Wednesday, 19 November 2008
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.
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):
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.
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.
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 Processing.com 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
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.
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
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.