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HR and Tax Newsletter - August 2005



TORTURE CLAIMS BROUGHT AGAINST DEL MONTE

Seven former union leaders from Guatemala were permitted by the Eleventh Circuit to bring torture claims against Del Monte Fresh Produce Inc. and its Guatemalan subsidiary. The subsidiary hired a private, armed, security force to drive the union leaders from the country by threatening them with death. The union leaders brought claims under the Alien Tort Claims Act and the Torture Victim Protection Act. Private armed security forces are permitted in Guatemala.

The plaintiffs alleged that more than 200 heavily armed men arrived at the union office, took two union leaders hostage, threatened to kill them, and shoved them around with guns. The mayor and several armed men forced the top two union leaders to the radio station to announce that a labor dispute was over and that they were resigning their positions. They were taken back to the union office, where all seven union leaders were forced at gunpoint to sign a resignation form prepared by Del Monte. They were released at 2 a.m. the next morning. The leader of the security force allegedly threatened to kill the union leaders if they did not leave Guatemala or if they went to Mexico. The seven plaintiffs now live in the United States.

Torture claims

The court concluded that state-sponsored torture is actionable under both the ATCA and the TVPA but reasoned that Guatemala's registration and toleration of private security forces did not transform these forces' acts into state acts. It found that the union leaders failed to show that the police knew about the conduct in question and purposefully ignored it. However, it found the mayor's forcing of the union leaders at gun point to a local radio station so that they could announce that they were resigning and that the labor dispute was over were sufficient allegations of state action.

The TVPA includes a specific definition of torture, while torture is actionable under the ATCA if it violates the law of nations. The ATCA provides a cause of action for that modest number of international law violations that had a potential for personal liability in 1789, when the law was enacted. New claims may be recognized if based on the present-day law of nations and rest on a specifically defined norm of international character accepted by the civilized world. The federal courts are to use great caution in considering new types of claims and to limit recognition to claims based on a narrow class of international norms.

The court rejected the argument that the TVPA amended the ATCA and therefore provides the exclusive remedy for torture. It noted that the courts often look to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which includes a detailed definition of torture that differs somewhat from the TVPA's definition and that it did not have to read the TVPA as narrowly as the ATCA.

The court concluded that the allegations that the union leaders were restrained by a heavily armed security force and repeatedly threatened with death could constitute torture under both statutes' language regarding intentionally inflicted emotional pain and suffering but that the allegations of physical violence--including pushing, shoving, and pulling hair--were not severe enough to constitute torture in violation of either statute's provisions on intentionally inflicted physical pain and suffering.

Non-torture claims

The court rejected the union leaders' three non-torture claims under the ATCA--cruel, inhuman, and degrading treatment or punishment; arbitrary detention; and crimes against humanity. The union leaders relied on the International Covenant on Civil and Political Rights, but the court pointed out that the Supreme Court decided the covenant did not create obligations that are enforceable in federal court. The court concluded that the detentions were too short to qualify as arbitrary detentions under the ATCA and that the claim for crimes against humanity, which requires a widespread or systematic attack on a civilian population, was not supported by allegations of the complaint. Villeda-Aldana v.Del Monte Fresh Produce N.A.

PRATT & WHITNEY TO PAY SETTLEMENT TO ARMY RESERVIST WHOSE JOB WAS ELIMINATED

Pratt & Whitney is obligated to pay $30,000 to settle allegations that it violated the Uniformed Services Employment and Reemployment Rights Act of 1994 by eliminating the job of an Army reservist who was called to active duty. USERRA prohibits employment discrimination based on a person's past or present military service. It requires employers to rehire returning military personnel in their previous job or to a comparable new position. The settlement was obtained by federal prosecutors who stated their intent to vigorously enforce the law.

The payment is to be made to a retired Army major who worked at Pratt & Whitney's Jet Propulsion site in Palm Beach County under an out source labor contract between Pratt & Whitney and EDF Co.

The major was recalled to active duty in April 2002 and served mostly in Kuwait, returned home six months later and was informed his job had been eliminated. No comparable position was offered to him. Under the settlement Pratt & Whitney was not obligated to admit wrongdoing.

FLORIDA COURT OVERTURNS SEXUAL HARASSMENT AWARD

A Florida appellate court overturned an $81,000 jury award to a convenience store clerk on the grounds that the sexual harassment she alleged was neither severe nor pervasive enough to warrant the award. The court concluded that the conduct in question (compliments delivered in flirtatious manner that plaintiff was hot and would look good as a biker chick) was not sufficiently severe or pervasive to create a hostile working environment. The court said Dupont's claim under the Florida Civil Rights Act must be construed according to the standards of Title VII of the Civil Rights Act of 1964, which the state law mirrors. Speedway Super America v. Dupont.