Payday Blues at the Supreme Court

I was out of town deposing when the Supreme Court issued its opinion Tuesday in Ledbetter v. Goodyear Tire & Rubber Co. (5/29/07) [pdf], which means in today's world of competitive blogging all hopes of any quick analysis were long gone by the time I read the decision. So rather than recreate the discussions, let me point you to a good summary of various commentary at SCOTUSblog. For a legal criticism check out Professor Secunda's thoughts at Some Reflections on the Ledbetter Decision. For a rebuttal, see Professor Runkel's response. My firm's take on the decision which also talks about the impact on OFCCP policy can be found here.

I suppose I had not taken this case seriously enough as I am somewhat surprised at the heat that it is drawing. I would have been extremely surprised if it had come out any other way. If it had, it would have been disastrous for employers (although not their lawyers).

Professor Secunda starts with what he says is the critical question: "under Morgan, is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment?" He argues that Justice Ginsburg (the cumulative view) has the better of the argument. I see it differently. In a hostile environment case, a single action may or may not be actionable depending on what happens later. See for example, Clark County School District v. Breeden, U.S. (2000).

However, if an employer makes a decision about pay based on gender, it is clearly actionable even if the amount of damage is small or it is hard to know that it is discrimination at the time. The latter two facts do not change the actionable nature of the event, and once you have an actionable event the time limit starts.

The "hard to discover" argument really would be more appropriately addressed in the context of whether there should be a "discovery rule" in discrimination cases. The Court clearly notes (footnote 10) that question is not before them:

We have previously declined to address whether Title VII suits are amenable to a discovery rule. National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 114, n. 7 (2002). Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.

A few other points from the commentary, some theoretical, others more practical-

• I was interested in Linda Greenhouse's comment in the New York Times that if Justice O'Connor had been on the Court instead of Justice Alito, who authored the majority opinion, she "would almost certainly have voted the other way, bringing the opposite outcome." Interestingly two commentors on the Scotus Blog took her to task noting that Justice O'Connor had dissented in Morgan on the relevant point, and it is unlikely that she would have reversed herself.

  Since before reading either Greenhouse's article or the comments, I had made a similar statement to a reporter who called for my thoughts on Ledbetter, I checked out the dissent and see where the commentors are coming from. I am not sure that I am convinced however that if she had been on the Court the out come might not have been different; probably not a complete reversal, but some "middle way" which might well have done nothing more than muddied the waters. Like the outcome of Ledbetter or not, one thing we can all agree on — it is clear, a quality whose value is often overlooked.

• I also have noted the lack of commentary on how there is in fact a statute that is designed specifically for Lebetter's problem — the Equal Pay Act which is one year older than Title VII and focuses exclusively on discrimination in pay based on gender. As the majority notes that claim was not time barred, Ledbetter urged it and lost, but did not appeal it. The dialogue between Justice Ginsburg and Ledbetter's counsel on this issue is instructive.

  JUSTICE GINSBURG: Why didn't you ask for the equal pay claim? As I understand the magistrate judge he said, yes, you had made it across the first hurdle, you had a prima facie case. You showed that you're a woman, and you're getting this and all the men are getting much higher. But the employer has come forward with any other factor other than sex and the other factor is that, your inadequate performance.

  MR. RUSSELL: We should have objected to the failure to reinstate the Equal Pay Act claim. We didn't; we didn't think it was that important at the time because we still had the Title VII claim.

  Thanks to Chris McKinney at the HR Lawyer's Blog for the link to transcript of oral argument.

  Justice Ginsburg's sole retort in her dissent is that Title VII is not limited to sex, so today's decision will impact those who bring race, religion and national origin claims. But differences in remedial statutes is not limited to those two — for example § 1981 allows uncapped damages for discrimination based on race without any administrative procedures (meaning a racial victim of pay discrimination would have four years to bring a claim), but there is no § 1981 claim for gender discrimination. If a statute needs addressing, perhaps it should be the Equal Pay Act which specifically focuses on compensation, not Title VII.

• More practically speaking, my rule of thumb is that any legal argument, such as Justice Ginsburg's, which argues that the dangers of adopting it can be cured by the appropriate application of the doctrine of laches — relying on the proposition that "no sensible judge would tolerate such inexcusable neglect," is written by a judge who is far removed from the reality of everyday litigation.

• Finally, although it makes no real difference except to make the arguments against the decision on the grounds that people will not know that they are discriminated against less doomworthy, the press has not frequently enough pointed out that more than half of the states have deferral agencies which means the time period for filing a claim is 300 days not 180 (or as pointed out above, 4 years if based on race).

  And for those who claim that employers will hide their discrimination by prohibiting employees from talking about their wages — they may do so, but they do it in violation of another law, the National Labor Relations Act. They of course also risk extending the statute of limitations under other equitable doctrines of "waiver, estoppel and equitable tolling."

Maybe there was more to say about the case than I thought.

Update: The NYT's editorial page really goes off the hyperbolic deep end in their desire to paint the Supreme Court as evil doers — Injustice 5, Justice 4:

The Supreme Court struck a blow for discrimination this week by stripping a key civil rights law of much of its potency. The majority opinion, by Justice Samuel Alito, forced an unreasonable reading on the law, and tossed aside longstanding precedents to rule in favor of an Alabama employer that had underpaid a female employee for years. The ruling is the latest indication that a court that once proudly stood up for the disadvantaged is increasingly protective of the powerful.

I think most employers and their lawyers would be surprised to know that Title VII has been stripped of its potency or can figure out which "long standing precedents" were "tossed aside." If the NYT's wants to object on policy grounds — fine — but notwithstanding the impassioned and certainly deeply held views of Justice Ginsburg and the three who joined her dissent, an attempt to paint this as some wacky right wing reading of the law is off the mark.

It's a clever headline, but far from accurate or helpful.

Minimum Wage Bill Passed - Bush to Sign

In addition to the authorization for the Iraq war through September, Congress passed out some raises when it passed a minimum wage hike. According to an article in the South Florida Sun-Sentinel, Congress passes minimum wage hike. It would go from the current $5.15 an hour to $7.25 in three phases:

1. to $5.85 two months after the bill is signed into law,
2. $6.55 one year later,
3. and to $7.25 the following year.

President Bush is expected to sign the bill perhaps as early as today, which would mean the bill would go into effect near the end of July.

FRD = MDV, Ohio Jury - $2.1 Million for Mom

I was not kidding earlier this week when I said that family responsibility discrimination was one of the hottest topics in employment law, see here . I didn't know I would have an MDV as proof quite so quickly. Earlier today an Akron, Ohio state court jury ruled in favor of Teresa Lehman who had been passed over for promotion to store manager at a retail store. According to one of the jurors: I think she was very poorly treated because she was pregnant, because she wanted to have a family." Akron woman wins discrimination case.

The news story summarizing the evidence at trial indicated that in a two month period five store managers went to less qualified men, or to women with no children or women who assured their bosses that they would have no more children. According to the story, Lehman had been asked such questions as:

"You're not going to get pregnant again, are you?" "Did you get your tubes tied?" "I thought you couldn't have any more kids." "Are you breast feeding?" and "Are you having any more kids?"

My guess is most would believe that if those things happened some kind of award would be justified. But there is another strongly felt position. Look at a couple of early comments on the story:

Have kids, or run a business. You have a choice. Why should my or any other business suffer because a "Manager" wants time off to have a family? It does not make sense. Kohl's [the employer] should just say "Screw hiring women".....

and this one:

As a man with children and two jobs, one full time and one part time I assure you I am very involved with the raising of my children and I don't have to take time off to do it. The occasional kid sick at school, yes I take off to get them home and then I go back to work. We made the choice to have children and I nor my wife encumbered our jobs to do it. I don't need the Family Leave Act, I don't need what I need to do as a father legislated at all.

Does anyone have an original thought anymore or do we just keep repeating the crap we hear spewed? Does anyone take responsibility for their own actions anymore or should we blame "greedy businesses" for all of our ills?

By the way, I think the judgement should have been for the victim, but not to the tune of 2.1 million dollars . . . ridiculous.

Family responsibility discrimination — it's here with a vengeance.

A Belated Valentine's Day Message - $4 MDV for Sandia Labs Employee

For some reason some MDV's seem to be escaping my attention recently, including one that was initially reported on February 14. From an Albuquerque Journal story reprinted at Thinking About Vigilantism, Update on Sandia National Laboratories "Vigilante", detailing with some juror comments the return of a $4 million dollar verdict by a New Mexico jury in favor of a Sandia Lab employee who had been terminated after his "back-hacking" efforts uncovered evidence that he disclosed to the FBI about national security breaches.

$2 million of the award was punitive damages. Although it is hard to get all the details from this story, it appears part of the issue was that he didn't disclose to his employer that it was the FBI he was working with.

I was led to the story by a post on Rosario D. Vega-Lynn's New Mexico Labor and Employment Law blog, which I read regularly through my RSS reader. For some reason her April 16th post, Letter to the Editor, just showed up this afternoon. It's a letter to the Albuquerque Journal following one of their stories about the trial, which must have talked about the trial strategy of the defense.

The letter writer was happy to learn the "kind of arguments to expect from really big law firms who specialize in defending corporations." Since that hits pretty close to home, I was curious to see how those arguments were viewed. Among them, with the writer's editorial comments in parentheses, were:

• (Can you believe their reported argument) the fired employee "was an at-will employee and therefore not entitled to due process"
• a jury had "no business" second-guessing the employer's decision (because, after all, at will employment means anyone can always be fired for any reason or no reason, and, that such a rule is surely stated somewhere in the stuff they— and all corporations— make people sign to get hired in the first place).

Then the writer took off on the notion of employment at will, laying it at the feet of Ronald Reagan and the Republican party (at least 43 didn't get blamed for this):

When Ronald Reagan became president in 1981, a coincident discovery was also made in anthropology that people are actually "human capital" walking upright. Soon thereafter, "employment at will," a doctrine originally intended (and appropriate) for sole proprietors who hire other individuals, was embraced instead by corporations as the cure-all for any pesky problems with the human capital. Employee handbooks were uniformly rewritten to say so, and to this day, "conservatives," while speaking vaguely of "values" they usually can't define, are actually the political enablers of corporations seeking in law to evade responsibility for any mistreatment of any employee— no matter how outrageous. The "at-will" doctrine is as sacred to the Republican Party as the Pledge of Allegiance.

Obviously not a fan of the at will employee argument, which struck home as earlier this year I had been facing a New Mexico jury trial where that issue was going to be prominently featured — whether I wanted it to be or not. The letter made me even happier that the case was otherwise resolved.

Not to quibble with the writer — but actually the two arguments correctly state the law. Unless Sandia is considered a government employer, it is not required to provide due process and there are a number employment decisions that pretty much use the exact words quoted, that juries and courts are not to serve as super-hr departments second guessing an employer's decision.

And with respect to blaming Ronald Reagan for employment at will, the concept actually goes back a lot further. In Texas we cite East Line and R.R.R. Co. v. Scott, 10 S.W. 99, 102 (Tex. 1888), almost 100 years earlier as establishing the law in Texas.

But having said that, I can certainly see why the arguments would not be appealing to a jury, and why when I give a talk about employment law trials, one of the points I emphasize is that trial is not a time for legal theories, classic example — employment at will. My experience is that a jury want facts that support the "why" an employee was fired, regardless of the legal standard.

Why I Am Not an Academician

Occasionally through the magic of the internet (and in this case the Freakonomics Blog) I run across a cite to an academic article that attracts my attention because it is related to employment law. Especially when they have great titles like — The Sexual Harassment of Uppity Women — by Jennifer Berdahl in the Journal of Applied Psychology. I click on it thinking I will get some tremendous insight and then ...

In 3 studies, the author tested 2 competing views of sexual harassment: (a) It is motivated primarily by sexual desire and, therefore, is directed at women who meet feminine ideals, and (b) it is motivated primarily by a desire to punish gender-role deviants and, therefore, is directed at women who violate feminine ideals. Study 1 included male and female college students (N ! 175) and showed that women with relatively masculine personalities (e.g., assertive, dominant, and independent) experienced the most sexual harassment. Study 2 (N ! 134) showed that this effect was not because women with relatively masculine personalities were more likely than others to negatively evaluate potentially harassing scenarios. Study 3 included male and female employees at 5 organizations (N ! 238) and showed that women in male-dominated organizations were harassed more than women in female-dominated organizations, and that women in male-dominated organizations who had relatively masculine personalities were sexually harassed the most.

and I am reminded why I need to stick to law.

And for those of you who like me are a little stumped by the abstract, here's the the summary that caught my attention (courtesy of Melissa Lafsky):

Contrary to the conventional belief that a woman’s acting “feminine” in the workplace leads to sexual harassment, just the opposite may be true. Berdahl’s paper concluded that women who “act like men” are more likely to experience harassment, possibly because of the conduct’s use as a tool to reinforce traditional gender roles.

My experience in defending sexual harassment cases doesn't necessarily bear that point out, although I definitely do agree that sexual harassment of women is worse in male dominated industries.

The EEOC's Two Cents Worth on Family Responsibility Discrimination

With Family Responsibility Discrimination as one of the hottest buzz words in employment law these days, you knew it was only a matter of time before the EEOC weighed in. Today was the day as it issued its Enforcement Guidance for Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. In the accompanying Q&A fact sheet the Commission candidly acknowledges that caregivers are not a protected category:

Q: Are caregivers a protected group under the federal EEO statutes?

A: No. The federal EEO statutes do not prohibit discrimination based solely on parental or other caregiver status. Under the federal EEO laws, discrimination must be based on a protected characteristic such as sex or race. However, some state or local laws may provide broader protections for caregivers. A particular caregiver also may have certain rights under other federal laws, including the Family and Medical Leave Act.

Nevertheless, they still offer twenty examples of potential legal problems ranging from "Unlawful discrimination against women with small children" to "Hostile environment based on association with an individual with a disability." Enough ammunition to keep employers awake a night or two.

Here's the complete list of topics covered:

Background and Introduction
Caregiving Responsibilities of Workers
Work-Family Conflicts
Unlawful Disparate Treatment of Caregivers
Sex-based Disparate Treatment of Female Caregivers
Analysis of Evidence
Unlawful Disparate Treatment of Female Caregivers as Compared with Male Caregivers
Unlawful Gender Role Stereotyping of Working Women
Gender-based Assumptions About Future Caregiving Responsibilities
Mixed-motives Cases
Assumptions About the Work Performance of Female Caregivers
“Benevolent” Stereotyping
Effects of Stereotyping on Subjective Assessments of Work Performance
Pregnancy Discrimination
Discrimination Against Male Caregivers
Discrimination Against Women of Color
Unlawful Caregiver Stereotyping Under the Americans with Disabilities Act
Hostile Work Environment
Retaliation

and the background information that the Commission gathered at its May 21st hearing which proceeded today's release can be found here.

What Does Schopenhauer Have to Do With Employment Law?

More than you might think, according to the post Getting philosophical…….. at a splendid UK based Employment Law Blog - PJH Law - "Exclusively Employment Law."

Here's a sample of Schopenhauer quotes and their applicability to what we do:

This saying could apply to your annual wage bargain

Wealth is like sea-water; the more we drink, the thirstier we become..

Why experience always trumps youth could be explained by the following:

Of all the intellectual faculties, judgment is the last to mature.

What is distinctly not true is the following:

And, dear reader, he even knew why this blog has a small but select readership:

The person who writes for fools is always sure of a large audience

For those who want some international flavor to their employment law (and who doesn't in this age?) you should definitely check this one out.

Mixed Results on 43 Million Dollar Raiding Case

Although the case turned strictly on interpretations related to a covenant not to compete and a related tortious interference with contract claim, the dispute between two title companies that resulted in a $43 million dollar judgment is really a "raiding" case, where 30 employees switched from one title company to another.

Raiding cases are unusual in that they are a form of behavior that is quite problematic, but one where there is no clear cut cause of action specifically designed to fit it. There are a number of causes of action that are brought to bear in these situations but no "silver bullet" even though as can seen by the lower court judgment reviewed in Chicago Title Insurance v. Magnuson (6th Cir. 5/21/07) [pdf], it is apparent that in the right circumstances a jury can be considerably offended. $32 million of the judgment was for punitive damages.

The Court of Appeals affirmed liability, reversed the punitive damage award and sent the case back to the lower court for a re-trial on the compensatory damages.

While the discussion of liability and compensatory damages may shed some light on covenant not to compete law in Ohio, the ruling on punitive damages carries a broader message and continues to show how such damages are currently in disfavor.

Ultimately the Court found the award could not pass constitutional muster under the U.S. Supreme Court precedent contained in State Farm and BMW of North America. Focusing on the 5 factor test for reprehensibility derived from those cases:

1. the harm caused was physical as opposed to economic;
2. the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others;
3. the target of the conduct had financial vulnerability;
4. the conduct involved repeated actions or was an isolated incident;
5. the harm was the result of intentional malice, trickery, or deceit, or mere accident

the Court assumed the conduct was intentional and felt only two of the other factors merited further discussion since the conduct was economic not physical, and the health or safety of others was not in danger.

The Court gave little weight to financial vulnerability, in large part because of Chicago Title's own claim that notwithstanding the defections they remained the number one company in the contested markets. The Court also limited the review of repeated actions to actions against other parties (of which there were none), as opposed to repeated actions against Chicago Title, distinguishing State Farm's teaching that damages (as opposed to liability) can not be based on conduct against third parties.

The bottom line, no punitive damage award available.

Using Any of These Type Tests? They Are on EEOC's Radar Screen

Earlier today the EEOC held a public meeting to gather information about workplace testing. If you use:

• written tests,
• criminal and credit histories, or
• personality and integrity tests

for hiring or other employment screening you should read the the Commission's press release about today's hearing, EEOC Spotlights Employment Testing and Screening in the 21st Century Workplace, and keep your eyes and ears open for further developments.

Lookism - An Amusing (?) Survey

James Richards, a lecturer in Human Resource Management in the School of Management and Languages at Heriot-Watt University in Edinburgh, Scotland, who has just submitted his Ph.D dissertation on workplace misbehaviour and in his spare time writes Work-related Blogs and News, the only blog I know that focuses on work related blogging, has an interesting post about Lookism.

Personnel Today, a British publication did a survey about different things which employees are teased about, apparently with the underlying thought that where there is teasing there might well be unfavorable treatment.

You can check out the chart in full at his post, but a couple of examples caught my attention. More people thought it was appropriate to tease others about their small breasts (49%) than about dandruff (29%) (5% of HR personnel surveyed thought it was permissible to tease about either small breasts or dandruff). Perhaps not too surprisingly, those surveyed thought it was better to tease about large breasts (63% of employees and 7% of HR personnel). And of those who had the characteristic in question, those who had actually been teased about it were

• large breasts (73%),
• small breasts (59%) and
• dandruff (21%).

For ginger hair, baldness and large ears, plus a dozen or so more characteristics and some actual comments read the article itself.

One quote from a business psychologist (not sure I knew there was such a specialty) really should come as no surprise to anyone: "Men emerge as less sensitive to other people's opinions, and what people say generally won't affect their [men's] opinion of themselves."

One question that did come to mind — where did the HR personnel that were willing to say that they thought it was ok to tease employees about breast size come from?

Arbitration in the 9th Circuit - Hard to Come By

Although the facts would fit the old adage — anyone who represents himself has a fool for a client — I don't think that anyone would say it was the legal representation that was the problem in today's decision holding an arbitration agreement unenforceable, Davis v. O'Melveny & Myers (9th Cir. 5/14/07) [pdf]. The fault as it were, lies squarely with the 9th Circuit's hostility to arbitration agreements mandated by employers.

O'Melveny's policy, challenged by one of its former paralegals, was found not only procedurally unconscionable, but also to contain four provisions which were substantively unconscionable. The panel's discussion holding that even a three month period between announcement of the plan and its enforcement was not enough to prevent it from being a take-it-or leave it proposition and thus procedurally unconscionable. In fact it is hard to see how any mandatory arbitration agreement can overcome this hurdle under the court's logic.

Still procedural unconscionability alone would not be enough to make it unenforceable, so the Court turned to an examination of four challenged provisions:

1. a requirement that an employee must submit a claim within one year to binding mediation;
2. a clause that ensures that the arbitration proceedings remain confidential unless necessary to enforce an award;
3. the firm's reservation of the right to file injunctive actions in limited circumstances; and
4. a limitation on filing administrative claims (although expressly permitting claims with the EEOC or comparable state agencies).

The court manages to construe each of them in such a manner that all are substantively unconscionable. The bottom line — this arbitration program doesn't pass muster, and if there were any doubt how the 9th Circuit viewed mandatory arbitration agreements (and there wasn't), this decision should certainly provide a clear answer.

Although it wouldn't be popular in the rest of the country where courts follow what seems to all but the 9th Circuit, to be a clear direction from the U.S. Supreme Court that such arbitration agreements should be enforceable, if I were a 9th Circuit employer I might be looking for a legislative solution. On second thought — maybe a moving van would be better.

Employment Woes of the Rich and Famous

Sting and wife, Trudie Styler, are taken to task by a British employment law tribunal finding that they discriminated against Jane Martin, their chef, by firing her after she became pregnancy. See the LA Times Story, Sting, Wife Wrongly Fired Chef.

The problems appeared to be primarily between Styler and Martin, with the latter saying Styler had a "grandiose ego." At least the tribunal seemed to agree that Styler was at fault:

Although Styler "had tried to distance herself from various unlawful acts and have them carried out by minions on her behalf, when the evidence is looked at holistically, her involvement is clear.... She is without doubt the driving force manipulating others to perform her dirty work."

On June 8th the tribunal will determine the amount of the "substantial compensation award" the famous couple is facing.

4 Years and Still Posting - Canada's First Employment Law Blog

Actually I have never seen Michael Fitzgibbon who writes Thoughts from a Management Lawyer make that claim, so I am doing it for him. But clearly if not the first, one of the first and definitely in whatever top tier of law blogging there is, regardless of location.

I can also identify with his sentiments about what I would call the occupational hazard of combining a law practice and writing a blog:

My posting has been sporadic of late due in part, to a very busy schedule. But, after 4 years, I find myself in need of a little coast. Anyway, thanks to all those who stop by here and I, sincerely, hope you find this blog of some value.

If you haven't checked him out in the first four years, don't miss out on the next four.

An Overtime Pay Calculator — Courtesy of the DOL

Today the Department of Labor rolls out a fairly sophisticated tool for employees and employers to estimate overtime pay as part of its elaws program. Here's the DOL's press release.

Called the FLSA Overtime Calculator Advisor it takes an individual through a set of questions and ends up with an estimate of the amount that they should have been paid including overtime.
I would not be too surprised that once employees stumble on it, they will start calculating. As you can imagine there are plenty of disclaimers that it is only a tool, but certainly it will carry some weight in an employee's mind. Hopefully, it will confirm that you are paying them correctly.

Probably worth running a few of your own calculations through to make sure that if they don't square, there is a good — and legal — reason. And so you know that when that first employee shows up with printout in hand claiming that they have been underpaid, you can feel comfortable that the problem lies in the tool or the employee's data entry, not your non-compliance.

Be Careful When You Promise — Misrepresentation and ERISA Escape

Discussions with potential employees are fraught with opportunity for misunderstanding, although employers are often able to escape ultimate liability when challenged. The causes of action under which these claims are brought vary but misrepresentation is one. Today's decision in Thurman v. Pfizer, Inc. (6th Cir. 5/8/07) [pdf] is a good example of the situations that occur and a reminder that while ERISA preemption is about as broad as it gets, it too has its limits.

The facts are simple and straight forward (they always are when, as here, the court must accept plaintiff's pleadings as true). Dr. Thurman, a veterinary pathologist, interviewed for a job with Pfizer and was told that if he accepted the position, at age 62 he would be entitled to a pension in the amount of $3,100. He accepted and later was told that the information he received was incorrect and his monthly pension benefits would be about $816 a month.

Thurman sued seeking either the difference or for rescission and reliance damages in the form of benefits he relinquished by leaving his prior position (higher wage and stock options among others). The district court held that his entire claim was preempted by ERISA.

Not entirely said the Court — while his claim for the difference is, his claim for rescission and reliance damages is not. They explained their decision this way:

What we have here is simply a case of a person who left his old employer based on promises made by his new employer. These promises could have concerned anything — for example, an increase in wages, more vacation days, or free parking. Here, these promises just so happened to concern retirement benefits. We see no reason to bind employers to some promises used to induce acceptance of an employment offer, but give them a ‘get out of jail free card’ when their promises concern the scope of a plan governed by ERISA.

Stressing that they were not ruling on the merits, the Court left employers with a cautionary warning:

If adhering to promises regarding ERISA governed plans proves too cumbersome for employers, then during the recruitment process, those employers must simply be more careful before informing potential employees of the ERISA governed benefits to which they might be entitled.

Ah, if only it were so easy in real life.

Advisor or advocate. Which hat am I wearing?

I have been preparing for a round of speeches in the next couple of months, including this week at the 2007 Workplace Strategies conference hosted by my firm in Phoenix (blogging), at the 14th Annual Labor and Employment Law Seminar in Austin sponsored by the University of Texas School of Law on May 17-18 (million dollar verdicts) and then at the SHRM National Conference in Las Vegas at the end of June (bullying).

Somewhere along the way of preparing the papers and presentations, I started thinking about the different roles I have as an employer's lawyer, and how I always need to be mindful which hat I am wearing.

My law license from the state of Texas reads "attorney and counselor at law." Certainly much of what I do, both in speaking and my daily interaction with clients falls under the counseling hat — providing guidance about the legal context and ramifications of decisions which are about to be made. Sometimes no doubt that shades well over into advice on what would be a good human resource decision, although I always try to remember that expertise and certainly the ultimate decision is my clients, not mine.

The other hat I wear is as an advocate, where I am not so much helping shape decisions, but defending ones that have already been made. Although there may be considerable overlap, there are certainly large distinctions as well. As an advocate, I may frequently advance arguments — arguments that may well be successful in extricating a client from a particular situation — which I would never offer as advice.

Since those of us who represent employers as their lawyer are trained to think in legal terms, it is easy for us to jump quickly to the advocate position and stake out the limits of what might "legally" be done. But what can be done, is not always what should be done. And it is important for me to remember which role I am playing and make sure that I approach it from the proper perspective.

The same goes when giving (or listening) to an employment lawyer speak. It is good for employers to know the limits and what might be defensible in light of current decisions; but in helping employers determine what should be done, it is important that we make clear where on the continuum between advice and advocacy a particular piece of information resides.

A Perfect ADA Test Question — What's A Reasonable Accommodation for a Beer Taster?

Lowering the Bar, a blog that deals with "Legal Humor. Seriously." heads both south of the border and into territory I usually cover here with this post: Professional Beer Taster Successfully Sues Employer After Becoming An Alcoholic.

You need to read the whole story, but here's Kevin Underhill's logical conclusion of the upshot of a South American court ruling:

Apparently, if you need a beer taster you should not hire anyone who is an alcoholic, or anyone who is not an alcoholic (because they might become one). Or, you can hire someone in either category to be a beer taster, as long as you don't let them drink beer on the job.

Sometimes when you hit a dry patch of posting as I have lately, all you need is a little inspiration.

Is This the Year? Protection for Gays and Transgendered Employees?

Not unexpectedly with a Democratically controlled Congress there has been an onslaught of employment related legislation, including the reintroduction for the first time since 2003 of legislation that would extend Title VII to include sexual orientation. Somewhat surprisingly, the legislation also includes protection against individuals based on gender identity. Surprising, because the general consensus seems to be that will make the Act harder to pass than one based simply on sexual orientation.

The proposed Employment Non-Discrimination Act of 2007 would prohibit discrimination on the basis of perceived or actual:

• GENDER IDENTITY- The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth; or
• SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality.

A timeline of past efforts for similar legislation can be found here.

Who knows what legislation will end up being pushed now that it appears we are in a full-swing presidential election season, but this could be one of the social oriented wedge issues, like many which were described in a terrific editoral by Arnold Garcia, Jr. in yesterday's Austin American Statesman talking about the Texas legislature: With clock ticking, legislature rushes to solve nonexistent problems. His description of the types of issues being dealt with is classic:

Social issues are to modern politicians what bread and circuses were to Roman ones — a cheap and easy way to distract the populace with political and intellectual trinkets.

Before an onslaught of email, I am not putting the current proposed federal legislation in that category; but it is similar in the sense that how a politician votes could have important electoral implications.

As one who represents employers, there is always concern when yet another group is empowered by legislation to sue. Personally, it is hard to make any other general argument. More specifically, anytime legislation contains the word "perceived" I know that we are heading down an even slippier, potentially more litigious slope.