Arrivederci, At Least Till Mid-June

This Employer's Lawyer will be vacationing in Tuscany, and although I may occasionally wander into a cyber cafe, it is unlikely that any more Jottings will be posted until my return in mid-June.

Thinking Outside the Box - Babies At Work

Workforce.com is a great site for highlighting employers who are trying different approaches with their employees. This recent story concerning an unusual practice at the National Association of Insurance Commissioners , Babies Deliver a Loyal Workforce, describes how their policy of allowing employees to bring their babies to work for the first six months has proved to be a great retention incentive.

Employee Benefits and the ADEA - Always in Flux

The Employee Benefits Institute of America, Inc. spotlights a Western District of N.Y. decision that an employer's plan reducing benefits to retirees because of medicare eligibility poses a potential problem, and uses it to comment on the general fluidity of the law in this area.

Always Nice to Have A List of The Employee Thresholds For Various Acts

And HR Comply has one.

A Nice Story About A Fellow Employer's Lawyer

The Atlanta Business Chronicle story on the first African American female to make partner at King & Spalding, Lovita Tandy, is also interesting for her slant on the role of a lawyer being on the management side of employment law cases. And congrats to her on making partner.

Now This Is A Favorable Headline

Stockton pays $7,500 to settle sexual-harassment suit

says the headline from the PressofAtlanticCity.com; whereas the text of the story makes it clear that the settlement was actually $75,000.

How A Workplace Dispute is Reported in England

There are many differences in the legal proceedings between the U.S. and England, but the press reporting is clearly one of those. In a story about a female investment banker's employment claim against a bank and a former colleague, their names are omitted for "legal reasons". In many ways, some of her complaints might sound familiar to those who have read the recent best seller, "I Don't Know How She Does It" about the fictional life of Kate Reddy, a mother/investment banker facing challenges at work and at home. And when we will see a claim here for bullying or victimisation, which apparently is different from sex discrimination?


And the Telegraph story mentioned one of those trial strategies that apparently didn't work: "Paul Goulding QC, in closing submissions, described her as a lonely and unhappy person, troubled by the lack of a male partner." Back to the drawing board on that one.

Why There Should Be A Delay Program Built Into Email

And perhaps the higher you are in an organization, the longer the length of time. Or at least you might think so based on the number 1 story in today'sThe Five Dumbest Things on Wall Street This Week from the Street.com. According to the article a worker at Peoplesoft fearing his near termination wrote to the CEO Craig Conway about his belief he was being discriminated against because of his race. The email reply: "I am not familiar with your specific circumstances, so I can't comment. But I would recommend reading any of the writings of Shelby Steele or J.C. Watts before blaming your circumstance on race." It might even be a good point, but my guess is that in retrospect CEO Conway might have wished for a time delay on his email program, allowing him to retract that one before it flew back through cyberspace.

Contraceptive Equity - A Topic for the Speaker's Circuit, But Already Resolved in Texas

You can often determine what are the 'hot topics' of the day in the employment law field by the subjects being featured prominently in the many CLE and other educational conferences being held. The topic of contraceptive equity, a movement designed to require that insurance cover contraceptives taken usually by females, seems to be having its day in the sun. The argument got a shot in the arm with the 1998 introduction of Viagra, which is generally covered by employer sponsored insurance programs whereas many such programs regularly exclude contraceptives. The movement originally fueled by unions has been successful in a number of states, including Texas, in getting such legislation passed. The Texas legislation was H.B. 2382 in the 77th legislative session. Now the topic is in for more discussion as the ABA airs a teleconference on June 4th where it is the sole subject of discussion. Although I didn't find it on the ABA web site, their e-mail indicated the following objectives and panelists:



Learn from this program:



* The latest developments - pending lawsuits, new legislation, and trends in adding coverage



* Does Title VII require contraceptive equity from employers? Arguments pro and con



* Are there legitimate cost concerns employers should consider?



* Interplay between Title VII and ERISA issues



* Are there any other valid reasons not to include prescription contraceptives in an otherwise comprehensive health plan?



PANELISTS

Judith C. Appelbaum

Vice President, National Women's Law Center

Washington, DC



Howard Shapiro

Shook, Hardy & Bacon L.L.P.

New Orleans, LA

Now This Is Tort Reform - To Its Ultimate

The South Florida Business Journal has the story of a million dollar verdict for a workers compensation retaliation, that has now been thrown out of court because of the plaintiff's testimony. Although the jury seemed to buy it, neither the trial judge who granted a new trial, nor the appellate court which disallowed the new trial and instead dismissed the case, did. And in fact, reacted quite negatively, terming the, now unsuccessful, plaintiff a 'miscreant.' This one is worth reading.

Possible Change on the EEOC's Position on Arbitration?

In 1997, the EEOC issued a policy statement opposing the use of predispute arbitration agrements to resolve employment disputes that fall under its jurisdiction. Largely overtaken by case law favoring such agreements, it carries little weight except perhaps in the 9th Circuit. But according to a story in the National Law Journal, there is a behind the scenes battle to change it to a more arbitration friendly policy.

Good Advice from Down Under - Don't Fire By SMS

Thanks to Jeni Houston, who is also an employer's lawyer, for catching this story about an Australian traffic controller upset over the manner in which his termination was communicated. He got the following text message, complete with misspellings: '"Its official, you no longer work for JNI Traffic Control and u have forfided any arrangements made."


Suggesting that some modern technology such as voice mail, email and short messages are not appropriate methods of official communications, the Labor Commissioner ordered the parties to attempt to reconcile their differences, which they did. Sometimes it is not the firing, but how it is done, that sparks the fight.

5th Circuit Age Ruling - Guidance on Liability, Wilfullness, Mitigation and Even Attorneys Fees

Today's opinion in West v. Nabors Drilling USA, Inc., (5th Cir. 5/20/03) [pdf] discusses a number of issues that arise in discrimination cases in general, and the age cases in particular. Judge Fitzwater, a district judge in the Northern District of Texas, clearly explains the standard of reviewing the evidence after a jury finding of liability. The Reeves decision means that proving pretext alone may be enough. Judge Fitzwater's analysis of the evidence is a good example of the conclusions that can be made to get to that point. (And it certainly didn't help that one of the employer's witnesses had served 21 months in prison for a drug offense between the termination and the time of trial and that another witness gave a false affidavit only 4 months before trial.)


The Court not only upheld liability, but it rejected a heightened standard of egregious facts to support liquidated damages. Instead it harmonized prior 5th Circuit law to be squarely within the confines of the U.S. Supreme Court decision in Trans World Airlines, Inc. v. Thurston, which holds willfulness is present "if the employer knew or showed reckless disregard for whether its conduct violated the ADEA." Judge Fitzwater noted that the jury found that Nash, who made the termination decision, did it because of West's age. With that finding, there is no way to conclude that he did it in the mistaken belief that his action was legal under the ADEA.


Although upholding the verdicts on both liability and exemplary damages, the employer's pain was lessened significantly by the the Court's holding on mitigation. Finding that after two months trying to get Nabers to rehire him, West elected to apply and work as a truck driver at a much lower wage than he was earning as a toolpusher for Nabers. That was not sufficient mitigation. The Court cut off his damages as of the date he applied for and accepted the lower paying job, finding he had an obligation to continue to seek work of a similar nature to that he was doing. Finally, although it upheld an award of attorneys fees, it sent the amount back for further review since it was likely that the damage award following its ruling on mitigation would be substantially lower. Although noting that proportionality of the fee to the damage award is not required in the 5th Circuit, it is certainly one of the factors to be considered. An admonition that I am sure that Judge Fitzwaters' fellow district court judge will consider on remand.


Although lengthy, this case provides a good example of the legal complexities of even a "simple" case, and a good summary of some of the basic principles of discrimination law.

Caveat Employer? Lying At Application Time

As with most employment lawyers, I have had a fair number of cases where employees were later found to have lied about some aspect of their past when they applied. We even have a whole body of law centered around the concept, the after acquired evidence doctrine. But even I was shocked by the numbers in Anne Fisher's Fortune column. According to a study of 2.6 million resumes she cites, "44% contained exaggerations or outright fabrications about work experience, 23% listed bogus credentials, and 41% boasted fictional degrees." Now that's a lot of resume stretching going on.

Supreme Court - FLSA Cases Are Removable

What would have been a major disaster if it had gone the other way, has quietly played out the way it should have. In yesterday's unanimous opinion [pdf] in Breuer v. Jim's Concrete of Brevard, Inc., the Court overruled the position of the 11th Circuit that wage and hour cases were not removable to federal courts. Now for defendants sued in state courts over wage and hour matters under the FLSA, the path to federal court is clearly open.

Interview with Naomi Earp

The new vice-chair of the EEOC, who holds her seat via a recess appointment because of objections to her appointment by a number of civil rights groups, gives an interview to the Hampton Roads, VA Daily Press.

Surprised If This One Stands - Smoker Sensitivity Disability Worth $5 Million

Disability cases are often sympathetic if they get to a jury, witness this report from HRNext, Employee Awarded $5.27M in Disability Suit:. More often cases don't get that far as they get knocked out on legal grounds. Although I don't know the details of New York's disability law, I would be surprised if this verdict stands on the disability claim. Certainly, the folks at Elite Model Management hope it doesn't! Pretty expensive stuff for an employee who only worked 7 months and based on the report seems to have been fired for complaining about others smoking. Certainly this award seems supportive of Mayor Bloomberg's strict smoking ordinance!



Update: A more complete story from Newsday makes it clearer that it was really a retaliation case, which is often the case. Also a substantial portion of the award is punitive damages.

Texas Supreme Court Chooses Federal Drug Testing Rules Over Common Law Cause of Action

Last week, the Texas Supreme Court refused to find a duty of an employer to use care when gathering a urine specimen in order to conduct random testing required by the United States Department of Transportation regulations. Mission Petroleum Carriers, Inc. v. Solomon (Tx 5/15/03). Justice Jefferson's opinion relies on both the comprehensive federal scheme of drug testing set up by the DOT regulations, and the danger that the rule requested by the plaintiff would cause to the employment at will doctrine. Some of his colleagues disagreed on the at will point, finding it unnecessary and thus not a part of the Court's opinion. See concurrence of Judge Enoch. Bottom line, company not liable for failure to use good care in obtaining urine sample.

The Texas Legislature Back In Action, More or Less

The great Democratic departure to Oklahoma left a number of bills to die in House Committees. For House bills, "left pending in committee" means the bill is dead for this session of the legislature. House bills that got out of Committee but did not receive initial passage before the May 15 deadline, are also dead. House bills that survive are in bold.The substance of the legislation could reappear as amendments to Senate bills, but obviously time is running out. Here is the latest:



House of Representatives

H.B. 50 Sylvester Turner (D – Houston) Mandatory leave for employees to attend school conferences, and penalties against retaliation for exercising that right. Referred to Economic Development. Left pending in committee.

H.B. 105 Norma Chavez (D - El Paso) Provides for unemployment benefits, without charge to an employer's account, if an employee is forced to leave employment because of domestic violence. Referred to Economic Development. Left pending in committee.

H.B. 126 Lon Burnam (D - Fort Worth) Requires parity for mental illness in disability insurance policies sold in state of Texas. Referred to Insurance. Left pending in committee.

H.B. 152 Ron Wilson (D – Houston) Limits an employer's ability to obtain so called 'dead peasants insurance,' where an employer obtains a policy on lower paid employees with itself as a beneficiary. Referred to Insurance. Reported favorably without amendments on May 9, and sent to Calendars on May 10, but left pending on the floor.

H.J.R. 18 Suzanna Hupp (R – Lampasas) A constitutional amendment to grant a broad right of privacy. In California, a similar constitutional amendment was used as a basis for finding the constitutional right of privacy extended to non-government employers. Referred to State Affairs. Testimony taken on March 3, 2003. Left pending in committee.

H.B. 181 Jessica Farrar (D – Houston) Allows an individual who receives deferred adjudication to legally deny the arrest and prosecution, except for a subsequent criminal prosecution. This would impact information employers are able to obtain when hiring. The bill passed last legislative session, but was vetoed by Governor Perry. Correction of referral, now referred to Law Enforcement. Public hearing on March 17, 2003, committee substitute considered in committee. Left pending in committee.

H.B. 281 Paul Moreno (D – El Paso) This is not technically an employment bill, but is likely to be one of the most talked about and contested non-financial bills of this session. It would make it a misdemeanor (punishable by a $100 fine) to talk on a mobile phone when driving, unless the car is stopped or the phone is operated without the use of either hand. Referred to State Affairs. Testimony taken on March 3, 2003. Left pending in committee.

H.B. 328 Warren Chisum (R – Pampa) An attempt to allow employers the opportunity to obtain information from applicants about prior workers compensation claims and injuries. The legislation modifies the Texas Commission on Human Rights Act and the Texas Workers Compensation Act, but unfortunately can not shield employers from the Americans with Disabilities Act which prohibits such inquiries. Referred to Business & Industry. Testimony taken on March 4, 2003. Left pending in committee.

H.B. 355 and H.B. 356 Harold Dutton (D – Houston) These are two education leave bills, similar to some of the amendments that have been suggested for the federal Family Medical Leave Act. One would require employers to give time off to employees to meet with teachers, counselors or principals; the other to attend certain school activities. The bills also create new causes of actions against employers for refusing to provide the time off. Referred to Economic Development. Public hearing on March 19, 2003. Left pending in committee.

H.B. 359 and H.B. 371 Harold Dutton (D – Houston) These two bills attempt to limit the use of mandatory arbitration. The first would prohibit arbitration of Texas Commission on Human Rights Act or Title VII claims, the second would prohibit mandatory arbitration until an employee had worked for an employer for at least 90 days. Even if these bills were to pass, if the agreement were covered by the Federal Arbitration Act, these restrictions would be pre-empted. Most, but not necessarily all, employment relationships will be covered by the FAA. Referred to Economic Development. Public hearing on March 19, 2003. Left pending in committee.

H.B. 379 Harold Dutton (D – Houston) Requires employers to allow employees to review their personnel files. Similar legislation has been offered for several sessions. It would make failure to comply by the employer an unfair employment practice, which is treated as a violation of the Texas Commission on Human Rights Act. Referred to State Affairs. Left pending in committee.

H.B. 570 Fred Brown (R –Bryan) For non-subscribers to workers compensation, the bill would cap liability at $250,000 for work place injuries to employees. In order to qualify for the cap, the employer must have insurance meeting certain limits. Referred to Business & Industry. Public hearing of April 1, 2003. Left pending in committee.

H.B. 574 Jessica Farrar (D – Houston) Amends the Texas Commission on Human Rights Act to prohibit discrimination against individuals on the basis of their sexual orientation or gender identity. It would also protect anyone from being treated differently because of the sexual identity of individuals with whom the employee associates. Referred to Business & Industry. Public hearing on March 25, 2003. Left pending in committee.

H.B. 624 Jose Menendez (D - San Antonio). Basically a refined version of Representative Moreno's H.B. 281 which prohibits use of mobile phones while driving. This version has more definitions, some exceptions for emergency calls, and a range of fines that increases if the violation occurs in a school zone. Referred to State Affairs. Testimony taken on March 3, 2003. Left pending in committee.

H.B. 643 Arlene Wohlgemuth (R - Burleson) A technical amendment to the punitive damages cap. Currently, the cap is not applicable where the defendant engages in certain criminal activity. The amendment would require a conviction before the cap would not be applicable. Under the current law, plaintiffs are able to argue that certain conduct should be outside the cap because it meets the literal language of the current statute, even though there has been no criminal prosecution. Referred to Civil Practices. Left pending in committee.

H.B. 705 Burt Solomons (R - Carrollton) Provides a defense against a claim of negligent hiring for employers whose employees enter another's home for purposes of repairs or delivery of goods. The defense would only be available if the employer obtained a criminal record from the Department of Public Safety. The bill gives the employer the right to have that access. Referred to Civil Practices. Public hearing held on April 2, 2003. Amended in committee and passed by the House on May 10. Referred to Senate State Affairs committee.

H.B. 772 Dawnna Dukes (D - Austin) Similar to H.B.105, would allow an employee to quit a job if advised to by a law enforcement officer, a licensed medical practitioner or a licensed counselor because of domestic violence or stalking and still receive unemployment benefits. The employer's account would not be charged. Referred to Economic Development. Amended in Committee and reported favorably on April 30, sent to Calendars on May 6. Left pending on the floor.

H.B. 804 Charlie Geren (R - Fort Worth) Amends Texas minimum wage law to pre-empt any city ordinance setting a minimum wage. It does not apply to government contracts or tax-abatement agreements. In light of recent adoption of a living wage ordinance by Santa Fe, New Mexico, this bill may now get more attention.Referred to Economic Development. Passed the House on April 8, 2003 and sent to the Senate. Referred to Business & Commerce. Reported favorably as amended. Passed on 2nd reading and on intent calendar as of May 19.

H.B. 810 Eddie Rodriguez (D - Austin) Prohibits discrimination by state agencies on the basis of sexual orientation or gender identity. Referred to State Affairs. Left pending in committee.

H.B. 812 Roberto Gutierrez (D - McAllen) Provides that 75% of any award of punitive damage award will go to the Permanent University Fund. The plaintiff would receive 15% and plaintiff's attorney 10%, notwithstanding any other contractual agreement. Referred to Civil Practices. Left pending in committee.

H.B. 826 Yvonne Davis (D - Dallas) Requires employers to turn over any abandoned wage payments to the State Comptroller. Referred to Economic Development. Reported favorably without amendment on April 9, 2003. Passed the House on May 2 and sent to Senate. Referred to Business & Commerce.

H.B. 915 Lon Burnam (D - Fort Worth) Would set a minimum wage for state and local governments. The minimum wage would be the higher of the federal minimum wage or one calculated based on the federal poverty guidelines. Based on the 2002 guidelines, the minimum wage would be $8.70. Referred to State Affairs. Left pending in committee.

H.B. 978 Dawnna Dukes (D - Austin) Restrictions on certain business entities being the designated beneficiary of life insurance policies. Referred to Insurance. Left pending in committee.

H.B. 995 Ken Mercer (R – San Antonio). Expands the public whistle blower statute to also include protection from retaliation for reporting a waste of funds to an appropriate governmental agency. Referred to Government Reform. Public hearing on April 8, 2003. Left pending in committee.

H.B. 1018 Mike Villarreal (D – San Antonio) Would provide a preference by state and local governments for vendors who were certified as family friendly by the Texas Workforce Commission for providing employee dependent care benefits. Public hearing on March 10, 2003. Left pending in committee.

H.B. 1045 Joe Deshotel (D – Port Arthur) Creates an alternative base period for computation of unemployment compensation benefits to remove a period of extended medical disability. Referred to Economic Development. Public hearing on March 12, 2003. Left pending in committee.

H.B. 1136 Mike Villarreal (D – San Antonio) Prohibits discrimination in employment, housing or public accommodations because of sexual orientation. Referred to State Affairs. Public hearing on April 22, 2003. Left pending in committee.

H.B. 1142 Glenn Lewis (D – Fort Worth) Requires health insurance plans to provide for an annual physical with certain basic lab tests. Referred to Insurance. Left pending in committee.

H.B. 1221 Barry Telford Prevents a chargeback to an employer's account if unemployment benefits are provided because the employer was called to active duty military service after January 1, 2003. Referred to Defense Affairs & State-Federal Relations. Passed the House on April 3, 2003. Referred to Veteran Affairs and Military Installations. Reported favorably without amendments. Placed on local and uncontested calendar as of May 19, 2003.

H.B. 1244 Senfronia Thompson (D - Houston) A repackaged version of comparable worth. Prohibits discrimination in compensation by paying less to a person in a protected class for a person in an equivalent jobs under similar conditions. The amount of litigation and control of the workplace that this would create is almost unimaginable. It was a bad idea when first introduced and has gotten no better over time. Referred to Economic Development. Public hearing on April 23, 2003. Left pending in committee.

H.B. 1245 Terri Hodge (D - Dallas) Amends the unemployment statute to allow workers who are locked out by their employer, or who are idled because of a work stoppage at another location to receive unemployment compensation benefits. Referred to Economic Development. Committee substituted reported favorably on April 30. Left pending on the floor.

H.B. 1282 Brian McCall (R - Plano) This is not an employment bill, but an anti-spam one, so certainly one worthy of watching from at least my mailbox's perspective. Referred to Economic Development. Passed by the House on April 3, 2003. Referred to Business and Commerce. Set for public hearing on May 20.

H.B.1359 Aaron Pena (D - Edinburgh) Would make it more difficult to offer evidence of past sexual conduct in civil related cases by adopting the standards and procedures of Rule 412 of the Federal Rules of Evidence. This is the first employment related bill offered by Representative Pena, who in his day job, is the leading plaintiff's employment lawyer in the Valley. Referred to Civil Practices. Public hearing on April 23, 2003. Left pending in committee.

H.B. 1360 Aaron Pena (D - Edinburgh) Amends existing state law with respect to penalties for discrimination against national guard personnel, by removing the current cap on damages which was limited to six months pay, adding punitive damages and utilizing the caps applicable to TCHR claims based on number of employees, with a maximum of $300,000 for compensatory and punitive damages by employers with more than 500 employees. Referred to Defense Affairs and State-Federal Relations. Public hearing on March 20, 2003. Left pending in committee.

H.B. 1496 Burt Solomons Establishes a study to review and propose legislation to strengthen the anti-abuse provisions of the unemployment compensation laws, including increasing collections of overpayments. Referred to Economic Development. Reported favorably as amended in committee. Passed by the House on May 2. Sent to Senate and referred to Business & Commerce. Reported favorably without amendments. Recommended for Local and Uncontested calendar as of May 19, 2003.

H.B. 1524 Senfronia Thompson(D - Houston) Amends the Texas Commission on Human Rights Act to make it illegal to inquire of an applicant, or of any person who knows the applicant, about their sexual orientation. Referred to State Affairs. Left pending in committee.

H.B. 1550 Bill Zedler (R - Arlington) Prohibits unions from spending any portions of dues for political purposes without obtaining a specific authorization from the union member. Referred to Economic Development. Left pending in committee.

H.B. 1645 Kevin Bailey (D - Houston) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs. Left pending in committee.

H.B. 1684 Beverly Woolley (R – Houston). Amends the TCHRA so that the issuance of a right to sue letter by the EEOC would also trigger the 60 day deadline for filing a lawsuit under the TCHRA. This would be extremely helpful in making sure that lawsuits are timely filed and eliminate a major flaw in the current situation. Referred to Economic Development. Left pending in committee.

H.B. 1819 Rene Oliveira(D - Corpus Christi) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Economic Development. Passed by the House on April 3. 2003. Referred to Business & Commerce. Reported favorably without amendments. Passed by House on April 3, 2003. Sent to Senate and referred to Business & Commerce, reported favorably without amendments. Passed by Senate. Signed by Governor and effective immediately as of May 15, 2003.

H. B. 2001 Harold Dutton (D - Houston) Adds a federal medical support notice to the requirement that employer’s must follow in withholding from their employee’s. Referred to Juvenile Justice & Family Issues. Reported favorably by Committee and sent to Local & Consent Calendar on April 11, 2003. Sent to the Senate and referred to Administration. Reported favorably without amendments. Passed by Senate on May 8, and sent to the Governor on May 12, 2003.

H.B. 2028 Aaron Pena (D - Edinburg) Although applicable only to local governments, this is noteworthy of the type of legislation that may be offered by Representative Pena, who is also an employment lawyer representing employees. This legislation establishes a Sabine Pilot cause of action for employees who are required to commit an illegal act. Unlike the common law version, it does not have a sole cause standard. It also establishes punitive damage caps tied to the size of the agency, provides for civil penalties and under certain circumstances would require an audit of a local government that has been found liable and assessed damages of more than $10,000. Referred to State Affairs. Left pending in committee.

H.B. 2170 Burt Solomons(R - Carrollton) Sunset legislation concerning the renewal of the Texas Workforce Commission. Contains a number of substantive changes. Referred to Economic Development. Public hearing on April 9, 2003. Left pending in committee.

H.B. 2347 Sid Miller (R - Stephenville) Provides that all punitive damages go to the state general fund. Referred to Civil Practices. Left pending in committee.

H.B. 2395 Frank Corte (R - San Antonio) Would substantially rewrite the common law of defamation by requiring that there be a request for correction or clarification of defamatory statements, and limiting recovery to actual damages if a correction or clarification were made in a timely manner. Referred to Civil Practices. Public hearing on April 23, 2003. Left pending in committee.

H.B. 2698 Ryan Guillen (D - Rio Grande City) Eliminates the 7 day waiting period for unemployment compensation. Referred to Economic Development. Left pending in committee.

H.B. 2933 Kino Flores (D - Mission) Transfers the Texas Commission on Human Rights to the Attorney General. Referred to Government Reform. Committee substitute reported favorably on April 23. Amended on House floor and passed on May 10. Referred to Senate Committee on Government Organization.

H.B. 2949 Reuben Hope (R - Conroe) Requires that a waiver of right to a jury trial use specific language and be in 16 point type. Part of the required statement is that the waiver is not required by law. Referred to Civil Practices. Public hearing held on April 9, 2003. Left pending in committee.

H.B. 3060 Kino Flores (D - Mission) Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Correction in referral, now referred to Licensing & Administrative Procedures. Left pending in committee.

H.B. 3065 Joe Deshotel (D - Port Arthur) Would require that any jury mirror the racial and ethnic make up of the county in which it is picked. Referred to State Affairs. Left pending in committee.

H.B. 3160 Jaime Capelo (D - Corpus Christi) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs. Public hearing held April 9, 2003. Left pending in committee.

H.B. 3220 Dwayne Bohac (R - Houston) Amends the workers compensation statutes to allow for a request for clarification on a determination of maximum medical improvement and related technical changes. Public hearing held April 22, 2003. Referred to Business & Industry. Left pending in committee.

H.B. 3278 Ryan Guillen (D - Rio Grande City) Creates a cause of action for employees terminated because they are served or comply with a subpoena. Referred to Business & Industry. Left pending in committee.

H.B. 3308 Jaime Capelo (D - Corpus Christi) Amends the Texas Payday Act to allow payment by direct deposit. Referred to Economic Development. Reported favorably without amendments. Passed House on May 16, 2003.

H.B. 3379 Norma Chavez (D - El Paso) Amends the Texas Commission on Human Rights Act to prohibit an English only rule, with certain exceptions. Referred to Economic Development. Left pending in committee.

H.B. 3401 Bill Zedler (R - Arlington) Repeals the little "Davis Bacon" laws which require a prevailing wage for certain governmental contracts. Referred to Economic Development. Left pending in committee.

H.B. 3430 Trey Martinez Fisher (D - San Antonio) Amends the Texas Arbitration Act to make it more difficult to require arbitration of consumer matters where less than $50,000 is involved, adds additional standards for appeal, including an additional standard of review based on the correctness of the arbitration award itself, and allowing an appeal of denial of a motion to compel even when the Federal Arbitration Act is applicable. Referred to Civil Practices. Left pending in committee.

H.B. 3462 Mike Villarreal (D - San Antonio) Amends the Texas Commission on Human Rights Act and the Workers Compensation Act to make it clear that an employee's immigration status alone does not bar him from being covered. Referred to Border and International Affairs. Public hearing held on April 2, 2003. Committee substitute reported favorably on April 2, 2003. Vote reconsidered on April 3, 2003. Considered on April 30, and failed to receive affirmative vote, left pending in committee.

H.B. 3463 Mike Villarreal (D - San Antonio) Couples a prohibition against sexual orientation or gender identity discrimination (including a prohibition against discrimination because of the gender identity or sexual orientation of those the employee associates with) with a prohibition against recognition of same sex marriages. Referred to State Affairs. Left pending in committee.

Senate

S.B. 33 Judy Zaffirini (D – Laredo) Establishes a right to leave to attend certain school functions for employees. Referred to Business & Commerce.

S.B. 61 Judy Zaffirini (D – Laredo) Modifies the existing law on criminal background checks for nursing home employees and applicants. Referred to Health and Human Services.

S.B.137 Rodney Ellis – (D- Houston) Prevents employers from obtaining 'dead peasant's insurance.' Referred to State Affairs. Reported favorably as substituted and passed the Senate on May 15, 2003.

S.B. 328 Royce West (D - Dallas) Requires an arbitrator and/or arbitration services provider to file a public disclosure within 30 days of the entry of the award by the arbitrator. Failure to do so could result in a fine, and multiple failures could result in the arbitrator being barred from court ordered arbitrations and being listed on a public list maintained by the Office of Court Administration. The disclosure would require the names of the parties, the general nature of the claim and the relief sought, the award by the arbitrator and the costs charged by the arbitrator and the arbitration services provider. It is designed to be a supplement to existing arbitration laws, including the Federal Arbitration Act. Referred to Jurisprudence. Public hearing on April 30, pending in committee.

S.B. 374 Tommy Williams (R - Woodlands). Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Passed the Senate and sent to the House. Correction in referral, now in Licensing & Administrative Procedures. Reported favorably without amendments. Sent to Local and Consent calendar on May 9, 2003.

S.B. 390 Rodney Ellis (D - Houston) The first Senate bill to prohibit use of a cell phone while driving. Referred to Criminal Justice.

S.B. 819 Troy Fraser (R - Horseshoe Bay) Amend workers compensation statute so insurance carrier can challenge compensability even if it misses the seven day deadline for beginning benefits or contesting the injury. Although able to challenge compensability, missing the deadline would constitute an administrative violation. Referred to State Affairs. Public hearing and reported favorably without amendments on May 1, 2003.

S.B. 820 Troy Fraser (R - Horseshoe Bay) Amends workers compensation statute to make first impairment rating final if an objection is not filed within 90 days. Referred to State Affairs. Reported favorably without amendments and passed on May 13. Sent to House and referred to Business & Industry.

S.B. 844 Gonzalo Barrientos (D - Austin) Would remove the restriction on local governments from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to Intergovernmental Relations.

S.B. 956 Robert Duncan (R - Lubbock) Directs the state auditor to study ways of improving collection of overpayments of unemployment compensation and for the Texas Workforce Commission to implement those methods. Referred to Business & Commerce.

S.B. 981 Kim Brimer (R - Fort Worth) Amends the unemployment compensation statute to remove disqualification because of a labor dispute at another facility. Referred to Business & Commerce. Public hearing on April 22, 2003, pending in committee.

S.B. 997 Royce West (D - Dallas) Requires an arbitrator to provide certain information about an arbitration, including a copy of the award, to the Office of Court Administration within 31 days of the award. Would allow parties to request that the record be sealed under the same standard applicable to court documents. Referred to Jurisprudence.

S.B. 1190 Eddie Lucio (D - Brownsville) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Business & Commerce.

S.B. 1298 Frank Madla (D - San Antonio) Requires hospitals to adopt policies to improve the workplace for nurses and other employees including more use of ergonomics and plans for workplace violence. Referred to Health & Human Services.

S.B. 1333 Gonzalo Barrientos (D - Austin) Transfers the Texas Commission on Human Rights to the Attorney General. Referred to Government Organization.

S.B. 1478 Royce West (D - Dallas) Amends the whistleblower statute applicable to public entities by permitting a report to be made not only to an appropriate law enforcement authority but also an employee within the employing governmental agency who has the authority to act on the complaint. Substitutes an amount of ten times the annual salary (not including overtime) of the employee for the existing damage caps which are tied to the size of the governmental entity. Referred to Jurisprudence. Public hearing on April 23, reported favorably as amended.

S.B. 1648 Kyle Janek (R - Houston) Amends TCHRA to start time for filing suit run from receipt of right to sue notice from either the EEOC or the TCHR. Referred to Jurisprudence.

S.B. 1740 Rodney Ellis (D - Houston) Requires a jury to have the same racial and ethnic composition as the county in which it is selected. Referred to Jurisprudence.

S.B. 1806 Chris Harris (R - Arlington) Provides penalties for an employer failing to comply with a national medical support order. Referred to Jurisprudence. Committee substitute reported favorably on April 14, 2003. Recommended for local & uncontested calendar.

Sex Bias in Pay - The Debate Continues

A recent study by June O'Neill, a professor of economics in the business school at Baruch College in New York and a former director of the Congressional Budget Office, featured in an article in Sunday's Chicago Sun-Times finds that up to 97% of pay differentials between men and women can be attributed to choices, not discrimination. Sounds similar to the findings of economist Thomas Sowell in several different areas. Still as Sun-Times writer Kate N. Grossman points out, there are others who still see bias as a culprit.


Professor O'Neill is not new to this area of study, having testified before a Congressional committee in 2000, and also contributing an article on the ill fated theory of comparable worth to the Concise Encyclopedia of Economics.



Update: Thanks to writer Kate Grossman for pointing out that O'Neill's study was able to explain up to 97% of the reason for wage difference, not a flat 97% as I originally wrote it. The study explains 91% to 97% depending on which coefficient O'Neill uses in her regression analysis. So best case, still an unexplained 3%. About a year's raise difference these days.

Sexual Harassment in the Weekend Papers

From the QuadCitiesOnline to the Seattle Times, the weekend papers have stories about women who have chosen to fight back against sexual harassment. In Quad Cities, it is a support group started by a woman who didn't file a suit, while in Seattle it is a women who has already collected nearly a million dollars. You would think after all the news media attention and the corporate training, the problem would be diminishing, but it doesn't seem to be. Then on the other hand, who would think that politicians with great careers would risk them for sexual dalliances e.g. Gary Hart, Henry Cisneros and the list goes on. Maybe it just shows that there is more truth than we would like to think in the old joke about what (many) men really think with.

Update on Texas Legislative News, To Let You Know There Will Be No News

At least not for awhile. In a replay of a strategy used in the Texas Senate more than 20 years ago, 53 Democratic House members have absented themselves from the State Capitol, resulting in a lack of a quorum. Although there whereabouts is unknown, they are rumored to be beyond state bounds to avoid the reach of searching DPS officers. The immediate bill to cause the bolt was a Congressional redistricting bill which needs to be considered by Thursday. Check out the story in the Austin American Statesman. Update on actual legislative actions soon.

Texas Supreme Court Trying to Reign In Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress is often a struggle because of the way people act and because of the variable nature of the standard, "extreme and outrageous conduct". In an effort to avoid having that merely be based on the opinion of the last court to hear the matter, the court has chosen to give in great detail the behavior of a party to a construction contract during the dying days of the owner of the other party. Tiller v. McClure (Tx May 8, 2003). Noting that the most outrageous act was the owner's demand that the construction project not be shut down for the day of the funeral, the Court still found that this did not rise to the high level of misconduct necessary to support an intentional infliction of emotional distress verdict. Instead the Court seemed to put renewed emphasis on physical threats as a keystone to such findings. Although it is better to have the standard tightened, it will remain problematic until the Court makes it crystal clear that it is only to be allowed in the most severe cases, only where there is clear physical threat or danger, and then is a remedy of last resort.

Sarbanes-Oxley - One Company's Approach

A known "whistle blower", but also an employee you feel strongly should be terminated, what do you do in face of certain civil charges, and possible even criminal ones? Check the BizJournals story for how IDX Systems Corp. is handling it. Their approach is to seek a declaratory judgment that they can terminate Dr. Mauricio Leo who they claim is a "prickly malcontent". 10 days after their declaratory judgment was filed Leon filed a charge with the DOL under Sarbanes-Oxley. The jurisdictional fight alone on this one should be interesting.

Always Nice to Report a Non-Million Dollar Verdict

And it looks like UPS has one here in Texas. UPS wins discrimination case And it wasn't like the EEOC wasn't trying to hit a home run according to the story: "The EEOC had filed the suit and asked the jury to award the employees $248,000 in back pay and up to $300 million in punitive damages." A San Angelo jury took less than an hour to toss the case according to the story in the San Angelo Times. Julie Schlabs, the staff writer for the Times had stories featuring the testimony of a union steward , the wife of one of the plaintiffs, and about the former UPS manager who was apparently the source of many of the complaints.

A New Source of Legal Information For Employees

The internet really serves as a great dispenser of information, some of it good, some of it not so good. For those who think the best way of dealing with workplace problems is to keep workers in the dark about their rights and ways of obtaining a relief have clearly been fighting a losing battle for a long time. If there were ever any doubt about the outcome, the internet clearly is going to make employees aware of their rights. A recent addition to the already plentiful sources of information is TexasLawHelp.org, a sight sponsored by the Legal Services Corp. and designed for low income individuals who might not have access to legal help. One section is on Work (Employment) and it probably wouldn't hurt to check it out, just to see what is available.

Back, With Apologies

Once again having failed to comply with the blogger's creed of letting visitors know of an unusually long delay in posting, I return from a sojourn to Los Angeles, via a wonderful long week end at Jazzfest in New Orleans. Just in time for a speech today at the 10th Annual Conference on Labor and Employment Law sponsored by the University of Texas School of Law. Today's topic, ARBITRATION: NOW THAT WE CAN HAVE IT, HOW DO WE DO IT? Designing, implementing and administering an arbitration program.