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 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. Salvasv. 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.
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.
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 Maslankais 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.