Saturday, 29 December 2012
Maximizing Profits When Flipping Properties
If you know what you are doing, are somewhat handy at home improvements and plan ahead, it's possible to make a fairly tidy sum flipping properties. One of the best ways to do this is by rehabbing houses in need of some renovations or repairs. Start With Government Agencies The absolutely best deals when it comes to suitable candidates for flipping properties are homes that have been repossessed from drug dealers. Shocking? Perhaps. Because of their very nature, these are not the most desirable properties to the public at large, in part because of their location - but mainly because these properties often require a lot of rehabbing. properties [http://www.nfafn.com/fix_and_flip_resources.aspx] like crack houses and former meth labs have seen a lot of abuse and wear and can be had for a song. This is one of those house flipping tips [http://www.nfafn.com/house_flipping_costs.aspx] that are best for those who are skilled at home construction and remodeling and have a ready discount hardware supply [http://www.nfafn.com/discount_store.aspx] source - because you'll be putting a lot of work into it. However, when it comes to sheer profit margin, such a property can be an ideal candidate for flipping properties. Check Realty Listings Granted, rehabbing houses that have been used by drug dealers is not for everyone - particularly the faint-of-heart or the unskilled. However, it is possible to find opportunities among foreclosures and estate sales; rehabbing properties like these is likely to require less in the way of work and materials, although you'll still want to rely on a good discount hardware supply outlet if you don't want to spend all your profits on the latter. More House Flipping Tips Although real estate auctions are certainly a source of suitable properties, we don't recommend them. The problem is that even when it comes to damaged homes in need of extensive rehabbing, properties like this are likely to generate a lot of interest - and competition when it comes to bidding. One of the most important house flipping tips is to be aware of any laws that may restrict you from turning around and selling the house right away. For those rehabbing houses in need of repair, this is probably not going to be an issue, but you should consult a local real estate attorney just in case. Go For It Flipping properties is a great way to get very wealthy in a reasonably short period of time for those who are handy, smart, and willing to learn and do some advance planning. Just don't run into it full bore - take your time, do your due diligence, take deliberate steps and hand realistic expectations - and you, to can experience succes at flipping properties. by Wayne Hemrick
Saturday, 22 December 2012
Forex Megadroid - Is it Really the Best 2010 Forex Trading Software ?
MegaDroid forex bot rules! Are you tired with the get rich quick scene ? Of everyone promising heaven and delivering hell? worthless ebooks junk and elementary sounding master approaches that NEVER work ? MegaDroid forex bot is the key to succes! how about something really revolutionary? something that has never been featured on the web ever before? UNDENIABLE proof OF fully AUTOMATED INCOME THAT everybody CAN PUT HIS HANDS ON! MegaDroid foreign exchange trading robot features A thing that has never been realised before. I assure you.. im still in trance as we speak.. and a bit shocked by the power of MegaDroid. The inventors of this automaton are two experienced traders, Albert Perrie and John Grace, having 42 years of combined knowledge in the foreign exchange market. Forex Megadroid is mechanical trading software that analyzes precedent market circumstances and applies this statistics to make forecasts regarding the prospect inclination of the Forex market. The Forex market is relatively a harsh place, where almost 3 trillion dollars is traded daily; making the Forex market the most liquid one in the world and it runs 24 hours a day, 6 days per week. It's so volatile and unstable that trading without an automatic tool can prove to be unsafe. Yet, there seems to be latest software released every week, so how to decide the right one? Although there is no software with 100 % accuracy, but yet a few systems are prominent from the rest. Megadroid, for instance has a winning rate of more than 95 %. Additionally, you have to think about before deciding on which robot to use, supports regular updates and a money back assurance. One should never buy software that doesn't have such guarantee, for the reason that if it does not meet your needs you will lost your money. The most important thing in a Forex robot is the capability to acclimatize itself to every market situation. Megadroid was built around an Artificial Intelligence Technology called RCTPA (Reverse Correlated Time and Price Analysis) which allows it to predict the currency price change that will happen in the next 2-4 hours. RCTPA is a hard to believe algorithm that allows you to make very gainful trading decisions. The Forex market is confused and changes frequently and for this reason the majority of Forex trading robots become outdated soon after their release. Megadroid is an exclusion to this law, because RCTPA facilitates it to remain beneficial almost for ever. An added advantage of this system is that it suggests a list of brokers that allow you to open a live account with just one dollar, so Forex Megadroid can prove to be a useful asset. Guaranteed 95.82% Accuracy! IMPORTANT: this is not paper results or demo.. they have put proofs on MegaDroid site that show how the bot trades the forex and multiplies the money in real time! REAL DEPOSITS with renown brokers like interbank fx, fxcm fxdd, fxpro ducascopy and many many more! (All welcomes MegaDroid foreign exchange robot with open arms). BE QUICK AND REACT NOW!! Already thousands of MegaDroid people are multiplying their money.. the price of this great AUTOMATIC cash making tool is increasing as we speak.., they already increased it (no stupid marketing fluff!) and what's even worse.., they are about to CLOSE THE DOORS! You owe it to yourself to at least check out what this killer bot is capable off! Have a look at MegaDroid forex robot before they pull the curtain.. you have nothing to loose but everything to gain! by Benoit FANTIN
Saturday, 15 December 2012
Criminal Defense Attorney Orange County
I've never been a criminal but I always thought that if I broke the law and committed some heavy crimes, what kind of criminal defense attorney Orange County would I get. Watching T.V gives us a stereotype of Attorneys that handle criminal defense. They always seem to be a little shady of character. I mean lets face it, a criminal defense Attorney, defends criminals. This kind of lawyer defends clients who are sex offenders, those who commit sex crimes. In my mind those are the worse kind of clients to have. Criminal defense Attorney Orange County are also usually big money Attorneys. Orange County is a wealthy area. The county contains lots of people who suffer charges for sex crimes, domestic violence, DUI cases not to mention all the other crimes you can be charged with. Crimes result in money for criminal defense Attorneys. The charges incurred by these clients are astounding. I don't know how they can even come up with the money to pay these Attorneys, although I have heard that in order to pay these exorbitant charges, those being being defended have to sell they homes and everything they own. The way I see it, it's a crime the charge these ridiculous rates. Criminal defense Attorneys understand that they can charge these rates because people will pay them. I guess the best way out of paying these fees is not to commit a crime or search for Criminal defense Attorney Orange County California is a breeding spot for criminal defense Attorneys, especially in Orange County. Besides being a high income area, there is one city in particular, Santa Ana, that is low income. Many crimes of all types are committed there. Domestic violence is high on the list of crimes committed. They also service a lot of DUI cases. I'm not sure about the sex crimes, but in my opinion, most of the county criminal population resides in Santa Ana, Orange County, California. I would have to drive through Santa Ana quite often and every time I did I wondered what crime would be committed on me today. Luckily, I never had to hire an attorney to prosecute any criminal and I hope I never end of needing a criminal defense Attorney Orange County. One time I remember logging onto the internet and checking out how many Attorneys handle criminal defense. There were pages and pages of lawyers defending criminals. When I saw that, I wondered what kind of lawyer would defend a criminal. Who would want to defend clients who blatantly break the law? Now, I can almost understand defending a person with a DUI, but defending a clients who commit sex crimes is beyond me. Do these lawyers not have any moral fortitude? I would have a difficult time with that. My problem is that I've already convicted most of the people charged with these kind of crimes before they are even tried. I'm amazed when I see how many family members of these criminals support them. If one of my family committed a sex crime or domestic violence, I would hope they go to jail for many many years. I would not support them with the charges filed against them. In most criminal cases, if you are associated with the crime, then you are probably somehow connected with the crime. I know that sounds closed minded but if you don't want to be charged with a crime don't associate with criminals and stay away from the possibilities of committing one. by Wendell Demont
Thursday, 13 December 2012
Michigan As a Right to Work State - Random Thoughts
First, somewhat as an aside, the news coverage of this issue reminds me that any time I follow an issue that is covered by the media and falls into an area where I have my own expertise, I always come away with one thought - yikes. And then I quickly remind myself, I need to apply more skepticism to other things that the talking heads say in areas where I don't have any particular expertise.
More relevant to the topic of this blog, it would be hard to view this as anything other than a cataclysmic event for organized labor. Unions in the private sector have been on a well documented slide for most of the time I have been practicing law, which goes back to 1975. But suffering a loss in a state that because of the UAW and the car industry is probably most identified as a "union" state on what has always been one of labor's most, if not the most, important issues, right to work, is a message of pending doom of a different magnitude.
The challenge for unions to re-define their message, or maybe more importantly, their mission, which has been obvious for a long time, seems like it has a much shorter time line than ever before.
Although I tend to view this from my background as lawyer who has been involved in labor and employment matters (and clearly much more employment than labor), one of the things that seems to be true is that in many ways, rather than a fight over the merits or non-merits of union representation and whether it should be encouraged or not, the underlying bigger challenge is being made because of union's role as a major force, particularly in the "ground game" of the Democratic party.
Finally, for though those who view union's decline as a good thing, I would remind of the rule of unintended consequences. Which by definition means, one never knows what is going to happen when there are such big structural changes.
Just as an example, on Morning Joe yesterday, Joe Scarborough voiced support for a concept that would surely be anathema to employers (although a real boon to my profession), member only bargaining. When some one pointed out that the union's argument against right to work was the "free rider" argument, where in a right to work state employees in a union facility get the benefits of the union's bargaining efforts without having to pay for them, he said why not let the union negotiate for it's members and they get the pay raises, and those who don't want to be members, don't.
Although I doubt that Joe Scarborough and Charlie Morris, the former SMU labor law professor, have much in common, there could not have been a much better endorsement for Professor Morris' concept he has been pushing for some time now. See Thinking About a Different World Under the NLRA and A "New Spring" in Labor and Employment Law?
And you know that at least some on labor's side may also beginning to think how that or other different approaches might be used to frame a new argument
It will be some time before we know how this all plays out, but for those rejoicing about this latest development and what it seems to imply about organized labor's future, I am reminded of the trite but true statement, be careful what you ask for.
More relevant to the topic of this blog, it would be hard to view this as anything other than a cataclysmic event for organized labor. Unions in the private sector have been on a well documented slide for most of the time I have been practicing law, which goes back to 1975. But suffering a loss in a state that because of the UAW and the car industry is probably most identified as a "union" state on what has always been one of labor's most, if not the most, important issues, right to work, is a message of pending doom of a different magnitude.
The challenge for unions to re-define their message, or maybe more importantly, their mission, which has been obvious for a long time, seems like it has a much shorter time line than ever before.
Although I tend to view this from my background as lawyer who has been involved in labor and employment matters (and clearly much more employment than labor), one of the things that seems to be true is that in many ways, rather than a fight over the merits or non-merits of union representation and whether it should be encouraged or not, the underlying bigger challenge is being made because of union's role as a major force, particularly in the "ground game" of the Democratic party.
Finally, for though those who view union's decline as a good thing, I would remind of the rule of unintended consequences. Which by definition means, one never knows what is going to happen when there are such big structural changes.
Just as an example, on Morning Joe yesterday, Joe Scarborough voiced support for a concept that would surely be anathema to employers (although a real boon to my profession), member only bargaining. When some one pointed out that the union's argument against right to work was the "free rider" argument, where in a right to work state employees in a union facility get the benefits of the union's bargaining efforts without having to pay for them, he said why not let the union negotiate for it's members and they get the pay raises, and those who don't want to be members, don't.
Although I doubt that Joe Scarborough and Charlie Morris, the former SMU labor law professor, have much in common, there could not have been a much better endorsement for Professor Morris' concept he has been pushing for some time now. See Thinking About a Different World Under the NLRA and A "New Spring" in Labor and Employment Law?
And you know that at least some on labor's side may also beginning to think how that or other different approaches might be used to frame a new argument
It will be some time before we know how this all plays out, but for those rejoicing about this latest development and what it seems to imply about organized labor's future, I am reminded of the trite but true statement, be careful what you ask for.
A Month in Absentia and Going Forward
Not that I am sure anyone cares, but for those who do come by to check, the month of November marks the first time in 10 years I believe I have gone an entire time without posting.
It has been a busy month, with an extended arbitration, a vacation trip and a personal move into a closer in neighborhood. Where, probably unfortunately for my waist-line, there are no less than 10 eating establishments within a 10 minute walk of our new house. And if I am willing to walk 20 minutes, the choices are even much greater! Hopefully the walking will offset some of the eating!
It has been a busy month, with an extended arbitration, a vacation trip and a personal move into a closer in neighborhood. Where, probably unfortunately for my waist-line, there are no less than 10 eating establishments within a 10 minute walk of our new house. And if I am willing to walk 20 minutes, the choices are even much greater! Hopefully the walking will offset some of the eating!
Saturday, 8 December 2012
How to Choose a DUI Lawyer Los Angeles
I had a friend come to me one time and ask me how to choose a DUI Lawyer Los Angeles. Immediately, I think, why? Although, I'm smart enough to assume why. Of course, I told him I've never had a DUI and have never needed a defense attorney but we could figure this out together. I Googled, "DUI lawyer Los Angeles" and came up with million defense attorneys in Los Angeles County. Drunk driving is an epidemic in Los Angeles as well as in Orange County. Police Departments in both of the counties are stretched thin trying to deal with all the legal matters that result from drunk driving. The court houses are filled with case after case after case. I think it might be as a result that the average Los Angeles County DUI attorney is too good at what they do. Drunk drivers are getting away with too much. The California DUI Drunk Driving laws need to be revisited. I can't honestly say that it's the the Defense Attorney that's at fault. They are doing what they get paid to do. Criminal defense is what they do. If the laws make it easy to get off, then the laws should be changed. DUI Defense is a specialty in itself. Many law firms focus mainly on drunk driving defense. Is it the laws or is it the abundance of alcohol? There are so many questions to ask and so many roads one can travel in discussing this issue. Everyone wants to put blame on someone else, including me, but something has to be done. Being an Attorney in Los Angeles or Orange County means handling drunk driving cases. It's a matter of supply and demand. There is an overabundant supply of drunk driver's. I had a close friend who upon recently graduating from law school went directly into defending drunk driving cases and this was in Los Angeles County. I asked him why he chose to become a DUI Lawyer. His reply was that drunk drivers made it possible for young attorneys out of law school to find immediate employment. Of all the people that require criminal defense, drunk drivers fill the need. So, returning to my original discussion on finding a DUI Attorney Los Angeles, after reviewing the list from our internet search, we were overwhelmed with the immensity of Attorneys specializing in the criminal defense of drunk drivers. We began by sorting the attorneys out by County, Los Angeles and Orange County since my friend lived close to both counties. That still left us with a zillion law firms to decide upon. We narrowed the defense attorney list down to a half hour driving distance. That narrowed the list even more. Then I got the bright idea of calling the local police department to see if they had any suggestions. We came away with few results there. The best way, we decided to locate a good DUI lawyer Los Angeles was to call a law firm and start interviewing. Most people, when calling a law firm for the first time think the lawyers are interviewing you but in reality you should be interviewing the law firm. It's your legal defense. You should be getting the best legal attorney that fits what you want accomplished. To this day, I can't remember who my friend chose or what happened to his drunk driving case. by Wendell Demont
Saturday, 1 December 2012
Attorneys in Las Vegas Are Any Different From Henderson Lawyers
I have wondered at times whether attorneys in Las Vegas are any different from Henderson Lawyers. Does it really matter from whence your Attorney comes as long as the attorney is qualified and dedicated his or her profession. I looked up Henderson Lawyers on the internet and found myriads of attorneys. They are as countless as the stars in the heavens. Just in my own family, there exist quite a few attorneys. For the most part, there are intelligent human beings dedicated to their specialties of the profession. In fact, many of the law offices you'll find either specialize in a specific kind of law or the several attorneys in that office have a specialty or expertise. A brother in law who practices in Henderson was fairly new to the profession when we had an interesting experience. As a new lawyer, fresh out of law school, he decided to specialize in family law focusing on estates and wills. One day he was called out of the blue by a gentleman who was referred to him by another associate. This particular gentleman was a specialized veterinarian who focused on the care of race horses. The bottom line is that our Immigration Department wanted to deport this man primarily because he was taking up an available specialized position that should be afforded natural born citizens first. I know, it sounds really inane but it's true. My attorney brother in law explained to the man that he was just a simple Attorney from town. There were many more Henderson Attorneys much more qualified in immigration law than he was. But the man insisted that because my brother in law came highly recommended that he take the case. He did. As many lawyers do, the first thing my brother in law did was write a letter to the judge who was presiding over the deportation case. Evidently, immigration law disallows for foreigners to take over skilled professions unless there are no other natural born citizens trained and able to fulfill those specialties. I'm just surmising the law. My explanation does not do the law justice, but it covers my point. Amazingly, the presiding Judge was so taken by my brother in law's letter that he personally called him and commended his logical defense of the man in need. In fact, the Judge published the letter in one of the highly respected law journals. A retired attorney from Washington D.C. read the article and was so impressed that he called my brother in law and asked him to tour the country with him and a panel of expert attorneys he was putting together. During this tour, the attorney wanted my brother in law to speak on immigration law. My brother in law was super flattered that he would be offered such a respected position, but the Attorney had assumed that he was an expert in the field when in reality he was just one of the newly graduated Henderson lawyers. He thanked the attorney for his kindness and respect but had to confess that he knew nothing about immigration law, that his quick rise in notoriety was just a fluke. Although, it was a fluke it was a highlight in my brother in law's early legal career. He went back to doing what he did with estate law. Once he did branch out and handled a few accidents but he's always been thankful to be included as one of the qualified Henderson Lawyers. by Wendell Demont
Friday, 30 November 2012
HOW TO BLOG
HOW TO BLOG FOR PROFIT. When I first started blogging, blogging for the most part was not looked upon as a marketing tool. A big part of what blogging was six years ago was still the personal journal or daily diary. While you still see those types of blogs with Posterous and Tumblr, there has been a ever growing movement for a blog to be the main Web presence for a business. Whether that business be online or offline. What I have seen over the last six years has been a shift in businesses understanding the importance of having a Web presence. More and more businesses, no matter what size, are realizing they need to be online. The problem is, even now with all of the how-to sites out there, most businesses still don't get the how. They don't know how to get online. They don't know where to even start to get a site up and going. But, while they may think they get it, I am not sure they really get it. At the same time, and this is where some of the blame needs to rest too, I am not sure most of these so called blogging and social media gurus get it either. What I have strived to do over the last few years with this blog is give an inside look at what I knew worked for me and what others used successfully to market and promote a business with a blog and social media. I tried to give our readers the tools they needed to be successful with their Web based marketing. And one of those successes is how to turn traffic into visitors, visitors into readers, readers into subscribers. And finally, subscribers or those regular readers into paying customers or clients. Over the last three plus years in the life of this blog, I do feel we have done a pretty darn good job of doing that too. I do think we cut through the bull crap and have been providing the straight talk on using a blog or social media to market and promote a business. But, we need to make some changes and grow with the demands of our readers and the community. We need to look at what we are doing and improve on things. And the first thing I personally need to do is get back to post on a regular basis. My family and I just got back from a week in Tampa, Florida. We got to spend some wonderful time with our oldest son and our daughter-in-law and I was able to really take a break. While I still did some support and answered some emails for the company my son Clay and I have. I also had a bit of time to sit back and think a bit. And really look at what I want to do with this blog. Change is good… First and foremost, regular postings. You might see a new series in April too. I am kicking around an idea centered around something I have been thinking about and that is, "The DNA of a Blog." And if I don't have it fleshed out for April, you will see it in May for sure. It is easy to get caught up in the belief that all of those businesses who are going to blog are already blogging. Seriously, such beliefs are really just stupid. We see more new bloggers and Web sites go online every single day. And every single day, these new bloggers are hungry for good, relevant and up-to-date information to help them use a blog to market and promote their business. We need to get back on track here providing that information. http://bloggingforprofit.fastprofitpages.com/?id=macias Don't be shocked if you see some of our older content get a facelift and a repurposing too. Even the stuff we wrote 3 years ago still applies today. The great thing about it, we have some cool tools and ways to get our message out there and bring readers to our sites. Second, I want to ramp up the guest postings here and the regular contributors. Over the last couple of years we have had some amazing contributors here on Blog For Profit. And some awesome guest bloggers. I want to continue that as we move forward. I also plan to use Gravity Forms to make that process easy for guest bloggers. Third, and this is more for me than you. I need to get out of the habit of always thinking I need to write such freaking long post. I need to practice what I preach to the new bloggers I talk to. Fourth, we are going to spend more time also discussing how you can use a blog to make money online. From promoting your own online products to promoting the products of others as an affiliate. There is nothing wrong with promoting and recommending products as an affiliate. I do it daily with products and services we use and recommend to our community at Headway Themes. Don't be shocked if we don't spend time talking about how you can make some serious cash selling Headway Themes. And why not? Plus, what you learn there you can take and use with other products you are promoting as an affiliate. http://bloggingforprofit.fastprofitpages.com/?id=macias Fifth, the Blog For Profit newsletter will get back in the swing of things too. Sixth, we are looking at starting a members' only forum for Blog For Profit. Seventh, there will be a completely new look and design coming sometime this summer for Blog For Profit. And that is all I am going to tell you on that subject. Finally, we are going to promote resources we feel you should be using. And yes, some of those products will have my affiliate link included. And yes, I will be promoting what we are doing at Headway Themes too. There is more, but this post is already a lot longer than I intended it to be. Final thoughts Leave comments and keep the conversation going. If anything, I want the changes we are going to do with Blog For Profit to reflect what our readers need and that is you. Give me questions you want answered. Tell me what you want and need to know to have a successful blog. Tell me what you need or tell me what you don't need. Let's discuss what is working for you and what is not. We all can learn by talking about all of this. So let's do it. I feel good about all of this and quite frankly, it is about time we get back in the swing of things here http://bloggingforprofit.fastprofitpages.com/?id=macias SO TO DO BLOGS IS AN ACTIVITY THAT WE MUST TAKE SERIOUSLY, SINCE CAN CHANGE YOUR STILE LIFE IN A GREAT WAY. by L. MACIAS
Friday, 23 November 2012
B U S I N E S S.
Starting a small business can be the most exciting time in someone's life about it can also be the most frightening. With so many forms to fill out and preparations to make, starting can be a huge undertaking. But once you get the ball rolling and you start to see the first signs of success, it can be a very rewarding achievement There are many resources available for those wishing to start a small business. There are thousands of professional companies that assist with this type of thing and there are also countless online tutorials that can help you on your way. There are several things that need to be considered before starting your business and if you know where to look and are patient, you can alleviate some of the stress right away. For instance, to start your small business the right way, you will need to know how to market and finance it. These are two of the scariest parts of the scenario for those just starting out but can be handled effectively without spending tons of money on professional help. Other things to think about are whether or not you will franchise your business. Will you have affiliates? Will you need to hire additional employees? What are some of the local laws regarding small businesses and taxes? http://tinyurl.com/6djbt7k I WANT TO GIVE YOU THIS ADITIONAL INFORMATION...you see there are a ton of things to think about. But don't overwhelm yourself right away. You'll find several resources on this page that can help you make absolutely certain that you are building yours so that it not only succeeds, but that it does so quickly. So congratulations on your new small business. We certainly hope the information you find on this page helps you achieve monumental success
Friday, 16 November 2012
The Law of the Handicap of a Head Start
Education is resistant to innovation India is one of the worlds fastest growing economies. This is in part due to the effects of the Law of the handicap of a head start as well as India's clear choice to invest in education. In fact, it's likely that these two elements are also interconnected. One of the things where the law of the handicap of a head start (= you've invested in a solution that may not be the best, but it keeps you from looking further to more innovative solutions) is most prevalent is the field of education itself. The education system that has been developed in the “first world†has been getting stale. Education is no longer the best way, in western society to get yourself aware and in contact with what is happening right now. The curriculum in most colleges educates young people for a workplace that is no longer there. The top ten new jobs in terms of vacancies didn't exist as little as 5 years ago. Sir Ken Robinson on education Education in the developed world is based on a worldview that was based in the industrial era. This worked fine when we needed people to be educated for jobs in the factory, rather than for knowledge work, where there is a high demand for people who can work creatively. Sir Ken Robinson makes this point beautifully and eloquently in his video. This insight is at the basis of an education revolution going on where instead of teaching children what to think, we're teaching them how to think! A world of difference that is being put into practice at a school in Hyderabad Educational innovation: using what we know! Another part of what is the succes of India is that they have, from day one, been able to use insights from educational innovation and social and environmental psychology to form their curriculum and their very building to create an environment that is conducive to learning and experimentation. This is a far cry from traditional (western) schools. Where even to this very day children are given the same tests on the same day, graded on how well they perform as related to children their age instead of looking to the individual child and it's learning need. Our schools have been teacher centered. The buildings reflect that, the attitude and expectations of parents reflect that. Tradition and the law of the handicap of the head start mean that we have maneouvred ourselves and our educational system into a heavyset, overly centralized and bureaucratic mogol that is now hard to topple because many people in the workplace still believe that a degree from a top school means you're prepared for the world. In the real world, successful entrepreneurs start at age 12 and hire their parents before their 14th birthday. Just look at Ben Woldrings story if you want to get what I'm talking about here. Getting a head start these days you'd be better of getting your primary education at the Rockwell International school in Hyderabad than getting it at any traditional school in America or Europe. A sane approach to education This school has learned from the insights that have made Google and Apple the great companies they are. Provide an educational environment that promotes working together, that allows people (children are people too) to play and experiment. Allowing children to learn when they are ready means really giving room for children to set the tempo. A child can learn to read in 6 hours when it's ready. Or it can learn to read in 16 weeks according to the schedule the teacher sets and be miserable because perhaps it's not ready or so far ahead of the crowd that it's bored out of their wits. It's time for a sane approach to education! by Suprajaku
Friday, 9 November 2012
Steps to Succes in Directsales
10 Steps To have Succes In Direct Sales Every year thousands of men and women across America sign on with direct selling firm-Tupperware, Amway, or a cosmetic company-hoping to make money enough for new draperies, a new davenport, or some new clothes. They sell a little merchandise to a few relatives and close friends. Then they are through. They quit before they give themselves a chance to learn the basics of success in sales. "I am simply not a born salesperson," they often say. No one is born a salesperson, any more than one is born a doctor or born a lawyer. Sales is a profession. To be successful in any profession one must learn not only the basic techniques, but also how to apply those techniques. Success in sales makes use of all the abilities one is born with, plus all those acquired through education and experience. If you are looking for a career opportunity or "extra income" to help with the family budget, direct selling offers you dream-fulfilling possibilities. However, you must give yourself time to learn the techniques of sales. Ask yourself. "How long does a doctor to be study? A lawyer to be study?" WHAT IS DIRECT SELLING? Direct selling is marketing a product directly to the consumer with no middleman involved. Most reliable firms are members of the National Association of Direct Selling Companies. They bring to the public fine products that are modestly priced in order to insure mass consumption. Most direct selling companies furnish their representatives with a starter kit and essential supplies below-cost prices. In many instances the investment is under $100. There is an old adage which says "Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." Many of them were able to change their lives for the better. They took their families on nice vacations. They purchased a piano or an organ and provided music lessons for their children. They saved money for college education. They redecorated their homes, bought needed furniture. One highly successful saleslady built a new home. The rewards of direct selling are many 1. You can be your own boss. 2. You can set your own hours. 3. You can own your own businesses with little or no investment. 4. You can pay yourself more than any boss would ever pay you. 5. You can give yourself regular raises as your business grows. It is only fair to tell you that there are failures, too. There are people who will not work for themselves. When working for a boss, they rise early, are well-groomed, and get to the office on time. However, when they are their own boss, they are still in a bathrobe, drinking one more cup of coffee at 11:00 A.M. If you can be your own boss and discipline yourself to do what has to be done when it has to be done, direct selling offers a most unusual earning opportunity. THE TEN STEPS Here are ten steps that will assure your success: 1. BE A GOAL SETTER. What do you want to accomplish? Do you want to save for college education for your children? A new car? A new home? You can have whatever you want, but you must want it enough to do the things that have to be done to get it. Whatever your goal, write it down and set a target date for reaching it. Divide the time period into blocks of achievement that are reachable. Work consistently toward accomplishing each day, each week, each month what you set out to do. Goal-setting is a must in every area of life. Little is ever accomplished without definite goals. 2. BE A LIST MAKER. Each evening list all the things you want to get done the following day. That gives you an organized approach to each day. As each task is finished, mark it off your list. It is amazing how much gets done when one works with a "things-to-do" list. Also, have a notebook listing appointments, potential clients, repeat clients, and referrals, and keep it with you at all times. You will be adding to it constantly. 3. BE ENTHUSIASTIC. Enthusiasm is the high-octane "fuel" that salespeople run on. Enthusiasm generates its own energy. Energy and good health are synonymous with busy, happy people, people who are achieving. 4. RECOGNIZE THAT THE MAGIC WORD IN SALES IS "ASK." In direct sales we don't have to wait for business to come to us. We create our own business by asking for it. Ask for appointments, then you can do business. Ask for business, then you will close sales. Ask for referrals, then you always have a full list of potential clients. Be quietly, yet firmly aggressive. 5. EXPECT NO'S. Realize that no's are not personal. In sales, as perhaps nowhere else, the law of averages works. Every no gets you closer to a yes. Keep track of your ratio. It will help improve your techniques. Are you getting ten no's to one yes? Is your ratio five to one? Remember, the yes's are your income. Also remember that "no" does not necessarily mean "no." Often a "no" is simply a stall for more time to think. It may be a request for more information about your product or your service. What your client is actually buying is assurance. Assure here by your helpful attitude and your complete honesty, that you want what is best for her. She will most likely respect you and do business with you. 6. SCHEDULE TIME WISELY. A schedule is the roadmap by which salespeople travel. It takes the frustration out of the day. It assures that the necessary things get done and get done on time. Plan your work then work your plan. 7. BE POSITIVE IN YOUR ATTITUDE. Success in sales, as in all areas of life is 90 percent attitude and 10 percent aptitude. All of us must work at developing habits of constructive thinking. I am proud to be a salesperson. Sales make the wheels of our economy turn. Bernard Baruch, advisor to several presidents, is quoted as saying, "If every salesperson sat down and took no orders for twenty-four hours, it would bankrupt our country!" Every company that manufactures any kind of product depends upon salespeople to move that product. Without salespeople business would be paralyzed. Remember, sales is one of the highest paid of all professions. Statistics show that good salespeople enjoy incomes far above the average. 8. HAVE AN OFFICE AREA. Most direct salespeople work from their own homes, but it is essential to have a place where you can work in a organized and efficient manner. An office plus a strict working schedule gives you dignity. Both are absolutely essential for efficient operation and accurate record keeping, so important to the success of any business. 9. BE INVOLVED. Most sales organization offer contests to stimulate production. Include winning contests as part of your business goals. Contests make your business fun as well as adding considerable dollar value to your income. 10. LEARN TO HANDLE MONEY INTELLIGENTLY. A regular nine-to-five job usually means a paycheck at the end of the second week. Direct sales "reps" handle money constantly. Direct sales is instant income and constant income. Therefore. it is absolutely necessary to become an efficient money manager. Deposit every penny collected from clients into a checking account set up especially for its business. Since bank statements show an exact record of all monies collected, and business expenses can be verified by canceled checks, record keeping becomes simple and accurate. Everything except a few "petty cash" transactions can be directly taken from bank statements. Money saved regularly and put at interest, soon develops a second income in addition to earned income. A long-term goal, which is realistic in direct sales, is to be able to live in retirement off the interest earned on savings. Would financial security mean a lot to you? If so, ask yourself these questions: * Am I honest? * Do I really like people? * Am I willing to learn? * Am I willing to work? * Am I capable of being my own boss? If your answers are yes, to find a good product for the direct sales market, one that you like, one that fills the need of a lot of people, and go to work for yourself!.You can turn dreams into reality. by Costache
Tuesday, 23 October 2012
Same Song, Umpteenth Verse - No Discrimination, Retaliation Worth $2 Million
This time it was Ithaca police officer Chris Miller who lost his claim that Ithaca discriminated against him and other non-minority officers in favor of minority policemen. That complaint did not fly with the jury, but his allegation that he was retaliated against for making it did, two million dollars worth. City to pay $2 million in discrimination case.
As always there is a lot more to this case than is covered in the brief article reporting on the jury's verdict. The Cornell Daily Sun did a four part story on the background of Miller's claim and the assertions made by him, some of which were excluded by the trial court. See part one and two here, and part three and four here.
As always there is a lot more to this case than is covered in the brief article reporting on the jury's verdict. The Cornell Daily Sun did a four part story on the background of Miller's claim and the assertions made by him, some of which were excluded by the trial court. See part one and two here, and part three and four here.
Monday, 1 October 2012
End of the Road for Gross v. FBL Financial Services
Actually that's a misleading headline, what it should say is the end of the line for Jack Gross, the ill fated plaintiff whose lawsuit became the vehicle for the Supreme Court's 2009 decision, which held that the ADEA, unlike Title VII, never permits a mixed motive analysis instead requiring a "but for" test.
Ironically, the well traveled case, which started with a 2003 reassignment Mr. Gross felt was to a lower position, was finally decided on the question which many had hoped the Supreme Court would address -- how do you determine when you get a mixed motive instruction? In an unpublished opinion affirming a jury verdict in favor of Gross's former employer, the 8th Circuit held that it is a question for the Court, to be determined after all the evidence is presented. Not too surprisngly given the difficulty courts have had applying mixed motive, the Court failed to tell us on what basis it is to be determined.
I had to smile because one of the cases relied on by the 8th Circuit was Smith v. Xerox Corp, a 2010 decision from the 5th Circuit that has been criticized not only by me, see 5th Circuit En Banc Request on Smith v. Xerox, Please! but also by four members of the 5th Circuit, see Stirrings on Smith v. Xerox in 5th Circuit Internecine Squabble.
Although as expected, the initial Gross decision did result in some legislative stirrings, fortunately none passed. Three years ago next week, I testified before the Senate Judiciary Committee in opposition to such proposed legislation. I wish I could say it was my brilliant thoughts (you can judge for yourself here ,about 51:30 into the hearing) that forestalled such legislation, but I have my doubts. But last Friday's decision, as well as Smith v. Xerox, illustrate the point I made to the Senate Judiciary Committee. Mixed motive, created when discrimination cases were tried to the court, has not fared well in the world of jury trials. I testified then, and still believe, it is both complex and unneeded, and what should be done is to jettison it from all of employment law, not just ADEA claims, where fortunately, it has been.
Ironically, the well traveled case, which started with a 2003 reassignment Mr. Gross felt was to a lower position, was finally decided on the question which many had hoped the Supreme Court would address -- how do you determine when you get a mixed motive instruction? In an unpublished opinion affirming a jury verdict in favor of Gross's former employer, the 8th Circuit held that it is a question for the Court, to be determined after all the evidence is presented. Not too surprisngly given the difficulty courts have had applying mixed motive, the Court failed to tell us on what basis it is to be determined.
I had to smile because one of the cases relied on by the 8th Circuit was Smith v. Xerox Corp, a 2010 decision from the 5th Circuit that has been criticized not only by me, see 5th Circuit En Banc Request on Smith v. Xerox, Please! but also by four members of the 5th Circuit, see Stirrings on Smith v. Xerox in 5th Circuit Internecine Squabble.
Although as expected, the initial Gross decision did result in some legislative stirrings, fortunately none passed. Three years ago next week, I testified before the Senate Judiciary Committee in opposition to such proposed legislation. I wish I could say it was my brilliant thoughts (you can judge for yourself here ,about 51:30 into the hearing) that forestalled such legislation, but I have my doubts. But last Friday's decision, as well as Smith v. Xerox, illustrate the point I made to the Senate Judiciary Committee. Mixed motive, created when discrimination cases were tried to the court, has not fared well in the world of jury trials. I testified then, and still believe, it is both complex and unneeded, and what should be done is to jettison it from all of employment law, not just ADEA claims, where fortunately, it has been.
Wednesday, 26 September 2012
Important, But Not What I Was Hoping - Petition for Certiorari on FLSA Action
In my in box this morning was a press release from the Retail Litigation Center, that made my hopes soar that at long last the Supreme Court could have a vehicle for answering what I think is the one issue most in need of addressing in today's employment law world: what is required before a district court conditionally certifies a collective action under the FLSA?
The headline read, RLC Urges Supreme Court to Review Class Action Standards in FLSA Suits. But a careful reading of both the release, and even more so the excellent amicus brief filed in support of the request for certiorari, dashed my hopes.
The current effort is to reverse the 7th Circuit's action in a Rule 23 class action based not just on the FLSA, but the Illinois wage law. The case is RBS v. Ross. And so the fight, and as I say, still an important one, is over the correct application of Wal-Mart v. Dukes.
But still to come is the case focused on a collective (not class) actions under 29 U.S.C. 216(b). For those of us who practice where FLSA cases are brought by themselves, not as dual cases under a state wage law, the issue of how low the bar is for conditional certification, is for employers, a terribly expensive question.
As an illustration, here is a brief procedural overview of a case I handled:
It is already many millions of dollars late.
The headline read, RLC Urges Supreme Court to Review Class Action Standards in FLSA Suits. But a careful reading of both the release, and even more so the excellent amicus brief filed in support of the request for certiorari, dashed my hopes.
The current effort is to reverse the 7th Circuit's action in a Rule 23 class action based not just on the FLSA, but the Illinois wage law. The case is RBS v. Ross. And so the fight, and as I say, still an important one, is over the correct application of Wal-Mart v. Dukes.
But still to come is the case focused on a collective (not class) actions under 29 U.S.C. 216(b). For those of us who practice where FLSA cases are brought by themselves, not as dual cases under a state wage law, the issue of how low the bar is for conditional certification, is for employers, a terribly expensive question.
As an illustration, here is a brief procedural overview of a case I handled:
- Plaintiffs case filed by three individuals alleging they were forced to work off the clock. (One individual subsequently dropped his claim).
- Collective class conditionally certified under the existing standard.
- Over 17,000 notices mailed to potential class members.
- Approximately 1,100 written consents to join lawsuit filed.
- Approximately 40 depositions taken.
- Motion to decertify class granted, dismissing all but the two original plaintiffs.
- Jury trial held on the forced to work off the clock claims of the two original plaintiffs. Complete verdict for the defense.
It is already many millions of dollars late.
Thursday, 13 September 2012
Been Sued by the EEOC Lately? Keep an Eye on Your Mailbox in the Next Couple of Weeks
An article on the SHRM site, September: Rush Hour for EEOC Lawsuit Filings, Settlements ($), reminded me that we are nearing the witching hour for the filing of EEOC lawsuits. The reason is of course the end of the government's fiscal year on September 30, and its reporting period.
I have always noticed the uptick in suits where the EEOC is plaintiff in the last half of September, but even I was shocked at this tidbit that SHRM reported:
I have always noticed the uptick in suits where the EEOC is plaintiff in the last half of September, but even I was shocked at this tidbit that SHRM reported:
In 2011, the EEOC filed 175 of its record-high 261 lawsuits during the last quarter of its fiscal year, and most of them were filed in SeptemberNot that I am faulting the EEOC for this. They are after all just lawyers, and many of us suffer from the same result, we work backwards from a deadline, and inevitably much closer to the deadline than we probably should.
Monday, 20 August 2012
Readers' Requests: Nannies' Rights and Mental Illness in Academia
This may be a first in 10 years of blogging, but I have recently received two (non-spam) requests for certain stories to be posted here that I have decided to follow.
Unlike the requests which are clearly shot-gunned to a number of bloggers since they have no relevance to a blog focused on employment law, these two are relevant. One is from a for profit company and the other from a law student.
From the for profit world, is a request to link to an article on the employment law rights of nannies. Because wage and hour law for nannies can be tricky, I would not without checking (which I have not) vouch for all the wage and hour advice, but I think it is a worthwhile post. Although nannies vary widely in age and sophistication, it is sometimes an entry into the workforce and being knowledgeable of one's rights is important.
If interested see, Employment Rights All Nannies Need to Know.
This is also in a very small way a tribute to my mother, who paid our part-time maid in cash, but had a separate jar that she set aside to put the withholding for social security among other things that she dutifully reported. It was a way to both comply with the law and educate on how social security etc worked to someone who had probably never been paid properly before. For a small town in Texas in the 50's I have to believe that doing so, like my mother who got her doctorate at age 60, was unique.
The second request is from a law student, who self-identifies as having a mental illness and requests I post a link to a critique of the Americans with Disabilities Act in the way it deals with mental illness. The author, Gregory M. Duhl, identifies himself as a "law professor with Borderline Personality Disorder."
Here's the abstract:
Although I have not read the essay, certainly the object of minimizing the stigma and isolation of those with mental illness is a noble one.
Thanks to my readers who made the requests.
Unlike the requests which are clearly shot-gunned to a number of bloggers since they have no relevance to a blog focused on employment law, these two are relevant. One is from a for profit company and the other from a law student.
From the for profit world, is a request to link to an article on the employment law rights of nannies. Because wage and hour law for nannies can be tricky, I would not without checking (which I have not) vouch for all the wage and hour advice, but I think it is a worthwhile post. Although nannies vary widely in age and sophistication, it is sometimes an entry into the workforce and being knowledgeable of one's rights is important.
If interested see, Employment Rights All Nannies Need to Know.
This is also in a very small way a tribute to my mother, who paid our part-time maid in cash, but had a separate jar that she set aside to put the withholding for social security among other things that she dutifully reported. It was a way to both comply with the law and educate on how social security etc worked to someone who had probably never been paid properly before. For a small town in Texas in the 50's I have to believe that doing so, like my mother who got her doctorate at age 60, was unique.
The second request is from a law student, who self-identifies as having a mental illness and requests I post a link to a critique of the Americans with Disabilities Act in the way it deals with mental illness. The author, Gregory M. Duhl, identifies himself as a "law professor with Borderline Personality Disorder."
Here's the abstract:
Here is the link to: Over the Borderline: A Review of Margaret Price's Mad at School: Rhetoric of Mental Disability in Academic Life.This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.
Although I have not read the essay, certainly the object of minimizing the stigma and isolation of those with mental illness is a noble one.
Thanks to my readers who made the requests.
Sunday, 19 August 2012
A New Source of Business: TMI
Truth be told, people who do what I do, represent employers in disputes with their employees really don't need new sources of business. Still an article in today's New York Times, Sharing Too Much Information in the Workplace, relays complaints by older managers about comments made by 20 year olds in the workplace, indicates there's always some trend that ends up resulting in more lawsuits.
Some e.g. - asking a manufacturing manager how many times they can miss work before they will get fired or advising that they are seeking another job that will take 6 to 8 months to land. And those are just the not very politic ones by kids who obviously are not sensitive to the ways managers think.
Terminations are the primary driver of employment law litigation and the folks who get terminated are the ones who do stupid things or don't fit in. TMI can often put you squarely in both camps.
Some e.g. - asking a manufacturing manager how many times they can miss work before they will get fired or advising that they are seeking another job that will take 6 to 8 months to land. And those are just the not very politic ones by kids who obviously are not sensitive to the ways managers think.
Terminations are the primary driver of employment law litigation and the folks who get terminated are the ones who do stupid things or don't fit in. TMI can often put you squarely in both camps.
Wednesday, 8 August 2012
The Difference an Ocean Makes
I have recently started receiving email updates from The Global Legal Post, a publication that purports to cover the legal community world-wide. In March 2012, they incorporated the European Lawyer into the publication and so it definitely has a European/British flavor to its reporting.
Which made me smile today when my email contained this teaser:
I am quite sure that many lawyers, and not just at management side employment law boutiques, would be surprised to think of themselves as "trade unionists." But maybe a different way of thinking of ourselves would not be an entirely bad thing.
Which made me smile today when my email contained this teaser:
Row over non-lawyer ownership of legal firms The US's largest legal profession trade union is in disarray over the contentious issue of non-lawyer ownership of law firms, with its senior figures unable to agree a policy.Not because the American Bar Association is having trouble reaching consensus on an issue, but the description of it as the "largest legal profession trade union." My emphasis.
I am quite sure that many lawyers, and not just at management side employment law boutiques, would be surprised to think of themselves as "trade unionists." But maybe a different way of thinking of ourselves would not be an entirely bad thing.
Monday, 30 July 2012
More FLSA Common Sense from the 5th Circuit - Settlement Without Supervision OK
After lamenting for some time the direction which FLSA law has been heading, it may be too soon to say that the inevitable swing back to the middle has begun, but there are encouraging signs and last week's decision in Martin, et al v. Spring Break '83 Prodn, L.L.C (5th Cir. 7.24.12) is yet another step.
When there was a dispute over time worked by the lighting and rigging technicians on that now famous film, Spring Break '83, the production company and the union reached an agreement, money was paid and accepted, and of course a law suit was filed.
The first argument was that the individuals who had brought the suit had not signed the settlement agreement, but the Court found the Union was their authorized representative.
More importantly, the individuals argued that the settlement was not permitted under the terms of the FLSA, because it was not approved by a court or the DOL. In a case of first impression, the Court found that this was not the type of case where that prohibition applies. This was not a challenge to substantive FLSA rights, but merely settlement of a disputed liability.
In a real compliment to District Judge Xavier Rodriguez, who sits in San Antonio, the court adopted his reasoning in his 2005 decision, Martinez v. Bohls Bearing Equip. Co. As I noted in my post about the Bohls Bearing case at the time, Challenging Conventional Wisdom - Private Settlements of FLSA May Be OK, it was unclear how far one can go without getting approval, but clearly there is some area where court and DOL approval are not required in order to have a valid FLSA settlement agreement.
And that is not only good news, but common sense.
When there was a dispute over time worked by the lighting and rigging technicians on that now famous film, Spring Break '83, the production company and the union reached an agreement, money was paid and accepted, and of course a law suit was filed.
The first argument was that the individuals who had brought the suit had not signed the settlement agreement, but the Court found the Union was their authorized representative.
More importantly, the individuals argued that the settlement was not permitted under the terms of the FLSA, because it was not approved by a court or the DOL. In a case of first impression, the Court found that this was not the type of case where that prohibition applies. This was not a challenge to substantive FLSA rights, but merely settlement of a disputed liability.
In a real compliment to District Judge Xavier Rodriguez, who sits in San Antonio, the court adopted his reasoning in his 2005 decision, Martinez v. Bohls Bearing Equip. Co. As I noted in my post about the Bohls Bearing case at the time, Challenging Conventional Wisdom - Private Settlements of FLSA May Be OK, it was unclear how far one can go without getting approval, but clearly there is some area where court and DOL approval are not required in order to have a valid FLSA settlement agreement.
And that is not only good news, but common sense.
Friday, 20 July 2012
Stirrings on Smith v. Xerox in 5th Circuit Internecine Squabble
More than two years ago, I expressed my hopes that the 5th Circuit would undertake an en banc review of the panel decision in Smith v. Xerox, a decision that answered whether a mixed motive was available in a retaliation claim after the Supreme Court's Gross decision. See 5th Circuit En Banc Request on Smith v. Xerox, Please! Alas, it was not to be as the case settled before there was any further review.
But this week, in another request for en banc review, a relatively rare dissent to the denial of a petition for such review proved that there are at least some judges on the Court who feel that the case was wrongly decided and wish to have the entire court revisit it. Although in Nassar v. University of Texas Southwestern Medical Center (5th Cir. 7.20.12), the Court by a vote of 6 to 9 voted not to hear the case en banc, it seems possible that it was because the defendant in that case may have waived the argument. Much of the discussion was about that issue and why panel did not directly address it. At least one member of the panel, Judge Elrod, specifically said that was her basis in an unusual concurring opinion to the denial.
But it is Judge Smith's dissent to the denial of the en banc review that really caught my attention. Joined by Chief Judge Jones and Judges Jolly and Clement, Judge Smith wrote:
But this week, in another request for en banc review, a relatively rare dissent to the denial of a petition for such review proved that there are at least some judges on the Court who feel that the case was wrongly decided and wish to have the entire court revisit it. Although in Nassar v. University of Texas Southwestern Medical Center (5th Cir. 7.20.12), the Court by a vote of 6 to 9 voted not to hear the case en banc, it seems possible that it was because the defendant in that case may have waived the argument. Much of the discussion was about that issue and why panel did not directly address it. At least one member of the panel, Judge Elrod, specifically said that was her basis in an unusual concurring opinion to the denial.
But it is Judge Smith's dissent to the denial of the en banc review that really caught my attention. Joined by Chief Judge Jones and Judges Jolly and Clement, Judge Smith wrote:
If nothing else, it would be good to see the en banc court have a case to consider where waiver was not an issue, so we could get a determination whether or not Smith really is good law, as opposed to just being the current controlling law in the 5th Circuit.The panel decision in Smith should be overruled. It is an erroneous interpretation of the statute and controlling caselaw and created an unnecessary circuit split. The problems wrought by the Smith panel majority are convincingly explained in Judge Jolly’s panel dissent, to which I defer. See Smith v. Xerox Corp., 602 F.3d 320, 336-40 (5th Cir. 2010) (Jolly, J., dissenting). Unfortunately, shortly after the panel issued its majority opinion and dissent, and before a petition for en banc rehearing was filed, the parties settled. That mooted the case and deprived the en banc court of the chance to correct the error in the panel’s misapplication of Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).
Tuesday, 17 July 2012
A Decade in the Making - Jottings By an Employer's Lawyer
It is unlikely when I put down some thoughts about the EEOC's failure to use certified mail in sending out right to sue letters (For lack of a green card .... ), 10 years ago today that I gave any thought as to whether I would still be (at least occasionally) making such public comments a decade later.
But I am.
There were some other practice specific blogs when I began, but to my knowledge Jottings was the first that focused on labor and employment law. Two other pioneers, Michael Fitzgibbons and George Lenard joined shortly after. Now, to use some computer industry jargon, there are a large number of individuals and groups who occupy this space.
In the initial days, I must admit I enjoyed the thrill of being the first to post about a new decision or other development. Oddly enough, I even felt some sort of responsibility (for what was probably my readership of less than a dozen) to provide the information as carefully as possible.
Although the title of the blog denotes the perch from where I observe the world of work, I have tried to at least make sure that I took into account that on almost any topic I might post about, there is a different perspective, that deserved if nothing else my serious consideration and treating it (and those who hold it) with respect.
For those who might consider embarking on a similar adventure, and view it primarily as business development tool, you would be hard pressed to utilize me as an example of how well that works. On a cost benefit analysis, if I had put as much time into other forms of business development as I have spent on the blog, I would probably have developed more business.
But more importantly, I think writing the blog has contributed to keeping me abreast of the developments that have occurred over the past decade, and made me a better lawyer, one who happens to represent employers.
And in a world where the legal profession too often seems to me more about business and less about lawyering, I remain comfortable with the choice I have made.
But I am.
There were some other practice specific blogs when I began, but to my knowledge Jottings was the first that focused on labor and employment law. Two other pioneers, Michael Fitzgibbons and George Lenard joined shortly after. Now, to use some computer industry jargon, there are a large number of individuals and groups who occupy this space.
In the initial days, I must admit I enjoyed the thrill of being the first to post about a new decision or other development. Oddly enough, I even felt some sort of responsibility (for what was probably my readership of less than a dozen) to provide the information as carefully as possible.
Although the title of the blog denotes the perch from where I observe the world of work, I have tried to at least make sure that I took into account that on almost any topic I might post about, there is a different perspective, that deserved if nothing else my serious consideration and treating it (and those who hold it) with respect.
For those who might consider embarking on a similar adventure, and view it primarily as business development tool, you would be hard pressed to utilize me as an example of how well that works. On a cost benefit analysis, if I had put as much time into other forms of business development as I have spent on the blog, I would probably have developed more business.
But more importantly, I think writing the blog has contributed to keeping me abreast of the developments that have occurred over the past decade, and made me a better lawyer, one who happens to represent employers.
And in a world where the legal profession too often seems to me more about business and less about lawyering, I remain comfortable with the choice I have made.
Thursday, 28 June 2012
Obamacare Decision: The Perils of Instant Analysis and Related Thoughts
I have not and will probably not read today's Supreme Court decision holding that the Affordable Care Act is (for the most part) constitutional any time soon.
But I did have a couple of thoughts on what has happened so far.
First, my first notice of the results came from a CNN email at 9:09 a.m. (CDST)
But this brief interplay, reminded me once again that the speed with which our world now operates often times does a great disservice to the quality of advice that is given. When we operate at hyper speed, the time for reflection and discernment is often a casualty. It didn't really matter here, but when giving advice as lawyers do every day, operating at that speed can easily cause serious error.
Secondly, although we are all told on appeal to limit our number of arguments and focus on our strong ones, today's decision points out the importance of having a Plan B. While everyone focused on the commerce clause and the hope that Justice Kennedy would be the 5th vote to support its use, who ever insisted that the fall back position of the taxing clause be there, should be getting large pats on the back by the supporters of the bill.
Having recently won an appeal (at least so far) where there were 3 separate opinions, and the two judges who voted in the favor of our position did so for different reasons, I personally know how important that Plan B can be.
On the political note there has been and will be even more analysis of how this impacts the Presidential race. Although President Obama is no doubt happy with today's outcome (except for the Medicaid portion) I doubt that much thought had been given to how it would be to run when the healthcare law was supported only because it was a "tax." Justice Roberts may have given President Obama a substantive victory, but my guess is that he at least gave Romney and the Republicans a rhetorical boost.
But I did have a couple of thoughts on what has happened so far.
First, my first notice of the results came from a CNN email at 9:09 a.m. (CDST)
The Supreme Court has struck down the individual mandate for health care - the legislation that requires all to have health insurance.Nine minutes later, I received the following from CNN:
Correction: The Supreme Court backs all parts of President Obama’s signature health care law, including the individual mandate that requires all to have health insurance.And just to be fair, at 10:04, CNN seems to have finally gotten the basic result down:
Chief Justice John Roberts led the Supreme Court’s 5-4 decision upholding President Obama’s sweeping health care law.
The president is expected to speak later today on the ruling that supports the core legislative accomplishment of his administration.
The court decided that the individual mandate that requires all Americans to have health insurance will stand and is considered a tax by the court, making it constitutional.
Chief Justice John Roberts wrote about the individual mandate, citing the taxing clause: “It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without insurance. Such legislation is within Congress’ power to tax."
The court also ruled that the federal government may not remove Medicaid funding from states that refuse to take part.
Voting to uphold the Affordable Care Act were R oberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The dissenters were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.Now besides a little temporary embarrasment on the part of CNN, which I would imagine is already gone, the errors they made in their initial reporting matters not. My guess as to what happened, is they wanted to be first, they read the opinion and saw that the Administration had lost on the Commerce Clause issue and assumed that meant the mandate had fallen. When they figured out that the Administration had prevailed under the taxing clause on the mandate, they rushed to correct that, and mis-stepped again because they had not made it to the part where the Court held Congress over-reached in its putting conditions on states for the receipt of Medicaid funding.
But this brief interplay, reminded me once again that the speed with which our world now operates often times does a great disservice to the quality of advice that is given. When we operate at hyper speed, the time for reflection and discernment is often a casualty. It didn't really matter here, but when giving advice as lawyers do every day, operating at that speed can easily cause serious error.
Secondly, although we are all told on appeal to limit our number of arguments and focus on our strong ones, today's decision points out the importance of having a Plan B. While everyone focused on the commerce clause and the hope that Justice Kennedy would be the 5th vote to support its use, who ever insisted that the fall back position of the taxing clause be there, should be getting large pats on the back by the supporters of the bill.
Having recently won an appeal (at least so far) where there were 3 separate opinions, and the two judges who voted in the favor of our position did so for different reasons, I personally know how important that Plan B can be.
On the political note there has been and will be even more analysis of how this impacts the Presidential race. Although President Obama is no doubt happy with today's outcome (except for the Medicaid portion) I doubt that much thought had been given to how it would be to run when the healthcare law was supported only because it was a "tax." Justice Roberts may have given President Obama a substantive victory, but my guess is that he at least gave Romney and the Republicans a rhetorical boost.
Wednesday, 27 June 2012
Two Sacred Cows - Performance Appraisals and Job Descriptions - Time for the Scrap Heap?
I don't always appreciate non-trial lawyers telling me how to try a case (although I try to listen, because often I can learn something that is helpful), and so I am also leary of getting too far into the realm of HR advice.
But I have long been a skeptic on both annual performance reviews and job descriptions. In defending employers over the last 35 years, I would say I have seen both types of documents end up as Plaintiff's Exhibits, not Defendant's exhibits more often than not. Since the employer is in control of both, even if it were 50/50, that's a pretty poor ratio.
The problem is that for the most part they are either rushed through as after thoughts (performance reviews) or done in a vacuum and put on a shelf (job descriptions).
About job descriptions I have often said if they are accurate and up to date then they are good; unfortunately that does not describe very many job descriptions I have seen. That basic premise holds true for performance appraisals as well.
It's one thing for lawyers who see these documents through the admittedly cloudy filter of litigation to make those kind of comments, but it seems those who actually do specialize in HR advice are having some of the same thoughts.
Today's comment was sparked by the recent Harvard Business Review posting by Eric Mosley, Crowdsource Your Performance Reviews, which was inspired by a study of HR leaders where 45% said they "did not think that annual performance reviews are an accurate appraisal for employee's work."
So to HR professionals, just a thought from the cheap seats, have an open mind about whether these rituals of HR are still worthwhile as they are, or even at all.
But I have long been a skeptic on both annual performance reviews and job descriptions. In defending employers over the last 35 years, I would say I have seen both types of documents end up as Plaintiff's Exhibits, not Defendant's exhibits more often than not. Since the employer is in control of both, even if it were 50/50, that's a pretty poor ratio.
The problem is that for the most part they are either rushed through as after thoughts (performance reviews) or done in a vacuum and put on a shelf (job descriptions).
About job descriptions I have often said if they are accurate and up to date then they are good; unfortunately that does not describe very many job descriptions I have seen. That basic premise holds true for performance appraisals as well.
It's one thing for lawyers who see these documents through the admittedly cloudy filter of litigation to make those kind of comments, but it seems those who actually do specialize in HR advice are having some of the same thoughts.
Today's comment was sparked by the recent Harvard Business Review posting by Eric Mosley, Crowdsource Your Performance Reviews, which was inspired by a study of HR leaders where 45% said they "did not think that annual performance reviews are an accurate appraisal for employee's work."
So to HR professionals, just a thought from the cheap seats, have an open mind about whether these rituals of HR are still worthwhile as they are, or even at all.
Monday, 25 June 2012
Jury Duty, An Obligation Sure, But Also a Large Reward
I just happened on this post today by Adam Rich, talking about his 5 Lessons From Jury Duty that was posted on an American Express Forum for small businesses. I think his points are valid, although frankly, my role is more as a consumer of juries than as a participant.
So perhaps it is a little stretch for me to claim how large a reward jury service can be, but from jurors I have talked with or heard talk about their experiences, even those who thought a case was silly or a waste of time, have never the less come away with a renewed respect for the judicial process.
We are all binded by our own biases, but from my seat in trial representing employers, I am always amazed at how it is the individuals we would typically identify as those most likely to share the employer's perspective who are the least able to serve because they are too busy (an excuse that never works by the way) or because they just can't set aside their long held beliefs about the frivolousness of laws suits or whatever and listen to the evidence and be fair and impartial.
Call me cynical, but I am inclined to think that much more often they have figured the "out" than that they are any less able to be open minded jurors than all the other folks who seem to be able to put aside their past experiences and be fair.
Which if you are an employer type, you might think about when you hear that time honored phrase in reference to your particular law suit being tried by a "jury of your peers. " What that often means is a jury panel where all those who will at least understand the context in which the decisions you are defending were made, are the most likely to be gone well before the time that peremptory strikes are made.
So perhaps it is a little stretch for me to claim how large a reward jury service can be, but from jurors I have talked with or heard talk about their experiences, even those who thought a case was silly or a waste of time, have never the less come away with a renewed respect for the judicial process.
We are all binded by our own biases, but from my seat in trial representing employers, I am always amazed at how it is the individuals we would typically identify as those most likely to share the employer's perspective who are the least able to serve because they are too busy (an excuse that never works by the way) or because they just can't set aside their long held beliefs about the frivolousness of laws suits or whatever and listen to the evidence and be fair and impartial.
Call me cynical, but I am inclined to think that much more often they have figured the "out" than that they are any less able to be open minded jurors than all the other folks who seem to be able to put aside their past experiences and be fair.
Which if you are an employer type, you might think about when you hear that time honored phrase in reference to your particular law suit being tried by a "jury of your peers. " What that often means is a jury panel where all those who will at least understand the context in which the decisions you are defending were made, are the most likely to be gone well before the time that peremptory strikes are made.
Friday, 22 June 2012
Texas Supreme Court Advisory on Attorneys' Fees in TCHRA Cases
A short message to plaintiff's attorneys in TCHRA cases from the Supreme Court: join your defense brethren in "measuring out your life with coffee spoons," i.e. keeping contemporaneous time records of what you do.
Actually Justice Medina's opinion did not reference T. S. Eliot's The Love Song of J. Alfred Prufrock, that was my literary spin, but the message from today's decision El Apple I, LTD. v. Olivas (TX 6.22.12) makes just that point.
All of this came about because an award of just over $100,000 to the plaintiff had resulted in an attorneys fees award of $464,000 for the trial of the case with another $99,000 for defending post-judgement motions and appeals.
Actually Justice Medina's opinion did not reference T. S. Eliot's The Love Song of J. Alfred Prufrock, that was my literary spin, but the message from today's decision El Apple I, LTD. v. Olivas (TX 6.22.12) makes just that point.
The Court also cast a doubtful eye on the lower court's doubling of the lodestar amount. Although the majority found that because in this case there was no appropriate lodestar, it was too soon to address the validity of the doubling, it gave a general standard to be applied:Thus, when there is an expectation that the lodestar method will be used to calculate fees, attorneys should document their time much as they would for their own clients, that is, contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed.
But by noting that while state courts are not bound by federal standards, that they "may appropriately consider them," it seems clear that the Court was signaling that such adjustments should be rare.We accordingly accept the premise that [a] lodestar presumptively produces a reasonable fee,but that exceptional circumstances may justify enhancements to the base lodestar.
All of this came about because an award of just over $100,000 to the plaintiff had resulted in an attorneys fees award of $464,000 for the trial of the case with another $99,000 for defending post-judgement motions and appeals.
Monday, 18 June 2012
Function Over Form: The Supreme Court's Realistic View of the FLSA
For those who think that one of the travesties of the recent history of employment law has been the explosion of FLSA collective action litigation, today's 5-4 decision by the Supreme Court holding that pharmaceutical representatives are in fact exempt employees under the outside sales exemption is a re-affirmation that common sense can in fact prevail. Christopher v. SmithklineBeacham Corp. (6/18/12).
Although a critical decision for the pharmaceutical industry in its own right, the case has generally been viewed more importantly for its insight as to the weight the Supreme Court would give to agency views of the laws they enforce. Here the DOL had weighed in as amicus in a series of law suits arguing that the pharmaceutical sales reps were not exempt, although the DOL had given differing views as to why that was so.
The majority opinion begins with Justice Alito's description of why the DOL's position is not entitled to deference. Perhaps more significantly, the dissent written by Justice Breyer, the member of the court with the most claim to administrative law expertise, agrees. In fact, on this key point, it would be fair to say that this is a 9-0 decision. Justice Breyer writes:
Having jointly rejected the DOL's view, the two wings of the Court still reach a different outcome on their own independent review of the exemption.
The problem is that we have a 1938 statute designed for a very simple economic model which existed at the time was adopted. The FLSA was designed for an even pre-Leave it to Beaver world, where a factory was divided between the white collar workers in the front office and the blue collar workers in the back, whose product was sold by the Willy Loman's of the world, who packed their sales bag and left on Monday through Thursday and returned to do their paper work on Friday. Trying to use regulations written for that world, in today's workplace results in often ludicrous results.
It seems clear to me that the Supreme Court understands this historical fact, at least as relevant to the outside sales exemption, as it noted that the DOL had been authorized by the statute to issue regulations, and that those regulations were issued in 1938, 1940 and 1949, and in 2004 "following notice-and-comment procedures, the DOL reissued the regulations with minor amendments." Although they limit that historical reference to the outside sales exemption, I think a review would indicate that it is applicable for much of the remainder of the FLSA and its regulations as well.
The points relied on by the majority in rejecting the formalistic view of the minority are significant and could be utilized by other courts to rein in what has been an overly mechanistic view of the FLSA:
The biggest beneficiaries of course have been the repeat players, lawyers who represent the plaintiffs in those cases, who of course have taken their share of the extraction, and lawyers who represent the defendants (including me and my firm) in those cases.
In a world where there are many issues that call out for righting, for the most part mis-classification under the FLSA has not been in my mind a worthy fight. Today's decision is by no means the end, but it is at least a bright and correct light.
Although a critical decision for the pharmaceutical industry in its own right, the case has generally been viewed more importantly for its insight as to the weight the Supreme Court would give to agency views of the laws they enforce. Here the DOL had weighed in as amicus in a series of law suits arguing that the pharmaceutical sales reps were not exempt, although the DOL had given differing views as to why that was so.
The majority opinion begins with Justice Alito's description of why the DOL's position is not entitled to deference. Perhaps more significantly, the dissent written by Justice Breyer, the member of the court with the most claim to administrative law expertise, agrees. In fact, on this key point, it would be fair to say that this is a 9-0 decision. Justice Breyer writes:
In light of important, near-contemporaneous differences in the Justice Department’s views as to the meaning of relevant Labor Department regulations, I also agree that we should not give the Solicitor General’s current interpretive view any especially favorable weight.Although casting the blame on the Department of Justice, not the Department of Labor, it is clearly a rebuke to the DOL.
Having jointly rejected the DOL's view, the two wings of the Court still reach a different outcome on their own independent review of the exemption.
The problem is that we have a 1938 statute designed for a very simple economic model which existed at the time was adopted. The FLSA was designed for an even pre-Leave it to Beaver world, where a factory was divided between the white collar workers in the front office and the blue collar workers in the back, whose product was sold by the Willy Loman's of the world, who packed their sales bag and left on Monday through Thursday and returned to do their paper work on Friday. Trying to use regulations written for that world, in today's workplace results in often ludicrous results.
It seems clear to me that the Supreme Court understands this historical fact, at least as relevant to the outside sales exemption, as it noted that the DOL had been authorized by the statute to issue regulations, and that those regulations were issued in 1938, 1940 and 1949, and in 2004 "following notice-and-comment procedures, the DOL reissued the regulations with minor amendments." Although they limit that historical reference to the outside sales exemption, I think a review would indicate that it is applicable for much of the remainder of the FLSA and its regulations as well.
The points relied on by the majority in rejecting the formalistic view of the minority are significant and could be utilized by other courts to rein in what has been an overly mechanistic view of the FLSA:
- that until 2009, the pharmaceutical industry had "little reason to suspect that its longstanding practice of treating detailers as exempt outside salesmen transgressed the FLSA."
- that the DOL had never initiated any enforcement actions or otherwise suggested that it thought the industry was acting unlawfully.
- the realization that pharmaceutical sales reps, whose average income is $90,000 a year according to the opinion, "typically earn salaries well above the minimum wage" and enjoyed other benefits that "set them apart from the nonexempt workers entitled to overtime pay." Hardly the kind of employees the FLSA was intended to protect.
- That it would be "challenging, to say the least" for pharmaceutical companies to compensate reps for overtime going forward without significantly changing the nature of that position.
- Rejecting a legalistic argument, that requires title to pass, to instead taking a more "realistic approach" of what the outside salesman exemption is meant to reflect.
The biggest beneficiaries of course have been the repeat players, lawyers who represent the plaintiffs in those cases, who of course have taken their share of the extraction, and lawyers who represent the defendants (including me and my firm) in those cases.
In a world where there are many issues that call out for righting, for the most part mis-classification under the FLSA has not been in my mind a worthy fight. Today's decision is by no means the end, but it is at least a bright and correct light.
The NLRB in the Non-Union Setting: Making A Point
For years I have been a member of seminar planning committees, and inevitably the talk gets round to an NLRA topic. In Texas, that usually meets groans and comments to the effect that no one is really interested because very few practitioners actually deal with union related matters.
Inevitably, one solution was to title the program slot, something along the lines, The NLRA for the Non-union Company. And while that often at least made the program, it was still hard to generate much enthusiasm.
However, the current Board seems intent on getting out the message that indeed concerted activity, not just union activity, is what is protected, including today's launch of a web page describing Protected Concerted Activity, complete with state by state links to cases where the Board has found such activity.
For example, clicking that link and the button located prominently in Texas, pulls up 16-CA-025349:
That's a far cry from what life was back in the late 1970's and early 1980's. I can't remember the exact date, but I was in the San Antonio office of the NLRB waiting to see some one and the phone rang. The secretary answered the phone, and sitting right across from her I could tell that it was an employee calling with a possible complaint. After listening a moment, she asked, "Is there a union involved?" and obviously getting a negative response, hung up the phone with a "Well, we only handle matters where there are unions."
Oh how times have changed.
Inevitably, one solution was to title the program slot, something along the lines, The NLRA for the Non-union Company. And while that often at least made the program, it was still hard to generate much enthusiasm.
However, the current Board seems intent on getting out the message that indeed concerted activity, not just union activity, is what is protected, including today's launch of a web page describing Protected Concerted Activity, complete with state by state links to cases where the Board has found such activity.
For example, clicking that link and the button located prominently in Texas, pulls up 16-CA-025349:
It will not take too many stories of that nature to get the word out.A supervisor at a dental association was fired after she refused to divulge the names of employees who had anonymously signed a petition protesting top management. The Board found the discharge was unlawful because she had rightfully refused to violate federal labor law by punishing concerted activity. In a settlement, the supervisor and another former employee waived reinstatement in exchange for $900,000 in lost wages and benefits.
That's a far cry from what life was back in the late 1970's and early 1980's. I can't remember the exact date, but I was in the San Antonio office of the NLRB waiting to see some one and the phone rang. The secretary answered the phone, and sitting right across from her I could tell that it was an employee calling with a possible complaint. After listening a moment, she asked, "Is there a union involved?" and obviously getting a negative response, hung up the phone with a "Well, we only handle matters where there are unions."
Oh how times have changed.
Wednesday, 13 June 2012
Intentional Infliction of Emotional Distress, A Dangerous Cause of Action
This headline, Steelworker awarded $25 million in New York racial lawsuit might seem to come from a typical Title VII or Section 1981 case for racial discrimination.
According to the story in the Cleveland Plain Dealer, the plaintiff Elijah Turley, who is black, testified that
But it's my guess from another quote in the story that although based on racially based behavior, it was not a race discrimination claim, but instead a claim for intentional infliction of emotional distress. That's based on the quote from Turley's lawyer that the conduct was "atrocious and intolerable in a civilized society," which is language taken from the Restatement of Torts discussion of the tort of intentional infliction of emotional distress.
Texas struggled with this as an employment law tort, with approximately 10 cases passing the muster of that supposedly high standard at both the trial and appellate level only to be rejected by the Supreme Court. (One case did survive the Supreme Court's review.) Finally, the Supreme Court basically eliminated the tort from Texas employment law, finding that it was designed as a gap-filler, one that was to be used only if no other cause of action existed.
Unfortunately, for the defendants, they weren't in the Lone Star state.
According to the story in the Cleveland Plain Dealer, the plaintiff Elijah Turley, who is black, testified that
"KKK" and "King Kong" graffiti were written on the walls of the plant and a stuffed monkey with a noose around its neck was found hanging from his driver's side mirror.But it was not as if the company did nothing in response as evidence indicated that the company hired a private investigator, installed security cameras and suspended some of the employees involved in some of the incidents.
But it's my guess from another quote in the story that although based on racially based behavior, it was not a race discrimination claim, but instead a claim for intentional infliction of emotional distress. That's based on the quote from Turley's lawyer that the conduct was "atrocious and intolerable in a civilized society," which is language taken from the Restatement of Torts discussion of the tort of intentional infliction of emotional distress.
Texas struggled with this as an employment law tort, with approximately 10 cases passing the muster of that supposedly high standard at both the trial and appellate level only to be rejected by the Supreme Court. (One case did survive the Supreme Court's review.) Finally, the Supreme Court basically eliminated the tort from Texas employment law, finding that it was designed as a gap-filler, one that was to be used only if no other cause of action existed.
Unfortunately, for the defendants, they weren't in the Lone Star state.
Monday, 21 May 2012
Somewhere in a Smoke Filled Room Your Future Is Being Determined
Well that's a little dramatic, but after staying up late to watch my Spurs complete their second sweep in a row, the subtle part of my brain is not working as well as it should be.
Although said in jest, the comment does have some truth (except for the smoky rooms), as the American Law Institute is meeting in D.C. this week and will be taking up Chapters 3 and 7 of the Restatement of Employment Law. This according to Paul Secunda, one of the editors at the Workplace Prof Blog, who will be in attendance. American Law Institute - Restatement of Employment Law.
According to Professor Secunda, Chapter 3 on compensation and benefits is authored by Sam Estreicher of NYU, and Chapter 7 which deals with privacy and autonomy interests in the workplace is authored by Matt Bodie, from St. Louis University.
Although it will be known as the Restatement of Employment Law, Third, it is actually the first. The 3rd moniker is because this is the third general round of Restatements done by the ALI. The first round was from 1923 to 1944. The 2nd round started in 1952, and the 3rd round started in 1987, and included Employment Law for the first time.
Because it takes considerable time to reach the consensus of the various reporters and advisers, and then go through the Council itself, it may well be some time before it is finalized. A list of the project participants can be found here.
Even when final, its impact will come only as courts adopt it.
But if you think it could not have impact on your world, think of the four theories of privacy rights (only three of which have been accepted by Texas courts) and intentional infliction of emotional distress. Although the latter has been substantially restricted in Texas, both concepts have been important in my career, and both arose gained prominence (if not their existence) from the Restatement of Torts.
As I have always understood the Restatements, they are meant to be a combination of what the law is, plus some looking forward to what it should be, so whatever comes out could very well be an important force, although that force is likely to be felt long after my active days of practice are ended.
If you want a preview of where it's headed, some of the drafts are available from the ALI's website under the Restatements of the Law - Employment Law section.
Although said in jest, the comment does have some truth (except for the smoky rooms), as the American Law Institute is meeting in D.C. this week and will be taking up Chapters 3 and 7 of the Restatement of Employment Law. This according to Paul Secunda, one of the editors at the Workplace Prof Blog, who will be in attendance. American Law Institute - Restatement of Employment Law.
According to Professor Secunda, Chapter 3 on compensation and benefits is authored by Sam Estreicher of NYU, and Chapter 7 which deals with privacy and autonomy interests in the workplace is authored by Matt Bodie, from St. Louis University.
Although it will be known as the Restatement of Employment Law, Third, it is actually the first. The 3rd moniker is because this is the third general round of Restatements done by the ALI. The first round was from 1923 to 1944. The 2nd round started in 1952, and the 3rd round started in 1987, and included Employment Law for the first time.
Because it takes considerable time to reach the consensus of the various reporters and advisers, and then go through the Council itself, it may well be some time before it is finalized. A list of the project participants can be found here.
Even when final, its impact will come only as courts adopt it.
But if you think it could not have impact on your world, think of the four theories of privacy rights (only three of which have been accepted by Texas courts) and intentional infliction of emotional distress. Although the latter has been substantially restricted in Texas, both concepts have been important in my career, and both arose gained prominence (if not their existence) from the Restatement of Torts.
As I have always understood the Restatements, they are meant to be a combination of what the law is, plus some looking forward to what it should be, so whatever comes out could very well be an important force, although that force is likely to be felt long after my active days of practice are ended.
If you want a preview of where it's headed, some of the drafts are available from the ALI's website under the Restatements of the Law - Employment Law section.
Friday, 18 May 2012
5th Circuit Dashes Class Action in Arbitration Setting
The interaction between arbitration and class/collective actions which seems to be continually evolving, took another positive step for employers in the 5th Circuit with today's decision in Reed v. Florida Metro University, Inc. (5th Cir 5.18.12).
Reed sued claiming that his on line Bachelor's degree in paralegal studies would not be recognized either by law schools, nor a police department where he sought employment. Since that was contrary to his understanding as to what the school told him, he filed suit claiming a violation of the Texas Education Code. He sought $51,000 plus attorneys fees, but also sought relief on behalf of a class of everyone who "contracted to receive distance education from Everest University Online while residing in Texas."
The defendant successfully moved to compel arbitration, but the Court deferred the decision as to whether it could be brought as a class action to the arbitrator.
Noting it was a close question, the arbitrator held that the matter could proceed as a class action. Reed sought affirmation of that ruling and the School asked that it be vacated on the ground the arbitrator exceeded his powers. Judge Lee Yeakel in Austin denied the School's Motion to vacate award.
The 5th Circuit first addressed whether Judge Yeakel's decision to allow the arbitrator to decide whether or not the matter could proceed as a class action was correct and concluded that it was.
On the second issue, whether the arbitrator exceeded his powers in holding that it could proceed as a class action, the 5th Circuit found Judge Yeakel had erred. The Court reversed and held the arbitrator had exceeded his powers and since there was "only one possible outcome on the facts before us" held that the arbitration must proceed only between the two parties, rather than sending it back to the Arbitrator for reconsideration.
In doing so, the Court noted it was openly disagreeing with the 2nd Circuit's interpretation of the Supreme Court's decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (U.S. 2010). In Jock v. Sterling-Jewelers, Inc. (2nd Cir. 2011), cert. denied Mar. 19, 2012, the 2nd Circuit emphasized the deference to be given to the arbitrator, ultimately concluding that "whether the arbitrator was right or wrong in her analysis, she had the authority to make the decision, and the parties to the arbitration agreement or bound by it."
The 5th Circuit chose to respectfully disagree with the 2nd Circuit, holding instead that a court had to ensure that an arbitrator has a basis for his class arbitration determination, even while applying a deferential standard of review.
Emphasizing the Supreme Court's concerns about class action arbitration as expressed not only in Stolt-Nielsen, but its subsequent decision in AT&T Mobility v. Concepcion (U.S. 2011), the 5th Circuit chose to emphasize the Supreme Court's view that there must be a showing that the parties consented to class action determination.
Although the Supreme Court may have had enough of class actions and arbitration for awhile, the 5th Circuit has done its best to tee up another one for them. In the mean time, employers whose arbitration agreements are silent on class actions can breathe a sigh of relief, at least in three states.
Reed sued claiming that his on line Bachelor's degree in paralegal studies would not be recognized either by law schools, nor a police department where he sought employment. Since that was contrary to his understanding as to what the school told him, he filed suit claiming a violation of the Texas Education Code. He sought $51,000 plus attorneys fees, but also sought relief on behalf of a class of everyone who "contracted to receive distance education from Everest University Online while residing in Texas."
The defendant successfully moved to compel arbitration, but the Court deferred the decision as to whether it could be brought as a class action to the arbitrator.
Noting it was a close question, the arbitrator held that the matter could proceed as a class action. Reed sought affirmation of that ruling and the School asked that it be vacated on the ground the arbitrator exceeded his powers. Judge Lee Yeakel in Austin denied the School's Motion to vacate award.
The 5th Circuit first addressed whether Judge Yeakel's decision to allow the arbitrator to decide whether or not the matter could proceed as a class action was correct and concluded that it was.
On the second issue, whether the arbitrator exceeded his powers in holding that it could proceed as a class action, the 5th Circuit found Judge Yeakel had erred. The Court reversed and held the arbitrator had exceeded his powers and since there was "only one possible outcome on the facts before us" held that the arbitration must proceed only between the two parties, rather than sending it back to the Arbitrator for reconsideration.
In doing so, the Court noted it was openly disagreeing with the 2nd Circuit's interpretation of the Supreme Court's decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (U.S. 2010). In Jock v. Sterling-Jewelers, Inc. (2nd Cir. 2011), cert. denied Mar. 19, 2012, the 2nd Circuit emphasized the deference to be given to the arbitrator, ultimately concluding that "whether the arbitrator was right or wrong in her analysis, she had the authority to make the decision, and the parties to the arbitration agreement or bound by it."
The 5th Circuit chose to respectfully disagree with the 2nd Circuit, holding instead that a court had to ensure that an arbitrator has a basis for his class arbitration determination, even while applying a deferential standard of review.
Emphasizing the Supreme Court's concerns about class action arbitration as expressed not only in Stolt-Nielsen, but its subsequent decision in AT&T Mobility v. Concepcion (U.S. 2011), the 5th Circuit chose to emphasize the Supreme Court's view that there must be a showing that the parties consented to class action determination.
Although the Supreme Court may have had enough of class actions and arbitration for awhile, the 5th Circuit has done its best to tee up another one for them. In the mean time, employers whose arbitration agreements are silent on class actions can breathe a sigh of relief, at least in three states.
Monday, 14 May 2012
NLRB Enjoined, Again
Earlier it was the NLRB's posting regulations, see post here, which were enjoined. Today it's the regulations regarding the conduct of elections (sometimes referred to as the ambush election rule) which was the subject matter of yet another injunction.
District Judge James E. Boasberg of the District of Columbia, has enjoined the rule because of a lack of a quorum. This one does not have anything to do with the last recess appointments to the Board which are under challenge, but to the fact that Member Brian Hayes, did not participate in voting on the passage of the final rule.
In Chamber of Commerce et al v. NLRB (D.D.C. 5/14/12) the Court noted that
And, if the Board should choose to re-enact the legislation, the new vote will include members whose recess appointment is being challenged and that of course will result in another hurdle, even before the challenges on the merits of the rule are addressed.
For those ready to decry this as a partisan gesture, Judge Boasberg was nominated by President Obama and at least according to Wikipedia, was recommended by Delegate Eleanor Holmes Norton, the non-voting member of the House of Representatives from the District of Columbia and the former Chair of the EEOC.
District Judge James E. Boasberg of the District of Columbia, has enjoined the rule because of a lack of a quorum. This one does not have anything to do with the last recess appointments to the Board which are under challenge, but to the fact that Member Brian Hayes, did not participate in voting on the passage of the final rule.
In Chamber of Commerce et al v. NLRB (D.D.C. 5/14/12) the Court noted that
This was after he had cited an even better known authority:At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.
According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.Undoubtedly this is not the last chapter in the litigation or the rule for that matter. Even if the Board is able to overcome the lack of quorum on its initial rule making, there will still be the substantive challenges which were not addressed.
And, if the Board should choose to re-enact the legislation, the new vote will include members whose recess appointment is being challenged and that of course will result in another hurdle, even before the challenges on the merits of the rule are addressed.
For those ready to decry this as a partisan gesture, Judge Boasberg was nominated by President Obama and at least according to Wikipedia, was recommended by Delegate Eleanor Holmes Norton, the non-voting member of the House of Representatives from the District of Columbia and the former Chair of the EEOC.
Tuesday, 1 May 2012
May Day? A Lack of A Call?
Earlier this morning I received an email forwarded from the management company in the downtown office building where I work, advising that there could be traffic issues arising out of protest activities planned for this afternoon.
That reminded me that I had meant to post about the alternative labor day, that has been much talked about in certain circles. But as the morning slipped away, I thought surely that the topic had been well covered by other bloggers. But when I checked my google reader, where I have a large, although by no means complete collection of labor/employment type blogs, nary a word today.
I have become a fan of MSNBC's Up with Chris Hayes and this week end one of his panel's talked a lot about the the failure of the Employee Free Choice Act, plans for May Day activities sponsored by Occupy Wall Street and the general state of the labor union movement in America.
Hayes, who regardless of what of you think of his views, is clearly a bright and deep thinker, made a comment that he was shocked to learn that the May Day movement, which like many, I have always associated with celebrations in the Soviet Union, originated in the United States and was tied to one of our most infamous moments in labor history the Haymarket Riot which occurred in Chicago on May 4, 1886.
From the Dissident Voice, a radical newsletter in the struggle for piece and social justice (so you know the perspective it is taking) Jerry Elmer penned this article, The Haymarket Riot and the Origins of May Day. Even the overseas press new more about its origins than I did. See, A potted history of Labour Day, from the Irish Times.
I have done far more employment than labor law in my career, and what labor law I have done has been on the side of management. I am by no means convinced that labor as we have known it in the recent past is the answer to the future.
I do think however, that we are long past due for a non-partisan look at our economic system and the world of work and just how it functions. In any such conversation, all sides must have a serious and listened to voice.
Although any marching analogy on May Day is fraught with peril, what I fear most is that rather than moving toward such an important discussion each day we are marching more and more stridently in the opposite direction.
Ultimately, regardless of whether there is a short term winner to that approach or not, I am afraid that our society as a whole will be the loser.
That reminded me that I had meant to post about the alternative labor day, that has been much talked about in certain circles. But as the morning slipped away, I thought surely that the topic had been well covered by other bloggers. But when I checked my google reader, where I have a large, although by no means complete collection of labor/employment type blogs, nary a word today.
I have become a fan of MSNBC's Up with Chris Hayes and this week end one of his panel's talked a lot about the the failure of the Employee Free Choice Act, plans for May Day activities sponsored by Occupy Wall Street and the general state of the labor union movement in America.
Hayes, who regardless of what of you think of his views, is clearly a bright and deep thinker, made a comment that he was shocked to learn that the May Day movement, which like many, I have always associated with celebrations in the Soviet Union, originated in the United States and was tied to one of our most infamous moments in labor history the Haymarket Riot which occurred in Chicago on May 4, 1886.
From the Dissident Voice, a radical newsletter in the struggle for piece and social justice (so you know the perspective it is taking) Jerry Elmer penned this article, The Haymarket Riot and the Origins of May Day. Even the overseas press new more about its origins than I did. See, A potted history of Labour Day, from the Irish Times.
I have done far more employment than labor law in my career, and what labor law I have done has been on the side of management. I am by no means convinced that labor as we have known it in the recent past is the answer to the future.
I do think however, that we are long past due for a non-partisan look at our economic system and the world of work and just how it functions. In any such conversation, all sides must have a serious and listened to voice.
Although any marching analogy on May Day is fraught with peril, what I fear most is that rather than moving toward such an important discussion each day we are marching more and more stridently in the opposite direction.
Ultimately, regardless of whether there is a short term winner to that approach or not, I am afraid that our society as a whole will be the loser.
Friday, 20 April 2012
Texas Supreme Court Confirms Punitive Damages in Sabine Pilot Cases
Revisiting the only public policy exception to the employment at will rule in Texas, the Supreme Court today holds that a plaintiff who prevails can recover punitive damages in a Sabine Pilot case if he or she can establish the appropriate level of malice. Safeshred v. Martinez (Tx 4.20.12).
Unfortunately for Mr. Martinez, he did not meet that standard, thereby losing his $250,000 punitive damage award (which had already been reduced to $200,000 because of the damage cap under Section 41.008 of the Texas Civil Practice and Remedies Code). Given that he had lost his $10,000 mental anguish claim in the Court of Appeals, what once seemed so promising now appears to stand as a judgment of approximately $7,600 in lost wages.
Beyond the impact to Martinez, the Court in an extended discussion on what would constitute malice, provided guidance for the award of exemplary damages in Sabine Pilot cases in the future. In dicta, the Court hinted that the Sabine Pilot cause of actions extends only to termination claims; anything less would not be actionable.
For punitive damages, the Court held the proof must be something more than the normal consequence of the termination itself. It rejected Martinez argument that you could consider the consequences if he had performed the illegal act in question in establishing malice.
More generally, it listed three types of circumstances where malice might arise:
But for those that do make their way to trial, Safeshred now gives definitive guidance for punitive damages.
Unfortunately for Mr. Martinez, he did not meet that standard, thereby losing his $250,000 punitive damage award (which had already been reduced to $200,000 because of the damage cap under Section 41.008 of the Texas Civil Practice and Remedies Code). Given that he had lost his $10,000 mental anguish claim in the Court of Appeals, what once seemed so promising now appears to stand as a judgment of approximately $7,600 in lost wages.
Beyond the impact to Martinez, the Court in an extended discussion on what would constitute malice, provided guidance for the award of exemplary damages in Sabine Pilot cases in the future. In dicta, the Court hinted that the Sabine Pilot cause of actions extends only to termination claims; anything less would not be actionable.
For punitive damages, the Court held the proof must be something more than the normal consequence of the termination itself. It rejected Martinez argument that you could consider the consequences if he had performed the illegal act in question in establishing malice.
More generally, it listed three types of circumstances where malice might arise:
Malice in this case could only be shown by clear and convincing evidence that Safeshred, in firing Martinez, intended or ignored an extreme risk of some additional harm like
- interference with his future employment,
- harassment, or
- terminating him knowing it was unlawful to do so.
But for those that do make their way to trial, Safeshred now gives definitive guidance for punitive damages.
Wednesday, 18 April 2012
An Arbitration Sign of the Times
If you think arbitration is not a significant player in employment law dispute resolution, you would have to think twice when you see that the National Institute for Triall Advocacy (NITA), one of the best known training programs for trial lawyers is holding their first Arbitration Advocacy May 18-20, 2012.
The opening paragraph in the email I received made that point:
The fact of the matter is although the battles continue over the finer points of enforcibility, and Congressional action could in one fell swoop totally eliminate it, for the foreseeable future, arbitration of employment disputes is very much a reality.
Arbitrations are not the same as trials, and while I think it will be quite some time before we hear anyone refer to themself as an "arbitration lawyer," making sure you understand the difference between the two is important.
Arbitration is much more akin to a bench trial, but one with even more liberal standards of admissibility of documents and testimony. I think it is also a much "cooler" forum, where emotion as a general rule is much less likely to be found and to carry as much weight.
For the advocate, perhaps one of the big differences is the timing of the feedback. For better or worse, when a case is submitted to a jury, in a matter of hours, or at most days, you will know what the factfinder thought of your case. In arbitration, as with bench trials, there is no instant gratification (or depression)
Even in relatively recent times, results were delivered in the mail, but today, when you have an arbitration case pending decision, almost any email could be the one carrying the news.
The opening paragraph in the email I received made that point:
In looking at the below list of topics covered in this program your first inclination may be to think this is another of NITA's Trial Advocacy programs. While similar in some regards this 3 day learning-by-doing program is in fact NITA's first Arbitration Skills program.And like all NITA programs, this one promises to be a hands on experience, culminating in conducting a full arbitration. Here's a link to NITA's program site if you are interested.
The fact of the matter is although the battles continue over the finer points of enforcibility, and Congressional action could in one fell swoop totally eliminate it, for the foreseeable future, arbitration of employment disputes is very much a reality.
Arbitrations are not the same as trials, and while I think it will be quite some time before we hear anyone refer to themself as an "arbitration lawyer," making sure you understand the difference between the two is important.
Arbitration is much more akin to a bench trial, but one with even more liberal standards of admissibility of documents and testimony. I think it is also a much "cooler" forum, where emotion as a general rule is much less likely to be found and to carry as much weight.
For the advocate, perhaps one of the big differences is the timing of the feedback. For better or worse, when a case is submitted to a jury, in a matter of hours, or at most days, you will know what the factfinder thought of your case. In arbitration, as with bench trials, there is no instant gratification (or depression)
Even in relatively recent times, results were delivered in the mail, but today, when you have an arbitration case pending decision, almost any email could be the one carrying the news.
Friday, 13 April 2012
NLRB's Posting Rule Hits Another Bump in the Road
This afternoon Judge Norton in South Carolina granted summary judgment to a group seeking to block the NLRB's rule that would require a posting notifying employees of certain rights under the NLRA.
His conclusion:
His conclusion:
After utilizing the tools of statutory interpretation, the court finds that the BoardThe full opinion can be found on Pacer at this link.
lacks the authority to promulgate the notice-posting rule. As such, the rule is unlawful
under the APA, 5 U.S.C. § 706, and the court GRANTS summary judgment in favor of
plaintiffs.
ENDA Lite Hits a (Temporary?) Dead End
While I didn't actually predict that the Obama Administration would issue an Executive Order implementing protection for lesbians, gays and transgendered individuals employed by federal contractors, reading my post from a couple of weeks ago, you might could have drawn that conclusion. See, ENDA "Lite" On the Way?
But apparently, it is not to be, or at least not now, although the story in the Washington Post reporting that the Administration has chosen to not issue such an Order details both the pressure that is going to be forthcoming and the possibility that somewhere down the road, the decision might be different. See Gay rights groups vow more pressure on Obama to sign nondiscrimination order.
Although denied by the Administration, it is hard not to view such an Order in light of the role it could play in "prresidential politics" which is pretty much the only prism that anything having to do with the Administration is, correctly or not, going to be viewed from now until November.
Hat tip to the folks at Employment Law 360, whose reporting on this issue brought it to my attention, including today's story, Obama Won't Order Ban on Anti-Gay Bias by Contractors. ($)
But apparently, it is not to be, or at least not now, although the story in the Washington Post reporting that the Administration has chosen to not issue such an Order details both the pressure that is going to be forthcoming and the possibility that somewhere down the road, the decision might be different. See Gay rights groups vow more pressure on Obama to sign nondiscrimination order.
Although denied by the Administration, it is hard not to view such an Order in light of the role it could play in "prresidential politics" which is pretty much the only prism that anything having to do with the Administration is, correctly or not, going to be viewed from now until November.
Hat tip to the folks at Employment Law 360, whose reporting on this issue brought it to my attention, including today's story, Obama Won't Order Ban on Anti-Gay Bias by Contractors. ($)
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