Notre Dame. Check, check and check. Alabama won another national title.
Now, Fluker stands to be one of the top picks in this year's draft. He played on a veteran line with the Crimson Tide, and now he is soon to take his place with an NFL team.
Fluker played in a preparatory lab under Nick Saban, and he expects to see somewhat of the same in the year ahead.
"Some of the schemes in the NFL that offensive teams run, it's kind of the same scheme," said Fluker. "(A) pro-style offense, I think I'll transition well to the type of offense there, and it should be no problem."
To this point, football has not seemed to be that much of a problem for the native of Foley, Alabama.
Fluker started 35 games at right tackle. He was first-team All-SEC in 2012 as well as a second-team All-American. Fluker missed only 11 assignments in 729 snaps. He had but two penalties.
Fluker had 33 pancake blocks, allowed but four sacks in 267 pass attempts and blocked for eight of the 23 individual 100-yard rushing performances he saw during his career.
That teammates called on him was odd since he considers himself a vocal, emotional presence. His normal chatter to an opposing lineman?
"I say I'm here to come take your lunch money," said Fluker. "I'm vocal. I feel emotion. That's me, (an) emotional leader."
Fluker has a specific incentive on every play.
"The funnest (thing) is knocking a defensive end down. Dominate on every single play. Let 'em know that that ball's coming right behind me.
"I ain't that guy (who will take a play off). I'm gonna let you know early, I ain't the one. That's the main thing. You've got to be aggressive playing offensive line."
Fluker played against Georgia in the SEC Championship game at 339 pounds. He weighed 355 at the Senior Bowl before dropping back to 339 for the combine in late February.
"That's something I did on my own, working out every day, six days a week, seven hours a day," said Fluker. "It feels great, trimming down, slimming down. It's kind of a mindset you've got to have, to lose weight. I feel better for it. I feel a lot more mobile and moving better."
Fluker was one of the top high school prospects before entering Alabama. He redshirted there in 2009, then started nine of 10 games at right tackle in 2010.
In 2011, he started 13 games at right tackle. The Tide rushed for 34 touchdowns with an average of 214.5 yards a game on the way to winning a national title, an all-SEC affair over LSU. Alabama repeated the feat this past season with an even wider victory margin over Notre Dame.
Fluker was prepared in the nation's top conference and by Saban, one of the top coaches around. Fluker feels prepared for what he can offer at the next level.
"My passion for the game (is what I bring)," said Fluker. "I bring energy to the table every day, every practice, weekends, on game day. That's what I do. My strengths are run-blocking. I'm trying to fine-tune every technique of my game.
"Any team that wants to win a championship, any team that wants to win every Sunday, that's the best type of team that I want to go to, the team that has the attitude of, '(We) will not be denied.' The guys that want to go out there and actually work hard, that actually want to do something, do something special – go to the Super Bowl, win a championship. That's the type of team that I want to be a part of."
Fluker does not mind playing tackle or guard. Wherever he plays, it will be with passion.
"I'm always like that," said Fluker. "I'm the high-energy guy on that (Alabama) team and people know that. In the SEC championship game, me and my right guard, we showed that.
"There's no time to relax. Every day to me is a work day. The way I feel, me as a person, I want to be the Ray Lewis of my offensive line."
LOOKING AT THE 2013 NFL DRAFT'S OFFENSIVE TACKLES
THE LAST FIVE
The last five offensive tackles drafted by the Colts:
2011: Anthony Castonzo, first round, Boston College
2007: Tony Ugoh, second round, Arkansas
2006: Charlie Johnson, sixth round, Oklahoma State
2006: Michael Toudouze, fifth round, TCU
2004: Jake Scott, fifth round, Idaho
THIS YEAR'S DRAFT
An alphabetical list of offensive tackles expected to be selected in the 2013 NFL Draft (*-denotes underclassman):
Oday Aboushi, Virginia
Eric Fisher, Central Michigan
D.J. Fluker, Alabama*
Luke Joeckel, Texas A&M*
Lane Johnson, Oklahoma
Justin Pugh, Syracuse*
David Quessenberry, San Jose State
Jordan Mills, Louisiana Tech
Ricky Wagner, Wisconsin
Note: The content in this story and in the series of draft-eligible players that appears on Colts.com in no way reflects the position of the Indianapolis Colts.

domain: sports


text:
Hueco Mundo is located between the Human world and Soul Society, though it is separate from the bordering dimension known as Dangai. It can only be accessed by tearing the dimensional fabric separating the worlds, allowing Hollows to travel to any other dimension at will. Depending on the Hollow, the effect of this process varies. Regular Hollows usually appear from a small black vortex or form out of smoke, while Menos-class Hollows quite literally tear the sky apart to emerge. Arrancar use a more stable variant of the latter technique known as Garganta.
The landscape of Hueco Mundo is a seemingly never-ending white desert, with dunes like those of the Sahara. The desert is littered with what appear to be boulders and shriveled trees, but these are actually a form of quartz. In Hueco Mundo, the moon is on the opposite lunar phase of that in the Human World. The vast desert also seems to lack any bodies of water. Like in Soul Society, the atmosphere is filled with Reiryoku in the form of Reishi, but it is more concentrated, thus allowing smaller Hollows to gain nourishment despite the lack of Human souls.
Like that in real world deserts, active life in Hueco Mundo appears to be few and far between. Hollows generally seem to dwell below the surface or in other areas until something provokes them to leave their shelter, like the intrusion of a foreign entity. According to the Shinigami, all Hollows dwell in Hueco Mundo regardless of their shape, size, or power. In the anime, Hollows can also drag other spirits into Hueco Mundo, as seen with Orihime Inoue's brother, Sora. In this case, Sora was forcefully made into a Hollow by several others and sent against Ichigo Kurosaki.
As explained in an anime-only filler, there exists a vast forest underneath Hueco Mundo where Menos-class Hollows reside. The trees in this forest extend to the surface and dot the landscape above ground. The Adjuchas-class Menos which reside in this forest are under the control of Aizen.
- ↑ Bleach manga; Chapter 48, page 6
- ↑ Bleach manga; Chapter 178, page 4
- ↑ Bleach manga; Chapter 245, page 16

domain: geography


text:
Bengal wants “Kaam Kaaj” and not “Ram Raj” was the message conveyed to the people of Nandigram as LeftFront leader Md Salim and the Indian Secular Front’s Abbas Siddiqui today sought to rally for Nandigram CPI-M youth candidate, Minakshi Mukherjee, whose image of “Banglar Meye Minakshi” has been gaining traction, off late.
Minakshi has managed to stir a revolution in the hearts of Nandigram people with her gut-punching rhetoric against opponents. Addressing the crowd, she said it is obvious that TMC and BJP have covered Nandigram with their flags and banners.
“With the amount of wealth that Trinamul accumulated from Saradha scam, Narada bribery case along with other chit fund scams, they can afford such opulence while the BJP has crony businessmen pumping in crores of money. We are but campaigning with money donated by the people. I appeal to Trinamul and BJP party workers to return home to their children and swear on them that they didn’t install those flags for thieves and dacoits who will rob their children’s future tomorrow.”
She assured Nandigram people that once ‘Sanyukta Morcha’ comes to power, “the mothers of comrades like Maidul Middah, who was murdered by the police for marching to Nabanna for jobs, will be given justice. Despite the repeated attack on CPI-M workers in Bengal in the last 10 years, they haven’t been able to defeat the Lal Jhanda (red flag).”
The CPI-M leader Md Salim, gave a clarion call to unite for Kaam Kaj(employment) in Bengal and not Ram Raj. He said “Minakshi is Banglar Meye. We have at least forced the TMC and BJP to switch to jhanda(flags) from dandas(batons). Bengal saw downslide in the last 10 years. Not a single new bridge was constructed while no road was made to connect Haldia with Contai. Not a single factory came up while Mamata has only laid uncountable foundation stones for imaginary projects. To woo minority voters, she even made empty promises of a railway line in Furfura Sharif, 10,000 madrassas, Bhangor Medical College, Garden Reach Nursing College, etc. Morcha govt. will make factories in Bengal.”
“Where is Sonar Bharat that BJP now promises Sonar Bangla? In Jharkhand where BJP had formed government they were chased out by tribals whose rights pertaining to forests were being oppressed. BJP manifesto claims-free education for women but is this new? Former PM Vajpayee had promised it in 1999 but it only remained a false promise,” remarked Salim.
Meanwhile, ISF founder Siddiqui attacked BJP for bringing “outsiders” to fill up rallies. “We have our desi (locals), don’t need videsis(foreigners). No dadagiriwill be allowed in Bengal which needs to put an immediate lockout on ‘Trinamul Congress Factory’ to bring development in the state.”

domain: politics


Unlock The Controller. It also may plug in to another wire harness which is connected to the controller. Replacement and repair parts for Schwinn brand electric scooter models such as the S-150, S-200, S-300, S-350, S-500, S-750, Stealth ST-1000 and many more. Razor replacement 24 Volt (7 connector) control module for the chain driven Razor E100 & E125 (versions 10+), E150 (version 1+) and E175 (version 18+) Electric Scooters. Along with the electric scooters, you would have got the warranty policy as well as the return policy details. While we’ve compiled a list of common issues and their fixes later on in the article, your first steps are to put your scooter’s failures into words. We can repair your controller Click Here to learn more. There is a huge community of Mi M365 owners and this scooter has the most documented upgrades and repairs of any electric scooter on the market today.. This 30 amp controller is a replacement for electric Scooters using up to 500 watt 24 volt motors. Cheap Electric Bicycle Accessories, Buy Quality Sports & Entertainment Directly from China Suppliers:Original OX controller electric scooter 60V control board adult scooter repair Parts Enjoy Free Shipping Worldwide! Eurton Electric repairs all Pride Mobility powerchair and scooter motors and controllers. Only, in that case, it will become possible to use the electric scooter. The next time around, your electric scooter gives you any problem, rather than getting worried, it is better to use our guide above. An E-scooter can stop working for a myriad of different reasons. If it’s a mechanical issue, send it to the shop. Most problems highlighted above are easy to handle. Electric controller problem. Electric Scooter, Bike, and Go Kart Repair Forum 619 Ask a question and get an answer from one of our repair experts about fixing your electric scooter, electric bike, or electric go kart. If yes, you would know that electric scooters can undergo wear and tear and perhaps need repairs as well. Welcome to this epic electric scooter blog - Voltage Rider! Battery Charger 24V for Lithium Batteries GoGo Folding Scooter Battery Charger Scooter / Wheelchair . You will need tofind some insulated wire to do this procedure and cut 2 piecesapproximately 6-8 inches in length. However, it is the speed controller that keeps them in check. Was: $15.99. Hold the On/Off button down for about 4-seconds to lock the controller. In both cases, it is better to get your electric scooters repaired right away because the faulty speed controller can be pretty risky. In all probability, the electric scooters can traverse at a higher speed than what they are rated for. Our selection near you can’t be beat. Hang or block the rear wheel off the ground, or remove the chain or belt from the motor before connecting the battery pack to the speed controller. In short, if you can detect the problem or even detect the fact that there is something wrong with your scooter, you can get it fixed. It is a good idea to enquire from them in advance before taking your electric scooter to their store. Loose wires are a big cause of unpredictable issues, though they’re unlikely to prevent your scooter from starting. In the case of a faulty speed controller, it might detect the speed inaccurately. Common reasons your electric scooter isn’t working: 1. Currently out of stock. The dead or undercharged battery is by far the most common electric scooter issue, and has a very simple solution: plug in the scooter to leave it to charge. Our store can help locate specific electric mobility scooter … If this happens, the engine may fail and the scooter may not turn on at all. Every single electric scooter has an electric controller. This will let you know right away the kind of problem which it is facing. Electronics . If a battery isn’t charging, you may have an electrical controller issue, which there’s an entire section for later on. Dead battery: 2. Due to this reason, there are quite a few ways to get it fixed. Extreme scooter electrical back tire won’t move cannot push start front tire moves back tire is Not moving XB 562, Hi my scooter can’t start,but all lights can be on,and its battery is full,what can be its problem exactly,must it to the shop or fix it myself, In this article, we’ll give you a quick rundown of how to identify and fix some of the more common. That power gets you speeds as high as 15.6 miles per hour, and it has a decent hill grade of 14-degrees. How To Lock Your Electric Scooter – Electric scooters are portable, fast, fun, and we can’t forget expensive. $12.99. If you find that a fuse is blown out rather than flipped, you’ll need to replace the fuse, which should be done by a professional unless it’s easy to disconnect your battery from the rest of the electrical system. The question plays a significant role when you’re looking for places to get it repaired. It will not only help you know more about the issues which electric scooters face but also the solution that you should opt for. A scooter with its engine kill switch on will have an engine that refuses to move, but you will be able to get other features of the scooter like lights and its console to be powered, which can be confusing. You must pay any outstanding repair charges and collect your scooter within 30 days of being notified that it is ready for collection. They will be able to help you with any electric problems with your scooter. This control works similarly as cruise control , and it limits the requirements of your efforts to make your ride more reliable. Many electric scooters also have an automatic shutdown mechanism to ensure that the motor does not heat up beyond the level. We accept PayPal or call 806-416-1381 to order by credit card. Test the battery to see how it’s currently performing. The first step of the repair process is identifying the problem with the scooter. You wanted an easier, faster, better way to get around. Electric scooter repair If you put enough miles on your scooter, chances are you will have to do some type of maintenance. However, it can deteriorate over time. If it does, then the braking lever wire needs to be replaced. Electronic speed control or ESC is an electronic circuit that controls and regulates the speed of an electric motor. £2.99 to £27.99. Electric E Scooter Bike 24 Volt Lead Acid Battery Charger 24v EU Male Plug Euro. At 11 amazing miles per hour, with a twist-grip acceleration control, and a kick-start, high-torque hub-driven motor, the Power Core E100 is a maintenance free, energy efficient way to take your fun even farther. Do you prefer a professional to take a look at your scooter? If any wires are damaged then the controller is most likely defective. Look for any burned or melted wires that are connected to the controller. IF YOU WANT TO MAKE SURE YOU ARE PURCHASING THE CORRECT PART PLEASE … While it’s extremely unlikely that your scooter will have a popped transistor, they’re easy and cheap to replace—just clip out the old transistor from the bottom and solder in your new one using a minute amount of solder. There are only 4 more connectors left on the controller … And now you have it with the Swagger 7T Transport electric scooter from SWAGTRON®. It is very possible that the throttle pot has failed. If the number is … In both cases, your ability to use the electric scooter gets significantly reduced. Electric Scooter Repair in Ogden on YP.com. If the scooters uses a fuse, look at the inside of the fuse to see if it is burned-out. If there aren’t any loose connections or flipped fuses or blown fuses on your electrical controller, look for popped transistors. These batteries have a high power density and recharge very quickly, making them useful in high-performance electric vehicles.. The popularity of electric scooters, as well as other electric mobility solutions, is increasing at a rapid pace. Congrats, your now a EV Tech. 4. However, controllers are susceptible to all kinds of problems. Electric Brushless Motor 48 Volt 2000 Watt Motor Chain Drive for MAF X2000s. Inspect the brake lever switch, circuit breaker, battery charger, power switch, or even test the battery. This is essentially … 5. This is a blog for electric scooter enthusiasts from all over the world. 85*60*30mm (main body) Check the fuses on your scooter for burnout. Great Savings & Free Delivery / Collection on many items. We would cover the most common issues for the electric scooter breakdown below. 1.25" Shunt length Scooter Sunrise/ Quickie Fortress Fracmo Model: P300, 720, 760FS, 760N low voltage .28" x .43" x .54" WHEELCHAIR & SCOOTER BRUSH 1110191A Price: $5.75 Likewise, if your engine isn’t running despite full battery charge and a working ignition, check the main fuse and flip it if necessary. Price: ... Hospital Bed Hand Control Full Electric /Drivemedical Hospital Bed Hand Control … We included a bike repair stand as can be retrofitted to become a scooter stand. Repair stand stores would surely have experience in dealing with electric bikes have a seat and!... And ride quality of the deconstruction perfect option for you event of an electric scooter blog - Voltage Rider 10... Scooter totally unresponsive and take longer to charge detect the speed of an electric scooter path you choose be! Pay any outstanding repair charges and collect your scooter ’ s wrong with your ’! 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The effect of heat transfer medium (HTM) on the environment is associated with ozone layer depletion and global warming. The role of HTM (working fluid) in the heating and air conditioning industries is paramount, which cannot be underestimated. The conventional refrigerant has been predominantly used over decades due to their thermodynamic properties. However, hydrocarbon refrigerants such as isobutane are considered substitutes because they have negligible global warming potential and zero ozone depletion. That makes it eco-friendly among other existing refrigerants. The investigation of the refrigeration system’s performance characteristics required consideration for the coefficient of performance, refrigerating effect, and the compressor work; this enables the determination of the system’s efficiency without any assumption. Another factor that suggests a better absorption of refrigerant (working fluid) into a refrigeration system is an increase in the coefficient of performance (COP). The effect will cause a reduction in the rate of energy consumption by the compressor. The result shows that the system’s coefficient of performance when using R600a was 27.1% higher than when working with R134a, with an energy reduction of 23.3%.
Part of the book: Low-Temperature Technologies and Applications


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The lowdown on iPhone XS, XR and Watch 4
Three brand-new models, including a low-cost option
Apple announced three new iPhones at its special September event, taking its iPhone X redesign to the next step. All three models follow the design language established by the iPhone X, which Apple sees as the future of its smartphones, and feature all-screen displays that eliminate the Home button. Largely confirming pre-event rumours, the three devices are named iPhone XS, XS Max and XR.
Let’s start with the XS and XS Max. Both come equipped with OLED Super Retina HD displays that make use of almost the entire front of the phone. The 5.8-inch OLED display of the XS has a 2436x1125 resolution with a pixel density of 458ppi; the XS Max, meanwhile, weighs in with a 2688x1242 resolution, also with a pixel density of 458ppi.
One of the best features of
the iPhone X was its Face ID system that let you unlock your phone by simply looking at it. Both the XS and XS Max are equipped with a faster version of Face ID.
The dual-camera setup on the rear of the devices has also seen a boost, with Apple working its magic on Smart HDR and clever depth of field systems. The former captures several frames every time you snap a photo and automatically combines them to create colour-rich, high dynamic range images. The latter lets you adjust the depth of field in your shots after you’ve taken them, and was one of the more impressive moments of the launch.
Both models are waterproof to a depth of two metres, feature a powerful new A12 Bionic chip, have improved battery life and integrate a dual SIM card system.
If you’ve been reading this and thinking it’s probably all too expensive, the iPhone XR will be of great interest. It’s got many of the headline features of the XS and XS Max – Face ID, Portrait Mode, all-display front, A12 Bionic chip – but squeezes them into a more affordable model.
Of course, some corners are cut – the display is LCD, for example, rather than OLED. But even here, Apple says it will blow you away. Branded as a Liquid Retina HD display, Apple claims it is the “most advanced LCD display ever in a smartphone”. It has a 326ppi pixel density, and True Tone and wide colour support.
On the inside of the XR is an A12 Bionic chip, like in the higher-end models. This is the first seven-nanometre chip inside a smartphone, allowing its internal graphics processor to be up to 50% faster than in the A11 Bionic chip. Apps will launch up to 30% faster, says Apple – but don’t forget that iOS 12 is set to speed up older phones, so you may not need to upgrade just yet.
Even the camera system of the XS and XS Max makes it to the XR – sort of. The XR has a single-lens camera, but is still able to create Portrait mode photos with depth of field effects thanks to smart software. It will also let you adjust the depth of field after you’ve snapped your pictures.
The iPhone XS starts at £999 and comes in silver, space grey and gold. The XS Max comes in the same colours and starts at £1,099 (up to a huge £1,449 for the 512GB model). The XR starts at £749 and comes in six different colours.
Even the camera system of the XS and XS max makes it to the XR – sort of
The iPhone XS and XS Max are Apple’s top offerings.
The iPhone XR packs in highend features for a lower price.


The incredible performance ability of this down-insulated, waterproof jacket may leave you speechless. Breathable Marmot MemBrain fabric shields against moisture; 650-fill goose down provides toasty warmth. Reinforced shoulders and elbows for added durability. Zip-off Storm Hood with bonded brim and zip-off powder skirt keep snow out. HD brushed tricot collar lining and micro fleece internal cuffs lend a soft touch.
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