Monday, 29 December 2008

Recession Juries - Good or Bad for Employers?

That was the topic of an interesting article in today's Employment Law 360, Economic Woes Could Make For Stingy Juries ($) . May is the operative words as the jury consultants quoted in the story have differing views.

One line of thought is that jurors, feeling their own economic crises are apt to be less likely to give large awards, particularly for "soft" damages like pain and suffering. The other is that economic stress is likely to make jurors more punitive toward large institutions.

Since I strongly believe that large jury awards in employment cases are almost always fueled more by anger than sympathy, it is the latter strain of thought that gives me concern.

Thursday, 18 December 2008

Representative Hilda Solis is the Secretary of Labor

At least according to the Associated Press, Rep. Hilda Solis is Obama's labor pick. The latest in a series of names, but the first report that claims it is a done deal:

Andy Stern is impressed and:
praised Solis for her deep roots in the union movement. He recalled marching with her in Los Angeles — well before she was elected to Congress — to seek higher wages and benefits for janitors.
She was just re-elected to her 5th term in Congress representing the California 32nd Congressional district. Her House website is here.

Secretary DeLauro? The Last Slot

If Ray Lahood, the Illinois Republican is named Transportation Secretary as has been reported, that will leave Labor as the last formal cabinet position to be named. A new name has surfaced in a Huffington Post article, Rosa DeLauro As Labor Secretary? DeLauro is a member of Congress from Connecticut and a former aide to Sen Chris Dodd.

If Obama wants to get his whole cabinet named before heading for his vacation next week, the time for waiting should be relatively short.

Thursday, 11 December 2008

EFCA - Voting "At a Time Certain"

There are plenty of individuals writing on the EFCA, so I have not devoted a lot of attention to it. My general view is that while it addresses issues for which a strong case for some change can be made, that it does so by totally revising long held principles of labor law, without a recognition that is what is being done, and without an analysis of what the consequences could be.

There is no question where the writers at Laboring Away at the Institute stand, they think it is a very flawed bill. Still that does not undercut the validity of the argument advanced in a post that nearly got lost in my post-Thanksgiving reading, Any Given Moment.

The premise is that deciding whether a union should represent you in your workplace is an important decision, which is hardly controversial. The article goes on to point out the danger of shifting from a secret ballot at a set time to allowing the decision to be made in a series of "any given moments" which may not be the most appropriate time for such an important decision.

You need to read the whole article, but to give you a feel, here's the money paragraph to me:

For me, more important than that [that so many things in America are decided by secret ballot], and perhaps lost in this legislation is the fact that we vote not in a moment in time, but at a time certain. Could any legislator survive if we could vote on April 15th? Our most important decisions must be made with careful consideration of all of the facts, and at a time and place that offers the most potential for a sober and just decision.

A pretty compelling point, without an ounce of union bashing.

Wednesday, 10 December 2008

EFCA Political Note

Marc Ambinder of Atlantic has a current note on the state of opposition to the Employee Free Choice Act, 60 Might Have Mattered. Quoting an unidentified Republican Senator:
"We will do everything we possibly can to get every Republican on board," the senator said."We're even working on Arlen," the senator said, referring to Pennsylvania's Sen. Specter, a reliable ally of labor unions. A few Democrats, the senator said, will be targeted.
It will be interesting indeed if they can get Specter on board.

The article headline is of course a reference to the 60 votes that it takes to break a filibuster in the Senate.

My current thought, some version of EFCA passes, but not the current one and probably not as soon as first feared. That and $3 will get you some sort of latte at Starbucks.

Secretary of Labor Watch Continues

NBC's First Read, headed by every one's hero of the last political season, Chuckie "T", has their latest up to date administration/cabinet position speculation in today's post, Transition: Remember the Gore meeting? For Secretary of Labor here's their current take:
Kathleen Sebelius (asked that her name be removed from consideration from any post), Andy Stern (SEIU) (said not interested), Jennifer Granholm, Richard Gephardt, George Miller, David Bonior (said he’s not interested, suggested: American Rights at Work Executive Director Mary Beth Maxwell), Rep. Xavier Becerra, Linda Chavez-Thompson, Antonio Villaraigosa.
I had understood from other reports that Congressman Miller and Los Angeles Mayor Antonio Villaraigosa had also indicated they were not interested.

Tuesday, 9 December 2008

Not the Way to Solve the Pay Gap

Tom Peters, who has a brilliant blog and newswire amongh his other worthwhile endeavors has a recent post, Rightside Up?, that notes a telling statistic in last week's Boston Globe:

In the last year:

Men are down 1,069,000 jobs.

Women are up 12,000 jobs.

The main reason, a loss of manufacturing jobs (primarily male) and a growth in service, particularly health care (primarily female).

Of course the pay gap problem will only satisfactorily be resolved when the number of men and women employed are both on the rise.

Monday, 8 December 2008

The Republic Stay In - A Sign of the Times?

The refusal of workers to leave a closed Chicago plant until they are paid may turn out to be an aberrational act, or it could be a precursor of things to come.

Although anonymous comments are usually more extreme than what you would otherwise hear, that perhaps give a better picture of at least how deeply some people feel. Take a look at the comments that follow one of this mornings stories about the "As Long As It Takes", Laid-Off Illinois Factory Workers Continue Sit-In Protest For Severance Pay, and you can see how deep a divide there may well be.

I have written and talked for some time now about the sea change that seemed at least potentially on the horizon. A change that means in employment and labor law we are going to see and deal with issues different from the world we have known for the last 30 years. Recent events have done nothing to change my feeling that a change is indeed coming, the only remaining question in my mind is just how far that change will go.

The Republic story demonstrates one aspect, employee self-help. It is clear that employer's (and their lawyers) are going to be facing many challenges different not only in degree, but in kind, over what they have addressed up till now in their careers.

Friday, 5 December 2008

Secretary of Labor - One of the Top 5 Posts Still Open

If you follow politics, and who hasn't this year, Politico is a familiar name and one place many head daily for their political fix. When I saw the headline, The 5 best jobs Obama has yet to fill I was curious whether Secretary of Labor would make it, and somewhat surprised to find it did.

Politico has their requisite list of potential candidates:
Kansas Gov. Kathleen Sebelius; Michigan Gov. Jennifer Granholm; Mary Beth Maxwell, executive director of American Rights at Work; Ed McElroy, former president of the American Federation of Teachers; former Rep. David Bonior, D-Mich; Maria Echaveste, former Clinton White House adviser.
Sebelius and Granholm appear on almost every one's list as a potential nominee for something and the number of "somethings" is narrowing, so if conventional wisdom is correct that means they should be given pretty serious consideration. I have seen some stories that Sebelius and the unions in Kansas did not always see eye to eye, which might be an issue for her.

Bonior's name has been on most lists and although he has publicly disclaimed his desire for the position continues to be. Bonior himself supports his compatriot at the American Rights at Work organization, Mary Beth Maxwell.

Maxwell might be acceptable to both the AFL-CIO and the Change to Win unions which could be a big plus for her chances. She also would be the first openly gay Cabinet member. For more on Maxwell check out Mary Beth Maxwell for Labor Sec? from the American Prospect and Union Activist Mary Beth Maxwell on List for Labor Secretary from the Wall Street Journal's Washington Wire.

I have not seen McElroy's name mentioned and I don't know any background, but given some of Obama's views on education, doesn't seem to be the most likely fit. I don't know if Maria Echaveste has any particular labor expertise or backing or is just a well known Hispanic. Given that there has been considerable talk about the lack of Hispanic representation in post-election appointments that could be a factor.

Two names that aren't on Politico's list -- Dick Gebhardt, the former Majority Leader in the House and Representative Linda Sanchez (D-CA) who was endorsed by the Hispanic Caucus for the position. (She was also endorsed by the leading gay rights organization, the Human Rights Campaign, an endorsement she now shares with Maxwell.)

Even though Politico is a great site and is often insightful, I wouldn't bet on the accuracy of any of these projections. Until we start hearing "definitive leaks" (an oxymoron if there ever were one), we will just have to wait and see who is going to be the first new Labor Secretary in 8 years.

But certainly in the world I work in, it's a very important question.

A Helpful Case for Basic Discrimination Principles from the Texas Supreme Court

Although it is not a case that breaks new ground, today's per curiam opinion in Autozone, Inc. v. Reyes (12/5/08) [pdf] is one of those nice cases to have when writing a brief in a Texas case, as it gathers in one place the Supreme Court's view on a couple of issues that appear frequently in discrimination lawsuits: stray remarks and comparability of circumstances for determining whether disciplinary action is discriminatory.

For the latter, the Court sticks with the "nearly identical" test. For "stray remarks" the Court re-articulates a four part test that the comments must be:
  1. related to the employee’s protected class,
  2. close in time to the employment decision,
  3. made by an individual with authority over the employment decision, and
  4. related to the employment decision at issue.

The Court adds some clarification for both issues, including emphasizing that the context of the stray comments may be important.

Today's opinion is the end of the road for what started out as a million dollar jury verdict, which had been reduced to bring it within statutory caps by the trial judge and affirmed in this decision by the 13th Court of Appeals.

The case was tried in Brownsville and is a good example of a strategic issue faced by a plaintiffs' attorney in Texas. In a large number of cases, particularly South of San Antonio, plaintiffs' counsel will work very hard to ensure that the case stays in state court, including explicit disavowals in the pleadings of any federal claim and adding individual defendants to destroy diversity. While state court procedures and juries may seem more hospitable to plaintiffs, the ultimate backdrop in Texas is review by the Texas Supreme Court which has shown it is not adverse to reversing jury verdicts. At a minimum it makes for interesting dynamics in settlement discussions.

Wednesday, 3 December 2008

Hey Boss, I Had a Good Vacation - How Was Yours?

Having just returned from a week in a magical spot in Mexico, I suppose I still have vacation on the brain, which is my only excuse for the headline to introduce a much more serious topic, Fired Bethel Park woman awarded $1.8M. The "awarder" was a Pittsuburgh federal court jury which of course actually didn't award anything, but made findings that Carole Smith had been improperly terminated because of her sex and pregnancy.

According to various stories, including a more detailed report in the DLR ($), Carole Smith was a property manager for Normandy Properties who went on maternity leave on October 20, 2005 on the advice of her doctor. Her son was born by C-section on November 8 and remained in intensive care for 2 weeks. After Smith's four weeks of paid leave ended and she did not return to work she was terminated. Apparently there was disputed evidence as to whether she requested that her leave be extended for 30 days (unpaid) as permitted by the company's policy or if her position had been eliminated. The jury apparently accepted Smith's version of the facts.

The jury's award included $600,000 in compensatory damages and double that in punitive damages, for the $1.8 million total. Although it is not clear if this is a federal or state law claim or both, it is apparently clear that in addition to other post-verdict motions, one issue is the application of damage caps and it may be a difference between $50,000 and $100,000, which would of course under federal law would be based on number of employees. There are also issues about back pay and attorneys' fees.

One of the more interesting aspects of the case (and the basis for the snarky headline) is that during the course of the litigation, Smith was rehired at the same salary (although given the title of leasing agent), and took a week's vacation to attend the four day trial.

In the DLR story, it is clear that the return to work was an effort by the employer to cut its future damages by offering an unconditional reinstatement with no preconditions. According to the DLR story, a significant offer that would have required a resignation made 6 weeks before trial was turned down. Making a decision whether or not to offer unconditional reinstatement is one of the toughest strategic calls any employer and their lawyer have to make. Almost by definition you only consider it in the toughest of cases.

A result like this illustrates both points, all too well.

Wednesday, 19 November 2008

The Politics of the EFCA

This article from the LA Times seems to me to have the politics of the Employee Free Choice Act pretty much dead to rights, A labor-union problem looms for Obama. It's organized labor's number one agenda item, both Obama and Biden have supported it in the past, but passage of it will cause a real problem with business.

Interestingly, one of the EFCA's strongest supporters, chairman of the House Education and Labor Committee Chairman George Miller (D-Martinez), who sponsored the bill in this Congress, is quoted as saying "that he was all but certain the measure wouldn't be 'the first bill out of the chute,' but that it was 'not moving to the back of the train' either."

While it's not great consolation to hear that it won't be item number one, it's better than nothing. I also think as long as the card check provision remains in place, it may be difficult (although certainly not impossible) to get cloture in the Senate, notwithstanding that one Republican who supported invoking cloture on the bill this year, Senator Arlen Spector of Pennsylvania is likely to join the Democrats in doing so again.

Oklahoma Gun Law Case and the Law of Unintended Consequences

Another chapter in the on-going battle between state legislatures and employers over whether guns can be barred from company parking lots unfolds in the 10th Circuit Court of Appeals this morning when the fate of the Oklahoma statute is heard. The case being argued is Ramsey Winch Inc. v. C. Henry, case number 07-5166 For some background check out Who's Packing in the Car?

The district court issued a permanent injunction against the enforcement of the Oklahoma statute holding it was preempted by the General Duty Clause of the Occupational Safety and Health Act.

For those not acquainted with OSHA, the obligations of the employer are set forth in 29 U.S.C. §654(a):

a) Each employer

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

Section (1) is known as the general duty clause and (2) the specific duty clause. The latter leads to literally thousands of pages of regulations that specify detailed rules on everything from shoring of ditches to lockout prevention.

The district court held that it was the general duty clause that preempted the Oklahoma gun statute. Although credit has to be given to the creativity of employers' counsel for the argument, my first thought when I heard the grounds for the decision was how such a ruling could increase exposure to OSHA violations for other employers. For some general views on how the general duty clause works in the real world see Workplace Safety is a Shared Responsibility from Chemical or Using the General Duty Clause from the National Council for Occupational Safety and Health.

Although I would hope the outcome of today's hearing is ultimately upholding the ban on Oklahoma's gun law, I also fear the highlighted use of the general duty clause may well lead down some paths that may not be as good for employers.

It might just emphasize one of the often overlooked aspects of the practice of law, that one of the most important laws of all is the law of unintended consequences.

Hat tip to Employment Law 360 for their story in today's edition, 10th Circ. To Hear Case On Guns At Work ($).

Monday, 17 November 2008

Bullying in the Air?

I hadn't heard or seen much about bullying in the workplace recently, but then a week ago two of my fellow bloggers both had posts: George Lenard wrote Is Workplace Bullying Cause for Concern? and Eric Welter has this post, Are Common Law Remedies an Alternative to Anti-Bullying Laws?

Both were sparked by other articles, George by a story based on the Indiana case involving a heart surgeon, see my post on the case here, and Eric on a legal article from the Bench & Bar magazine, a publication of the Minnesota State Bar Association.

I am not sure there is really any new spirit behind the movement for bullying legislation, other than the general pro-employee boost of the election, and the draft legislation has still not made noticeable headway in any legislature. Still, it is clear that this is a subject that makes for good press and the proponents of legislation to deal with it continue to plug away.

(On a related note, the author of the proposed draft legislation, Professor David Yamada, has a new law review article urging a new philosophical approach to employment law in the U.S. , moving from what he calls a "markets and management" approach to a "dignitarian" one. See the link to the article at Yamada on Human Dignity at the Workplace Prof Blog.)

Like all things in employment law, the longer it is talked about, the more it becomes a familiar concept and at some point there comes a tipping point where it begins gaining real traction. The difficulty courts will have in controlling claims that would arguably fall within such a nebulous standard would really be unprecedented. Employers should be making that case at every opportunity.

Immigration Battle Coming to Texas Legislature

Or at least it will if there is much action on bills to be filed by Representative Leo Berman (R-Tyler), Berman Will File 9 Bills About Illegal Immigration. The Texas legislature has not been heavily involved in the immigration fight that has been a major topic in some other state's recent legislative sessions but that could change this year.

According to the paper's story, the bills to be offered by Berman would among other things:
  • challenge automatic citizenship under the 14th Amendment of the U.S. Constitution. The bill says the state of Texas will not issue a birth certificate to children of illegal immigrants born in the state;
  • put an 8 percent surcharge on money wired from Texas to Mexico, Central and South America;
  • make English the official language of Texas;
  • require "sanctuary cities," such as Houston, Austin and Dallas, to enforce immigration laws or be held liable for nonaction;
  • pass a bill similar to one passed in Oklahoma that would provide no public state benefits for illegal immigrants and authorizes law enforcement officers to take Section 287 G training with the U.S. Department of Homeland Security allowing them to deal directly with illegal immigrants; and
  • require employers to verify citizenship of anyone they hire.

It will be interesting to see how much traction this type of legislation gets as Berman himself thinks it is possible that his proposed legislation will be blocked by the Senate or vetoed by the Governor.

It is also a reminder that we are into the second week of filing season for the 81st session of the legislature which convenes on January 9, 2009. Stay tuned for summaries of filings of bills of interest to employers.

Friday, 14 November 2008

One Hat Out of the Ring for Secretary of Labor

At least that is the report from, a California political blog that styles itself as "Inside Politics for Political Insiders." The headline refers to Rep. George Miller, the Democratic chairman of the House Education and Labor Committee. Miller says no thanks to idea of becoming Obama's Secretary of Labor. Miller has represented the East Bay area since 1975.

There seem to be a lot more leaks from the Obama transition team than there were from the campaign, which may be a reflection that it is a much larger number of people or that it includes many who are not "schooled" in Obama's preference for no drama. Or, and this may be my hope more than anything, it may be that the transition team is not leaking and what you are hearing is more from the pundit class, both professional and amateur, and those who are advocating for particular candidates or for themselves.

Friday, 31 October 2008

More Political Predictions

John Phillips over at the The Word on Employment Law, has stuck his neck out to give his predictions on the top 6 legislative acts affecting employers that he thinks may be passed in the next Congress, Impact of Presidential Politics on Employment Law Issues — One Final Look.

His list in order, with my comments:
  1. Employment Non-Discrimination Act - Given that this bill almost passed this Congressional term, I think its passage is almost certain. See my post on September 17, 2007 here. Perhaps the only suspense is whether it will include only sexual orientation or also the more controversial, sexual identity. It was that divide that caused the delay the last time. My guess, we get both.
  2. Fair Pay Restoration Act - also known as the Lilly Ledbetter Fair Pay Restoration Act. I agree this will pass, but I think it actually might be the first. Even the current Congress nearly passed it as six Republicans joined with the Democrats to invoke cloture. Hard to see how it doesn't make it, and make it quickly. The Republicans actually offered an alternative that could be better, taking up the Supreme Court's suggestion in a footnote which indicated that it had not yet decided on the applicability of the discovery rule to Title VII claims. The Title VII Fairness Act would do just that. One difference to be noted is that the Lilly Ledbetter Act only applies to compensation claims, the Title VII Fairness Act all discrimination claims, so some might argue whether it is a better deal or not.
  3. Healthy Families Act - I also agree with John that picking order is difficult and that some form of expansion of the FMLA will pass. This version gives 7 paid sick days, Senator Dodd has a version that would use the unemployment insurance system (probably not as likely) and there are several versions that would either lower the number of employees for coverage and/or expand the reasons that would trigger an automatic leave. Two likely possibilities: victims of domestic violence (averted once before only because of faulty drafting, see here) and school involvement.
  4. Employee Free Choice Act - Clearly this is organized labor's number one item, and if the Democrats have a filibuster proof senate (which while not likely, is certainly possible), it is almost a certainty, and probably is in some form regardless of how the Senate votes turn out. My guess is that the likely "compromise" is to drop the card check provision, since it is the one that catches the most heat for doing away with "secret ballot elections" and instead require "quicky" elections, within a week to ten days after a petition is filed, but retaining the binding interest provision for initial contracts and the enhanced penalties. To me the binding interest arbitration should be the real poison pill for employers, but business better get organized quickly if it wants to make that point.
  5. Civil Rights Act of 2008 - I actually think this bill has more likelihood of passage than John does. Currently because of a quirk in the law, race and most national origin discrimination and retaliation claims are not subject to damage caps, while sex, religion and disability claims are. The current limit is $300,000 in compensatory and punitive damages for the largest companies, and scaled down depending on the number of employees. (Age claims are treated differently.) That's a hard position for members of Congress to argue to their female, disabled and other constituents concerned about possible religious discrimination once it is pointed out. My argument would be to put caps on all claims rather than remove them all, but I don't think that will get much support.
  6. FOREWARN Act– This would amend the WARN act to extend the time that has to be taken into account from 60 to 90 days, which would be a real problem as calculating coverage under the rolling time table is already difficult and this would make it even harder. This actually might get more attention given the recession and all the job lay-offs we are seeing, so it might get bumped up ahead of some of the others.

Two other acts that are high on my radar screen are the Arbitration Fairness Act which would ban requiring an employee to agree to resolve employment related claims by arbitration as a condition of employment, in effect eliminating binding arbitration as a means of avoiding jury trials in employment cases.

The second is the Protecting America's Workers Act which would toughen OSHA's whistleblower provisions, increase the penalties both civil and criminal and expand the coverage to the public sector. The financial crises and its impact on federal, state and local governments might actually hold the expansion to the public sector off for awhile as they could make a powerful argument about the extra cost that might get a sympathetic ear.

Whatever happens Tuesday, the next Congress will be far different for employers than those in the more than recent past. When you are watching the election results, obviously the most important decision will be the Presidency, but a close second will be the number of Senate seats claimed by the Democratic party. The closer to 60, the more likely that any of the above legislation will be passed. The final size of the Democratic control of the Senate might not even be known until December 2nd, if a run-off election is required in Georgia because neither major party candidate received more than 50% of the vote.

The tough decision for the employer community during the next Congress will be whether to go all out to prevent legislation it views as potentially harmful from passing (which will mean fighting over cloture in the Senate), which worked for the Labor Law Reform Act of 1977, or negotiate and get the best deal possible. That's what happened on the recently passed American with Disabilities Restoration Act.

And of course, business should always remember to urge Congress to consider incremental steps, given that employment and labor laws once passed do not get rolled back.

It's going to be an exciting ride. If it's not buckle your seat belt time, it's past time to make sure that you have one.

Thursday, 30 October 2008

MDV's Rare According to Justice Report

The headline from a story in today's Law 360, 2005 Civil Damages Awards Rarely Broke $1M ($) caught my eye because of my interest in MDV's in employment law cases. (My reporting on such cases has been sadly neglected recently, which should certainly not convey that they have not been occurring.) The report mentioned in the article is a Department of Justice survey, Civil Bench and Jury Trials in State Courts, 2005 . Unfortunately, it does not have a lot of breakdown specifically related to employment cases. (Also important to note that a large number of employment cases are filed in the federal court system and thus are not included in this report.)

The three categories used by the report are torts, contracts and real property cases, with employment discrimination (319) and other employment disputes (558) considered under contracts. It is not clear from the report if retaliation claims are categorized as discrimination or other employment claims, or perhaps even somewhere else. There is a separate listing for defamation cases under tort claims, which likely includes some claims arising out of an employment setting.

According to the report 91.2% of the employment discrimination claims were disposed of by jury as opposed to bench trials, although in other employment disputes the figure was only 62.9% resolved by jury trial. (That could indicate that a number of administrative claims, like unemployment appeals, might be included.) The median award in employment discriminatory claims was $175,000 compared to an overall median of $28,000 in all types of cases, and plaintiffs won 60.9% of the trials. In the other employment disputes category, plaintiffs won 50.9% and the median award was $45,000.

Overall about 3% of all civil cases filed were resolved by a trial on the merits.

Wednesday, 29 October 2008

Well, Thank Goodness for Consensus

I couldn't help but chuckle at the lead paragraph in today's Daily Labor Report ($) article concerning proposed alcohol and drug testing rules in mines:
Although there is an apparent consensus that drug and alcohol use has no place in mines, many miners dislike the proposed rule recently issued by the Labor Department's Mine Safety and Health Administration, which would set standards for drug and alcohol testing of mine employees.
Actually, the discussion over the proposed rule, Alcohol and Drug-Free Mines: Policy, Prohibitions, Testing, Training, and Assistance, which was proposed on September 8th, deserves more than my tongue-in-cheek response accords it.

Instead it illustrates that even on things that are clearly just good common sense, any policy adopted to achieve such a goal is quite likely to be more involved and nuanced than it might seem on first blush. As one of my former law partners used to say, "every pancake, no matter how thin, has two sides."

With a new administration coming, regardless of Tuesday's election results, there are going to be a number of opportunities to review many issues related to the workplace. Although it will no doubt soon begin to sound like a broken record, I can not overstate enough the importance that these are both important and complex questions, and solutions should be thoughtful and incremental. Congress should remember, and be reminded constantly by their constituents, of one of the principles of employment laws -- whatever is passed will never be rolled back.

Tuesday, 21 October 2008

Performance Appraisals: Out Damn Spot!

That's a little overboard and Chris McKinney's post, Getting Rid of Performance Reviews at HR Lawyer's Blog, actually has some helpful ideas for making them better.

Performance appraisals has always been one of my hot buttons, second only to job descriptions. About the latter my standard comment is -- if they are up to date and complete, they are excellent -- however, that does not describe any job descriptions I have ever seen.

Performance appraisals are probably more often done better, but there are way too many that are done at the last minute and do little if anything to really improve performance, and quite often are more likely as nothing more than candidates to be Exhibit 1 in the Plaintiff's case against the employer.

Monday, 20 October 2008

5th Circuit Declines to Be Forum Shopped Under NLRA

Honoring one thing that stuck with me from Bernie Ward's federal court class, "federal courts are courts of limited jurisdiction," the 5th Circuit rejected an attempt to have it decide an appeal from a ruling by the NLRB in Bally's Park Place v. NLRB (5th Cir. 10/17/08).

The 5th Circuit noted the honesty of Bally's Park reason for wanting to be in the 5th Circuit, they thought it had a favorable precedent that might help them in trying to overturn their challenge to a union certification by refusing to bargain. Unfortunately, this subsidiary of Harrah's has no physical presence in Texas, Louisiana or Mississippi and their attempt to "borrow" their parent company's presence did not work, nor did the fact it did internet advertising, had an on line reservation system or that 5th Circuit residents traveled to New Jersey to visit their casinos.

The panel decision also honored something else I learned from Professor Ward, that courts should not decide unnecessary questions. Here the Court noted that Bally's had no physical presence in the 5th Circuit, but also noted that it was not necessary to decide whether that was an absolute requirement.

Judge Southwick was on the panel that issued the memorandum opinion and though he was in law school with me I can't remember if he was in my federal courts class or not. If he was, he did Bernie Ward proud.

Friday, 17 October 2008

The Lily Ledbetter Act on the Campaign Trail and a Broader Concern

It seems like everything is political these days. It may be because I am preparing for three presentations in the next three weeks on how the change in administration and a new Congress will impact the labor and employment law world, that it seems that way.

Lisa Takeuchi Cullen commented on the mention of the Lilly Ledbetter bill in the 3rd Presidential debate in her Work in Progress Column, Fair pay comes up in last night's debate . She mainly used that to pivot (I definitely have been watching/reading too much political commentary) to yet another portion of the Governor Palin interview with Katie Couric about this topic. Painful reading.

It is unusual for labor and employment matters to get aired in political debate, and while the Lilly Ledbetter Act and the EFCA are exceptions, neither is really at the top of anyone's campaign talking points.

As with the EFCA (and many other issues) political sound bites should be no substitute for careful and thoughtful study. Many, like Cullen, point out the likeability of Lilly Ledbetter and the fact that what happened to her, discriminatory pay over many years as found by a jury, taken away because she didn't file soon enough, doesn't seem "fair" or "right."

What gets mentioned much less often is that there is another way to remedy her precise situation than the proposed legislation. The Ledbetter Act really will result in litigation over decisions that were made many years ago. For those who have experienced the difficulty of accurately recreating the events in lawsuits over events that occurred three or four years ago, you can only begin to imagine how difficult it will be to defend a decision made 10 to 20 years ago.

The Ledbetter court itself pointed out an alternative that would have potentially protected Ms. Ledbetter and others like her, without opening wide the door to all the problems of a contrary ruling (which is what the Ledbetter Act would do). In a footnote, Justice Alito noted:
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 , 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.
If a discovery rule were applicable, then Ledbetter could have argued that the statute of limitations did not begin to run until she discovered or should have discovered the discrimination occurred. If she had been successful, that would have protected her claim without opening the door as wide as the proposed statutory change will.

And there has actually been a legislative proposal, The Title VII Fairness Act that would do just that. If Senator McCain had chosen another female Republican, Kay Bailey Hutchison of Texas as his running mate rather than Governor Palin, Cullen's column might have referenced a much more coherent discussion of this issue since Hutchison is the author of the Fairness Act.

Hopefully, when it actually comes to acting on much of the potential legislation that is likely to appear in the next Congress, there will actually be a deliberative process that results in compromise legislation rather than one side running rough shod over the other. I know that those who advocate for the Lilly Ledbetter and EFCA bills will argue that turn about is fair play and for far too long it is their view point that has been the recipient of rough shod treatment.

Without trying to debate the merits of that argument, I would only hope that Congress and the new Administration realize that once employment laws are passed it is highly unlikely that they will ever be rolled back. The last example I can think of is the 1947 Portal to Portal Act, that limited some aspects of the Fair Labor Standards Act passed nine years earlier. (If anyone can think of any others, I would welcome hearing from you.)

It is also critical that Congress understand the tremendous impact labor and employments laws can have on productivity, costs and profitability, all of which inevitably impact employees.

Even if you do not agree on the wisdom or the degree, you can't help but agree that the difference between labor and employment laws in the US and Europe have likely had a significant impact on the relative success of the two economies. (An argument which of course sounded a lot better a month ago than it does today.)

I think it is quite likely that there are major changes in the labor and employment laws coming. The potential consequences and the fact that later correction by rolling them back is highly unlikely, argue strongly for incremental changes. Some might say it calls for the use of a scalpel, not a hatchet. We can only hope.

EFCA On the Fastest Track?

Well obviously, the first pre-requisite is an Obama win, but according to Mickey Kaus at Slate, inside sources are predicting fast action on organized labor's top priority. According to Kaus:

Dems are getting set to pass "card check" legislation fast next year, right out of the box, assuming Obama wins and the Democrats get their expected big Senate majority.
The EFCA passed the House this Congressional term but did not make it to the Senate floor because of a near party-line cloture vote.

One exception to the party line vote that does not bode well for the bill's opponents was Arlen Spector (R. Pa) who will be back, along with a crop of newly elected Democratic senators. The big question is how many of the latter. If none of the Democrats strayed and the two independents, including Lieberman voted the same as they did this year, eight would be the magic number needed.

If there are not enough votes for cloture without a compromise, one possibility is dropping the card check proposal and substituting quicky elections, while leaving the interest arbitration provision for first contracts. Since most of those arguing against the EFCA have focused on the most easily explained objection, doing away with the secret ballot, that compromise could easily move an otherwise stuck bill and still give organized labor an enormous boost. In fact, many think it is the interest arbitration provision which is the most dangerous part of the act.

Hat tip to Greg Kittinger at Laboring Away at the Institute for catching the Kaus article.

Monday, 6 October 2008

Colorado Truce - Management & Labor Compromise on Ballot Initiatives

Iit's always good to see management and labor work out their differences, although this is an unusual issue. The WSJ in its story, Executives Pledge Funds as Unions Drop Colorado Initiatives, details a compromise where the business community has agreed to help raise up to $75 million to defeat three anti-union proposals that will be on the November 4th ballot in Colorado, including one designed to make Colorado a right-to-work state.

In return, organized labor dropped four potential anti-business initiatives, including one that would have allowed employees to sue for injuries outside the workers compensation system.

What this confirms for me is the danger of making ballot initiatives too easy. Hard to believe that is the best way to come up with public policy.

Hat tip to the folks at Workplace Issues Today from the M.P. Catherwood Library, Cornell University.

It's Too Early, But Always Fun - Who Will be the Next Secretary of Labor?

The Congressional Quarterly gets a jump with Saturday's review of candidates for all the Cabinet posts in both a McCain and Obama Administration, including Labor Secretary. Although it's way too early to be making any predictions, to the extent they are accurate it does provide some helpful information in how each candidate might view the position. Although it may be intelligent speculation, I would be very much surprised if it was based on any "inside" information. My guess is that the campaigns have plenty on their plate without spending any time on filling "cabinets" that may never come to pass.

CQ's picks for McCain are two trade association representatives and a pol: Randel Johnson from the U.S. Chamber; former Governor of Michigan and now President of the National Association of Manufacturers, John Engler; and former Missouri Senator and Congressman, Jim Talent.

The three picks for Obama, are two pols and a leader from organized labor: Dick Gephardt, former House Majority Leader; Jennifer Granholm, the current Michigan Governor; and Linda Chavez-Thompson, before her retirement the number two person at the AFL-CIO.

If anyone has any links to other mentioned candidates for this or other labor and employment related slots in the next administration, or your own picks, please be sure and pass them on.

Domestic VIolence - a Lurking Issue

Articles, like Domestic violence often bleeds over into workplace from the Birmingham Business Journal, crop up ever so often. Almost every time I see one, it makes me think this continues to be one of those hidden issues that some day is going to come to the forefront on employers' radar screens.

Violence in the workplace is the most horrific aspect, but I can't help think that productivity issues are more prevalent. Many of the potential amendments to the FMLA include domestic violence as a trigger. When legislation starts recognizing it as an employment issue, may be the time it starts being more visible. If you haven't given it any thought, it might be a good idea.

Wednesday, 24 September 2008

It's the Last Week in September, So Be Ready for EEOC vs. ...

In looking at recent cases filed, I noticed the first EEOC suit in Texas in what is traditionally a very busy week for EEOC filings. U.S. Concepts which was sued yesterday in the Western District of Texas gets that small prize.

It is fairly clear that what makes this the week in which a large number of EEOC suits are filed is that September 30 is the end of the government's fiscal year, which also means the end of the period for such metrics as the "numbers of cases filed." Although it may not make a difference on whether a case is ever filed, it is quite clear that the end of the fiscal year impacts the timing of the September surprise that many companies may soon be receiving.

Wal-Mart vs. Wage and Hour Litigation

Wal-Mart has been under a siege of litigation over its payment practices both under the FLSA and various state laws. One of its relatively few victories, the decertification of a 10 year class in Massachusetts has now been taken away by the Supreme Court of the Commonwealth. Salvas v. Wal-Mart (Mass. 9/23/08).

I know that given all the adverse publicity and some of the evidence of practices by some Wal-Mart managers, they may not be the poster child to call for reform of litigation in these type cases. However, just a reading of this opinion and seeing other courts struggle with how to handle these cases, makes me think that the overall system is in need of a massive restructuring.

One problem is that relatively few cases make it for appellate review, since the cost pressures of fighting them make settlement often an economically viable option. Anytime a system has that principle, it becomes very hard for the court system to separate the good from the merely mercenary cases. The Salvas opinion unfortunately, does nothing to advance the cause but is likely to lead to more litigation, make it more difficult (hence more costly) to defend and the downward spiral continues.

For all employers, not just Wal-Mart this is no longer an idle threat, but is now a major problem.

Sunday, 7 September 2008

Florida's Gun Law - Mostly OK Legally, But Good Policy?

The challenge to one of the most recent laws prohibiting employers from banning firearms from their parking lots is summed up well in a post on the Florida Employment Law Blog, Florida Judge Upholds Most of "Bring Gun to Work" Law; Rejects Customer Section as Unconstitutional. I agree, to a point, with the author's analysis of the decision:

I think Judge Hinkle got it right when he concluded that whether the statute will lead to an increase or decrease is not clear, but that its effects will be marginal in any event.

I think that is accurate in that there will be relatively few incidents where a gun will actually make its way from the parking lot to a role in the workplace incident.

That still doesn't change my view that such laws are bad policy. First, the consequences of the one time that a gun is used so overshadows the times that it is not used, as to counterbalance all except the most potent of arguments. And I am not a big believer in the "deterrence effect" which seems to be the only argument made in support of such legislation.

Since I haven't really looked at the underlying legal arguments, I am not in any way arguing that Judge Hinkle got it wrong. A judge, doing his or her job properly, doesn't get to make value judgments about whether something is good public policy. My beef is with the Florida legislature and their counterparts in the nine other states that have passed such legislation. See, Employer Firearm Policies: Parking Lots, State Laws, OSHA, And The Second Amendment for a discussion of the currently enacted statutes.

A Belated Welcome to the Blogosphere to a Fellow Texan

Posting has been very light of late, which is the only excuse for my tardy welcome to Work Matters, a new blog in the labor and employment law world. The author, my good friend Mike Maslanka is not new to that world as he is well known as a prolific author and speaker. In fact a blog was about the last communication channel available for Mike to apply his interesting insights. Welcome.

Wednesday, 27 August 2008

Looking for an Arbitration Award? Here's the Story

If you have ever tried to find a copy of an arbitrator's opinions, you may have felt frustrated. At Publication and Confidentiality of Labor and Employment Arbitration Awards, the Alaska Employment Law Blog has a wonderful overview of how such awards get published (and don't) and where you can look to find them. The author, Robert W. Landau, is a full time labor arbitrator.

One hint on why they may not be available -- according to the code of arbitrator ethics, all aspects of the arbitration process, including the award, must be treated confidentially absent consent of the parties.

Monday, 18 August 2008

Washington State Attorney Gets MDV

Not in her role as attorney, but in her role as terminated prosecutor. Barbara Corey, former prosecutor for Pierce County (Tacoma, Washington) was third in command in the prosecutor's office when she was fired in 2004. The firing occurred after she initiated the transfer of another employee, an act which according to the defense, angered other employees. A part of her claim related to post-termination publicity about her firing, with Corey claiming that she had been defamed. According to the story in The News Tribune, County hit with big jury award, the jury award was just over $3 million:

• $1.5 million for the damage to her reputation
• $750,000 for non-economic damages
• $700,176 for economic damages related to the defamation and false light claims
• $124,994 for loss of wages because of her wrongful termination

Although. as always it's dangerous to read too much from a short story, a couple of danger points stick out:

  • in closing arguments both sides were accusing the other of being liars, with the County arguing that she told a "bundle of lies" before her termination. If the jury doesn't buy that argument, then it sometimes heaps fuel on the fire of their indignation.
  • the County argued it was also within its rights to fire her because she was an "at will employee." While that statement is no doubt true, it rarely works as a good jury argument. Right or wrong, the reality in an employment law trial is that the the burden is on the employer to justify their action. Rare is the employment law case that will be won by the defense if the jury believes that the employer did not have a good reason for taking the action that it did. Legally, the employee is at will, and before and after the jury verdict that is a very important point, but in front of a jury, it's rarely a winner.

The headline before the case went to the jury, After venom on both sides, jury gets Barbara Corey suit, was probably an indicator that this was a case that by the point had reached a stage where any loss was probably going to be a big one.

Adam Lynn, a reporter for the The News Tribune had a series of stories and blog posts before and during the trial that provide some more information:

Pierce County defense strikes back against claims of favoritism (8/7)

No conspiracy, top Pierce County prosecutor testifies about manager’s firing (7/30)

Case against Pierce County ratchets up

Suit Against County Prosecutor Begins With Dueling Versions of the Truth (7/25)

Jury to determine who's lying: Pierce County or former prosecutor? (7/24)

Former deputy prosecutor's lawsuit against Pierce County set to begin (7/20)

Thursday, 14 August 2008

George McGovern - A "No" on the EFCA

Yes it is that George McGovern, the Democratic Presidential candidate of 1972, who has come out with a prescient article in the WSJ extolling the dangers of the Employee Free Choice Act, My Party Should Respect Secret Union Ballots. One telling paragraph:

I worry that there has been too little discussion about EFCA's true ramifications, and I think much of the congressional support is based on a desire to give our friends among union leaders what they want. But part of being a good steward of democracy means telling our friends 'no' when they press for a course that in the long run may weaken labor and disrupt a tried and trusted method for conducting honest elections.

And as I, and a large number of commentators have been saying, one of the other provisions of the EFCA which would dramatically change the leverage on first contract bargaining, may do even more to upset the current balance of power between labor and business. Both provisions, replacing secret elections with card check and requiring binding interest arbitration if a first contract is not reached after 90 days of bargaining, are radical changes. Even if you think that they are needed, it should be a conscious decision, not just a political favor.

One of my greatest concerns about Congressional action is that as an institution it seems far out of touch with the realities of the workplace. And since it doesn't involve a tax increase, enacting employment and labor matters could be seen as a "free" way to pass on benefits to constituents. However, once enacted, employee rights will not be removed. (The last example I can think of is the Portal to Portal Pay Act of 1947). And if ill conceived legislation, truly disrupts the workplace, the cost is one that we will all bear. The EFCA is one piece of legislation that has that potential.

Hat tip to Laboring Away at the Institute for the link to the article.

Add Another Whistle - Consumer Product Safety Act

Before leaving town, Congress added yet another whistleblowing provision that was signed into law by President Bush today. A copy of the Whistleblower provision can be found on the DOL's website, Consumer Product Safety Improvement Act of 2008, Sec. 219. Whistleblower protections.

Here's the substance of the whistleblowing provision:
No manufacturer, private labeler, distributor, or retailer, may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee)—
‘‘(1) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts.
The Commission referred to is the Consumer Product Safety Commission. Like other federal whistleblower statutes it will be enforced by OSHA.

The statute also has protection for employees who participate in proceedings.

What regulations might an employee report under? There's a few of them.

Here's the list:


1000 Commission organization and functions
1009 General statements of policy or interpretation
1010 [Reserved]
1011 Notice of agency activities
1012 Meetings policy--Meetings between agency personnel and outside parties
1013 Government in the Sunshine Act, rules for Commission meetings
1014 Policies and procedures implementing the Privacy Act of 1974
1015 Procedures for disclosure or production of information under the Freedom of Information Act
1016 Policies and procedures for information disclosure and Commission employee testimony in private litigation
1017 [Reserved]
1018 Advisory committee management
1019 Export of noncomplying, misbranded, or banned products
1020 Small business
1021 Environmental review
1025 Rules of practice for adjudicative proceedings
1027 Salary offset
1028 Protection of human subjects
1030 Employee standards of conduct
1031 Commission participation and Commission employee involvement in voluntary standards activities
1033 Display of control numbers for collection of information requirements under the Paperwork Reduction Act
1034 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Consumer Product Safety Commission
1051 Procedure for petitioning for rulemaking
1052 Procedural regulations for informal oral presentations in proceedings before the Consumer Product Safety Commission
1061 Applications for exemption from preemption
1101 Information disclosure under section 6(b) of the Consumer Product Safety Act
1105 Contributions to costs of participants in development of consumer product safety standards
1115 Substantial product hazard reports
1116 Reports submitted pursuant to section 37 of the Consumer Product Safety Act
1117 Reporting of choking incidents involving marbles, small balls, latex balloons and other small parts
1118 Investigations, inspections and inquiries under the Consumer Product Safety Act
1145 Regulation of products subject to other acts under the Consumer Product Safety Act
1201 Safety standard for architectural glazing materials
1202 Safety standard for matchbooks
1203 Safety standard for bicycle helmets
1204 Safety standard for omnidirectional citizens band base station antennas
1205 Safety standard for walk-behind power lawn mowers
1207 Safety standard for swimming pool slides
1209 Interim safety standard for cellulose insulation
1210 Safety standard for cigarette lighters
1211 Safety standard for automatic residential garage door operators
1212 Safety standard for multi-purpose lighters
1213 Safety standard for entrapment hazards in bunk beds
1301 Ban of unstable refuse bins
1302 Ban of extremely flammable contact adhesives
1303 Ban of lead-containing paint and certain consumer products bearing lead-containing paint
1304 Ban of consumer patching compounds containing respirable free-form asbestos
1305 Ban of artificial emberizing materials (ash and embers) containing respirable free-form asbestos
1306 Ban of hazardous lawn darts
1401 Self pressurized consumer products containing chlorofluorocarbons: Requirements to provide the Commission with performance and technical data; requirements to notify consumers at point of purchase of performance and technical data
1402 CB base station antennas, TV antennas, and supporting structures
1404 Cellulose insulation
1406 Coal and wood burning appliances--notification of performance and technical data 1500
Hazardous substances and articles; administration and enforcement regulations
1501 Method for identifying toys and other articles intended for use by children under 3 years of age which present choking, aspiration, or ingestion hazards because of small parts
1502 Procedures for formal evidentiary public hearing
1505 Requirements for electrically operated toys or other electrically operated articles intended for use by children
1507 Fireworks devices
1508 Requirements for full-size baby cribs
1509 Requirements for non-full-size baby cribs
1510 Requirements for rattles
1511 Requirements for pacifiers
1512 Requirements for bicycles
1513 Requirements for bunk beds
1602 Statements of policy or interpretation
1605 Investigations, inspections and inquiries pursuant to the Flammable Fabrics Act
1608 General rules and regulations under the Flammable Fabrics Act
1609 Text of the Flammable Fabrics Act of 1953, as amended in 1954, prior to 1967 amendment and revision
1610 Standard for the flammability of clothing textiles
1611 Standard for the flammability of vinyl plastic film
1615 Standard for the flammability of children's sleepwear: Sizes 0 through 6X (FF 3-71)
1616 Standard for the flammability of children's sleepwear: Sizes 7 through 14 (FF 5-74)
1630 Standard for the surface flammability of carpets and rugs (FF 1-70)
1631 Standard for the surface flammability of small carpets and rugs (FF 2-70)
1632 Standard for the flammability of mattresses and mattress pads (FF 4-72, amended)
1700 Poison prevention packaging
1701 Statements of policy and interpretation
1702 Petitions for exemptions from Poison Prevention Packaging Act requirements; petition procedures and requirements
1750 Standard for devices to permit the opening of household refrigerator doors from the inside

Monday, 11 August 2008

Id al-Fitr for Labor Day - A Different World

I am catching up on some past articles that came in while I have been out of the office and one that caught my eye was the NYT's article from last week, Muslim Holiday at Tyson Plant Creates Furor. At a Shelbyville, Tennessee Tyson plant, the Retail, Wholesale and Department Store Union negotiated a contract which traded the Muslim holiday that is the last day of Ramadan, Id al-Fitr for Labor Day.

Although it is quite popular with the 100's of Somali workers at the plant, it is has been less so with others who see it as un-American. It might seem a little less so when you factor in that traditionally the employer had required employees to work on Labor Day, so what they really received was premium pay rather than a day off. As one of the members of the union's negotiating team said, "We had worked 23 Labor Days in a row; it wasn’t like it was a day to spend with our family."

As the beleaguered union president Stuart Appelbaum said, “What we negotiated was the will of the workers,” and added that his was the first union to negotiate a paid day off for a Muslim holiday and that he was sure Tyson would not be the last employer to agree. Perhaps as interesting, Mr. Appelbaum is also the President of the Jewish Labor Committee.

It is a new world.

Hat tip to the folks at the Cornell University's Catherwood Library's Workplace Issues Today which provides "abstracts and links to workplace-related news stories covered in the major media."

USERRA - Not Always in Federal Court.

USERRA cases are relatively rare still (probably not for long) so unusual to see two cases from different circuits on consecutive days. Both are on procedural grounds and in both cases, notwithstanding that USERRA would seem to be the quintessential federal question case, plaintiffs lost out on a federal court hearing

The 6th Circuit today joined the 5th Circuit (see post here) in holding that USERRA claims are subject to arbitration agreements. Landis v. Pinnacle Eye Care (6th Cir. 8/11/08) [pdf].

The 5th and 6th are the only two circuit courts to address the issue. While district courts have been mixed, the 6th Circuit specifically disagreed with district courts from Georgia and Kansas which had held otherwise.

In McIntosh v. Partridge (5th Cir. 8/8/08) [pdf] decided last Friday, the Court held that where a state is the employer, a federal court has no jurisdiction under USERRA when the claim is brought by the employee. According to the statute there are three situations that can arise with differing jurisdictional results:
(1) In the case of an action against a State (as an employer) or a private employer commenced by the United States, the district courts of the United States shall have jurisdiction over the action.
(2) In the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.
(3) In the case of an action against a private employer by a person, the district courts of the United States shall have jurisdiction of the action.
38 U.S.C. § 4323(b).
McIntosh was employed by the state of Texas. Notwithstanding that the prior version of USERRA gave federal courts jurisdiction under such circumstances and the statute uses "may" rather "shall" in the applicable section, the Court held that federal courts have no jurisdiction for USERRA claims against a state employer.

Estoppel -- ERISA Joins the List

Actually, it is not accurate to imply that estoppel has not previously been applied to ERISA issues, see 5th Circuit Adopts ERISA Estoppel, But Employee Still Loses. But the 3rd Circuit's decision last week in Pell v. DuPont (3rd Cir. 8/8/08) makes the point of how important it is for employers to be accurate in all of their communications to employees, particularly about retirement benefits. Given the number of times estoppel has been applied in other contexts just in the past year, see my prior posts here, here and here, Pell highlights yet another area of exposure for employers that seems to be increasing.

The the issue in Pell arose because of his transfer from a wholly owned subsidiary to the parent company. Most of the communications he received about the effective date of employment to be used in his retirement had the wrong service date, but also contained the usual disclaimers that they were estimates and subject to further review. The error that was contained in the prior communications was discovered before Pell made his final decision to retire, although it was within six months or so of his contemplated retirement.

Under all the circumstances the district court held that DuPont was estopped from using the effective employment date as calculated under the plans, and must use the earlier employment date that it had communicated to him. The court used a date that had been contained in a letter to Pell from DuPont's Director of Employee Compensation and Benefits at Consol, the subsidiary where he was originally employed. That letter referred to his “Retirement Plan Credited Service Date” as being August 1, 1972.

When Pell actually retired, the correct calculation under the plan resulted in a pension service date of November 1, 1975 which is what DuPont used. The district court entered an injunction that the service date to be used was August 1, 1972 and DuPont was estopped to use the "correct date" as determined by following the terms of the plan. However, the district court also held that it was prospective only, holding it did not have the power to award the past underpayments.

The appellate court, went further than the district court, adjusting the date to February 10, 1971 and requiring that restitution be made, not just a change in prospective payments.

Key to its holding was a 1991 email (more than 10 years before Pell's actual retirement) from an employee in the benefits department:

Consol [the subsidiary] pension will be calculated on their formula and their SS offset. Your adjusted service date is 2/10/71 not 1975 and Du Pont will use this date for your years of service under their formula when calculating your pension. The‘Pension’ booklet in your green Benefits Binder explains the Du Pont formulas; however, nothing written re offsets as each would be different.”

It has to be scary for a benefits worker to think as they answer the frequent requests for clarification and information, that their one response (perhaps one of hundreds written in that week) could be "rewriting" the pension scheme at least for that one employee.

Although as the opinion makes clear, there are a number of hurdles that Pell had to overcome to establish equitable estoppel, this was a time where it happened.

No one can or should argue that it is not important to convey accurate information to employees on which they are basing major decisions. But anyone who has ever dealt with the complexity of most pension schemes, know how easily it can be to unwittingly trip up.

Friday, 25 July 2008

MDV's Not on Vacation - Connecticut Newspaper Organization Takes a Hit

Maybe it's the dog days of summer, but something certainly got under a Connecticut federal jury's skin as reported by the Connecticut Post, Journal Register loses $4m lawsuit .

It was a manager at the call center for the parent company of the New Haven paper who was the plaintiff. Her claim -- the always dangerous, retaliation, although this one had an unusual twist.

The parent company of the New Haven Register said it fired Terri Tucker, a manager at its telemarketing center, for misusing an office telephone on which collect calls were accepted. Tucker claimed it was really because she had been scheduled to be the company's primary witness in a sexual harassment lawsuit brought by another female employee. However, after Tucker observed the accused male employee make "sexually lewd gestures and make sexual comments to others" she told her supervisors and apparently would no longer testify. When she was terminated, Tucker filed her own suit.

Any court case that makes it to trial almost always has a complicated story, but this one involving additional litigation sounds like it has more complexity than most. Apparently the initial sexual harassment case was settled.

It is a good lesson for employers and their lawyers about the dangers that can arise in defending one lawsuit. Some additional points from the short story:

  • According to Tucker's attorney, Jeffrey Bagnell, "I'm going to be seeking legal fees which, after three and a half years, will be substantial." Probably an understatement.
  • According to the story, the employer is "financially-strapped."

Since as expected the company will appeal, and depending on how financially strapped the company is there is always the possibility that a large judgment might be the tipping point to bankruptcy, and because of course, at this point it is merely a verdict, not a judgment, absent a settlement there is apt to be a long time between the return of this week's verdict and any spending of the money by Ms. Tucker.

Still, it is not likely to make for an enjoyable remainder of the summer for those charged with defending the employer.