"Bullying" Is Becoming Part of the Zeitgeist

Early in the second year of writing this blog, I had what I think was my first recognition of bullying as an "issue" in the employment law world, Can't Wait for Bullying Cause of Action. That was now nine years ago.

I was struck by just how far the concept of bullying has come, not necessarily in the law of employment, but in society as a whole, by the first two featured blog posts in today's Huffington Post's Daily Brief:

	Marlo Thomas: Bully: The Year's Most Important Film Even if you have to drive across state lines to see Bully, your kids need to be in the audience. Whether you know it or not, they may be among the 13 million American children affected by bullying every year. For them, this is more than just a movie. It is real life.
	Bob Cesca: Right-Wing Bullies Continue to Attack Children It's difficult to assign psychological motive when it comes to political tactics, but based upon the collective behavior of far-right conservative Republicans, we can only deduce that a considerable number of them are bullies and ought to be treated as such.

While it is true that the so called anti-bullying law has yet to pass in a single legislature, it is foolish on the part of those in the world of employment law who think that it is a bad thing, to believe given the progress of this concept in our society as a whole, that it is not coming.

For those, like me, who think that the passage of this legislation would be an unmitigated disaster for employers and ultimately employees (albeit a real boon for those of us who make our living on employment litigation), the prescription is not to ignore the trend, but to make sure that conduct which can be perceived as bullying is addresssed promptly and quickly, not because it is illegal, but because it is both wrong and bad business.

My hope is that  this post will, as so many (all?) of the posts that have preceded it over the years have done, just fade into oblivion, noticed by few and remembered by none.

My fear is that 10, 20 years from  now, through the magic of google or some future research tool that we don't even know about yet, it will be dredged up and someone will say, you know he had a good point, we should have listened.

ENDA "Lite" On the Way?

Federal legislative action in employment law matters, actually on most things, is pretty much a non-starter these days.  But that does not mean that there is no potential for continuing developments, witness the firestorm of attention that the NLRB has received of late.

ENDA, the legislation which would extendTitle VII type protection to gays, lesbians and depending on the version of the bill, transgendered individuals, is one piece of legislation that all the pundits had predicted was most likely to pass following Obama's election in 2008. But it too has stalled.

Now a partial step could be imminent, with news that the Administration is considering an Executive Order that would extend such protections to employees of federal contractors, either with a separate Executive Order or amending the venerable Executive Order 11246.

The Advocate gets down into the political nitty-gritty on the chances of such action being taken as it appears that it been cleared at the department level, and the decision is now, or soon will be, on President Obama's desk. See, Gatekeepers of the Employment Executive Order.

According to the article, via an Executive Order 20% of the civilian workforce would be covered by such an action.

Why You Spell Out Amounts in Agreement

Since I try to avoid legalese where ever possible and eliminate as much unnecessary verbiage from agreements I prepare, I frequently look at the spelling out of dollar amounts, followed by the numerical sum in parentheses, "ten thousand dollars, ($10,000.00), and wonder if we couldn't just eliminate one of those.

But then I see a story like,  JPMorgan Sued by Trader Over $3 Million Decimal Point, where there is a difference of opinion as to whether an investment banker was hired for a salary of 2.4 million rand as JP Morgan argues, or 24 million rand, as apparently the contract actually reads.

Since that's almost a million dollars difference ($920,000 according to the Bloomberg article) it seems likely that the banker might have known it was the lower figure, but to see who prevails we will have to wait and see how the British court rules.

One thing however, the next time I consider dropping the writing out of the amount in question, followed by a parenthetical re-stating of the amount; I will certainly give even less thought to dropping one or the other than I have in the past.

Update (3.26.12):  Some proof reader at JP Morgan is likely breathing a sigh of relief as the British Judge trying this case ruled in favor of JP Morgan today.  See Bloomberg's coverage here.  And in something that happens over the pond, but not here at home, the employee who brought the suit not only will get nothing, but in fact will have to pay 85,000 British pounds.  And no, there's no misplaced decimal there.

Arbitration (Is Not the Same as) Courts of Conciliation

In my first year of law school at the University of Texas, we had a class called "Introduction to the Study of Law." My section was taught by Professor Leon Lebowitz, one of the nicest profs at the law school, and a really good Business Associations, Securities Regs professor. Intro, at least I remember it, was known best for its endless discussions about the "forms of actions" which of course were purely historical relics even at the time.   (For some reason trespass de bona asportatis sticks in my mind, how scary is that?)

I felt I was transported back to the fall of 1972 as I read Stuck in Arbitration, an op-ed piece by Professor Amalia D. Kessler of Stanford University that appeared in last week's New York Times.  Professor Kessler wrote about a failed attempt in the United States in the mid-19th century to create "conciliation courts," which she described as:

widely adopted throughout Europe and its colonies during the late 18th and early 19th centuries, these were institutions composed of respected community leaders seeking to persuade disputants to accept an equitable compromise in secret, lawyer-free proceedings and without regard to the formal rule of law.

When she described this as a "nearly forgotten debate" I think she was being far too kind, as I doubt that there is almost anyone who is familiar with it. (Although I wouldn't have been surprised if Professor Lebowitz knew!)

What is a stretch though is her comparison of Courts of Conciliation to modern day arbitration and her plea for Congress to pass The Arbitration Fairness Act.  Reading between the lines, I am not sure that she thinks there is really an apt comparison, but I suspect more a clever way to affirm her support, for what even she concedes would not "be a panacea."

The Arbitration Fairness Act addresses arbitrations in both consumer and employment relationships, a combination that I have always felt was inappropriate as the two merit individual attention. 

For those who believe that a serious look at how we resolve employment disputes should include arbitration, which means that it must be mandatory, it is good news that it will not pass in this particular Congress. The bad news is that the current partisan divide makes it unlikely we will ever have a serious review and compromise on that issue.

Like so many issues, it will be an all or nothing outcome, and unfortunately, such outcomes regardless how much one side may feel vindicated depending on which view prevails at any given time, are almost never the optimal solution.

Update (3.19.12):  I was not the only one to take note of Prof. Kessler's recommendation. Three letters to the editor sounded a similar point. One of the most notable is Professor Theodore St. Antoine, who was a long time academic and very well respected, and unless I have missed something along the way, not some one who would be accused of "speaking the management line." Resolving Disputes Through Arbitration.

Professor St. Antoine I think has it right:

The solution is not the outright prohibition of all pre-dispute agreements to arbitrate, as proposed by the ill-advised Arbitration Fairness Act. It is legislation that would guarantee due process in arbitration, including neutral arbitrators, and ensure that grievants have a voice in their selection and all the remedies that could have been obtained in court.

Note the key phrase, "pre-dispute agreements." Any legislative action that bars pre-dispute agreements as a condition of employment, is for all practical purposes a ban on arbitration in the employment law setting.  And since that is what the Arbitration Fairness Act does, the title itself is quiet misleading.

Jury Waivers Treated Same As Arbitration Agreements by Texas Supreme Court

I would have been surprised if the decision went the other way, but today the Texas Supreme Court affirmed that an at will employee who signed a jury waiver agreement rather than be terminated was not entitled to have it set aside because he was coerced. In re Frank Kent Motor Company (Tx. 3.9.12).

The Court had to look only to its decision a decade earlier, In re Halliburton Co. (Tx 2002), where "this Court held that it was not procedurally unconscionable to premise continued employment on an acceptance of an arbitration plan."

Not a big jump to hold that "all similar dispute resolution agreements" should be treated the same.

The case does make one ironic point though. Both the trial court and the court of appeals had rejected the employer's request to strike the jury demand of the employee. Now having prevailed,   the employer gets to try its case in front of the reversed trial court, with the reversed appellate court looking over its shoulder.

Thinking About A Different World Under the NLRA

I have been quite busy lately but finally began catching up on some past reading and one of the first things was the most recent edition of the ABA Journal of Labor and Employment Law, Fall 2011, and its first article, Imagine a World Where Employers are Required To Bargain with Minority Unions by Catherine Fisk and Xenia Tashlitsky.

Professor Charlie Morris' book advocating for minority member bargaining, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, remains only partially read on my bookshelf.  So, I was quite interested to see what another academic would have to say about an intellectually challenging idea, one that would clearly turn the world of labor relations on its head from anything that I have known in the now more than 35 years I have been practicing.

It is not altogether an academic question given that there are currently requests filed with the Board for such a rule making endeavor, and a Board that has shown its willingness to engage in rule making far more than in the past.

But what was clear from the article is just how complex an issue it really is. It is clear that Professor Fisk and her student co-author, clearly are intrigued by the idea, but intellectually honest enough to realize (and point out) just how many other questions it would raise, and how incomplete the data is that we would need to resolve those questions.

Their view is that the proper approach  should not be whether or not bargaining with a minority union is legally mandated, but whether or not it makes sense from a policy viewpoint. They believe it is clear that it would be a permissible reading of the NLRA, but that by no means does that answer whether it would be the wise course.

For anyone looking for a simple solution to current problems in the world of labor relations, even a cursory review of the questions that the authors raise should be enough to make clear that mandating minority bargaining is not a panacea.

They end by concluding that  NLRB rule-making on the subject would be worthwhile, but more for the process of a full exploration of a novel idea than as a foregone conclusion that we should end up with such a rule. Their words are more eloquent than mine:

"while one part of the benefit of any legislative process, whether through legislative enactment or agency rulemaking is judged by the rules that are adopted, another part of the value is the process itself.  All the stakeholders in the labor law world would benefit if the NLRB were to conduct rigorous study of this important policy question and offer substantive reasons for its decision to issue or reject a rule."

In one more burst of candor, they admit that in today's partisan atmosphere, it is highly unlikely that the Board will undertake such a review. My two cents, in this highly partisan atmosphere, the Board should not.

That doesn't address the bigger question however. A review of serious policy issues, in the world of labor and employment law, as in other areas of the body politic, are necessary from time to time, and as long as we remain paralyzed by our increasing political divide, problems that need addressing with wisdom and compromise, remain far from our reach.

It's not good for the world of labor and employment law, or for the bigger political world in which labor and employment law is just our narrow corner.