Hidden Healthcare Gems

I have not (and probably will not) taken the time to read the two pieces of legislation that passed Congress last week and which are generically being called Healthcare Reform, but fortunately others who have an interest in employment law are doing so. Although in many ways the whole bill is very much an employment law bill because of the impact on employee benefits, some portions of it are more employment law related. 
The top two that have been found so far:

• Jon Hyman at Ohio Employer's Law Blog, has found an amendment to the Fair Labor Standards Act that will require employers to provide reasonable unpaid breaks for nursing mothers. Do you know? Healthcare bill requires lactation breaks;
• Jason Zuckerman writing at today's workplace discusses new whistleblower provisions, also added as amendments to the Fair Labor Standards Act, Health Care Reform Bill Creates New Whistleblower Protections.

Since it appears that the Fair Labor Standards Act was the vehicle of choice for many employment law related aspectes, a quick scan of the texts for that statute found the following:

In H.R. 3590 [pdf] (the Senate Bill that was passed by the House without change):

• Sec. 1511 - automatic enrollment (into health benefit plans) for employees of large employers (200 full time employees);
• Sec. 15122 - Requirement of all employers to inform employee of coverage options, including the existence of the newly created Exchanges;
• Sec. 1588 - Protections for employees, the whistleblowing statutes that Jason Zuckerman wrote about;
• Sec. 4207 - Reasonable break time for nursing mothers that Jon Hyman found.

The "fix-it" bill, H.R. 4872 [pdf] which may be signed into law today, has no references to the FLSA.

It's Here: The Obama Board

Although it took longer than expected, and required using the recess appointment mechanism, Saturday's expected announcement that Craig Becker and Mark Pearce would be appointed to the Board marks the transition to an Obama majority on the NLRB. President Obama Announces Recess Appointments to Key Administration Positions. The fifth potential member, Republican Bryan Hayes'nomination is still pending in the Senate (the Becker and Pearce nominations remain as well.)

Also on the list of the 15 recess appointments are three members of the EEOC, Jaqueline A. Berrien as Chair, Chai R. Feldblum and Victoria A. Lipnic as members. P. David Lopez  receives a recess appointment as General Counsel. Of those, Feldblum was the one who had drawn the most attention.

Because these recess appointments will expire when the Senate adjourns in December, 2011, it will be interesting to see how quickly they begin acting. Given the length of time the Board has been operating with only two members, and thus deciding only those cases where Democratic and Republican members could agree, there is a substantial backlog of cases to be decided. Additionally, there has been much talk about the possibility of rule making to accomplish at least some of the objectives of the legislatively stalled Employee Free Choice Act.

As a reminder of some of the changes that could be coming check out the monograph prepared by two of my colleagues, Hal and Chris Coxson, The National Labor Relations Board in the Obama Administration: What Changes to Expect.

If you had put off getting up to speed about what would happen with an Obama Board, time is up. For better or worse, it is here.

Four Pillars for Immigration Reform

Having just finished with one hot potato, at least two Senators are ready to tackle yet another. And surprisingly enough, it is a bi-partisan effort. In a Washington Post opinion piece, Charles E. Schumer and Lindsey O. Graham - The right way to mend immigration offer four premises on which any new legislation should be based:

Our plan has four pillars:

• requiring biometric Social Security cards to ensure that illegal workers cannot get jobs;
• fulfilling and strengthening our commitments on border security and interior enforcement;
• creating a process for admitting temporary workers;
• and implementing a tough but fair path to legalization for those already here.

Obviously, the biometric card will set off concerns in some circles. Trying to get ahead of the curve on that one, the Senators were quick to point out:

Each card's unique biometric identifier would be stored only on the card; no government database would house everyone's information. The cards would not contain any private information, medical information or tracking devices.

Given how stormy the last time immigration reform was raised and given the hard feelings generated by the healthcare battle, it would not seem like an auspicious time.

Still stranger things have happened and if the bipartisan spirit continues, with even a low level of Republican support in the Senate, there should have a fighting chance for reform.

However, it should be remembered that this is an issue which does not necessarily divide only along partisan lines, but also has a geographic element.  Even more importantly, there is a long way between agreement on concepts and agreement on final language of a bill. And just like biometric cards, the pathway to citizenship is a concept that will be a non-starter for many.

I don't think President Obama needs to set aside any days in the near future for a signing ceremony, but it certainly is an interesting start.

5th Circuit En Banc Request on Smith v. Xerox, Please!

A three judge panel of the 5th Circuit yesterday divided sharply on a case that poses a number of interesting legal issues of great importance for discrimination and retaliation cases in the 5th Circuit. It cries out for an en banc review. Smith v. Xerox Corp. (5th Cir. 3/24/10) [pdf].

Among the issues decided:

• the Gross analysis is not applicable to Title VII retaliation cases;
• that a case seemingly tried on a pretext basis will support a mixed motive submission, and plaintiff is not forced to concede that there is some valid basis for termination in order to obtain a mixed motive instruction; and
• where there was good evidence of the basis for the termination decision, and no real focus on the subjective intent of the managers making the termination decision, there was insufficient evidence to support a $250,000 punitive damage award.

Although Xerox lost on the first two points, it did prevail on the third in a monetarily big way, so either side could be asking for additional review, or both sides might decide they were better off with their victory. I could certainly see the arguments for each position.

But as a bystander unhampered by any stake in the outcome, I see this as a case where all three are extremely important practical issues,  particularly the second one, where the trial bench and bar really need clear guidance.

Judge Jolly, who dissented from the opinion written by Judge Reavley, joined by Judge Wiener, had the following to say about that issue:

Smith’s entire claim in this case was presented to the jury as pretext. Smith alleged that every reason given by Xerox for her termination was pretext  for age and gender discrimination or, alternatively, pretext for retaliating against her because of her EEOC charge. Smith did not argue or acknowledge that the reasons for her discharge were valid; she argued that the employer’s reasons were pretextual, i.e., false, an illegal sham. And, both with respect to discrimination and retaliation, the jury was instructed accordingly: “If you disbelieve the reason(s) Defendant has given for its decision, [i.e., pretext,] you may infer Defendant terminated Plaintiff because she engaged in protected activity.” In short, if discrimination in an alleged mixed-motive case must be shown by pretext, it is not a mixed-motive case at all, it is a pretext case. It should be that short and simple.

In an important footnote in that paragraph, Judge Jolly noted, "we have long required plaintiffs who ask for a mixed-motive instruction to acknowledge the employer’s legitimate motives for discharge," a requirement now expressly disavowed by the majority.

On the other issue that Judge Jolly took issue with, the applicability of the Gross analysis, he wrote:

The majority disagrees, however, asserting the lame distinction that, although the language is identical, Gross was an age discrimination case under the ADEA and the case today is a retaliation case under Title VII. Given the uniform principle set out in Gross, the majority’s distinction is the equivalent of saying that a principle of negligence law developed in the wreck of a green car does not apply to a subsequent case because the subsequent car is red—a meaningless distinction indeed.

Given the clear divide, and the importance, en banc, please!

Update (4.21.10): En banc review is not going to happen. The most recent entry on the docket sheet is a 4/19 letter to the court transmitting a joint Satisfaction and Release of Judgment filed with the district court on 4/19. That pleading states that Xerox has satisfied the original judgment, less the vacated punitive damages, in the amount of $208,159.03.  Impossible to argue with the business decision, but it is a shame that there is no clarification of the opinion.

Tired of Card Check, Rapid Elections? Harv Prof Offers a Different Approach

Benjamin I. Sachs, an Assistant Professor of Law at Harvard has a recent Harvard Law Review article evaluating card check and rapid elections, and suggesting that neither is the optimal approach. Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing.

Before employers get excited that there is yet another potential academic convert to the anti-EFCA movement, it would be helpful to note a couple of items in Professor Sachs' resume -- a clerkship with Judge Reinhardt of the 9th Circuit and a stint in the legal counsel's office of the SEIU.

Given that background it is not surprising that he finds:

The central question raised by EFCA, therefore, is whether enabling employees to limit or avoid managerial intervention in union campaigns is an appropriate goal for federal law. This Article answers this foundational question in the affirmative.

His two proposed solutions would keep secret ballots, but would both require a process of continuous voting that would be conducted without the employer explicitly being told that an election was in process.

While, those ideas are radically different from the current method, if you pose and answer the "central question" as Professor Sachs does, they do follow.

And although there could be much interesting discussion about those suggestions, Professor Sachs, may really, intentionally or not, have raised the real elephant in the room:

What is the policy of the United States with respect to unionization of the work place?

Some would argue that the policy is clearly articulated in §151(d) of the National Labor Relations Act :

It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. (emphasis added)

In other words, a pro-union position. But, I think many would be surprised to hear that was the official U.S. policy, and would believe, if it were in fact true, that the real question should be:

What should the policy of the United States be with respect to unionization of the workplace?

Is the answer the same as when the Wagner Act was adopted in 1935, or even when it was modified by the Taft-Hartley Act of 1947? 

EFCA, although discussed in terms of procedure, is really just the most recent proxy fight about that basic question.

For me, the next question becomes:  Is it time to address that issue squarely?

In this era when there seems to so little hope of consensus on any controversial issue, it does not seem that it would be particularly helpful.

Still, just because it is a difficult question, does not mean that it does not exist.

5th Circuit to Hear Katrina Related FLSA Labor Case En Banc

Yesterday the 5th Circuit announced it would hear Castellanos-Contrera v. Decatur Hotels en banc.

The case turns on whether an employer who brought foreign workers in post-Katrina  under the H-2B visa program was required to reimburse them for recruitment, transportation and visa expenses in order to meet requirement that wages be paid "free and clear" under the FLSA.

The original panel said no, although it took two opinions to do so. I know that the 5th Circuit has a lot of Katrina related cases that deal with insurance coverage and it may be that there are other H-2B FLSA cases. 

Or maybe a majority of judges just thought the panel got it wrong.

For links to the panel opinon and replacement opinion, see my original post from February 2009.

Name, Rank and Serial Number: A Good Policy, But You Have to Follow It

That's the message I would take from the latest MDV report. Credit Agricole was sued by a former employee, William Raedle, who alleged that his former supervisor cost him a job as a financial analyst when he told Raedle's potential employer that he had "mental issues" and what the BusinessWeekarticle refers to as "other disparaging remarks," including difficulty working with others. Credit Agricole Loses Trial Over Poor Job Reference.

The net result a $2.4 million dollar verdict from a New York federal jury that deliberated for just 5 hours following a week long trial.

Of course, if anyone knows that a verdict is not the same as money it is Mr. Raedle, as an earlier trial had also resulted in a favorable verdict, but it had been set aside by the District Judge, who said allowing it to stand would result in a "serious injustice".

It is unclear from the article exactly what the what the legal cause of action that was the basis of Raedle's complaint. Although in this situation it is often defamation, here it appears it could have been tortious interference with a potential business relationship.

What is also clear is that Credit Agricole, like many companies, had a policy that was only to confirm that a person had been employed there, without giving a performance evaluation.

Writing a policy is rarely the hard part; implementation, every day by every one, is.  Some days, it is a million dollar problem.

Update 4.16.10: As a good illustration that a jury verdict is just a step along the way to what ultimately an employer will have to pay and what an employee and their attorney will actually receive, the trial court this week granted judgment as a matter of law to the defendants on the punitive damage award, striking $800,000. However, the other side of the story, the Court has not ruled on plaintiff's request for approximately $609,000 in costs and attorneys fees.  I would  be surprised if there are not other motions pending by the defendant that could ultimately impact other portions of the award as well. And, of course when the trial court finally enters its judgment, there's always the appeal. See $2.4M Award For Ex-Credit Agricole Analyst Trimmed, at Employment Law 360.  ($)

Another Retaliation Case in the Supreme Court: Deja Vu All Over Again?

According to Paul Secunda at Workplace Prof Blog, a number of bloggers have already commented on today's granting of certiorari Supreme Court Grants Cert in Saint Gobain FLSA Case.

Paul says he has no idea how the case will come out. The issue is whether as the 7th Circuit says, only written complaints, not oral ones, qualify as protected activity under the FLSA. I think Paul may just being nice.

Consider the following posts on how retaliation has fared in the Supreme Court since the birth of this blog in July 2002.

• Supreme Court Unaminous in Retaliation Case, Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09).
•  Supreme Court Scoreboard: Retaliation 2, Employers 0, CBOCS West, Inc. v. Humphrey (S.Ct. 5/27/08) and Gomez v. Potter (S.Ct. 5/27/08).
• Supreme Court Answers the Question: What Is An Adverse Employment Action? , Burlington Northern Railway v. White (S.Ct. 6/22/06)
• Whistleblowing in the Supreme Court, A Good Day,  Jackson v. Birmingham Board of Education (U.S. 3/29/05).

Based on that track record, and the fact that there was a vigorous dissent by 3 judges in the 7th Circuit (including Supreme Court short lister, Judge Diane Wood) to the court's refusal to hear the case en banc, I am not optimistic that the 7th Circuit's holding that only written complaints constitute protected activity will stand.

That's the view of another Paul,  Paul Mollica, at Daily Developments in EEO Law.

If the Court follows its own in lead in its unanimous decision from last term, Crawford v. Metropolitan Government of Nashville, 129 S. Ct. 846 (2009), it will give the statute a common-sense construction that safeguards employees' rights to inquire or complaint about wage-and-hour violations. A decision affirming the Seventh Circuit's construction, though seemingly unlikely, would reverberate in all federal-law retaliation cases.

But left out of the Supreme Court record above is Justice Thomas' decision in Graham County Soil & Water Conservation District v. United States ex. rel. Wilson (U.S. 6/20/05) (see No Federal Statute of Limitations for Retaliation Claims Brought Under Qui Tam Act.)  That just happened to be a case that turned on statutory construction.

And the rest of Professor Secunda's sentence refusing to predict the outcome finishes, "but the decision may be an interesting example of how different Justices engage in the exercise of statutory construction."

So the decision may be more up in the air than I would initially think.

But I doubt it.

Update (3.25.10): For a little more factual background on the case itself check out the article in Corporate Counsel, Sooo, Just Keep My Mouth Shut: Can Workers Only Complain in Writing?

Social Media and Hiring -- Interesting Data, But So What?

Jon Hyman at Ohio Employer's Law Blog has a great post on a recent survey conducted for Microsoft on how employers world wide are using internet research in making hiring decisions, 70% of hiring managers report rejecting candidates following internet searches.

A detailed powerpoint has the January 2010 report prepared by Cross-Tab Marketing Services for a Microsoft division. 

The points from the Executive Summary of impact on professional life are fairly telling (my comments in red):

• Nationality plays key role in determining whether online content will harm reputations.  
• It's not clear if this is the nationality of the manager (which it could be given the global nature of the study) or the candidate. Obviously, if it is the latter, it is a huge red flag from an employment law standpoint.
• Companies have formal policies for checking online reputational data, but male recruiters are more likely to check - except in France. 
• I would be curious if those formal processes meant written. The 75% number of U.S. employers that said it was "part of their organizational process" sounds high to me. And what is it about males? Or the French for that matter.
• Recruiters typically conduct deeper searches than most consumers are aware of, and feel justified in doing so.
• Hiring may be the most important decision that a company makes and so it does not surprise me that employers want to know as much information as they can about potential employees. Hiring is important not only to the general success of a company, but is also an important factor in mitigating employment law litigation.  I think most experienced management side employment lawyers will agree that most "wrongful termination" cases are really cases of "bad hiring."
• Not all online content is true – but candidates may be rejected nonetheless.
•  I certainly don't doubt the former, nor really the latter, but when you look at the reasons that such data leads to rejection (see below) I am not sure the two are necessarily connected. Still, any time an employer is acting on false information it is not good.
• Recruiters say they tell candidates if online content factored into their rejection, but consumers do not seem to be hearing it.
• I would be surprised if is a very clear message.
• Good online reputations matter to recruiters.
• Duh! (although I would not have answered that way a year ago.)

There are also big differences in the use of such data. Worldwide 25% of recruiters do such checks "all the time", in the U.S. the "all the time" number is 44%, with 70% having rejected a candidate based on such a check compared to 14% for the French.

One interesting thing is the wide variety of sites that U.S. recruiters report they are checking:

• Search engines (78%)
• Virtual worlds sites (32%)
• Online gaming sites (27%)
• Classifieds/Auction sites (25%)
• Social networking sites (63%)
• Personal websites (48%)
• Photo/video sharing websites (59%)
• Blogs (46%)
• Online forums/communities (34%)
• News sharing sites (41%)

And probably the most important set of  U.S. data from an employment law standpoint,  reasons for rejection:

• Inappropriate comments/text written by the candidate (56%)
• Unsuitable photos/videos/information (55%)
• Concerns about the candidate's lifestyle (58%)
• Comments criticizing previous employers/co-workers/clients (40%)
• Inappropriate comments/text written by friends/relatives (43%)
• Inappropriate comments/text written by colleagues/work acquaintances (40%)
• Groups/Networks the candidate was a member of (35%)
• Discovered that information the candidate shared was false (30%)
• Poor communication skills displayed online (27%)
• Concern about the candidates financial background (16%)

Jon quotes himself to make a good point about the use of this data:

I have another problem with HR departments willy-nilly performing internet searches on job applicants – the risk that such a search will disclose protected information such as age, sex, race, or medical information.

I think that is a legitimate concern. I also think it may work against hiring activists or what Tom Peters calls "mavericks" in his latest book, The Little Big Things," which at least he would say is a bad thing.

A couple of other points on a post that is now way too long. If ENDA passes, which would extend anti-discrimination protection to sexual orientation, I think the searches could be even more problematic.

Still to answer the question I posed in the headline, so what?

I think this data should be a very big deal to those seeking work.

For employers? This may change, but the fact is, in my now 35 years of doing this, I can probably count the number of cases that I have handled based on failure to hire on the fingers of my two hands and it certainly would not exceed my fingers and toes.

Still just because it has been that way in the past doesn't mean it will in the future, and you can be sure data like this will be making for some interesting inquiries at depositions in the future.

Well I Would Hope So

This is the description of the 4th Circuit's decision lifted entirely from today's Daily Labor Report ($):

A medical intern who misdiagnosed patients, prescribed wrong medications, and identified a living patient as deceased could not show he was a qualified individual with a disability under the ADA.

Shin v. University of Maryland Medical System (4th Cir.)(3/11/10) [pdf].

For Those Who Fly

The Workplace Diva has a telling comment about unintended consequences and airplane baggage fees. Yep, you know what it is. More on board luggage. Airlines' Per-Bag Fees Create New Baggage.

The post makes the point that humans are much better at adapting to changes than management is in anticipating those adaptations. And one of those in this case is unhappy flight attendants and increased work place injuries (not to mention unhappy fliers, including those who have had luggage dropped on their head!).

I have noticed it, and most of my flights are on SWA, still a baggage fee free zone.

Ohio MDV for Disability, Race, FMLA and Retaliation

Covering about as many bases as you can, Charlene Thirion, a former employee of Bedford Heights, Ohio sued the village over her termination saying it was because of her race, disability (anxiety and depression according to the news article), and retaliation when she protested against the disability and race discrimination. And just in case, there was also an FMLA violation.

The net result, a pretty good jury verdict for her, Twinsburg woman wins $1.83M verdict against Bedford Heights.

Update 3.17.10: Peter Krause's story in the Cleveland Plain Dealer gives some more detail about the trial and allegations, including making it clear that this was a case of "reverse discrimination." Thirion, who is white, alleged that the Mayor and a City director, both of whom were black and the white city attorneys discriminated against her. In a slight twist on the cat's paw theory, plaintiff's counsel is quoted:

"We believe the attorneys were doing what the mayor directed them to do," said Thirion attorney Chris Thorman of Thorman & Hardin-Levine in Cleveland.

"But He's an Illegal Immigrant" Argument Held Prejudicial by Texas Supreme Court

Given that President Obama turned his attention to immigration reform this week, see NYT story, it is somewhat ironic that the issue also surfaced in a more unlikely place, the Texas Supreme Court. The issue before the Court -- whether or not a jury should be informed (repeatedly) that the driver involved in a fatal collision was an illegal immigrant. The underlying suit was against his employer for negligent entrustment.

In TXI Transportation Company v. Hughes, (Tx 3.12.10) [pdf]  the Court held that such information was not only inadmissible, but was in fact prejudicial so that its admission was not harmless error and required a retrial.

The Court's holding was no doubt influenced by the fact that plaintiff had made the illegal status, and in fact the issue of illegal immigration, a central part of its trial theme.

Justice Medina wrote for the Court:

Hughes [the plaintiff] faced a difficult conceptual burden. He had to convince a jury that a collision involving on-coming traffic, that unquestionably occurred in the eastbound lane of Highway 114, was the fault of Rodriguez, the eastbound driver. The task was all the more difficult because Rodriguez possessed a clean driving record and commercial driver’s licenses from both Texas and Mexico. Hughes had some evidence of how Rodriguez might have been at fault for the collision in his lane, but the issue was hotly contested.

The record indicates that Hughes sought to hedge his theory by calling attention to Rodriguez’s illegal immigration status whenever he could....

That "hedge" including calling Rodriguez as the very first witness and the first questions were about his immigration statuts. As the Court noted that was followed by:

over forty references to Rodriguez’s status, including thirty-five to his status as an “illegal immigrant” and seven to his prior deportation.

And it was not just questions to him, TXI representatives were also cross-examined regarding whether they owed a “duty” to the public to prevent an “illegal” from driving a TXI truck:

• “Do you think he is entitled to drive here if he’s illegally here?”
• “And you don’t think you owe any duty . . . to the public . . . to the people who are driving up and down [Highway] 114 . . . to decide whether he’s illegal or not?”
•  “Mr. Rodriguez is still illegal in the United States, is he not? . . . Will anybody ever turn him in, or will he just continue to drive for TXI?”

In fact, there was a lot of evidence that was available about Rodriguez, since he:

•  was an undocumented Mexican alien who had illegally entered the United States on multiple occasions;
• invented a false Social Security number, which he used to apply for a Texas commercial driver’s license; 
• falsely answered “no” in his deposition when asked if he had ever lied to obtain a Texas driver’s license; 
• falsely answered “yes” on his TXI employment application when asked if he had the legal right to work in the United States;
• pleaded guilty to and was convicted of a misdemeanor immigration violation, serving four months in jail; and
• was previously deported and ordered not to return to the United States for ten years.

Still the Supreme Court rejected the use of such evidence both on substantive grounds and for impeachment. Under the substantive law of negligent entrustment it was not relevant, since his illegal status had not caused the collision.

By its holding that it was also improper impeachment evidence, the Court has made it a case of broader importance.

Justice Medina concluded forcefully for the eight members of the court who participated in the decision:

Such appeals to racial and ethnic prejudices, whether 'explicit and brazen' or 'veiled and subtle,' cannot be tolerated because they undermine the very basis of our judicial process.

Hard to argue with that.

Ironically, in this case the ruling bailed out an employer, but from an employment law context it is employers who are most likely to feel stymied by its reach.

Supplemental information (3.12.10): For more background information on the case itself see the AAS article about the oral argument last May. One aspect that is significant is that the underlying judgment was originally $22.4 million but was reduced to $15.8 million by the appellate court. Four members of a single family were killed in the accident.

Caught in Between -- Another MDV

When you see this kind of headline, I Spy With My Little Eye... Hotel Baker Gets $3 Million from Starwood you know that it is no doubt a complicated story. That it came at the end of a more than three week jury trial in federal court in NYC, confirms that.

Moises Mendez, a baker had complained about being "bullied" (that word again) based on national origin and also some surgical scars. But as the article points out, it was not only the verbal taunts that led to the award, but also the fact that the hotel had installed a camera in the kitchen where he worked.

Mendez of course (and apparently the jury) saw it as spying on him. On the other hand, the hotel said the camera was “supposed to protect Mendez from harassment and was approved by his union.” Its hard from the limited reports to know what was really going on, but it is quite easy to see that this was not your usual situation.

And since I have not had the chance to point it out lately, a gentle chide to the headline writer, for "Gets $3 Million". Mendez has not received anything. What he has is a jury verdict, that still needs to go through a considerable process even before it becomes a judgment in favor of him. Even then, Mendez will not "get"anything, until the end the often long appellate process. To quote my former professor Pappy Jones (again), "there is no cash register at the back of the courtroom."

Update (3.11.10): Apparently, the statement that the union approved of the camera was retracted. See this update from the Daily News.

4/5 of an MDV, But It's the Subject Matter That Caught My Attention

Although my usual standard for jury verdict reports is a million dollars (MDV's), this headline caught my attention, Court awards bullied student $800,000.

It has long been my view that the most likely path for a bullying cause of action recognized in the workplace (other than the continuous efforts of Professor David Yamada) is the widespread acceptance of anti-bullying legislation applicable to the schools. Anti-bullying Legislation for Schools, An Inevitable Tie.


Based on local reporting in the Austin area, I know that a similar suit has been filed against a local area school district and when juries start returning these kinds of awards, no matter whether they ultimately stick, the fact is, more suits will follow.

It may be yet awhile before the first state enacts anti-bullying legislation in the workplace, but having been following it for more than seven years, (see Newest Workplace Problem? Bullying?, January, 2003), I am beginning to think of it in terms of likely, if not inevitable.

On the other hand, what seems to me to be the path to workplace legislation, anti-bullying laws in the schools, and the resulting litigation and cost to local school districts, might be the demonstration of the dangers that stops it in its tracks.

Time will tell, but for employers and the legal system the outcome is not a small issue.

Perception and Third Party Retaliation Claims Still Alive in DC District Court

Ramona Johnson, a Secret Service agent married to a Secret Service Agent, says she was denied a transfer to Miami, where her husband had been moved because he had filed a discrimination charge based on his race.

Johnson alleged the denial of the transfer was retaliation either because of his protected activity (a third party retaliation claim) or because the Secret Service perceived that she had been involved in his charge (the perception claim). Last week she survived a motion for summary judgment with Judge Richard W. Roberts holding (pdf) that there is at least a factual dispute on the perception claim.

Given that there is at least an arguable split in the circuits, discussed by Judge Roberts in his opinion, this could be potential Supreme Court material. Frankly, given how employers have fared in recent years before the Supreme Court on retaliation, I would just as soon not see that happen. 

There's a long road between this ruling (which was really a Motion to Dismiss converted to an early MSJ) and the Supreme Court though.

Hat tip to the DLR for catching this opinion. Their article is here. ($)

Changing the Statutory Employment Law in Missouri - Will it Happen?

An article in the St. Louis Business Journal reports on an effort by the Missouri business community to roll back recent state Supreme Court decisions which have caused a split between how state and federal discrimination laws are interpreted.

A Missouri management side lawyer, Bob Stewart, has one of the better quotes I have seen recently, noting that the "problem is that Missouri employment law has become out of whack with federal law." Having been almost whacked a few times in Missouri state court myself, I can identify.

I know almost nothing about Missouri politics, except that in national elections they tend to be a swing state with close elections that often seem to have a different result when I wake up in the morning than when I went to bed on election night.  If the legislative process is as close, then this could be a very interesting battle because there are clearly political heavyweights on both sides.

Among the companies which are supporting the bill are Boeing, Brown Shoe, Bunge North America, Charter Communications, Emerson, Enterprise-Rent-A-Car, Express Scripts, Graybar Electric, Peabody Energy, Schnuck Markets, Smurfit-Stone Container Corp., Solae and Solutia. They are backed by the National Federation of Independent Businesses in Missouri, the St. Louis Regional Chamber and Growth Association, the Missouri Retailers and Grocers' Association, the Missouri School Administrators' Coalition, the Cooperating School Districts of Greater St. Louis, the Missouri Associated Builders and Contractors, the Missouri Restaurant Association and the Missouri Municipal League.

Opposing the legislation are trial lawyers, the Metropolitan St. Louis Equal Employment Opportunity Commission, the Missouri Commission on Human Rights, and the Missouri National Education Association.


Although the article does not refer to the bill number, it appears to be SB 852 [pdf]. That bill was passed out of committee and is pending action by the full Senate.

According to the Current Bill Summary, the legislation as introduced would bring state discrimination law into parity with federal discrimination law by excluding individual supervisors and managers from liability, adopting the same damage caps as are contained in Title VII, and revising the burdens of proof. It would also undo several state Supreme Court decisions, including one which ruled out a business judgment instruction.

Discrimination law developed in Missouri mostly in federal court until the state Supreme Court held there was a constitutional right to a jury trial in Diehl v. Malley (Mo. 2003). Since then, at least according to the proponents of the legislation, there has been a growing difference between federal and state law. Actually, while people have different views about the merits of whether the federal and state law should be interpreted similarly, I doubt there are many that would seriously argue that the two have not diverged in the period since Diehl.

Since I have handled some cases in Missouri I have some interest in the law, but I am more fascinated by whether or not it is possible to actually roll back what is now considered pro-employee legislation.  It is my view, that at least on the federal level it won't happen, at least not in my lifetime. As far as I know, the last time there were amendments to federal labor laws that could be said to reverse any pro-employee legislation would be 1947, with the passage of the Portal to Portal Act amendments to the Fair Labor Standards Act.

I think I posed this question to some of the academic bloggers on employment law issues before, because this is certainly not based on any extensive research. However, I am fairly certain that since I started practicing in 1975 it has not happened. Hopefully, if I am wrong, it will soon be pointed out.  That's one of the beauties of the internet.

While waiting, I will also be keeping a watchful eye on the Missouri legislature.  I must admit, that I am skeptical that it will happen. Probably not an atypical view for the "Show Me" state. But one can always hope.