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.

Free Government Advice from the EEOC, NLRB and the DOL

You can agree or disagree with it, but it is always helpful to know what the regulators think.

Tuesday, the EEOC published its updated Compliance Manual section on Religious Discrimination. Just as a reminder as to how broad religious discrimination can be, the definition of religion used by the EEOC is:

Religion is very broadly defined under Title VII. Religious beliefs, practices, and observances include those that are theistic in nature, as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religious beliefs can include unique views held by a few or even one individual; however, mere personal preferences are not religious beliefs. Title VII requires employers to accommodate religious beliefs, practices, and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer.

Also on Tuesday, the NLRB General Counsel Ron Meissberg issued a Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy. Although it could have obvious implications during this election season, the reason for the advice memorandum was the immigration law demonstrations in 2006 which included employees leaving their jobs to protest proposed legislation.

According to the analytical approach set out in the memorandum, the GC concludes such conduct is covered by §7 of the NLRA:

Immigrant employees and even non-immigrant employees could reasonably believe that the bill could impact their interests as employees. For these reasons, employee attendance at and support of these demonstrations in our view was within the the scope of the "mutual aid or protection" clause.

However, coverage is not the key question, the question is whether it is protected activity. That requires both coverage by §7 and an analysis of the "means employed." The memorandum set out three principles that will guide that determination:

• non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, that takes place during the employees' own time and in nonwork areas, is protected;
• on-duty political advocacy for or against a specific issue related to a specifically
  identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules; and
• leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally-applied work rules.

It is likely that the battleground in the immigration cases will be over the third principle.

And a final bit of advice from the government comes from the folks at DOL, reminding that as of today, the Federal minimum wage increases to $6.55.

6 Years, 1800 Posts and How the World Has Changed

Not a lot has changed with Jottings By An Employer's Lawyer since my first post 6 years ago today. 1,800 posts later, I still post on blogspot, I still use the free version of blogger, and I still use an outmoded and limited version of blogroll.

But one thing that has definitely changed are the people who have joined me in this small, but hopefully interesting part of the blogosphere.

Listed below are the blogs in the area that have made their way to my RSS reader. I have listed their first post that I could find, although I am fairly certain that I didn't get the very first post of everyone. Still it's an interesting exercise to check them out now as well as their early posts.

A few of the blogs are worthy of special comment. George Lenard at George's Employment Blawg and Michael Fitzgibbons at Thoughts From a Management Labor Lawyer have been at this nearly as long as me.

Paul Secunda and Richard Bales took over the Workplace Prof Blog from its founder Rafael Gely, and now have added some additional colleagues and provide daily posting of an extremely high level. Also from the academic world, Ross Runkel has the Arbitration Law and Employment Law blogs and some other publications that are notable.

Paul Mollica at Daily Developments in EEO Law is joining me this fall as the only other active blogger (that I know of) in the College of Labor and Employment Lawyers.

Although I think I have only met one of the bloggers listed below, Chris McKinney of HR Lawyers Blog, who is in San Antonio, just down the road from me, and have corresponded with only a handful more, I feel a common bond with everyone who chooses to share their viewpoint on a regular basis. Hopefully, our collective effort has made a difference. I know that I have learned a lot.

If you haven't checked out my colleagues, please do so.

1. Alaska Employment Law, May 3rd 2007
2. Benefits Blog, April 19, 2003
3. Boston ERISA Law Blog, April 7, 2006
4. California Employee Rights Blog, August 1, 2006
5. California Labor and Employment Defense Blog, April 5, 2007
6. California Labor and Employment Law, October 6, 2006
7. Connecticut Employment Law Blog,September 3, 2007
8. Daily Developments in EEO Law, July 6, 2004
9. Delaware Employment Law Blog, March 11, 2008
10. Disability Law 2.0 -- Tan*, Rested, and Ready, November 30, 2004
11. Employer Law Report December 17, 2007
12. Evil HR Lady, August 19, 2006
13. Florida Employment Law Blog, May 23, 2008
14. George's Employment Blawg , May 12, 2003
15. HR Lawyer's Blog, March 14, 2005
16. HR Lori April 10, 2005
17. HR Web Café, July 25, 2006
18. HR Wench, September 17, 2007
19. Jonathan Tasini at Working Life, October 25, 2004
20. Labor Employment Law Blog, October 5, 2004
21. Laboring Away at the Institute, August 31, 2004
22. Law Memo Arbitration Blog, January 15, 2005
23. Law Memo Employment Law Blog, January 11, 2005
24. Maryland Employment Law, April 17, 2006
25. Northern Exposure, October 6, 2007
26. OFCCP Blog Spot, April 17, 2006
27. Ohio Employer's Law Blog, May 9, 2007
28. Pennsylvania Employment Law Blog, December 15, 2006
29. Pennsylvania Labor and Employment Blog, May 7, 2008
30. PJH Law- Employment Law Blog, October 31, 2006
31. Storm's California Employment Law, July 1, 2004
32. Strategic hr Lawyer, November 12, 2004
33. Suits in the Workplace, September 29, 2005
34. That's What She Said, September 21, 2006
35. The FMLA Blog, August 14, 2006
36. The HR Capitalist, December 9, 2006
37. The Laconic Law Blog, November 9, 2007
38. The Word on Employment Law, November 26, 2007
39. Thoughts From a Management Lawyer, May 1, 2003
40. Transgender Workplace Diversity, March 24, 2006
41. Wage Law: The California Wage and Hour Law Weblog, December 17, 2004
42. What's New in Employment Law?, June 26, 2006
43. Whistleblower Law Blog, September 24, 2007
44. Work in Progress, November 17, 2006
45. Workers Comp Insider , September 17, 2003
46. Workplace Fairness, January 9, 2003
47. Workplace Prof Blog ,September 30, 2004
48. Workplace Privacy Counsel, June 27, 2006
49. Work Related Blogs and News, April 13, 2005

I am sure that there are other blogs in this area that I have missed, as well as getting any number of "first" posts wrong. Please feel free to make additions and point out corrections in the comments.

As always, thanks for stopping by.

Michael Fox

Updated: As I get additions, corrections within the next few days they will be added into the post, since hopefully the list will be of some benefit to those looking for a collection of labor and employment law blogs.

FMLA Coverage by Estoppel - Via State Law Claims

I have posted before about the dangers of creating coverage by estoppel relying in part on the Supreme Court decision in Arbaugh v. Y & H Corp. See The Progeny of Arbaugh and Danger for the Small Employer.

Without mentioning Arbaugh, the 7th Circuit points out that there are state court theories that could result in coverage under the FMLA. In its handbook, and repeated in its letters to an employee who requested FMLA leave, the employer used the following language about eligibility:

To be eligible for FMLA benefits, an employee must have worked for a covered employer for a total of 12 months and have worked at least 1,250 hours over the previous twelve months.

What was missing was the so called 50/75 exception, that an employee is not eligible if they are at a worksite with less than 50 employees within a 75 mile area.

Unfortunately, that was exactly the situation in Peters v. Gilead Sciences Inc. (7th Cir. 7/14/08) [pdf]. Peters was at a work site where the 50/75 exception would have been applicable. When FMLA protection became an issue, Peters lost at the trial court.

Without addressing the concept of equitable estoppel, the Court found that the Indiana state law claims of contract law (based on the handbook) and promissory estoppel might be enough to create coverage and reversed the trial court's grant of summary judgment. It also said that whether equitable estoppel ( where Arbaugh might make a difference) might also be available, remained an open question under 7th Circuit law and one that they need not decide now.

Word to the wise, words matter. If you intend to rely on a 50/75 exception, you should say so.

Retaliation, Whistleblowing and Preemption - The Texas Supreme Court Chooses

Although the specific result is that the employee loses, today's Texas Supreme Court's opinion in City of Waco v. Lopez (Tx 7.11.08) (pdf) has something for both sides of the docket. The factual pattern is straight forward. Lopez, a city employee filed an internal grievance complaining a transfer was because of his age and race. He was moved back to his original position, but fired a few month later, allegedly for another offense.

Instead of pursuing a retaliation claim under the Texas Commission on Human Rights Act, Lopez chose to sue based on the general Whistleblower Act (§554.001 et seq.) (It is not clear from the case, but my guess is Lopez may have missed the shorter deadline for filing a charge under the TCHRA.)

The city moved to dismiss, claiming the TCHRA preempted his claim under the Whistleblower Act. Justice Wainwright writing for a unanimous court agreed, finding the more specific statute (the TCHRA) trumped the more general statute (the Whistleblower act). Since Lopez had not filed a charge under the TCHRA, which is a jurisdictional requirement, his claim had to be dismissed.

Although not good for Lopez, the opinion at least puts the Texas Supreme Court on record clearly in support of the "opposition" clause of the TCHRA and for extending its coverage to an internal grievance. Justice Wainwright even mentions in a footnote that the U.S. Supreme Court is currently considering a similar (although not exact) claim in Crawford v. Metro. Gov't of Nashville (Docket 06-1595).

For those who are not familiar with "opposition" and "participation" clauses as those terms are used in the context of statutory retaliation provisions, Lopez provides a good explanation.

The Court also gives some amplification on the local laws provision of §21.151 and the election of remedies provision, §21.211 that are, to be charitable, somewhat confusing:

Section 21.151 is specifically limited to local laws, and Section 21.211 limits the ability to pursue multiple grievances in multiple forums over the same alleged conduct. In the realm of employment discrimination litigation—where federal, state, and local governments individually declare their opposition to unlawful discrimination—Section 21.211 merely means a plaintiff cannot file an administrative complaint with the CHRA after having already (1) filed a lawsuit under a federal or local anti-discrimination measure covering the same conduct or (2) begun administrative proceedings with the EEOC or local enforcement entities based on the same conduct.

I can see the Court's 2nd proviso on what §21.211 means leading to some interesting issues related to the timing of the filing of TCHRA claims if they are not jointly filed with an EEOC charge.

While the Court makes clear that it is only deciding the interaction between the TCHRA and the general public whistleblower statute, the discussion of the importance of requiring compliance with the detailed procedures of the TCHRA bodes well for any other employer that has the option to argue for preemption of some other statute where there is an overlap.

One style note, in his opinion Justice Wainwright uses the acronym (CHRA) [Commision on Human Rights Act]. I have always used the longer (TCHRA) [Texas Commission on Human Rights Act). In a quick check of prior Supreme Court usage, before today's opinion it appears to have been TCHRA 8, CHRA 4.

The (Not Very Well) Hidden Cost of Litigation

There is nothing so confirming as seeing someone else quoted in print making a point that you yourself have made. Even better when that person is well known. So I was pleased to find this quote from Stanley Chesley in a Law Practice Management article, Ohio Law Firm Switches to Success-Fee Billing. Chesley formerly a plaintiffs' lawyer has been actively involved in some of the largest mass tort claims and settlements, including both breast implants, tobacco and phen-phen (the latter has resulted in some controversy and litigation against him). According to the article, Chesley is now representing corporations in antitrust and securities litigation.

His point, which I have also made over the years, is set out his comments on how he thinks cases should be handled:

"I think many cases should be settled before summary judgment because the cost of discovery is not only the lawyer fees, it’s also the corporate executives and all the department heads” who have to spend valuable time giving depositions and assisting in discovery, he says.

My only addition would be to not limit the time consumed to "corporate executives and department heads" as much of the time spent (and arguably "lost") is not done by employees at that level, but whose time is still quite valuable.

Still not included in his equation, which focuses on actual hard dollar costs, is the psychic drain that litigation places on company employees. That is particularly true in employment cases, where it is a conscious decision of the company (and thus of some individual or group of individuals) that is being defended.

I have often wondered if any enterprising academic has tried to put hard numbers to these costs. If so, I haven't been able to find it. If anyone else has, I would love to hear from you.

What's the Real Story on E-Verify?

Given that we seem to be heading towards greater use, both by executive order that all government contractors use it, and various state statutes mandating it, it is an important question.

I was curious to see this post at the NAM's blog challenging some of the promotion of E-Verify by Secretary Chertoff, see E-Verify, E-gads. I also listened to the podcast from Cato Institute,
also raising concerns about the program's efficacy. Both NAM and Cato are for the most part allies with the Bush administration, but clearly on this issue there is a difference of opinion.

As the usage increases, there will be more information, but also if some of the concerns listed by NAM and Cato continue, there will also soon be litigation. Unfortunately, it will be the employer listed as defendant.

Denver MDV Award - a "Termination Plus" Plaintiff

I nicked the phrase "termination plus" from Jeff Londa, one of my fellow shareholders, to refer to a plaintiff that presents more than the usual amount of danger because of additional circumstances. The lead to the story in The Rocky Mountain News, Jury awards $1.4 million to whistle blower, presents a perfect example:

Sandra Simmons will never forget the moment General Steel fired her.

She was driving to the intensive care unit to see her younger sister, who was dying of kidney and liver failure, when the company informed her over the telephone.

Of course the story doesn't give the company's side of the story and I am sure there is one. But obviously in this case, it didn't resonate with the jury.

A hat tip to the Daily Labor Report for the story.

A Declaration of Independence but the World Grows Smaller

I think Daniel Schwartz at The Connecticut Employment Law Blog has the right approach in his post, Happy July 4th.

But even though this is not one of those holidays that has any particular employment law tie or angle, I couldn't help think about the full circle type connection between the independence from European influences that we celebrate today and the announcement earlier this week of The First Global Union, as reported by Jeffrey Hirsch at Workplace Prof Blog.

Workers Uniting, a combination of the UK union Unite and the United Steelworkers, not only has a name, but a website. There is no question that the world is more connected and things that we have long thought of as being "local" have global aspects. So it should be no surprise that is true for the labor and employment law world as well.

Although it may not be a surprise, that does not mean it may not be revolutionary.

Keeping Data Submitted to EEOC Confidential - Easier Now?

One of the worries about submitting information to agencies investigating workplace issues is the risk that it will be released to an employer's detriment. While the worry is real, the ability to get much judicial guidance is limited as it takes a unique set of circumstances for it to happen.

But happen it did and earlier this week the D.C. Circuit addressed the issue. The opening paragraph outlined the unusual circumstances, and its holding:

Seven years ago, Venetian Casino Resort, LLC repaired to district court for an injunction to keep the Equal Employment Opportunity Commission from disclosing certain confidential information without notice. The district court dismissed the case as unripe, but we held otherwise and remanded the case for proceedings on the merits. The district court then granted the Commission’s motion for summary judgment and Venetian appealed, arguing the Commission’s disclosure policy is unlawful. We agree, reverse, and remand the case for the district court to enter an injunction prohibiting the Commission from disclosing Venetian’s confidential information pursuant to its current disclosure policy.

Venetian Casino v. EEOC (D.C.Cir. 6/27/08) [pdf]

Although not totally clear from the opinion, this seems to be concern about the garden variety turning over of information submitted by the Venetian to a lawyer (or potential one) for the plaintiff, even though the Ventian had identified the information as confidential.

Although it's a victory for Venetian for the time being, it seems likely only to force the EEOC into coming up with a better rationalization for its rules, or a rule that makes it clear that the Commission should give an employer notice and chance to respond before releasing the data.

That's the possibility offered by Professor McCormick in her analysis of the case at Workplace Prof Blog, The EEOC and Disclosure of Employer Data. Although I don't always agree with the academics at Workplace Prof Blog, even though it is clearly one of the best sources of current employment law information on the web, this is one of those occasions where I do.