Tuesday, 5 November 2013

Two Names You May Not Know and May Never Hear Much About

But if you are at all interested in what may be coming out of new NLRB General Counsel Richard Griffin's office, and if you are an employer you should be, then you should at least know of Jennifer Abruzzo and Rachel Lennie, the new deputy general counsel and assistant general counsel respectively.  See Corporate Counsel's, New NLRB GC Begins Building Labor Legal Team.

Because the GC controls what cases are initiated the legal judgments as to what kinds of cases and the theories on which they will be brought will rest primarily in the hands of these three for the next four years.

The Things People Say and Do

One of the many changes that have happened since I first started practicing law in 1975, is the appearance of services which monitor the filings of new lawsuits and send summaries to law firms. One such excellent service is Courthouse News Service, which actually does a lot more than just prepare summaries of new lawsuits. In the first paragraph of their "about us" they note:

Courthouse News Service is a nationwide news service for lawyers and the news media. Based in Pasadena, California, Courthouse News focuses on civil litigation, from the date of filing through the appellate level. Unlike other Internet-based publishers that simply aggregate information prepared by other content providers, Courthouse News publishes its own original news content prepared by its staff of reporters and editors based across the country.

In any event, one of their recent reports of a filing of a lawsuit by a pro se plaintiff in Harris County, Texas was the following:
Plaintiff points to  ...  an executive assistant, as the source of such office hostility that plaintiff gave her an article titled "De-clawing cattiness at work." She was fired the next day. She wants $600,000 damages.
And just in case you are wondering, it is at least theoretically possible that this did happen as a Google search reveals a 2005 article by Executive Coach Kay Cannon, De-clawing Cattiness in the Workplace.

Apparently, no matter how good the advice, it was not appreciated.

Monday, 4 November 2013

ENDA Half-way Home?

For the first time ever the United States Senate seems poised to pass legislation that would prevent discrimination against gays, lesbians and transgendered individuals appears to have obtained the 60 votes that would allow it to pass. See, Bill on Workplace Bias Appears Set to Clear Senate Hurdle.

However, with Speaker John Boehner in opposition, it seems unlikely that the bill will be put to a vote, much less pass the House. Although this is one issue on which big business is generally neutral, so stranger things have happened.

In a speech last month, I predicted ENDA as one of the first pieces of employment legislation I expected, if the legislative gridlock ever melted.

I will stick with the prediction, but I would be surprised if this were an issue that made gridlock disappear, even temporarily.

Thursday, 17 October 2013

A Study That Won't Make You Feel Good in Half the Country

Sara Murray of the WSJ has an interesting story this week about state legislation in the now 23 states that as of January will require employers to allow employees to bring weapons into their parking lots. Guns in the Parking Lot: A Delicate Workplace Issue

What caught my attention was the mention of this statistic:
 A 2005 North Carolina-based study in the American Journal of Public Health showed that workplaces that allowed guns were about five times more likely to have a worker get killed on the job compared to workplaces that prohibited all kinds of weapons.
For guns, the linkage was actually 5 to 7 times more likely. For those who want to get into the weeds, a link to an abstract of the study is here.

Now one study alone is not enough to dictate policy, but if I am an employer responsible for assembling a large group of humans 300+ times a year, it would certainly give me sufficient pause to ask for a concrete explanation of why such a legislative action makes sense.

Monday, 7 October 2013

Blogging Is a Habit

And like any other habit, it is much easier to fall out of than create.  I am always amazed how after working out regularly for several months, missing a couple of weeks can put me back to ground zero in terms of the work out “habit.”

That has certainly happened to me with blogging as well.  But with the first Monday of October, which of course is the opening of the current term of the U.S. Supreme Court, it seems a like a good time to try to kick the habit back in gear.

At least I have been doing some things, including sharing some of my thoughts on the practice of law with the folks at the Paralegal 411 website:  http://www.paralegal411.org/interviews/michael-w-fox/
And there’s more in store.  This Friday in Austin, Angie Marshall and I will be speaking at our firm’s seminar on:


When Congress passed the Civil Rights Act of 1964, it marked not only a turning point in civil rights, but the beginning of the imposition of an adversary system in the workplace. Trace the history of the development of anti-discrimination law, obtain a greater understanding of current cutting edge issues, and gain an insight into the future during this informative session.

There will be lots of other great speakers and topics as well, including former NLRB member,  Brian E. Hayes.  For more information and registration information, check here:  11th Annual Labor and Employment Law Update.

And before the year ends, I will be speaking  in lovely Charleston, South Carolina with Peter Hughes and Anthony Alfano, Chief Employment, Labor & Benefits Counsel, Tyco at a program designed exclusively for Labor and Employment law in house counsel .

Our topic:

Trial Techniques for In-House Counsel: Don’t Make Juries Mad

Taking a case before a jury can be a nerve-wracking prospect for in-house counsel. The stakes are high and the results can be gratifying . . . or astonishing. This session will cover multiple trial issues and strategies, including juror insights and strategies for voir dire, challenging evidentiary issues, preparing witnesses, selecting experts, and more.

And hopefully, by then I will also be back in the blogging habit.

Thursday, 1 August 2013

Whose Side Are You On? The Perils of HR

I have often said that being a front line supervisor is the most difficult job in today's workplace. I think that is still true for a specific position. But if there is a department that is fraught with peril, it has to be the Human Resources group.

This came to mind because of a great article by Alison Green, 5 Secrets You Should Know About HR.
The points Green makes, that HR knows things they can't tell you, that their job is to support the managers of the company not employees, to list  just two, are true, but point up one of the problems for HR in the modern world.

Too often, the constituency that they are asked to serve is not made clear, or at least not explicitly so. Is HR an employee advocate, looking out for the interests of the employees? Maybe, and clearly that has a role, but in reality, the responsibility is more often in support of management, although that support often comes in the form of being the compliance policeman.

This topic certainly deserves a lot more attention than this brief post. Until this issue is resolved at any particular company, HR will forever be sentenced to a very unhappy existence.

Monday, 15 July 2013

Pay Cards - Federal Standard Might Be Helpful

Although employers are often ambivalent, if not negative, about federal involvement in the workplace, there are time when it is beneficial. 

There is not anything that is more basic about the employment relationship than how employees get paid. I can still remember getting my 65 cents an hour pay as a delivery boy for Graves Drugstore, in cash, in a little white envelope every Saturday.  For a 15 year old netting $35 a week that was fine, but not very scalable for a larger employer.

And in a world where the number of the unbanked and underbanked is growing larger, see the Forbes article, Who Needs Banks?, it's an issue that also impacts employees.

One solution has been pay cards. But for a national employer using this means of payment means complying with a whole host of state laws, very few of which are specifically designed to address that particular issue. So, wending your way through the maze can be complicated, and that means expensive.

So the NYT article, 16 Senators Seek Inquiry of A.T.M.-Style Pay Cards, highlights one of the times where at least some segments of the employer community might be happy with a comprehensive review of the issue and a federal solution.

As the article points out, it is an area where there can be abuse. But abusing employees is not the desire nor intent of all but the most rogue of employers, and so reasonable rules and regulations that could be applied across the country no matter where the employee works would really be helpful.

The devil is in the details of course, but my guess is that this is one area where common ground could be found and Congress might could actually solve a problem that exists for  employers and make sure that employees are protected. 

Wouldn't that be a novel gift from Congress?

Tuesday, 2 July 2013

Federal Government Action on Employment Discrimination Before Title VII

Congress as early as the Unemployment Relief Act of 1933 made a policy declaration "That in employing citizens for the purpose of this Act no discrimination shall be made on account of race, color, or creed."

Action to enforce the policy were much slower to develop. Nothing was passed by Congress.

 In 1941 and 1943, President Roosevelt created two Fair Employment Practice Committees whose focus was on preventing discrimination by government contractors who were involved in the war effort. The first FEPC had only 8 staff members and no powers. The 1943 version was better staffed with 120 employees, but still no powers. They did receive over 8,000 complaints and held 30 public hearings, but their powers were limited to enforcing any decision by negotiation, moral suasion, and the pressure of public opinion. The powers of the second FEPC expired in June 1946.

Under Presidents Truman and Eisenhower the federal government's efforts were focused on government contractors, but again with no real teeth.

In March of 1961, President Kennedy issued Executive Order 10925, which established the President's Commission on Equal Employment Opportunity to focus on eliminating employment discrimination on the basis of race, color or national origin in both government employment and by government contractors. It also for the first time adopted the concept of requiring affirmative action on the part of government contractors.

This Executive Order also required government contractors to file reports and gave the Commission the power to recommend suits by the Department of Justice and to debar contractors who failed to comply with its requirements. Much of the energy though was 200 "plans of progress" under which large companies set up voluntary recruitment plans designed to give minorities equal employment opportunities.

It was this Commission on Equal Employment Opportunity that seemed to be the model for what was originally included in Title VII introduced in June of 1963.

Sunday, 30 June 2013

June 1963 - Civil Rights Act Introduced

On June 20, 1963, what became the Civil Rights Act of 1964 was introduced as H.R. 7152, in the 1st Session of the 88th Congress. It was referred to the Judiciary Committee which was chaired by  Rep. Emanual Celler (D-NY). He referred it to a sub-committee, which he also chaired.

On June 26, 1963, the first hearing was held with Attorney General Robert F. Kennedy as the sole witness.

Since for purposes of this blog, the key provision was Title VII, which is the foundation for the advent of employment law, it is interesting to note some of the provisions of the bill as originally introduced:
  • It created four protected categories, race, color, national origin and religion;
  • It was designed to prevent discrimination in voting, education and public accommodations;
  • In the introduction it made the following statement:  It is also desirable that disputes or disagreements arising in any community from the discriminatory treatment on the basis of race, color, or national origin shall be resolved on a voluntary basis, without hostility or litigation. Accordingly, it is the further purpose of this Act to promote this end by providing machinery for the voluntary settlement of such disputes and disagreements.
  • There was a Title VII, which allowed the President to establish a Commission on Equal Employment Opportunity with a mission of eliminating discrimination on the basis of race, color, national origin and religion by government contractors and sub-contractors. It would have the powers given to it by the President and would be chaired by the Vice President of the United States, with the Secretary of Labor serving as the Vice-Chair.
Obviously, a far cry from what would emerge as Title VII one year later in the bill as passed by the Congress and signed into law by President Johnson.

Tuesday, 25 June 2013

Let's Get a Grip, Employees' Rights Did Not End Yesterday

Reporting is no easy task. But I have heard several reports concerning the two Supreme Court decisions yesterday that  convey misleading information, or at least don't put it in proper context.  An example is By 5-4, a More Hostile Workplace by New York Times editorial board member Teresa Tritch.

My comments on the two decisions, Vance v. Ball State and University of Texas Southwestern Medical Center v. Nassar with links to the decision themselves, are here and here.

There is no doubt that the employer prevailed in both cases, and that employers will benefit from the two decision in the future. But implying they will lead to a more hostile workplace or some of the other ills being proclaimed, are off the mark.

The starting point of any discussion about the efficacy of employment law should start with a basic premise -- once an employer has been sued they have lost. The only question is how little they have lost. See (albeit in another context) my explanation of that point. Bullying As a Cause of Action - One Large Step Closer.

Secondly, by definition all employees who bring cases based on their termination come from a pre-selected pool. That pool consists of individuals intentionally selected by a business manager or group of managers as not working out as an employee, or in cases of economic driven layoffs, not being the best to keep.

You don't have to accept that all employers are free of discriminatory motives, although I would argue most are, to understand that just based on the hassle and cost of terminating an employee, not to mention the concern of being sued, that is not an action that will be taken lightly. Thus you should not expect that all terminated employees would have meritorious claims or that there should be some 50/50 split. That employers "win" most cases should be the rational rule, not some surprise. (Even then see prior paragraph, how "wins" by employers are really minimized losses.)

With that small bit of context, which almost is never recognized in such articles, here are some additional comments (portions of the article in italics)
But according to a 5 to 4 decision by the Supreme Court today, the answer is no. With that ruling, the conservative majority — Chief Justice Roberts, and Justices Alito, Kennedy, Scalia and Thomas — has left many victims of workplace harassment without legal recourse.
No victims of workplace harassment are without legal recourse. The importance of whether someone was a supervisor goes back to an earlier pair of Supreme Court decisions in which the Court determined what standard would be utilized to decide harassment cases. The Court decided that in cases of co-employees the standard would be negligence, that is, did the employer know (or should have known) about the harassment and failed to take action.

In the case of  harassment by "supervisors" the court held that there were two types of harassment. In those where in addition to the harassment there was a "tangible employment action," then the standard was strict liability, the employer would have no defense. However, if there was harassment by a supervisor, but no tangible employment action, the employer would be strictly liable unless it could establish a two part affirmative defense.

In other words, the manner of proof depends on the status of the harasser and whether there was any tangible job action. There are three buckets:
  1. co-workers (or third parties);
  2. supervisors + tangible employment action; and
  3. supervisors with no tangible employment action.
Based on yesterday's decision, more people in the work force fall into bucket 1, as opposed to buckets 2 and 3. Each bucket is protected from harassment, just in different ways.

To be fair, Tritch later qualifies her earlier statement:
Under Title VII of the 1964 Civil Rights Act, employers are liable for discrimination by a “supervisor,” but not by co-workers (unless the victim has reported abuse by co-workers to a supervisor who does nothing to remedy the situation.)
The relegation of the whole first bucket to the parenthetical shows a misunderstanding of how harassment law works. It also fails to mention that the negligence standard covers not only situations where abuse was reported and the employer failed to act, but situations where the employer should have known abuse was occurring and failed to act.

What Justice Alito was doing was defining what standard would apply. Since there are different methods of proof, it is not insignificant, but it is hardly the end of the world and it is certainly not removing protection from harassment from any employee.

In the Nassar case, Tritch starts out on a wrong foot:
A second employment case, University of Texas Southwestern Medical Center versus Naiel Nassar, decided by the same 5 to 4 majority also thwarts the ability of employees to sue for discrimination under Title VII.
The whole basis of Nassar is that there are different standards, in different parts of the statute, for discrimination and retaliation under Title VII. Nassar has absolutely no impact on any employee claiming that they have been discriminated against because of their race, color, national origin, religion or sex, the five protected categories under Title VII. It only deals with retaliation.

The biggest error is this:
The university medical center appealed, saying that for Dr. Nassar to prevail, he had to show that retaliation was the sole factor leading to the job denial.

Tritch later repeats that mistake saying Justice Kennedy said that Nassar had to "show that retaliation was the sole factor in the job denial."

The trouble is he does not, even after yesterday's decision.

There are at least three different standards for finding liability in employment cases. The easiest way to show the difference is to use mathematical terms, although it is admittedly an oversimplification:
  1. motivating factor - Means that the person making the challenged decision had both legal and illegal motives in making the decision. For e.g. if 40% of the reason for firing an employee was her sex, and 60% her attendance, she could establish sex was a motivating factor.
  2. but for - Means that in the same case, the employee would not have been fired for her attendance if she were a man. Using the mathematical terminology, she would have to show that sex was 51% of the reason she was fired.
  3. sole reason - The employee would have to show that sex was 100% the reason she was fired.
If as Tritch said, the Supreme Court had held that an employee had to show retaliation was the sole reason, it would have been a really big deal. But the Court didn't. It held that you had to use test #2, but-for, not test #1, motivating factor.

Again, I am not saying it is not a victory for employers, nor insignificant. However, I would argue that in all fairness if it is not the only reading of the law as written, it is at least a fair reading of the law on which reasonable minds could differ.

It also is a repeat of what the Supreme Court decided was the standard in ADEA cases in Gross v. FBL Financial Services, and although there were similar cries that the world was ending for age cases, I haven't seen any support that has actually happened in the four years since Gross was decided.

There are also good reasons why motivating factor is not a workable standard for use when we have jury trials. In fact I testified before the Senate Judiciary Committee to that effect when they were considering legislatively reversing Gross. See link here. I would like to say my testimony persuaded them otherwise, but I am fairly certain it had more to do with legislative grid-lock than anything I had to say.

Employers definitely won yesterday. But in a system where employers lose just by being sued, to imply that these were drastic decisions demolishing the protections of the workplace, just goes too far.

I mean,
The question now is how far and how deeply the infection will spread before Congress passes legislation to establish the E.E.O.C’s reasonable definition of “supervisor” as the law of the land.

Really? Let's all get a grip.

Monday, 24 June 2013

"But For" Not "Motivating Factor" is Standard for Title VII Retaliation

Maybe it is because I practice in the 5th Circuit, but today's other major Supreme Court decision for the employment law world, University of Texas Southwestern Medical Center v. Nassar, (S.Ct. 6.24.13) is by far the more important case. The Court holds that retaliation under Title VII will use a "but for" not "motivating factor" standard.

Justice Kennedy writing for the majority, in language that is music to a defendant's ears, says it bluntly: "This, of course, is a lessened causation standard."

Looking beyond this victory, does today decision (coupled with Gross) establish a default standard for all federal employment law statutes? Maybe.

Justice Kennedy set out this rationale:
The approach respondent and the Government suggest is inappropriate in the context of a statute as precise,complex, and exhaustive as Title VII. As noted, the laws at issue in CBOCS, Jackson, and Gómez-Pérez were broad, general bars on discrimination. In interpreting them the Court concluded that by using capacious language Congress expressed the intent to bar retaliation in addition to status-based discrimination. See Gómez-Pérez, supra, at 486–488. In other words, when Congress’ treatment of the subject of prohibited discrimination was both broad andbrief, its omission of any specific discussion of retaliation was unremarkable.
The last part was the Court's way of explaining its prior (in my view) overly broad expansion of retaliation where Congress had not specified it. 

Going forward in reviewing other statutes, unless Congress specifically used "motivating factor" or other similar language, e.g. the language from SOX,  "protected activity was a contributing factor in the unfavorable action," "but for" is the likely test.

My guess is that this will turn out to be a chronological issue. Certainly any statute before 1991 is unlikely to have such specific language, but probably most statutes passed after the Civil Rights Act of 1991 will.

Supreme Court Adopts Narrow Definition of Supervisor for Harassment Law

Justice Alito writing for the court succinctly sets out today's holding in Vance v. Ball State (S.Ct. 6/24/13):
We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring,firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance and substantially adopted by several courts of appeals.
For employers, at least in circuits that had not adopted the "nebulous" definition, this falls into the dodging a bullet category, and for those circuits which had adopted such a rule (Justice Alito specifically mentions the 2nd and 4th Circuits)  it is a very positive day.

Given the other opinions coming in the next few days, it is unlikely Vance v. Ball State will get much attention outside the labor and employment law bar. However, Justice Alito's opinion is one that is going to be worthy of substantial attention as it covers a number of important topics ranging from the importance of simplified jury instructions, the importance of summary judgment in certain contexts, the unique nature of the NLRA given its subject matter of regulating differences between labor and management not to mention the explication of Farragher and Ellerth which ultimately is the basis on which the case is decided.

Justice Ginsburg writes the dissent and once again looks to Congress as the way out:
The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.
That's the same song that is being sung about the Italian Colors Restaurant decision, and my view is the same. Unlikely to happen any time soon.

Supreme Court Will Decide Recess Board's Fate

It would have been more of a shock (and an even bigger problem) if it had not done so, but today the Supreme Court granted cert of the D.C. Circuit's Noel Canning decision. See, What Now for the NLRB? Recess Appointments Invalid  for the background.

One small step toward removing the Board from its current legal limbo.

In the long term, a potentially game changing decision on the powers of the Presidency versus the Senate.

Thursday, 20 June 2013

Supreme Court Arbitration Jurisprudence - No Class Action If You Say So

Combining today's decision in American Express Co. v. Italian Colors Restaurant, (6.20.13) with its decision 10 days ago in Oxford Health Plans v. Sutter,  (S.Ct. 6.10.13) the Supreme Court's position now seems clear. If an employer wants to avoid class or collective actions, it can do so by having an arbitration agreement that precludes arbitration of claims on a class basis.  But to be sure that happens, you need to be explicit about it.

There is no doubt more nuance than that, and I  have no doubt that there will be new arguments why such bans will not work, and it may be that there will be some courts will go for it, but the Supreme Court position seems quite definitive.

The most logical way for it to be changed is legislative, and of course there has been legislation introduced for the past several Congresses that would ban requiring an arbitration agreement as a condition of employment. But at least for the foreseeable legislative future, that seems unlikely.

The net result of these decisions is a rather clunky way to solve a huge problem that is plaguing the employer community, the collective FLSA (and class claims under state equivalents) action.  The courts have been unwilling or unable to address that issue by establishing an appropriate standard for conditional certification.  And now, because arbitration appears it will be a solution, that means a large number of employers who have not implemented arbitration plans will be re-thinking the decision.

All of that will have impacts on the employment law world. It is unlikely that anyone can predict all of the ramifications with certainty. But that there will be a changed world now seems inevitable.

Just as a side note, what ever you may think of  the judicial view of Justice Kagan, who goes from writing for the Court in Sutter  to dissenting today, you have to enjoy her clear cut writing.
And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.
And a second side note, which surely can and will be amplified by those who really are students of the Supreme Court. particularly if I am right, some of Scalia's references to Justice Kagan's dissent, seem much more respectful than he sometimes is. When she was appointed, some of the commentary was that she might be able to build some personal bridges with members of the Court in the conservative wing and this makes me wonder if there is some, very small to be sure, signs that could be so.

Wednesday, 12 June 2013

After JFK's National Address

Medgar Evers, a field secretary for the NAACP was shot dead as he got out of his car in his drive way in Jackson, Mississippi.  It was just one of many incidents in the summer of 1963 that kept the pressure for the passage of the Civil Rights Act of 1964 moving forward. Medgar Evers Wikipedia entry.

Tuesday, 11 June 2013

A Doorway Stand and One Big Step Forward

On June 11, 1963, George Wallace made his famous "segregation forever" speech while standing in the door to block the integration of the University of Alabama. (Wonder what Coach Saban would think of that idea?).  After President Kennedy nationalized the Alabama National Guard, Wallace stepped aside.

Although that was certainly the iconic moment of the day, a much more important event occurred that evening when President Kennedy addressed the nation on the issue of civil rights. The NYT's editorial today talks about its significance, Kennedy’s Civil Rights Triumph.

For the first time, the President framed civil rights as a "moral issue."  More importantly for the development of employment law, President Kennedy promised that his administration would be introducing and supporting a comprehensive civil rights bill that would cover among other things employment.

Earlier in Congress, a civil rights bill had been introduced but it was fairly toothless. What was contemplated and what ultimately was introduced was a much more significant act.

Monday, 10 June 2013

The Equal Pay Act of 1963, The First Tentative Step

The first 87 Congresses of the United States did not really give much thought to the relationship between an employer and its employees.  When Congress had acted the focus was on regulating the power between organized labor (unions) and management. While certainly a major factor in the work world, those legislative actions only incidentally involved the basic relationship between the individual employee and their employer.

In 1938, Congress had established some work place minimums, but even then it was as much a desire to help pull the country out of the depression as regulating the workplace. And with the limited exceptions that led to the 1947 Portal to Portal Act, the FLSA was a relatively minor player up until at least the 1980's.

The genesis for the Equal Pay Act arose when women entered the work force in greater numbers during the war years. As early as 1945, "The Women's Equal Pay Act of 1945," was introduced. Subsequent versions were introduced regularly but never gained traction.

In 1962, like the years before when the legislation was introduced, it was not "equal pay for equal work," but "equal pay for comparable worth," a much broader concept that would be fought again later.

The comparable worth standard was strongly backed by the Kennedy administration and actually passed out of the House Committee. But on the floor,  Representative Katharine St. George, (R-NY) offered an amendment defining equal pay act claims as those "for equal work on jobs, the performance of which requires equal skills." The Senate concurred with the St. George amendment, but the bill failed to come out of conference and so it was not finally adopted until the next Congress.

This time, the bill was introduced with the St. George amendment, dealing with the specific (and much narrower) situation where employers would hire men and women for the same position, but relying on societal and market norms, pay women less. 

The bill was signed by President Kennedy, 50 years ago today.  The current version can be found here, The Equal Pay Act of 1963 (EPA).

One procedural aspect of the EPA was that it was drafted as an amendment to the FLSA, and in its early years contained the same white collar exemptions, a limitation not removed until 1972.

The EPA was a limited piece of legislation and was quickly overshadowed by the much broader Civil Rights Act of 1964, passed one year later.

But if nothing else it marked a major shift in Congress' willingness to enter the relationship between an employer and their employees.  My personal view is that employment law as a discipline, really begins with the passage of the CRA.

But if the EPA was not the baby that started employment law, it was at least the twinkle in Congress' collective eye.

Sunday, 9 June 2013

50 Years Ago ...

In the summer of 1963, the summer between the 7th and 8th grade for me, my main concern was playing first base for Tapp's Pony League baseball team. (It was Tapp's the furniture store, not the funeral home, although I doubt that many in the small town new, or for that matter cared.) In other parts of the country, there were much more significant matters as the civil rights movement which had been building since the mid-1950's was beginning yet another significant and violent summer.

What I would do for a living was probably the furthest thing from my mind, but if I had been asked, one thing that I could not have answered is that I would be a lawyer specializing in employment law.  That job didn't yet exist.

I am certainly not the first person who has ended up spending a lifetime doing something that did not even exist when they were born. But I don't think when I exaggerate the role employment law has had not only on me, but on our whole society.

For the last 10, now almost 11 years I have been making these notes, I have focused on current developments in the world of work. But it seems like a good time to look backwards and reflect on just how far we have come in the last 50 years.

Although the civil rights movement is focused on the struggle and treatment of black Americans, the first tentative step toward this new discipline was focused on a different group and one particular problem. More about that tomorrow.

Wednesday, 29 May 2013

It's Not Your Father's ABA Any More

According to my membership card, I first joined the American Bar Association in 1976.  I was a first year associate at one of the large firms in Houston.  A lot has changed about the practice of law since then. And like every other facet of life, not only is more change ensured, but the pace of change seems almost certain to increase as well.

I know I would have been shocked if one of the articles in the ABA Journal of those early years, had been this one, Former SEC lawyer uses crowdfunding to bring whistleblower actions.  First, neither me, nor I daresay anyone else, would have known what either crowdfunding or whistleblower meant.

For those who have checked in on this spot over the last decade, you know that one trend I noted early in the days of this blog and have been following is the possibility of a cause of action for bullying.  I have gone from disbelief that it could ever happen, to now being resigned to the inevitability.   It is only at the inception, but another trend I have begun to notice is the one I wrote about just one month ago, A Ground Floor Opportunity? Litigation Finance.  Ted Siedle, the ex-SEC lawyer featured in the above article is taking a slight variant of the same sort of approach. In his case, seeking public financing to fund investigations that could lead to SEC awards under its whistleblower program.     In the early years, an article in The Lawyer's Magazine, on raising money to initiate more litigation would more likely have talked about barratry, or some other pejorative term, rather than innovation.   But of course that was when lawyering was a profession, not a business.
Bob Dylan nailed it:
Come writers and critics
Who prophesize with your pen
Keep your eyes wide
The chance won't come again

Don't speak too soon
For the wheel's still in spin
And there's no tellin' who
That it's namin'
For the loser now
Will be later to win
For the times they, they are a-changin'


Tuesday, 21 May 2013

Yes Virginia, the Supreme Court Does Matter - A Cat's Paw in the 5th Circuit

Although as an object fact we know that it is important when the Supreme Court issues a decision, see my discussion just above about the importance of a SOX case that will be decided next term, but it never hurts to be reminded.

That was just what happened when I read the 5th Circuit's decision in Haire v. Board of Supervisors of LSU (5th Cir. 5.21.13) which reversed a grant of summary judgment. Although that is still rare enough in the 5th Circuit to warrant a second look, what prompted this post was the difference that Staub v. Proctor, decided just over 2 years ago by the Supreme Court, made. (See With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly.)

Although the result might have been the same regardless of Staub, that's not what it sounds like. The case involved two LSU police officers vying for the Chief's job.  The male not only got the interim position, but also the ear of the Chancellor. Even though the Chancellor made the decision to select him, not Ms. Haire, the actions of the interim male Chief, were what made the difference, at least according to Judge Jolly who wrote for the majority.


Sarbanes Oxley in the Supreme Court Dock

And on the Supreme Court docket for next term after the Court's grant of certiorai of a 1st Circuit decision which applied a narrow definition to the coverage of the first major financial regulatory act.  Lawson v. FMR, LLC.  (1st Cir. 2.3.12) . The case's page on Scotus blog is here.   

The dispute involves the basic question of what employees are covered by SOX.  The Court highlighted the disputed language:
Whistleblower protection for employees of publicly traded companies. — No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 781), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee
The parties presented two differing arguments for the meaning: (1) FMR argued only employees of publicly held companies are covered, and the highlighted language means that they are protected against actions from any of the highlighted individuals; (2) the individuals who worked for private companies that contract to act as advisers and managers to publicly held companies, argue that coverage extends not only to employees of publicly held companies, but to the "employees those public companies' officers, employees, contractors, subcontractors, or agent." The First Circuit in a 2-1 decision chose the first, more narrow option.

The scope of the two is dramatically different.  Hopefully someone with access to a lot of data will tell us how different, but I would bet that it would if the Supreme Court adopts the broader reading at least 10 times more employees will be covered, and that guess could be off by magnitudes of tens or even hundreds.

The Administrative Review Board, the top administrative agency to rule, has taken the broader view of coverage. Spinner v. David Landau and Associates, LLC (5.31.12).

A narrow reading would normally be subject to congressional change, but given the current state of affairs in Congress, it is highly unlikely that any such change would happen any time soon. (Although I will admit strange things do happen to move legislation at times.)

But as of today, the Supreme Court's docket for next term got a lot more important for employment lawyers.

Tuesday, 7 May 2013

Another Bad Day in the DC Circuit for the NLRB

Today, the D.C. Circuit struck down the NLRB's rule which required all employers over which it had jurisdiction to post a notice advising employees of their rights under the NLRA. National Association of Manufacturers v. NLRB (D.C. Cir. 5.7.13). The majority opinion relied primarily on Section 8(c), the so called "free speech" provision which allows employers to advise employees of their view on unions as long as it is done in a non-coercive manner.

It was a unanimous decision, with two judges concurring only to point out that in their view there was yet another independent basis to strike the rule down.

And with the majority opinion quoting opinions authored by Chief Justice  Roberts and Justice Scalia (and referring to a Justice Thomas concurrence), it is clear that the Court was writing not only for today, but for the anticipated appeal.

In the more than 35 years I have been practicing, I can not remember a time when an agency that was involved in regulating the workplace has been in such disarray. It is hard to see a path to normalcy, and sometimes hard to remember even what that is when speaking of the Board.

Whether in the long term that is a good or bad thing is not yet clear; but that it is taking us to uncharted waters is a certainty.

Thursday, 2 May 2013

The Next Protected Class - Ex-cons

The EEOC last year issued some updated guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.  It laid out a blue print for how to plead a case under Title VII using the disparate impact theory of discrimination.  Although not as common as disparate treatment cases, disparate impact cases tend to have much broader application because one of the requirements is a business practice that is applied uniformly with a disparate impact on a protected category.

Waldon v. Cincinnati Public Schools (S.D. Ohio, 4.24.13) may not be the first case, but it is the first one I have seen where a plaintiff has followed the EEOC's invitation and at least gotten through an initial motion to dismiss.

As on all employment law issues that arise in Ohio, Jon Hyman has a good look at the case here, focusing on the dilemma where an employer has a federal mandate and state statute (in this case H.B. 190) that appear to conflict.

His prediction (or at least hope) is that following state law will meet the exculpatory requirement of business necessity. Maybe Waldon will give us the answer as it progresses, but it is clear that until that issue is definitively resolved there are going to be a number of employers facing tough choices.

But there are many employers who may find themselves having to defend similar actions without even the argument that they are protected by a need to comply with state law. Projecting hot areas of litigation is risky business, but if I had to bet, this is one area I would certainly be looking at.

Monday, 22 April 2013

A Ground Floor Opportunity? Litigation Finance

I really have not had much chance to give the area of third party litigation financing a lot of thought, but my initial instincts are that while it may be good for lawyers, it seems unlikely to be good for clients.  Maybe there is a silver lining somewhere, there often is, but at the moment it escapes me.

However, this article describing the types of folks and money being put in litigation financing makes it clear to me that this is a phenomenon that will be with us at least until the money guys feel like they have given it a fair shot to see if it provides the returns they hope. Litigation Finance: The Next Hot Trend?

I have yet to see it in single plaintiff type employment cases, and except for the few large whistleblowing or qui tam cases, don't see it as likely. But large scale class and collective actions? That I see as a realistic likely place for the world of workplace law and third party litigation financing to intersect.

Wednesday, 17 April 2013

Talking Money at Work

Today's Wall Street Journal discusses workers willingness to talk with their peers about what they are being paid as a generational change. Workers Share Their Salary Secrets. But as the article notes, in the past many employers prohibited such talk.

Even though such rules may have gone unchallenged, that is one practice that the NLRB has long held infringes an employee's rights under the NLRA. Given that many employers don't think about the NLRB or the NLRA because they don't have a union, my guess is quite a few Journal readers today are saying to themselves, "Wow, I didn't know we couldn't do that."

Before the latest procedural tangle that has ensnared the Board, was making a much greater effort to assert its role in the lives of non-union employers, and I don't see that effort subsiding in the future. Once (if?) we have a duly constituted Board, I am afraid that many non-union employers may be making similar statements more frequently.

Tuesday, 16 April 2013

Genesis Healthcare Corp. v. Symczyk — A Wasted Opportunity?

I had hoped, although without any real basis, that when the Supreme Court dealt with a collective action case this term, by deciding whether or not an offer that would completely resolve an individual plaintiff's claim prevented a collective action from going forward,  that they might somehow wander into what seems to be an issue never subject to review, what is the standard for conditional certification of a collective action under 29 U.S.C. 216(b).

Instead, what we got, at least according to Justice Kagan's dissent, which had the odd character of being both casual and derisive of the reasoning of both the majority and the 3rd Circuit, was a decision that can be "relegated ... to the furthest reaches of your mind: The situation it addresses should never again arise."  Genesis Healthcare Corp. v. Symczyk  (U.S. 4/16/13).

That holding was assuming, as it said the employee had conceded, the offer made her by the company, did moot her claim, then she had no right to proceed with her collective action on the part of others. Justice Kagan said making that concession was a mistake made by both the plaintiff and the 3rd Circuit, and was in fact something that should never happen again.

What would have made this a precedential case was addressed by Justice Thomas this way:
While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.
Given that, I think Justice Kagan is close to correct, this is a case that is the "most one-off of one-offs." And she makes a fairly decent argument, joined by the other three members of the liberal wing of the Court, that the answer to the question left open above would be, no.

One wild guess would be that Justice Kennedy was undecided on that issue, and so this was a way for the Court to punt, until he makes up his mind.

In the 5th Circuit, it does undermine the validity of  Sandoz v. Cingular Wireless, LLC (5th Cir. 2008), which had undermined the defense strategy in this circuit. So it presents the opportunity to try it again, and see how the 5th Circuit comes out on the question left unanswered by today's decision.

But ultimately, we really are talking about a relatively small number of cases, when the big question is the standard to apply in conditional certification Is the "lenient standard" really the correct one?

It seems so wrong, that with little substance, plaintiffs can invoke the powers of the court to help them summon a group of fellow would be plaintiffs, who would never have brought a claim on their own. Then there is either a settlement or a costly course of discovery, after which if there is no settlement,  often the court decertifies the class that it conditionally certified.

There was really no basis for the Supreme Court to have addressed that today, but the question remains.

Tuesday, 9 April 2013

Quorum, Heck a Fully Appointed NLRB?

Doubtful for awhile, but at least five nominees are now pending Senate action., with the announcement today of  the appointment of two new members and the renomination of the current Chairman of the Board, Mark Pearce.  President Obama Announces More Key Administration Posts.

Chairman Pearce is currently the only Board member who has been confirmed by the Senate. The two members of the Board serving under challenged recess appointments, Sharon Block and Richard Griffin, were earlier re-submitted to the Senate for confirmation.

It will be interesting to see how this plays out as the longer the Board continues without a confirmed quorum, the more uncertainty in labor relations is being sown.

Wednesday, 3 April 2013

And lawyers wonder why ...

Clients might wonder about our priorities.
Mobile devices such as iPads are becoming an essential part of the job for many attorneys. "The fact that you can do so much work today on a small iPad that used to require a heavy, bulky laptop a few years ago is a tremendous leap forward in productivity," said Brett Burney of Burney Consultants. Mobile devices can help attorneys in several ways, such as by allowing them to track billable hours, work while traveling and stay in touch with clients.  (emphasis added)
Actually, this is not really something that can be blamed on lawyers, as this is the PLI Smart Brief synopsis of a story, The Mobile Lawyer, in the ABA Journal.

But, perhaps the fact that someone summarizing what they thought would be most important to lawyers who might be reading it, chose to put tracking billable hours first, tells us something as well.

Wednesday, 20 March 2013

Bullying and My Predictive Abilities — New York at Risk

If there is anyone who started with me when I made my first post in July, 2002 you will know that one topic that has come up repeatedly is my watch on the movement to have some state enact an anti-bullying law. It is much easier now than in the early days, because of  Professor David Yamada's Minding the Workplace Blog, which covers those developments regularly.

In addition to being a tenured professor and Director of the New Workplace Institute at Suffolk University School of Law in Boston, he is also the author of the model Healthy Workplace Act, which has been the basis for most of the bills which have been introduced in various legislatures (23 states according to the Healthy Workplace Campaign website).

The first was just 10 years ago.  Already in 2013, there have been eight states where some version has been introduced. Professor Yamada has an update in this post, Healthy Workplace Bill: March 2013 update.

In that article David notes that he and I have had a cordial disagreement over the years over the need for this legislation, as he also notes my recent sigh that I was becoming resigned to some state adopting such a cause of action much quicker than I would have ever thought when I first posted on the topic in January 2003.

Hopefully, that prediction will turn out as accurate as my March Madness brackets do, the latest versions of which are less than 72 hours from demolishment.

But, if I were to go even further out on a limb and predict which state, New York would not be a bad prediction. Why? Well because on May 12, 2010, the New York Senate became the first house of any state legislative body to pass anti-bullying legislation which would create a private cause of action. Anti-Bullying Legislation Passes NY Senate. The bill did not pass the Assembly and so died at the end of the legislative session.

However, new legislative session and in the 150 member Assembly, AB 4965 was introduced on February 13th, with 74 sponsors. (Do the math, it is not pretty for opponents.) The companion bill S3863 was introduced in the Senate on February 25.

If you happen to live or do business in New York, you might check out some of the reasons why I think this legislation is so dangerous, see Bullying As a Cause of Action — One Large Step Closer.

And if you agree, please send a copy to your Senator or Assemblyman.


Stipulating Your Way Out of Federal Court

In certain parts of Texas, it is not uncommon for plaintiffs to stipulate that they will not demand or accept an amount in excess of $74,999.99 in order to avoid the amount in controversy requirement when the grounds for removal is diversity.

It works, and yesterday was explicitly sanctioned by the U.S. Supreme Court in The Standard Fire Insurance Co. Knowles (3/20/13):
Knowles also points out that federal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement. That is so.  ... But the key characteristic about those stipulations is that they are legally binding on all plaintiffs.
But that was really not the point of the holding, just an explanation along the way to the real holding of the Court in Knowles: a plaintiff filing a Rule 23 class action, can not avoid federal jurisdiction by stipulating to an amount in controversy less than the $5 million threshold for removal under the Class Action Fairness Act of 2005,  CAFA for short.

In a straight forward and unaminous decision, Justice Breyer makes a simple point. In order to avoid federal court the stipulation must be binding and no one has the power to bind future members of a class at the time of filing.

Saturday, 16 March 2013

Expand Your Legal Skills With a Competent Lawyer Website

Like any other professional field, the domain of legal practicing is highly competitive. No matter in which country you are settled in, a bit of online search will reveal that there are numerous law firms that are ready to satisfy clients with varied range of legal assistance. The leading law firms of a country hire the brightest scholars, who passing every year from law schools and appoint them accordingly for addressing clients’ problems, depending on the lawyers’ area of expertise. Now, as the world goes web and e-commerce is the most effective source of doing business, almost every legal service providing organizations wishes to be on top of the Google search engine ranking. This allows them to attract customers, expand goodwill and earn significant amount of profit. It is not difficult to understand that web marketing is essential for law firms and this is where the importance of a lawyer website can be realized. Pondering over the increasing demand for web marketing solutions several websites h ave been launched that take complete care of the lawyer marketing. So, if you already have a website for your organization but haven’t yet been able to secure a reliable position in the web or planning to start an organization, feel free to assign one the reputable firms with the responsibility. Creating a potential impression for the clients through the website is important, no matter in which business you are in. This is equally true for a law firm. Thus, creating an appealing lawyer website and promotion of the same should be your primary target, provided all your resources are ready. The major responsibilities fulfilled by a lawyer marketing organization are: web design, search engine optimization (SEO), making the site ready for smartphone and tab users, preparing content, maintenance of the website and search engine marketing (SEM). You should choose such an organization only that provides all these services under the same roof. While this is cost effective, you also receive comprehensive range of benefits from one service provider. Selecting a lawyer marketing organization and contacting them can be daunting as you may not know the judging parameters for the same. First, you should be seeing the range of services that the lawyer website is offering. Check out whether the benefits that the site is providing match your requirement or not. While going through a lawyer website, you should also find out their blogs and how completely they are addressing the purpose of your organization. Even a small lawyers’ web marketing site may accomplish your requirement. So, take a note of the contact address and give them a call or personally visit them to clarify your doubts. A genuine organization will be more than happy to help you in this context. If you are an independent legal practitioner and wish to promote yourself to more number of potential clients, developing a lawyer website will surely be helpful. In such cases also a lawyer marketing organization can help you out, provided your budget matches their requirement. Always make sure to specify all your requirements correctly to the professionals and tell them to let you know of every step of progress made. by Maryparker

Reasons To Employ A Bankruptcy Lawyer Or Attorney?

Bankruptcy can be explained as a serious overuse injury in that somebody will no longer sports this capability to pay his or her obligations, or period once the amount of the loan basically will become higher than their possessions. This kind of horrible problem would happen to anybody, anytime. Unpaid charges or perhaps a delinquent amount borrowed extracted from a monetary establishment is usually a major source of get worried as well as psychological tension for a person. There has been a situation people have dropped unwell or have created various conditions because of the continual force of handing over the money they owe. Your collectors nowadays display tiny whim in relation to the difficulty of commercial collection agency. For all these kind of reasons it is even more crucial these days to be able to employ the Los Angeles bankruptcy lawyer. Bankruptcy attorneys in la do a very good task in terms of client satisfaction can be involved. A good bankruptcy law firm not merely aids in their expertise and also experience, and also bakes an effort to understand the emotions regarding their client. Often time’s individuals can be at night bankruptcy methods with no appointing a lawyer. Even so, make sure you make aid of an attorney in order to reduce pitfalls and for maintaining the actual tricky issue manageable. A new bankruptcy lawyer in la region is equipped with every one of the necessary characteristics for converting a case inside the positive route. The expertise of any bankruptcy lawyer can show crucial especially during filing the particular bankruptcy or seeking on an off shoot on your side. On this framework, a new California bankruptcy lawyer can prove more than convenient for the job together with his knowledge and experience. Generally, bankruptcy lawyers are anticipated to execute numerous functions simultaneously. Because of this things will get easily difficult if not managed good care and attention. Sooner or later, it boils down to the expertise of your law firm with his fantastic power to manage being forced. Los Angeles bankruptcy attorney in la are usually renowned for their sincerity and also credibility which have turn out to be uncommon currently between the attorneys across the world. When you choose to retain the services of lawyers out of this location, they would make suggestions for any obvious comprehension upon each of the legitimate issues required for true. Moreover, their particular help will make it easy so that you can understand the exact nature with the case. Therefore, armed with their legal services, you'd definitely be in an improved placement to make the appropriate choices as far as your bankruptcy case is worried. Which has a bankruptcy lawyer in la you'd certainly gain edge comes to studying such things as revenue as well as personal debt. This specific awareness can assist you to make appropriate motion on the perfect time together with your lawyer. Remember, filing the actual bankruptcy circumstance isn't finish, but merely a portion from the continuing method. A California bankruptcy lawyer as well as any attorney at law as an example would be right now there to help you out so as to. However, the actual steps and strategies for the method rely totally on the variety along with nature of your bankruptcy. Visit http://www.aminilawpractice.com/ for more information about california bankruptcy, california bankruptcy lawyer, Los Angeles bankruptcy lawyer, bankruptcy lawyer in la. by Riyazz Ali

Saturday, 9 March 2013

Most IT Assets or Pc Instrumentation Will Cause Environmental Risks

Because of legislation that impacts the disposal of older, out-dated network and knowledge centre assets, it's become a reason that a lot of executives area unit asking "why ought to I take into account IT quality recovery?" Since most business organizations haven't got the required resources to hold out disposal of this instrumentation in an exceedingly reliable and secure manner, they're considering IT quality recovery services. These will check that that vital knowledge is disposed of during a exceedingly secure manner and your instrumentation is disposed of in an environmentally correct method. Most IT assets or pc instrumentation will cause environmental risks and cause legal liability problems, if not disposed of properly. The accountable utilization of electronic scrap, additionally called escarp, involves dismantlement, cathode-ray tube glass separation, shredding, final sorting, goods sales and news. It’s turning into progressively regulated and tougher to be in compliance with correct disposal and documentation of out-dated IT assets. Many firms area unit hiring IT quality recovery firms to handle all of the red-tape problems concerned, once change their pc networks, transferring vital knowledge and taking away the previous instrumentation. These firms will handle the vertical combination of disposal from pickup through utilization and management the chain of custody to assist scale back liability risks. Information has to bear quality recovery provision, tracking, check and audit, knowledge erasure and destruction, as a part of the IT quality recovery, to manage the retired assets expeditiously and firmly. It takes a large vary of services in IT quality recovery to make sure that you just area unit in compliance and also the knowledge contained on the previous instrumentation is secured and erased for security reasons. Even if a number of the previous IT quality instrumentation are often resold, you continue to ought to be assured that your confidential knowledge cannot be retrieved, particularly within the case wherever you have got business transactions that contain confidential or money data. Eliminating previous and out-dated network instrumentation is a lot of difficult than simply throwing it in an exceedingly container or deleting files and worksheets. as a result of the information is burned onto the disk drive of computers, it's attainable for an individual to retrieve knowledge that you just thought had been deleted. Some arduous drives create a backup copy of knowledge, even once the drive has been cleaned and reformatted. That’s however enforcement is ready to retrieve antecedently deleted data on criminal computers. IT quality recovery firms shrewdness to securely dispose or transfer the information and area unit subject to rigorous laws on compliance for data erasure and proper disposal or utilization of the instrumentation. the most effective associated most value economical method for many businesses is to rent the services of an IT quality recovery company, once upgrading their system, or taking away noncurrent network assets. Because the legal ramifications on compromised knowledge are often extreme and compliance on environmental laws carry stiff penalties, the foremost assured and competent thanks to lose IT quality’s is through a good IT asset recovery firm. they're going to handle all of the required following to take care you're in compliance which you'll be able to rest assured that your direction is unbroken secure. by Jeffrey Paine Attorney

Friday, 1 March 2013

Workers Compensations-An Outline of What You Should Know

Majority of people assume once they get injured while at work, they will be adequately covered by workers compensation. It is the general assumption medical bills will be covered and during the recuperation process, wages will get paid. Assumption is not a smart choice. Workers compensation is administered and paid by insurance companies and they always try to make things complicated. Consequently, having workers compensation does not guarantee that you will get paid for injuries that occur while on the job. In essence, this type of compensation was designed to reduce lawsuits between you and your boss. Workers compensation is designed to eliminate stress and conflict. In a nutshell, it is an uncomplicated and quick way of ensuring you get your wages and an assurance that medical bills will be covered. Rather than filing a lawsuit because injuries sustained during work, you start by filing for a claim with your workers compensation insurer. The insurer is supposed to carry out an investigation to determine you got injured while at work. Get a Lawyers Help Since you are dealing with an insurance company that serves the interests of the employer, you should speak with your attorney. For short absence from work and minor injuries, no major concerns arise. However, there are instances when the injuries might be severe necessitating longer absences from work. More often than not, this complicates things. Benefits for those Covered The benefits of workers compensation are pretty obvious. Those covered get wage replacement and medical expenses are covered. The work of the insurer is to protect the employer in order to prevent the possibility of a lawsuit. Fault is never an issue in this case and the coverage is effective it is established that: 1. You were injured while working for the employer 2. The relationship between you and the employer is existent. The employer is the person who hires, pays wages, withholds taxes, and dictates the time, place and manner in which duties are supposed to be performed. An employee is the one who collects wages and carries out duties in accordance to employer dictation and specified time. Therefore, self employed and independent contractors do not fall in the category of employer-employee relationships. For the workers compensation to be effected, where and the time you got the injury must be established. For instance, if you were working past the set work hours and you were not doing any work related task compensation is not offered. Majority of workers compensation policies requires a report of the activities preceding the injury. To be on the safe side and ensure you get fair representation, always consult with an attorney. by Gaurav Singh

Monday, 25 February 2013

The March Toward a Bullying Cause of Action Continues

Since almost the beginning of this blog I have been commenting on the possibility of a bullying cause of action being adopted in the U.S.  Over the last few years it has been easier to follow the progress courtesy of David Yamada's excellent blog, Minding the Workplace. Professor Yamada is the author of the model Healthy Workplace Act, which has been the basis for most of the legislative actions that have been offered. As of this writing, none have yet to pass both houses of a legislature, but the progress continues.

Yet another first occurred this weekend, Temple law school conference examines bullying across the lifespan. According to David, this was the
first American conference devoted to examining the legal implications of bullying behaviors across the lifespan.
Two other law professors, Kerri Stone, Florida International University School of Law and Susan Harthill, Florida Coastal School of Law, joined him on a panel. The conference drew 140 participants.

All steps along what I am beginning to believe is the inevitable likelihood that some state will adopt a version of the Healthy Workplace Law, sooner rather than later.

Saturday, 23 February 2013

10 Ways To Protect Yourself From Online Identity Theft

Identity theft is becoming a huge problem as more people are making the Internet a bigger part of their lives. People who are new to the online medium often fall prey to phishing or other Internet identity theft schemes. In many cases the phishing party uses your credit card to order goods for themselves; they will apply for credit cards, set up bank accounts, and take advantage of your good credit rating. Correcting these issues involves a lot of time and energy. Tip#1 Use a disposable email account. Keep your business or personal email account just for business or personal communication. If you are going to make purchases online, join newsgroups, or subscribe to mailing lists and ezines use a disposable email account such as hotmail or gmail. Tip#2 Disguise your online identity. If your real name in Joe Bloggs try to avoid using email accounts with name like jbloggs at example.com when dealing with people you don’t know and trust. If you were born in 1970 don’t choose jbloggs1970 at example.com as your email account. Tip#3 Use different level passwords. Use one password for your personal information; use another for your business accounts and a third for your disposable email accounts or mailing lists you sign up for. Tip#4 Use strong passwords. Don’t use your birthdates, year you were married, or your children’s birthdates. The best passwords are mnemonic phrases like my father ate three apples for breakfast. Take the first letter of each word and convert the number into numbers and you end up with ìmfa3a4bî. Tip#5 You should change your passwords every 6 to 12 months. If you suspect your passwords have been compromised change them asap. Tip#6 Use only one credit card for all of your online purchases. If any of your other credit cards have online transactions you know they are fraudulent. If you see offline purchases for your online credit card you also know they are fraudulent. Tip#7 Use credit cards. While many debit cards now offer online purchase protection it’s easier to dispute fraudulent charges than to recover debit card funds that have already been spent. Tip#8 Make sure online transactions are secure. If this is your first purchase from the company make sure the issuing company is someone you have heard of. Tip#9 Check privacy policy. When you make your first transaction make sure you check the privacy policy, look for logos from consumer groups like Trust-E and the BBB. Click the logos to make sure they are authentic. Tip#10 Never open or fill out email requests to update your account or credit card settings via email. These are phishing scams people use to try and secure your personal information. Many are growing increasingly sophisticated and go to great lengths to look exactly like the companies website using their exact logo. by M&T Management

An Insight in to the Bankruptcy and Its Remedy

In the recent years the world economy has witnessed a serious downturn. This downturn led to millions of job loss and a significant number of firms to crash down. The production was declining, the wage rates were falling, employment opportunities were overturned and the only thing that was rising was the economic distortion. That recession period brought several firms, industries and individuals to declare them Bankrupt. Now let us understand the meaning, causes and preventive measures concerned with Bankruptcy. Bankruptcy refers to the situation when an individual or a firm declares his inability to pay off its debts. In the present financial world almost all of us have been involved in the stock market. There have been several places where we have put our money or from where we might have borrowed money. Bankruptcy takes away the sleep not only of the lender but also of the borrower. The lender fears of the money loss and the borrower fears of the loss of property. The concept of Bankruptcy originated in England during he reign ok king Henry VIII when he permitted the landlords to take control over the debtors possessions in lieu of their debt amount. So Bankruptcy arises when some one files a petition of declaring his inability to repay his debts. There may be several causes responsible for the Bankruptcy. Serious medical condition is considered as one of the major cause for the bankruptcy. The health problems have a drastic effect over the income effect. The job loss may further graven the situation resulting in to the forceful declaration of Bankruptcy. The spendthrift nature of an individual can be another cause of Bankruptcy. The mismanagement of funds or the amateur investment can also perceive the arousal of Bankruptcy. In United States there Bankruptcy is dealt under three major Bankruptcy chapters. For the individual Bankruptcy there is article 7 and 13 and for the corporate houses bankruptcy is evaluated according to article 11. Chapter 7 governs the liquidation Bankruptcy. Under it the debtor is allowed to payoff his debts by mortgaging his property. Chapter 11 is for the private individuals and corporations. According to Chapter 13 one repays his debts under the legal supervision. For the bankruptcy issues relating to the municipalities and other such bodies there is legal code framed under chapter 9. Now the question arises how to refrain from Bankruptcy. First thing you need to manage and repair your credits. You must regularly monitor your credit report. Make some part of the payment to the creditors that you can afford to pay. Timely payments to your creditors can be a lot more beneficial in your troubled hours. Contact some Bankruptcy lawyer who will guide you in the right direction. For more information regarding the Bankruptcy issues and legal constraints related to it you can contact Bankruptcy attorneys in Fort Worth TX form where you can get a genuine and professional advice regarding the Bankruptcy issues. by William Decruz

Friday, 22 February 2013

Bad Day for Whistleblowers in Texas

One of the most important things about whistleblowing or retaliation claims are that they are almost always created by statutes, so the statutory language is critical.  Today the Texas Supreme Court made just that point, in ruling that unlike other states, the whistleblower statute in Texas does not cover reports to individuals who are only responsible for compliance within an agency.

Justice Willett writing for the Court put it concisely: "Other states’ whistleblower laws accommodate internal reports to supervisors; Texas law does not."

Noting that Texas whistleblower has an "undeniable focus on law enforcement" only a report to someone who has
the power to (1) regulate under or enforce the laws purportedly violated, or (2) investigate or prosecute suspected criminal wrongdoing
is sufficient. The University of Texas Southwestern Medical Center at Dallas v. Gentilello, (TX 2.22.13).

If a whistleblower has a good faith belief that the person he or she is reporting the wrongdoing to, that is sufficient, but citing three of its former decisions, the Court makes it clear that there is an objective component to the good faith test. It is not what a potential whistleblower believes, no matter how sincerely, but what "a reasonably prudent employee in similar circumstances" would have thought.

Here the result is to find a lack of jurisdiction for a complaint made by a medical school faculty member that trauma residents were treating and operating on patients without an attending physician supervising.  The problem was that he only complained to another faculty member whose responsibility was not for "law enforcement but law compliance." A person insufficient to meet the strict statutory definition of an "appropriate law enforcement authority."

The Court goes on to knock down some creative arguments to get around its precedent, but finds that neither a standard "no retaliation" policy or the ability to mete out internal discipline is sufficient to create the needed status of "appropriate law enforcement authority."

In a second case, Texas A&M University - Kingsville v. Moreno, (TX 2.22.13)  the Court dismissed a suit by an assistant vice president and comptroller based on her complaint (and subsequent termination because of it) to the University President that her boss had allowed his daughter to receive in-state tuition in violation of law.

Quoting its Gentilello opinion:
The Act, by its text and structure, restricts “law enforcement authority” to its commonly understood meaning. That is, it protects employees who report to authorities that actually promulgate regulations or enforce the laws, or to authorities that pursue criminal violations. The specific powers listed in section 554.002(b) are outward-looking. They do not encompass internal supervisors charged with in-house compliance and who must refer suspected illegality to external entities.
The President's authority to compel compliance with state law on tuition waivers, was not the same as enforcing the law in the sense required by the statute.

Before officials at various government agencies (private sector employers are not covered by the general Texas whistleblower statute) rejoice too much, the logical outcome of today's decisions is to force potential whistleblowers to take the agency's dirty laundry outside the organization, rarely an option that agencies would prefer. But it may be the modern way, Dodd-Frank has been accused of having a similar impact.

Our old friend, the rule of unintended consequences, is never far away in employment law matters.

Thursday, 21 February 2013

A Genius Is Someone Who Thinks Like Me - An Approach to Litigation

I was pleased to see this dialogue between Darryl R. Marsch, the General Counsel of Krispy Kreme, and the Daily Reporter in today's Corporate Counsel:
DR: Your background is in litigation. What is your overall philosophy on litigation?

DM: Prepare to try cases. You will get the best outcomes if you are prepared to litigate, appeal, and appeal again. That best outcome might be a settlement, but a settlement driven by the will to litigate is going to be a smart, well-informed settlement. ...
That's advice I learned in my early days as a lawyer, but also advice that is easy to overlook in a world where so few cases end any other way than settlement.

Saturday, 16 February 2013

Precisely How To File For A Bankruptcy Proceeding With La Bankruptcy Legal Professionals

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Saturday, 9 February 2013

Nearly 100% of All Internet Marketers Fail - Will You? - Money Making Ideas

Lots of new companies experienced a huge succes on the Internet a few years ago, and everybody was excited about the "big dot com boom". But unfortunately, many of them went broke in the following "big dot com crash". So maybe you are feeling fearful about this whole Internet business? I'll tell you how you can lose out in a big way. And how you can avoid this happening. But first, a little story to show you how important this lesson actually is. And let's see if you can find the secret ingredients to success contained in here: One and a half years ago, I was becoming very tired due to having too much work. Not only that, but I'd lost several court cases (because of a lousy lawyer) and ended up owing a large amount of money. So, even though my work paid off very handsomely each month, in many cases the debts outweighed this income many times over; and I could see fees being added to my debts every single day. So I decided to give up some of my work on a domain that paid very well, but also took me about 5-10 hours of work every week. I knew from experience that this domain would pay around $1,000 per month from ads around Christmas time, and a little less for the remainder of the year, so I put it up for sale for no less than $12,000. I wrote to several people whom I considered to be wholehearted business men. I also wrote to my own lists and offered them this domain. I told them that it would probably continue to bring in this income for a few more years (maybe even longer) and that it wouldn't demand any work from them. Nobody even made me an offer! So I kept the domain, but stopped working on it. Today, it no longer gives me $1,000 per month just prior to Christmas. It now gives me $1,500 per month. And, before Easter, it ran totally amok and poured out more than $2,200 for a single month. With absolutely no work from me at all! In fact, I had just left the site as it was a year and a half ago. Is that crazy - or what? Can you see the unseen secret that makes the difference between failure and success? It's "taking action". You won't be guaranteed a 100% success rate, but there is only one way to find out. So take action now. Maybe you're mistaken, but so what? At least you tried. And if you're not mistaken? Well, you'll make money. What is really nice about making business online is that you don't need to make big investsments. It's perfectly possible to start out for free, if you find the right money making ideas. by Britt Malka

Saturday, 2 February 2013

Vending Machine Biz Ops

Since vending is an easy business to start, it is said to be a low barrier to entry opportunity. Unfortunately this means that the market is crowded. If you have a hundred dollars, you can start a vending business. A low barrier almost certainly means that there is tougher competiton to succeed and less profits to be made. Since vending is a crowded field, you need to stand out. This means long hours and better decision making to compete. Make sure to avoid the vending machine biz op. scams that are very popular. A big biz op scam [http://thevendingmachinebusiness.com/vending-scams/more-on-biz-ops-and-other-scams/] these days seems to be energy pills or gel. Biz ops all have a similar feel. For a big hunk of cash (think 10-20 thousand) they'll claim to give you everything you need to be succeful. These business opportunties sellers will tell you that you will make tons of money. Vending is numbers game. With bulk machines, you need many heads in many locations all working at the small gain to make any money. Many people who get involved with biz ops get beaten down by it and leave vending entirely. They sell their vending machines online everyday. If you have been conned into one of these plans, your choices are limited, you can complain to the Better Business Bureau, file a complaint with the Justice Department, or get a lawyer. That money will more than likely never be seen again. The most important part of any start up is the research phase. If you're being told about business profits that seem too high or unbelievable then trust your instincts, they are most likely false. Set attainable practical goals before you decide to leave your work to get into the vending biz full time. I'm not trying to talk you out of vending; I'm just making sure you have all the knowledge needed to be successful. Vending machines make an average of seven dollars. This may be the average, but not everyone makes it. Although $7 is the average, not everyone makes it. For myself, my current head average is $5. With these kind of numbers, it obviously takes quite a few machines to earn a decent living. Another thing to avoid is problems with locators. Locators help you by making lots of phone calls to zip codes you provide to help you get your machines placed faster. Sometimes you can hire a person to drive around and place machines. Most locators charge about the same, which is $40 to $50 per machine. To expand your business more efficiently, a locator can be a real asset. Not all locators give you a guarantee. Despite what you may hear, excellent locators can be found, the problem is finding one. It's best to use a locator that has a known reputation and not just anyone off of Craig's List. Joining a vending chat group is a good way to find a trust worthy locator. Vending isn't a get rich quick plan. Vending requires a lot of time and committment to be successful just like every other business. Most people that start out in vending will quit, this does not mean that it is not a viable business plan. Most people are simply not cut out for being entrepreneurial. Since I'm guessing you don't have unlimited funds, I say buy a couple cheap machines, get them working for you and see what happens. A vending business gives you the ability to proceed at your own pace while keeping your current employer to minimize your risk. If you go into vending with a business plan, invest your time and money wisely, you will be able to determine for yourself what are realistic goals. by Vince Conner