Employment Woes of the Rich and Famous

Sting and wife, Trudie Styler, are taken to task by a British employment law tribunal finding that they discriminated against Jane Martin, their chef, by firing her after she became pregnancy. See the LA Times Story, Sting, Wife Wrongly Fired Chef.

The problems appeared to be primarily between Styler and Martin, with the latter saying Styler had a "grandiose ego." At least the tribunal seemed to agree that Styler was at fault:

Although Styler "had tried to distance herself from various unlawful acts and have them carried out by minions on her behalf, when the evidence is looked at holistically, her involvement is clear.... She is without doubt the driving force manipulating others to perform her dirty work."

On June 8th the tribunal will determine the amount of the "substantial compensation award" the famous couple is facing.

4 Years and Still Posting - Canada's First Employment Law Blog

Actually I have never seen Michael Fitzgibbon who writes Thoughts from a Management Lawyer make that claim, so I am doing it for him. But clearly if not the first, one of the first and definitely in whatever top tier of law blogging there is, regardless of location.

I can also identify with his sentiments about what I would call the occupational hazard of combining a law practice and writing a blog:

My posting has been sporadic of late due in part, to a very busy schedule. But, after 4 years, I find myself in need of a little coast. Anyway, thanks to all those who stop by here and I, sincerely, hope you find this blog of some value.

If you haven't checked him out in the first four years, don't miss out on the next four.

An Overtime Pay Calculator — Courtesy of the DOL

Today the Department of Labor rolls out a fairly sophisticated tool for employees and employers to estimate overtime pay as part of its elaws program. Here's the DOL's press release.

Called the FLSA Overtime Calculator Advisor it takes an individual through a set of questions and ends up with an estimate of the amount that they should have been paid including overtime.
I would not be too surprised that once employees stumble on it, they will start calculating. As you can imagine there are plenty of disclaimers that it is only a tool, but certainly it will carry some weight in an employee's mind. Hopefully, it will confirm that you are paying them correctly.

Probably worth running a few of your own calculations through to make sure that if they don't square, there is a good — and legal — reason. And so you know that when that first employee shows up with printout in hand claiming that they have been underpaid, you can feel comfortable that the problem lies in the tool or the employee's data entry, not your non-compliance.

Be Careful When You Promise — Misrepresentation and ERISA Escape

Discussions with potential employees are fraught with opportunity for misunderstanding, although employers are often able to escape ultimate liability when challenged. The causes of action under which these claims are brought vary but misrepresentation is one. Today's decision in Thurman v. Pfizer, Inc. (6th Cir. 5/8/07) [pdf] is a good example of the situations that occur and a reminder that while ERISA preemption is about as broad as it gets, it too has its limits.

The facts are simple and straight forward (they always are when, as here, the court must accept plaintiff's pleadings as true). Dr. Thurman, a veterinary pathologist, interviewed for a job with Pfizer and was told that if he accepted the position, at age 62 he would be entitled to a pension in the amount of $3,100. He accepted and later was told that the information he received was incorrect and his monthly pension benefits would be about $816 a month.

Thurman sued seeking either the difference or for rescission and reliance damages in the form of benefits he relinquished by leaving his prior position (higher wage and stock options among others). The district court held that his entire claim was preempted by ERISA.

Not entirely said the Court — while his claim for the difference is, his claim for rescission and reliance damages is not. They explained their decision this way:

What we have here is simply a case of a person who left his old employer based on promises made by his new employer. These promises could have concerned anything — for example, an increase in wages, more vacation days, or free parking. Here, these promises just so happened to concern retirement benefits. We see no reason to bind employers to some promises used to induce acceptance of an employment offer, but give them a ‘get out of jail free card’ when their promises concern the scope of a plan governed by ERISA.

Stressing that they were not ruling on the merits, the Court left employers with a cautionary warning:

If adhering to promises regarding ERISA governed plans proves too cumbersome for employers, then during the recruitment process, those employers must simply be more careful before informing potential employees of the ERISA governed benefits to which they might be entitled.

Ah, if only it were so easy in real life.

Advisor or advocate. Which hat am I wearing?

I have been preparing for a round of speeches in the next couple of months, including this week at the 2007 Workplace Strategies conference hosted by my firm in Phoenix (blogging), at the 14th Annual Labor and Employment Law Seminar in Austin sponsored by the University of Texas School of Law on May 17-18 (million dollar verdicts) and then at the SHRM National Conference in Las Vegas at the end of June (bullying).

Somewhere along the way of preparing the papers and presentations, I started thinking about the different roles I have as an employer's lawyer, and how I always need to be mindful which hat I am wearing.

My law license from the state of Texas reads "attorney and counselor at law." Certainly much of what I do, both in speaking and my daily interaction with clients falls under the counseling hat — providing guidance about the legal context and ramifications of decisions which are about to be made. Sometimes no doubt that shades well over into advice on what would be a good human resource decision, although I always try to remember that expertise and certainly the ultimate decision is my clients, not mine.

The other hat I wear is as an advocate, where I am not so much helping shape decisions, but defending ones that have already been made. Although there may be considerable overlap, there are certainly large distinctions as well. As an advocate, I may frequently advance arguments — arguments that may well be successful in extricating a client from a particular situation — which I would never offer as advice.

Since those of us who represent employers as their lawyer are trained to think in legal terms, it is easy for us to jump quickly to the advocate position and stake out the limits of what might "legally" be done. But what can be done, is not always what should be done. And it is important for me to remember which role I am playing and make sure that I approach it from the proper perspective.

The same goes when giving (or listening) to an employment lawyer speak. It is good for employers to know the limits and what might be defensible in light of current decisions; but in helping employers determine what should be done, it is important that we make clear where on the continuum between advice and advocacy a particular piece of information resides.

A Perfect ADA Test Question — What's A Reasonable Accommodation for a Beer Taster?

Lowering the Bar, a blog that deals with "Legal Humor. Seriously." heads both south of the border and into territory I usually cover here with this post: Professional Beer Taster Successfully Sues Employer After Becoming An Alcoholic.

You need to read the whole story, but here's Kevin Underhill's logical conclusion of the upshot of a South American court ruling:

Apparently, if you need a beer taster you should not hire anyone who is an alcoholic, or anyone who is not an alcoholic (because they might become one). Or, you can hire someone in either category to be a beer taster, as long as you don't let them drink beer on the job.

Sometimes when you hit a dry patch of posting as I have lately, all you need is a little inspiration.

Is This the Year? Protection for Gays and Transgendered Employees?

Not unexpectedly with a Democratically controlled Congress there has been an onslaught of employment related legislation, including the reintroduction for the first time since 2003 of legislation that would extend Title VII to include sexual orientation. Somewhat surprisingly, the legislation also includes protection against individuals based on gender identity. Surprising, because the general consensus seems to be that will make the Act harder to pass than one based simply on sexual orientation.

The proposed Employment Non-Discrimination Act of 2007 would prohibit discrimination on the basis of perceived or actual:

• GENDER IDENTITY- The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth; or
• SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality.

A timeline of past efforts for similar legislation can be found here.

Who knows what legislation will end up being pushed now that it appears we are in a full-swing presidential election season, but this could be one of the social oriented wedge issues, like many which were described in a terrific editoral by Arnold Garcia, Jr. in yesterday's Austin American Statesman talking about the Texas legislature: With clock ticking, legislature rushes to solve nonexistent problems. His description of the types of issues being dealt with is classic:

Social issues are to modern politicians what bread and circuses were to Roman ones — a cheap and easy way to distract the populace with political and intellectual trinkets.

Before an onslaught of email, I am not putting the current proposed federal legislation in that category; but it is similar in the sense that how a politician votes could have important electoral implications.

As one who represents employers, there is always concern when yet another group is empowered by legislation to sue. Personally, it is hard to make any other general argument. More specifically, anytime legislation contains the word "perceived" I know that we are heading down an even slippier, potentially more litigious slope.