Thursday, 31 December 2009
According to a report about the lawsuit when it was filed, Scott Shevlin was fired the same day that OSHA investigated an anonymous complaint about safety practices at the work site. Feds allege worker fired for complaint about firm .
Thanks to all who have been readers this year, and this decade for that matter. It has been an interesting time to be a labor and employment lawyer.
And for 2010 forward? My prediction, if I am still writing this blog 10 years from today, I will be accurate in making the same statement.
Happy New Year.
Wednesday, 30 December 2009
When it actually happens it will only be the continuation of incremental change, but it is as good occasion as any to take note, and consciously reflect, on what it means.
Hat tip to JD Hull at What About Clients? for his post, Working U.S. Women Officially Rule.
Monday, 28 December 2009
Hirsch doesn't know exactly what this means, nor do I, but it can't be a happy thing for organized labor, or Obama. As he also notes, it could turn what would have been an academic question, whether a 2 member Board can operate in the absence of a three member quorum, into something much more important. That case is currently pending before the Supreme Court.
Even if the 2 member power is upheld, at this particular time it really won't matter, since the two current members, who were nominated by Presidents of different parties, only act when they are in agreement, which means nothing too controversial is likely to occur until something gives on the appointment to the three vacancies.
Update: NAM's Shopwatch story from yesterday has even more details about the action. See, Senate to President: Reconsider NLRB Nominee.
Wednesday, 23 December 2009
The jumping off point for his comment was a guest column in the Des Moines Register by Lake Lambert III, Professor of Religion at Wartburg College, in Waverly, Iowa. Dr. Lambert is advocating for the Workplace Religious Freedom Act. As the article notes, the Act has been kicking around for quite awhile, notwithstanding support on both sides of the aisle. Although it occasionally gets a push, the fact that it has not made much progress I think speaks volumes to the potential problems. Smith thinks the bill cuts too broadly and points out some of the issues:
In a country with so many different religious practices, however, an expanded duty to accommodate them all could create more problems than it solves. What happens when the practices of different religions conflict? What about situations where an employer's legitimate interest in safety or uniformity impacts an employee's desire to wear religious clothing or articles? Under existing law, employers have more flexibility to address these situations in the context of legitimate business needs. The proposed RWFA tips the balance too far the other way.I couldn't agree more.
Still it has been a few years since I have written about it. My first post was in 2003 and things had not changed much when I wrote in 2005, Workplace Religious Freedom Act - Consensus On Neither the Right Nor Left. It is not unheard of for legislation to languish year after year, only to make it to the forefront. The ADA and FMLA are two examples of statutes that were introduced in a number of Congresses before becoming law, ENDA (protection for sexual preference and more) may be the next.
And who knows, even though it doesn't seem to be making much progress, the Workplace Religious Freedom Act doesn't show any signs of going away either.
Tuesday, 22 December 2009
The longer article is Determining if Mandatory Arbitration is “Fair:” Asymmetrically-Held Information and the Role of Mandatory Arbitration in Modulating Uninsurable Contract Risks, by Paul Bennett Marrow.
Here's the money quote from the Obiter Dicta article:
Two comments, first I am not as optimistic as the writer that the Arbitration Fairness Act will not pass; secondly, I think saying that being for mandatory arbitration is not a popular position, may be the understatement of the year.Passage of the Arbitration Fairness Act of 2009 (which seems unlikely given its current status in both House and Senate committees) will cause more problems than it will solve. For instance, without the availability of mandatory arbitration, many parties will be more vulnerable to potential litigation and its associated uncertainties. As a result, overall transaction costs will increase. These costs will be directly passed to borrowers and franchisees. Employers will also pass these costs to business customers, albeit indirectly.
Friday, 18 December 2009
This is an interesting and timely story for me as I will be speaking at the Advanced Employment Law Seminar sponsored by the Texas State Bar in early January. My topic: "You're Not the Boss of Me: When and How Much Can an Employer Regulate Employee Conduct On and Off the Job."
Rob correctly points out that the key is likely to be that Texas is an employment at will state. I think the most interesting long term question is whether or not somewhere down the road, the expectations of the general public on what employers should do, as opposed to what they can legally do, becomes so at odds with employment at will, that the venerable doctrine is abandoned.
Of course that could never happen. And Lehman Brothers could never go bankrupt, Arthur Andersen could never fail, and Tiger Woods could never .... You get the point.
Thursday, 17 December 2009
After passing the Senate in October (the day before I was testifying in a Senate Judiciary Committee hearing involving arbitration where Senator Franken took the lead) it has now passed not only the House, but survived a conference committee. Franken Rape Amendment Included In Defense Spending Bill.
The amendment extends not only to first tier contractors, but also to sub-contractors, if either of them exceed $1,000,000. Although much of the publicity surrounding the Amendment has been focused on a rape that occurred against an employee who had an arbitration agreement, by extending its coverage to any claim under Title VII it is much broader than cases involving sexual assault.
Here is the language of the Franken Amendment that survived conference :
The bill now goes back to the Senate where passage is expected before Christmas.SEC. 8116. (a) None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 that is awarded more than 60 days after the effective date of this Act, unless the contractor agrees not to:
(1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention; or
(2) take any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates that the employee or independent contractor resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress,false imprisonment, or negligent hiring, supervision, or retention.
(b) None of the funds appropriated or otherwise made available by this Act may be expended or any Federal contract awarded more than 180 days after the effective date of this Act unless the contractor certifies that t requires each covered subcontractor to agree not to enter into, and not to take any action to enforce any provision of, any agreement as described in paragraphs (1) and (2) of subsection (a), with respect to any employee or independent contractor performing work related to such subcontract. For purposes of this subsection, a ‘‘covered subcontractor’’ is an entity that has a subcontract in excess of $1,000,000 on a contract subject to subsection (a).
(c) The prohibitions in this section do not apply with respect to a contractor’s or subcontractor’s agreements with employees or independent contractors that may not be enforced in a court of the United States.
(d) The Secretary of Defense may waive the application of subsection (a) or (b) to a particular contractor or subcontractor for the purposes of a particular contract or subcontract if the Secretary or the Deputy Secretary personally determines that the waiver is necessary to avoid harm to national security interests of the United States, and that the term of the contract or subcontract is not longer than necessary to avoid such harm. The determination shall set forth with specificity the grounds for the waiver and for the contract or subcontract term selected, and shall state any alternatives considered in lieu of a waiver and the reasons each such alternative would not avoid harm to national security interests of the United States. The Secretary of Defense shall transmit to Congress, and simultaneously make public, any determination under this subsection not less than 15 business days before the contract or subcontract addressed in the determination may be awarded.
Hat tip to the Washington Labor & Employment Wire for their post on the appropriations bill.
Update (12/21/09): President Obama signed the law over the week end. Obama Signs Into Law Restriction on Arbitration Clauses.
Update (12/30/09): If you check the comments below, a reader has pointed out that I may have read the Franken Amendment too broadly when I suggested it may cover any Title VII claim. I certainly can see the point, and actually
However, I am apparently not the only one to read it broadly (or at least write about it that way). The
Alaska Employment Law blog's post, The Breadth of the Franken Amendment, quotes from the Legislative & Public Policy Direct of NELA:
My guess is that defense contractors will put the wording from the Franken amendment "as is" into their agreements, and then when someone seeks to enforce arbitration of a Title VII claim with no relationship to "sexual assault or harassment" and we will get our first determination that matters. Even if the commentator below is correct about Title VII being limited, it seems a little harder to apply that reasoning to "negligent hiring, supervision or retention." ]Importantly, it bars contractors and subcontractors that are funded by 2010 appropriations not only from entering into pre-dispute “agreements” with their employees that require arbitration of Title VII claims, but also from ENFORCING any such agreements that already exist. It also appears to apply to such “agreements” with ANY of the contractors’ employees, anywhere, not just those whose jobs are funded by defense appropriations.
Legislative drafting is obviously not an easy task. Not that they need it, but it definitely provides job security to judges.
Tuesday, 15 December 2009
So when Professor David Yamada, the leading proponent of anti-bullying legislation notes that the Joint Commission has enacted standards that can be read as requiring anti-bullying procedures and training, I take note. See Workplace bullying in healthcare I: The Joint Commission standards.
While I haven't read the whole article, I was struck by one of his introductory comments:
In many ways, United States labor and employment law sleepwalked into cyberspace. Although there is wide societal recognition that new technologies are leading to the diminishment of personal privacy, there has not been an equal demand for changes in the legal paradigm.
Besides not being able to open your email without the announcement of yet another seminar on social media, there's other evidence that we are actually moving beyond the platform to actual developments. One is a report from Richard Negri at today's workplace, Some Things I Took Away From The Organizing Conference Last Week. That's organizing as in bringing a union to your workplace, not as in straightening your closets. If you don't think it's a different world, just check out the power point presentation, Organizing & New Media in the Obama Era at the conference's web site.
And yesterday, the Supreme Court granted certiorari in the Quon case where the 9th Circuit held that notwithstanding the city's policy that it could review electronic messages on equipment furnished to its employees, the employee nevertheless had an expectation of privacy because of the way the policy was implemented. Although the case is likely to turn on 4th Amendment law that is not directly relevant to private sector employers, any action by the Court that seems to expand the privacy rights of employees is likely to have a ripple effect on related areas such as common law privacy claims.
It may be too early to say that labor and employment law is up to date on all forms of communication and interaction that we now live with on a daily basis, but there's no question that willingly or not, it is clear that we will soon be dealing with them.
Friday, 11 December 2009
When that charge was later dropped, he filed a lawsuit against his former employer for malicious prosecution. According to the report from the Richmond Times Dispatch, the jury took less than half an hour to deliver its message. Jury awards $3.2 million to local trucking company employee.
Because the legal standards are relatively high, this verdict is likely to have a long way to go before it becomes a judgment that has to be paid. But it is a good reminder that any time one of the actions that an employer is considering is filing a criminal charge against an employee, that there is at least the potential for what at the time would seem preposterous -- that it could be the employer that ends up the defendant.
Wednesday, 18 November 2009
I went over to check it out and since I have been interested in the "mixed motive" issue as a follow up to my testimony before the Senate Judiciary Committee on the bill to overturn Gross v. FBL Services, thought I would try out "mixed motive." Here are the first five entries with that search on the Google scholar page, with the radio button for "Legal opinions and journals" checked: Rachid case is a 5th Circuit case which extended mixed motive to the ADEA without a lot of discussion, and has been sub silentio overruled on that point by Gross.
I doubt that many are canceling their Westlaw or Lexis accounts today, but it is an interesting development.
Tuesday, 17 November 2009
The case in question involved a manager who was discharged after he had engaged in not one, but two "consensual" sexual relationships with subordinates. The second one occurring shortly after he had been warned about the first relationship. Besides having what Professor Doorey calls one of the "great lines in recent Canadian legal jurisprudence":
"The relationship was on its face consensual. Her interest in the affair was based in lust; the basis of his interest may have been the same or otherwise."the case also points out a different liability standard and a different way of handling attorneys fees.
For liability there is a concept of "notice," which must be given if there is no cause. Fortunately for the employer, the court held that there was cause in light of a managerial employee's obligation to help ensure a workplace free of sexual harassment and, interestingly, protect the employer from claims of sexual harassment. It was a good thing, because the court went on to hold that if notice had been required it would have been 18 months worth of pay.
One of the differences that may be the most appealing to employers in the US is the way attorneys fees are handled. Here, since he lost the employee was liable for attorneys fees of the employer.
Not too surprisingly however, the court did not stick the employee with the full amount claimed by employer's counsel, which was almost $200,000. (Apparently Canadian management side lawyers are just as expensive as their American counterparts.) Instead, the manager was assessed $37,000. Still a hefty sum and one that would certainly discourage much litigation.
The folks at Lynch Ryan have been posting tremendously insightful and helpful information since September 2003. In a time when many blogs come and go, it is good to see them appropriately acknowledged for their efforts.
According to the report, there are substantial disincentives for the reporting of injuries which can in some cases lead to pressure on health care practitioners to provide insufficient medical treatment.
The full report, Enhancing OSHA's Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data, was issued on October 15, 2009.
Will OSHA go along? According to the report, OSHA agreed with the recommendations.
Saturday, 14 November 2009
At the end of a First Amendment case brought by a professor who has been suspended from teaching duties (but was still being paid), the 5th Circuit affirmed summary judgment on his assault claim in the following paragraph:
This leaves only DePree’s assault claim against Appellee Niroomand. Under Mississippi law, assault occurs where a person “(a) . . . acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” [cite omitted] According to DePree, Niroomand “aggressively walk[ed] toward [DePree], yelling at [him], repeatedly referring to [him] as a ‘son-of-abitch,’ and shaking papers in his face creat[ing] an apprehension in [DePree] of an imminent harmful or offensive contact.” Appellee Niroomand contends that DePree’s apprehension was not reasonable. We agree. Taken in context, these statements and actions could not create a reasonable apprehension of imminent, harmful contact. DePree and Niroomand had squared off in similar past confrontations without offensive contact. Nothing in the current claim suggests DePree could have reasonably feared Niroomand just because he cursed and rattled papers in DePree’s face. No triable fact issue of an assault arose here.
At some point, that is going to be a handy reference.
However, this press release last week from the Department of Labor, Grandville, Mich., restaurant operators ordered to pay more than $2 million in back wages and damages is a sobering reminder that there is a newly invigorated government agency that is conducting investigations and seeking back wages and penalties on behalf of employees.
The restaurants in question were 5 Chinese restaurants operated by a husband and wife team. It will take a lot of kung pao chicken to cover that fine.
Earlier this fall, the ABA Journal reported that the DOL had hired 250 new investigators for the Wage and Hour Division. Feds to Ramp Up Enforcement of ‘Rampant’ Wage-and-Hour Violations. And all of this activity is occurring without a permanent head of the group as President Obama's nominee for Administrator of the Wage and Hour Division, Lorelei Boylan withdrew her nomination last month. Lorelei Boylan Withdraws her Nomination for Wage and Hour Administrator.
While this may sound like a broken record (for those of you who still understand that reference), there's no likelihood that this problem is going away any time soon.
Monday, 2 November 2009
Currently Obama's three Board member nominees have passed committee muster, but John McCain has placed a hold on one of the nominees, SEIU attorney, Craig Becker. NLRB Nominee Gets Mixed News From Senators My understanding is that Senator Harkin will not submit the other two candidates for a full Senate vote until a resolution is reached over Becker.
I assume that there is some way that this will all get worked out under the curious protocols of the Senate. It does seem to me though that an outsider looking at the whole way we deal with the NLRB membership, including long periods of time with less than a full Board, and the way that precedent is an almost non-existent concept even when we have a functioning Board, would have to say that it's not much way to run a railroad.
For some insight into just how the Senate nomination process works (or doesn't) check out, Fractured Nomination Process Leaves Regulatory Posts Vacant.
Wednesday, 28 October 2009
In Stewart v. Mississippi Transport Commission (5th Cir. 10/21/09) [pdf] the Court dealt with such a claim. The plaintiff had been harassed by her supervisor. After an investigation they had been separated, but 16 months later when her new boss retired, the old boss replaces him. He begins offensive conduct again. When she complains they are again separated. The question for the Court was whether or not the sexual harassment claim should include the events before the first separation. Ultimately, two members of the Court held that they should not be.
In reaching that conclusion, they referred to 3 limitations on the continuing violation rule also found in Morgan:
- the plaintiff must demonstrate that the “separate acts” are related, or else there is
no single violation that encompasses the earlier acts;
- the violation must be continuing; intervening action by the employer, among
other things, will sever the acts that preceded it from those subsequent to it,
precluding liability for preceding acts outside the filing window; or
- the continuing violation doctrine is tempered by the court’s equitable
powers, which must be exercised to “honor Title VII's remedial purpose ‘without
negating the particular purpose of the filing requirement.
Here, it was the second exception that was fatal to plaintiff's claim -- the Court considered the employer intervention of separating the two, which did cause the earlier harassment to stop, an intervening action. When it viewed the events of the last incident of harassment (absent the circumstances of the first harassment), the majority found that they were not sufficiently severe or pervasive.
Interestingly, the newest member of the 5th Circuit, and the last Bush appointment, Judge Haynes dissented on this point from Chief Judge Edith Jones' opinion.
Thursday, 8 October 2009
The future of mandatory arbitration was also a subject and frankly got a lot more attention than Gross. Senator Franken, one of the members of the Committee has taken that on as a major issue and that took up a lot of the hearing. For any who have an interest in seeing the hearing, there is a link to the webcast on the Committee's website.
More normal posting will hopefull arise following when I return and dig out from 2 weeks plus of accumulated email!
Wednesday, 30 September 2009
If I understood it all, here's a little bit more about the sequence:
- Jackie Young, is part of a group that sued BellSouth for racial discrimination. Plaintiff's counsel was the firm of Ruden McClosky.
- In that case each plaintiff, including Young, received about $5,000 each.
- Those plaintiffs later learned that their attorneys had received $120,000 a year for 4 years, entered into a consulting agreement with BellSouth and agreed not to file any more employment cases against the company for one year.
- The original plaintiffs hired Becker & Poliakoff to sue the Ruden McClosky firm for malpractice.
- That case was settled for $8 million in 2002 with the proceeds split between 54 plaintiffs.
- During the settlement negotiations of that case, Becker & Poliakoff sued BellSouth on behalf of Young alleging continuing discrimination. That suit was dismissed when Becker & Poliakoff failed to respond to BellSouth's motion to dismiss.
- Young did not find about the dismissal for a year, she claimed because Becker & Poliakoff did not want to jeopardize the settlement of the first malpractice claim and their $2.6 million dollar fee.
- Now a verdict has been returned in the 2nd malpractice case, this one by Young against Becker & Poliakoff for the way her individual case was handled. The verdict $4.9 million.
It of course will be appealed.
Monday, 28 September 2009
Friday, 25 September 2009
In a recent post, November’s Work, Stress, and Health Conference: A tipping point for workplace bullying research? commenting on the biennial meeting sponsored by the American Psychological Association, National Institute for Occupational Safety and Health, and Society for Occupational Health Psychology, he points to five specific sessions that specifically refer to bullying and a number of others that use terms such as 'workplace incivility, aggression, harassment, violence and mistreatment."
My position is not pro-bullying, just anti-legislation. My concern is that no matter how well drafted, it is too nuanced an issue for the courts to successfully handle. I am sure Professor Yamada will have more posts after the conference (early November) and that they will be well worth following, no matter where you are on this issue.
It’s enough to make me wonder if we’re reaching a saturation level! But for now I’ll gratefully accept the abundance as sign that we’re reaching a good tipping point in terms of the mainstreaming of workplace bullying as an employment relations concern.
That's where the U.S. statutory protection, the Age Discrimination in Employment Act, started; but two amendments later, it has no upper cap.
Monday, 14 September 2009
One other question however was decided on the night of November 4, 2008. When President Obama was elected it was certain that within some period of time there would be an Obama National Labor Relations Board. Currently the Board is operating with two members, but three others have been nominated and when they are confirmed, there will be a 3-2 Democratic majority.
For a look into what that may mean, two of my Ogletree Deakins colleagues, the father/son duo of Hal and Chris Coxson, have prepared a monograph for the U.S. Chamber of Commerce, The National Labor Relations Board in The Obama Administration: What Changes to Expect.
According to the Chamber's press release announcing the report:
In addition to the changes to existing precedent, it is also possible that for the first time since the 1974 rules relating to health care institutions, the Board may engage in substantive rule making.
The purpose of this publication is to provide an overview of how the law administered by the NLRB is likely to change during the Obama Administration. The vast majority of this analysis is focused on cases decided by the Board in recent years that Democratic Members of the Board dissented to and that organized labor has criticized. While some of these cases are high profile, such as the Board’s decision in Dana/Metaldyne that effectively gives employees notice before a union and an employer can circumvent the law’s secret ballot process for union recognition, others are much less well known. However, reversal of these technical rules, such as whether permanent strike replacement workers may be hired on an at-will basis, as discussed in Jones Plastics and Engineering Co., collectively will increase union leverage in every aspect of labor-management relations.
You can download the full report from Chamber's website [pdf]. Happy reading.
Friday, 11 September 2009
The details of that agreement according to Harkin: "I will not say because it was closely held, it never leaked out and it still hasn’t." No kidding.
That EFCA was ever that close to actual passage would be a shocker. While I obviously don't know, something about it just does not ring true. And I am not the only one who wonders, Card Check: Harkin Then, Harkin Now.
Monday, 31 August 2009
In Texas, where workers compensation retaliation has always been a major cause of action, the law has evolved so that a leave policy which results in termination after a fixed period of time, applied uniformly without regard to whether the leave of absence was based on a work related or non-work related injury, is a valid defense to those claims. For a long time, we have cautioned that the EEOC took the position, at least theoretically, that such policies could be a violation of the ADA. However, during the Bush administration, as far as I know, they did not pursue litigation to that effect.
But as we all know it's now a new day and Employment Law 360 ($) has the story of a recent lawsuit filed in the the Northern District of Illinois, that raises that specific issue, UPS Medical Leave Policy Violates ADA .
The key paragraph from the Complaint:
Accompanied by this message from Stuart J. Ishimaru, the acting Chairman of the EEOC:
Since at least 2002, UPS has maintained an inflexible 12-month leave policy which does not provide for reasonable accommodation of employees with disabilities and which instead provides for termination of their employment, in violation of Sections 102(a)and 102(b)(3)(A) and (b)(5)(A) of Title I of the ADA, 42 U.S.C. §§ 12112(a) and 12112(b)(3)(A)and (b)(5)(A).
With all due respect to acting Chairman Ishimaru, its not all that clear. And in fact, in the story, UPS denies that it has an automatic policy, instead saying it has granted exceptions to its policy for employees who seek accommodation under the ADA, and the 12 month deadline is "not automatic or absolute."
This case should send a wake-up call to corporate America that violating the Americans with Disabilities Act will result in vigorous enforcement by the EEOC. The ADA has been the law of the land for nearly two decades now, and employers simply have no excuse for failing to abide by its provisions.
Although there is a long way from a complaint to an appellate decision that would provide a definitive answer, this one at least initially appears to be set up to do so.
Hopefully, as this case wends it way through the judicial process, the courts will understand that this is an issue that has significant practical impact and one in which a ruling that does not take into account the need for employers to have control over who and who is not an employee in situations involving long term absences, could wreak considerable havoc.
Update 9.14.09: This is obviously not a one time idea by the EEOC, or at least the Chicago Region, as Employment Law 360 ($) is reporting a second employer has been sued for having a one year leave policy. See, EEOC Targets Supervalu In New ADA Class Action.This suit is also filed in the Northern District of Illinois but it also merited its own press release from the Commission.
Sunday, 30 August 2009
Blogger Test Drives An automaker is interested in providing vehicles for bloggers to test drive for a few days and to write about the experience. They’re not looking for auto bloggers, they’re looking for lifestyle bloggers who cover topics like travel, fine dining, and culture. They will arrange the drop-off and pick up of the vehicle. If you’re interested, please contact ......... with your blog name, content overview, URL, Technorati authority, and contact information. (From form email I received today.]The first reader with a convincing argument connecting labor and employment law to, let's say luxury convertibles, get's the first ride!
Friday, 28 August 2009
Still, the other developments mentioned in their post, including the death of Senator Kennedy and the current state of Massachusetts law which, unless changed, means the earliest his replacement could be seated is the end of January, 2010, seems to me to make it more and more unlikely that EFCA will happen this year.
That of course does not mean that the battle for EFCA is over. One interesting question is whether other employment related legislation, ENDA or the Arbitration Fairness Act just to pick a couple, which most have felt were bottled up till EFCA was resolved stay there, or perhaps move closer to the front burner.
The big question of course is what happens in the longer term, the 2nd session of this Congress, or after the 2010 elections. I think more in organized labor may be resigning themselves that given how things have developed, they may need to keep their powder dry and see what the 2010 Senate looks like.
Depending on how that turns out, it is not impossible that EFCA proponents may someday count their blessings that this year's more effective than they had anticipated political opposition, the pitched battle over health care, the lack of a hard push by the Obama administration for their cherished goal and even the death of one of the bills' true champions, Senator Kennedy, might result in ultimately obtaining a bill that is closer to their desires than anything they could have obtained now.
Certainly not impossible, but likely?
Monday, 24 August 2009
Just as a practical matter, if you are not going to follow it, it is probably better not to have a policy; and I doubt many companies can enforce such a policy these days.
Employers must have a written policy against using recreational social media at work. It is a distraction, and the employee’s comments could incur liability for the employer based on defamation or laws prohibiting discrimination.
But what really got my attention is just how much ink (well pixels really) this whole issue is attracting these days. I am a contributor, having given a couple of speeches, including national on-line programs for the ABA and other entities, and am scheduled for some more, but what this really makes me think is how much of a herd mentality we all have.
Probably the best comment came from a member of the audience at one of my speeches. He questioned why this was a continual topic, when there was never any law!
That may change, but as of now, there's lots more talk about the impact of social media on employment law, than there is either actual impact OR law.
Friday, 21 August 2009
And amid all the ballyhoo about health care his report on a Japanese tax on obesity, Time to Tax Fatsoes Like They Do in Japan?, while no substitute for other ideas, might be something to think about.
Of course, I probably feel more favorably inclined since my new 'running' program seems to be causing a few of the accumulated pounds to fall away. Once that trend is gone, I will of course see the error of my ways in thinking that it could be an appropriate solution.
Tuesday, 18 August 2009
The chairman who might be ousted by such a secret ballot election is Max Baucus, D-Montana who is cross-wise with Harkin on the details of the healthcare plan, according to the article in The Hill, Dems warn Baucus with gavel threat.
“Every two years the caucus could have a secret ballot on whether a chairman should continue, yes or no,” said Sen. Tom Harkin (D-Iowa), the chairman of the Senate Agriculture Committee. “If the ‘no’s win, [the chairman’s] out. “I’ve heard it talked about before,” he added."
Apparently what's good for the goose is not necessarily good for the gander.
Although it gets less publicity than its cousin, OSHA, MSHA is the counterpart for the mining industry and obviously in recent years has been in the headlines with some well publicized mine tragedies. The Mine Safety & Health Review Commission is the judicial body which reviews determinations made by ALJ's.
Although it is not an area I have had much experience with my firm is fortunate to have a large collection of MSHA lawyers in our Washington office including Michael Heenan, who has been "toiling in the mines" (well not literally!) for more than 40 years. It is one of those sometimes hidden specialties, but critical if you are covered by MSHA.
It would be eminently reasonable to believe that an employer who was ignorant of the FMLA—as Mr. Terry admitted he was before Ms. DeFreitas complained of her firing—would engage in the very practice that the FMLA was enacted to prevent [firing employees who missed too much work for medical care].
The opinion is also a good example of how employers can easily get trapped by their own policies and words. Here, although the claimed reason for termination was conduct uncovered while she was out on medical leave for 6 weeks, the Court found that:
- she had progressed rapidly from entry level to Vice President within two years;
- there were no written warnings for performance issues;
- there were numerous written positive comments from various members of management about her performance;
- although the company had a progressive discipline system that emphasized no employee would be terminated without receiving a written warning and being given a chance to improve, that did not occur;
- the employer's handbook said that every terminated employee would be given an exit interview including putting in writing the reasons for the termination and the policies that have been broken, but this was not done in her case.
Vince Lombardi said football is two things: blocking and tackling. The absence of written documentation of poor performance and not following your own procedures, might just be the HR equivalent.
Thursday, 6 August 2009
Given that Justice Sotomayor will replace Justice Souter, a consistent member of the current Court's 'liberal' wing, it seems unlikely that her presence will make for a short term dramatic change in the court's direction or voting patterns.
Listening to the speeches for and against Judge Sotomayor, one of the things that struck me is that it is perhaps time for us to put to rest Judge Roberts famous metaphor that he would serve just as an umpire, calling balls and strikes with complete impartiality. Putting it aside is not to impugn Justice Roberts' integrity when he made those comments, but rather to recognize that even umpires set their own strike zone.
Bruce Weber had a similar thought in his article last month in the NYT, Umpires v. Judges.
But if you really want to look at it just from a baseball perspective, check out A Zone of Their Own or this quote from an amateur umpire's guide:
On warm summer night I watched a pitcher working his stuff against a senior umpire I have worked with and respect. It was men's league and particularly humid that night. After watching three of "his best" go for naught he said to the umpire, "Blue, where's your strike zone?" My friend replied, "You've got nine innings to find it!" The umpire's strike zone is the umpire's strike zone. I can assure that pitcher that if my friend was calling "ball" it wasn't even near the plate, for he taught me to "go in expecting a strike every time!"
Floating out over that plate is almost a perfect cube, about 15 inches up in the air, nearly 22 inches wide, 24 inches high and yes, 22 inches deep. "I call a big zone." Why? Because I think strikes. Working with younger ball players you have to think that way. Sure, as the quality of the player increases some think an umpire might boil an inch or two, maybe more, off the top but then he remembers that the quality of the batter has also increased so they feel he adds an inch or two at the sides. Its all relative. Truth is, call the same "strike-able" zone at all levels unless the rules specifically dictate a change. No umpire can give an inch to this level, take off two in the next age group, call at the shoulders in another, and claim a consistent strike zone.
Your league and its traditions will define the strike zone as much as any rule book will. By some books every pitch that crosses the batter shoulders would potentially be a strike.. Does any umpire really call them up that high? Some associations call at the belt buckle as the top of the zone, others call half-way down the calf as the lower part. In some areas "painting the black" is the norm while in others the ball has to have the full plate. Regardless of your definitions, restrictions or instructions THINK STRIKES ON EVERY PITCH! A pitch has to convince you it is a ball before you will not call it a strike. This positive mental approach will increase your consistency and move the game along more than any other mechanic you can learn.
Just as the umpire who calls them as we see them, is viewed as right, and the one who calls them any other way is a bum; the Justice who calls them the way we view the law is interpreting the law (good), while the one who calls it in a way that we wouldn't, is making law (bad).
It's an oversimplification, but no more so than most of the rationales we hear for votes on Supreme Court nominations, including the one just concluded today. Surely, Senators you can do better.
Wednesday, 5 August 2009
One of the killer lines that is sure to strike terror in any employer's lawyer's heart: "Jones' annual reviews showed he performed satisfactorily." Just yesterday in a training session, I was pointing out that performance appraisals are always key exhibits in an employment trial, and the real question is whose exhibit will they be. Here, it sounds as if they were Plaintiff's Exhibits, which always spells trouble for the defense.
Problematic performance appraisals and the fact that Jones was nearing his 20th anniversary with the company, with nothing more, would be enough to make it clear that this could be a problematic trial if things went south.
Based on the result, they did.
Sunday, 2 August 2009
If you are considering some form of furlough or related way of reducing costs without eliminating employees, this is a good place to start on the various issues that might arise.
Hat tip to Richard Tuschman at the Florida Employment Law Blog for catching this one.
Thursday, 23 July 2009
The business community has been quick to point out that a killer provision, binding arbitration, remains, which means there can be no compromise. Many union activists are seeing the loss of card check as the end of the line.
Adam Turl, writing in the Dissident Voice is in that camp, but has a somewhat more nuanced view. He acknowledges that EFCA, even without card check could be a significant victory for labor, but doesn't see it in the cards:
However, since Democrats already gave away card check without a fight, there is little reason to believe they will mount a vigorous defense of the compromised EFCA when the Republicans move in to destroy what remains.Who killed EFCA?
From my perspective it is far too early for anyone to be performing autopsies on the failed EFCA, but Mr. Turl has some very insights into what has been going on behind the scenes by those who would like to see it passed.
Monday, 20 July 2009
Among the quotes from the speech as provided by the ABA Journal on line publication, "“There's no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences." Also that women who take "take time off for family could be passed over for promotions if they are 'not there in the clutch.'"
And just in case the point was not made:
Welch said women who take time off can still "have a nice career," but their chances of reaching the top are smaller, according to the Wall Street Journal account. "We'd love to have more women moving up faster," he said. "But they've got to make the tough choices and know the consequences of each one."It may be that some of his comments were pulled out of context that would have made them seem a little less damning, and it also may be that he is speaking the mind of what many in the workplace (women and men) actually think. In other words saying what is real, not what would be ideal.
But if you were having to defend a discriminatory failure to promote because of gender case brought by a female executive who has taken one or more parental leaves, you would not feel grand about having these words standing as fairly large hurdles to overcome.
Friday, 17 July 2009
If this pans out, it will be by far the most dramatic change in labor law since I took Professor Jerre Williams labor law course at the University of Texas Law School in the fall of 1973. And if it does include binding arbitration for first contracts, it will be a total revamping of the underlying principles of American labor law. Unfortunately, the last part has received relatively little attention.
One of the most interesting aspects is the immediate reaction of some from organized labor. Jonathan Tasini, who is a passionate advocate for employees at his Working Life blog is disgusted:
"Card check" was the the thing that the bill was about--or so we heard for lo these many months. Now, it's left to the labor movement to explain why what will be left is good enough. That will be an interesting exercise.So Much for the 'Card Check Bill.'
We could also admit two things. One, when it comes right down to it, the kind of people labor supports in the Democratic Party are not reliable when it comes down to a fight-or-die moment for workers. Second, the strategy to pass the bill was an insiders game that never engaged the public, partly because we left the campaign in the hands of some people who are entirely clueless about talking to anyone but themselves.
Another option is for some people in the labor movement to decide that maybe it's worth saying, "to hell with you all" and come up with a better organizing and political strategy that does not rest on relying on people who will sell us out in a heart beat.
More interesting to me was a 'tweet' from SEIU President Andy Stern, "we expect a vote in the bill or by amendment on majority sign-up in both houses of Congress." EFCA Compromise? at TPM, which follows that "clearly this compromise won't go down without several spoons full of sugar. "
The fact that Stern, who clearly knows the political reality, is making such a comment brings out the cynical fear that what is happening is what many in the business community feared all along. Card check was a stalking horse all along. The rejection of card check is going to be pitched as standing up to organized labor, and to aid in that perception many in organized labor (who secretly are ecstatic with what now seems within their grasp) berate the Democrats for selling them out.
Feeling victory based on the outcry of their opponents, many in the business community whose opposition was focused primarily on the card check provision will think that their mission has been accomplished and turn to other matters.
And almost under the radar, American labor law will be fundamentally changed.
The other thing that adds fuel to that thought is organized labor's desire to have a vote this month. Senate leaders are apparently of the opinion that it can't be done until September. (I am not quite sure why the Senate would want to undergo two more months of battering on this issue, because if they think its been hot up till now, they have not seen anything yet.) If no vote is scheduled until September then it might all come unraveled even if on this particular day in July the votes are there.
Because this is literally about how the American workplace functions, all with an interest, should stay very much engaged.
Thursday, 16 July 2009
The "why" question is one I have asked on numerous occasions, and one I am sure my law partners over the years have asked as well, although I must say never directly of me.
In good blogging fashion, I will refer you to an excellent article by Cliff Tuttle at Pittsburgh Legal Back-Talk, Why Blog? 10.5 Good Reasons, which is what I would have hoped to have been wise enough to write, if I answered the question in full.
Two points, I would particularly emphasize, self-education and reinforcement of learning. A third that is implied if not explicit, is having my own research repository, which has proved to be helpful both to me and to my colleagues over the years.
I would also agree with Cliff that marketing by itself is not a sufficient reason.
As I noted in last year's posting on the 6th anniversary, the number of blogs focusing on labor and employment law is far more than the three I can think of that existed at the end of my first year. (The two others - George Lenard and Michael Fitzgibbon continue as well.) After my list of 49, by April of this year, the folks at Delaware Employment Law Blog, were able to come up with their Top 100 Employment Law Blogs, and I would guess that there have been new ones since that post.
For the future, I intend to continue blogging, maybe writing more about traditional labor law as I think that is going to be more relevant in the near future and returning to stories of MDV's which for some reason seems to have lagged of late. (My posting, not the verdicts themselves.)
For those who have stopped in at some point during the last seven years, thanks.
Wednesday, 15 July 2009
For the rest of the month you can catch me at the Texas Association of Business and SHRM State Council 2009 Employment Relations Symposium. More political talk, The Obama Labor & Employment Agenda. Biggest news, so far labor & employment issues have not really been very high on President Obama's agenda. Not to say that there isn't a lot to talk about though.
And next week, I move to internet as a participant on an ABA panel, Understanding the Legal Issues Surrounding the Social Networking Websites that Teenagers and Employees Love.
Wednesday, 8 July 2009
The combined firm, to be known as Towers Watson & Co., would have approximately 14,000 employees and revenues of nearly $3 billion.
For those who wonder about who is taking who, while Towers get's the first name, the new CEO will be John Haley, the current CEO of Watson Wyatt.
Monday, 29 June 2009
He also gives good counsel about not rushing to conclusions about the outcome until the 93 pages of the various opinions can be more than just skimmed.
Still, some basics are clear. The 5-4 opinion with Kennedy in the majority and writing the opinion is not a shocker. The 4-4 split is along the well known divide of Scalia, Thomas, Roberts and Alito vs. Stevens, Ginsburg, Souter and Breyer. And given the headline, it is clear that it was the conservative quartet that came out on top this time.
Justice Ginsburg took her role in providing the dissent (38 pages itself).
Among the points:
- it is based on Title VII, not constitutional principles, so it is equally important to private sector employers as well as government employers.
- Justice Kennedy saw the role of the majority to provide guidance to lower courts and parties when an employer is faced with a possible disparate impact case on one hand and a disparate treatment on the other;
- The test is fairly easy to describe -- an employer can not rely on the threat of a disparate impact case as a defense to a disparate treatment case unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. "
- Applying that test is not likely to be all that easy.
- Sure to be much discussed is what Justice Ginsburg meant when she said, "The Court's order and opinion, I anticipate will not have staying power." Another veiled suggestion for legislative override?
If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
This decision is going to get tons of scrutiny and comment, largely because Judge Sotomayor was on the panel of the 2nd Circuit which had a different outcome. To the extent that the commentary focuses on the case itself that's good, when it goes off on how it impacts on her abilities/views etc. I am less interested.
My first instinct is that it is an important case, but applies to a situation that does not come up all that often.
However, the reason that has not come up all that often in recent years is that the OFCCP has changed its direction, with much less emphasis on affirmative action via AAP's and much more attention to discrimination. To the extent that under the Obama administration, that emphasis switches back to what employers subject to EO 11246 faced in much earlier times, the case could be even more important.
Although there's that Ginsburg tease, 'not much staying power.'
Thursday, 25 June 2009
The key numbers -
Average/ Median Compensation Awards in 2008
Age Discrimination £15,080/4,503
Sex Discrimination £13,312/£9,109
Sexual Orientation £33,724/£6,364
It would be interesting to see a similar study of American awards.
Tuesday, 23 June 2009
The bill prohibits:
An employer or the employer's agent,representative or designee may not discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize or take any adverse employment action against an employee:and political matters:(a) Who declines to attend or participate in an employer-sponsored meeting or communication with the employer or the agent, representative or designee of the employer if the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters;
includes political party affiliation, campaigns for legislation or candidates for political office and the decision to join, not join, support or not support any lawful political or constituent group or activity.And to round it out, constituent group or activity, includes:
but is not limited to, civic associations, community groups, social clubs and mutual benefit alliances, including labor organizations.Net result, if it should ever come to pass, a major impact on union organizing campaigns as traditionally run.
Still, the "could" in the headline deserves heavy emphasis. Before this bill allows the first employee to skip a scheduled meeting, it must be signed into law by Oregon's Gov. Ted Kulongoski. According to an AFL-CIO website, at least before its final passage, the Governor had said he would sign the bill. Oregon Bill Bans Mandatory Meetings.
The second big hurdle is the anticipated litigation that this statute is pre-empted by the National Labor Relations Act and/or that it is unconstitutional. My guess is both arguments are formidable, but it will take some time for them to play out.
Although it is not generally expressed in exactly these terms, for purposes of labor and employment law in America the fundamental principle is that "jobs" have belonged to the employer. This Oregon statute may only be a "left coast" thing, or it could be a sign that we may are approaching a major shift from "jobs" belonging to the employer, to "jobs" belonging to those who hold them.
Whether you think that is a good thing or a bad thing, it should not be overlooked that such change would be of epic proportion.
Thursday, 18 June 2009
But today in Gross v. FBL Financial Services (S.Ct 6/18/09)[pdf] the Supreme Court took a pass on that specific question, and instead answered the question it (well at least the 5 in the majority) really wanted to answer:
Can you ever have a mixed-motive instruction under the ADEA?Since the answer was no, the question the rest of us were waiting for, under what circumstances do you get one, remains an open question, at least for Title VII cases.
The reason the 5-4 opinion went the way it did, with Justice Thomas writing it, has to do with differences between the ADEA and Title VII, in particular on the issue of the burden of persuasion.
Even worse, the majority teased us with the idea that perhaps the Supreme Court might if it had it to do over again jettison the mixed motive idea, since it has been so difficult for the courts to implement. (Unfortunately, that idea seems likely foreclosed by the Congressional amendments to Title VII discussed in Justice Thomas' opinion.)
Workplace Prof's first look, thinks it could also impact ADA cases. More detailed analysis will be forthcoming from many I am sure.
My first take -- its an important decision, for now. However, since it is based on a question of statutory interpretation, stay tuned for the Jack Gross Mixed-Motive for Old Folks Bill coming to a Congress near you soon.
Thursday, 11 June 2009
According to a story in today's Dallas Morning News:
Pauken said that though things could still change, it's probable that the commission next year will need to raise an amount from employers comparable to the amount raised in 2003 – or 2.4 percent of all taxable wages.See, Employers' unemployment insurance taxes likely to rise, workforce commission chairman says.
No doubt employers in other states will be in a similar, unhappy, situation.
Monday, 8 June 2009
That ban would be for pre-dispute arbitration in franchise agreements. And as you might guess, there are differences of opinion in that industry as well, see Franchisors, Franchisees at Odds Over Arbitration Fairness Act, a story at a franchising specific blog, blue maumau.
According to the author, Lionel Hutz:
The International Franchise Association opposes this bill. Franchisee groups such as the American Association of Franchisees and Dealers, the Coalition of Franchisee Associations and Dunkin’ Donuts Independent Franchise Owners supports it.
The franchise part of the bill may impact the fewest people of the three areas in which pre-dispute arbitration agreements would be banned, but it may also be the group where feelings are the deepest.
My guess is that employers who want to keep the ability to mandate agreement to arbitration for disputes as a condition of employment, ought to distance themselves from that aspect of the bill as well and should push for separate treatment. Even then, it will be an uphill fight.
And then there was this exchange on EFCA:
Specter "proud to be a Democrat," he tells party conclave here .
"You want our vote? We want yours," shouted retired iron worker John Heinlein. That started a bit of give-and-take with the senator.
"I understand your job is on the line and I understand my job is on the line...I think you will be satisfied with my vote on this issue," Mr. Specter responded."
Following Specter's conversion there has been little doubt where he would end up on any EFCA compromise, but the Post-Gazette article makes clear why.
Still Pennsylvania is not Arkansas, Nebraska, Colorado, Louisiana or Maine. And it might well be those states 'local politics' that ultimately determine the fate of some form of EFCA.
Friday, 5 June 2009
The Court also reversed the alternative holding that plaintiff's completion of the medical questionnaire without mentioning her previous diagnosis of CFS 15 years earlier justified her termination.
Although this was not based on the new amendments to the ADA, my guess is that it is a harbinger of things to come -- fewer summary judgments in ADA cases.
I never really had a good short rationale as to why there was a major difference, although clearly there is. Fortunately, the true distinction is highlighted in an article by Richard M. Alderman of the University of Houston Law Center, Why We Really Need the Arbitration Fairness Act: It's All About Separation of Powers. Here's the abstract of Professor Alderman's article:
Congress is currently considering the Arbitration Fairness Act, which prohibits pre-dispute mandatory arbitration clauses in consumer contracts. This article reviews the use of consumer arbitration to demonstrate that in consumer cases arbitration is used to eliminate consumer disputes, not to provide an efficient alternative forum. More importantly, it is suggested that the widespread, in fact near universal, use of consumer arbitration conflicts with the core American belief in separation of powers. Through arbitration, business can effectively divorce itself from the civil justice system, eliminating the judicial branch from consumer disputes. The only way to reverse this dangerous trend is through the prohibition contained in the Arbitration Fairness Act.
I personally have handled more than twenty-five such matters which went all the way to hearing, and although the percentage of arbitration cases that go to hearing as opposed to lawsuits that goes to trial, is considerably higher, I have handled a lot more claims that were in arbitration that were resolved somewhere along the way before going to hearing.
I think that is an important distinction between the two, and a good rationale for why they should be treated differently. For those employers who have arbitration programs, it is time to act and start making this distinction and others to your legislators. My view is that is the only way employment arbitration is going to survive.
Thursday, 4 June 2009
Fairly effectively in this report from Firedoglake, “Feinstein Bailing on EFCA” or “Reporter Punk’d By Chamber of Commerce”?, which includes an update with the following:
Speaking on background, a confidant of the senator went a bit further. "This must be [Shaffery's] first rodeo because the story hasn't changed much. It has been the same: She is looking for a compromise. And anyone who says otherwise is engaging in some wishful thinking."Clearly efforts to compromise are being made. That they continue to be talked about makes me believe that organized labor is at least still debating whether to accept a compromised version of EFCA or take an all or nothing approach for the current bill. Doing the latter would delay any bill until 2011 and be dependent on not only gains in the Senate in 2010 elections, but also a change of heart on the part of a number of current Democrats who are not too keen on certain provisions.
Just to reiterate there are three key components to the bill. Here's my current view on where things stand:
- Card check as proposed in the original bill is gone. Although consensus has not been reached on exactly what will replace it, there are lots of ideas being floated. My guess is that some sort of agreement that will pass muster can be reached, probably some form of expedited election and additional access for union organizers;
- Binding arbitration to ensure an initial contract, in my view by far the most dangerous portion of the proposed EFCA, is still up in the air and could prove to be the deal breaker;
- Increased penalties for violations of the NLRA has not got a lot of attention yet. I think that is because most agree some change is necessary and there is an assumption that if a deal can be reached on the two other issues, this one can be resolved as well.
- Although possible, it seems fairly unlikely that anything could be passed until Al Franken is seated, but that seems to getting closer in time.