When I graduated from UT Law School in 1975, I had taken the only labor law course that was offered (if you didn't count the 2 hour Employee Rights course, which was solely about workers compensation claims). It was a traditional labor law course about the NLRA and was taught by Jerre Williams, who later served on the 5th Circuit. Professor Williams was active as a neutral.
The current labor law expert on the UT Campus is Julius Getman and his latest book, How to Restore the Power to Unions is reviewed at Today's Workplace.
Friday, 26 November 2010
Tuesday, 23 November 2010
In Defense of the EEOC? No, Just a Reminder About Pancakes
Tom Crane, at the San Antonio Employment Law Blog, had a very interesting post last week that complains about an EEOC investigator turning an employee away when it appeared she had a valid complaint, EEOC Would Not See Retaliation If It Was in Front of Its Face.
And I must admit the story is fairly compelling.
After receiving a report of sexual harassment, the investigator asked whether she had told the HR department. After answering no, the employee called HR and made a report from the EEOC office. Then the story continues:
But I do have to say, when I read the story, a saying by one of my former law partners came to mind:
And I must admit the story is fairly compelling.
After receiving a report of sexual harassment, the investigator asked whether she had told the HR department. After answering no, the employee called HR and made a report from the EEOC office. Then the story continues:
It is certainly not my place to defend the EEOC, they are big enough to do that themselves, nor can I say that I have not heard of events happening at the EEOC that are probably not the best course of action. (But hey, what large organization doesn't have some incidents that don't put them in their best light.)Within ten minutes, the owner calls the employe, still at the investigator's office. She puts him on speaker phone. The owner says, "I understand you complained about me. You don't need to return to the office." The owner fired the employee over the EEOC's own phone within ten minutes of her complaint. The investigator heard it all.One might think, great, what great evidence! The silly owner called and fired the employee for pursuing her rights with the EEOC - right where the EEOC could observe the whole chain of events.Wrong. The invstigator still insisted she had no case and refused to allow her to file a claim for discrimination or for retaliation. He tells the employee she should just go collect her last paycheck and move on with her life.
But I do have to say, when I read the story, a saying by one of my former law partners came to mind:
Every pancake, no matter how thin, has two sides.My guess is that there is another side to this story.
Monday, 22 November 2010
The Technology Changes -- But the Principles Stay the Same
I have seen several posts about the NLRB issuing a complaint based on an employee's facebook post about their supervisor, that led to additional comments by fellow employees. See Nolo's Employment Law Blog's post as an example, NLRB Sues Employer for Firing Employee Over Facebook Post.
When I talk about social media, I always make the point that although the technology is new, the principles that need to be applied already exist. The law about concerted activity is quite developed; shoot, it was well developed when I had my first 5th Circuit argument back in 1979. There the issue was a comment made at a meeting about an announcement that the employer was going to require everyone to take two weeks off as they moved the printing plant where the employees worked. It's that same body of law that now gets dusted off, because instead of a comment made at a worker's meeting, it is a comment issued through a new mode of communication.
Although it is not to say that there is nothing ever new, it is true that it is probably more rare than we think.
When I talk about social media, I always make the point that although the technology is new, the principles that need to be applied already exist. The law about concerted activity is quite developed; shoot, it was well developed when I had my first 5th Circuit argument back in 1979. There the issue was a comment made at a meeting about an announcement that the employer was going to require everyone to take two weeks off as they moved the printing plant where the employees worked. It's that same body of law that now gets dusted off, because instead of a comment made at a worker's meeting, it is a comment issued through a new mode of communication.
Although it is not to say that there is nothing ever new, it is true that it is probably more rare than we think.
Monday, 8 November 2010
Another Interesting Development from Last Tuesday - $4 MDV for FLSA Retaliation
While most eyes were turned to the election results last Tuesday night, a former Los Angeles policeman was enjoying a $4 million dollar verdict in his favor, after a jury agreed that he had been fired because of his testimony in a federal wage and hour lawsuit brought against the city by another officer.
Richard Romney had testified that he had followed the "unwritten policy" of denying officer's pay for less than a full hour of overtime. After his testimony, an investigation was initiated and he was ultimately discharged for violating the city's written rules on overtime. L.A. County jury awards $4 million to former LAPD officer.
Although all jury verdicts have a long way to go before they become collectable judgments, this one has an additional and somewhat unusual hurdle. It could be severely influenced by the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics, which was argued on October 13th. The transcript of the argument is here.[pdf]
Part of the issue is that the FLSA was really the first statute to provide employee rights and a prohibition against retaliation outside the union context, and Congress had not yet had the ability to focus on all the aspects of what protected activity really needed to be covered. Whether the statute is applied as it was written or as Congress would no doubt write it now, may make all the difference.
And in this case, that's a big difference.
Richard Romney had testified that he had followed the "unwritten policy" of denying officer's pay for less than a full hour of overtime. After his testimony, an investigation was initiated and he was ultimately discharged for violating the city's written rules on overtime. L.A. County jury awards $4 million to former LAPD officer.
Although all jury verdicts have a long way to go before they become collectable judgments, this one has an additional and somewhat unusual hurdle. It could be severely influenced by the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics, which was argued on October 13th. The transcript of the argument is here.[pdf]
Part of the issue is that the FLSA was really the first statute to provide employee rights and a prohibition against retaliation outside the union context, and Congress had not yet had the ability to focus on all the aspects of what protected activity really needed to be covered. Whether the statute is applied as it was written or as Congress would no doubt write it now, may make all the difference.
And in this case, that's a big difference.
Monday, 18 October 2010
Putting Me and Other Employer's Lawyers Out of Work
David Yamada and I have never met but have developed a friendship via the net. Even though we often have different views, usually not on the desired result, but on the ways of getting there, based on our civil conversations in an area where that is not often the case, I think it is fair to say that David would never wish me ill, in a financial sense or otherwise.
However, clearly in his most recent post, What if we applied the Golden Rule at work?, he has intentionally or otherwise stumbled on a concept that if followed would clearly lessen the need for those on both the defense and plaintiff sides of the employment law bar, including yours truly.
Just to emphasize David's post, for all the training I have done about employment law, best hr practices, employment law trials, not making juries mad, positive employee relations, etc. at the end of the day, the Golden Rule is a most apt summary for each of those topics. And actually one which is really hard to improve on.
Unfortunately, I don't think it is likely the need for employment lawyers is going to end any time soon.
But a basic tenet, well known and available to all, that really could lessen the need, is there for all of us to see.
However, clearly in his most recent post, What if we applied the Golden Rule at work?, he has intentionally or otherwise stumbled on a concept that if followed would clearly lessen the need for those on both the defense and plaintiff sides of the employment law bar, including yours truly.
Just to emphasize David's post, for all the training I have done about employment law, best hr practices, employment law trials, not making juries mad, positive employee relations, etc. at the end of the day, the Golden Rule is a most apt summary for each of those topics. And actually one which is really hard to improve on.
Unfortunately, I don't think it is likely the need for employment lawyers is going to end any time soon.
But a basic tenet, well known and available to all, that really could lessen the need, is there for all of us to see.
Thursday, 7 October 2010
A SAD Story In So Many Very Different Ways
Commenting on lawsuits based on newspaper stories is risky business. I do it frequently and I probably should remind myself and those who read this blog of the dangers more often. It is not because newspaper reporters are incompetent or that they are not trying to do a good job, it is just that reporting a lawsuit is a very complicated piece of work that requires far more time than is available or really necessary to get some of the high points, which is about the best one can reasonably hope for. So the real question is whether or not the lack of depth which is almost inevitable, prevents even a glimpse of the why something happened, as opposed to just the results.
I say all of this based purely on my own experience. In the relatively few cases I have had which have been the subject of much publicity, I can accurately say that the stories often were less than adequate in portraying reality. The most obvious was a six week trial in a smaller Texas city which at the time had two newspapers. In most common terms, one "was for the plaintiff" and one "was for the defendant." Each day for most of the six weeks and even leading up to it, the story was the front page headline on both papers and was quite detailed, frequently running over to multiple inside pages. A neutral observer might fairly have wondered if they were even reporting on the same case. And although I was certainly not neutral, I did know what was going on and would have to admit that neither was very close to really expressing it.
Which brings me, long way round so to speak, to the report in Eau Claire Leader Telegram of Tuesday's verdict in a Madison, Wisconsin trial of a teacher's disability claim. Former Somerset teacher wins $2 million lawsuit.
If the newspaper report is accurate (see above) then all it would have taken to accommodate Renae Ekstrand's disability, depression caused by Seasonal Affective Disorder, would have been allowing her to switch classrooms to one with a window. An accommodation that another teacher would have been willing to make.
The fact that such a simple thing didn't happen, makes me think there is much more to this story.
In fact, we know there is because this case had an appellate history before going to trial. First, a district court granted summary judgment for the school district. That was partially reversed by the 7th Circuit, which rejected Ekstrand's constructive discharge claim, but sent the failure to accommodate claim back for trial, presciently holding that "we disagree with the district court that no reasonable jury could find in favor of Ekstrand's failure-to-accommodate claim."
But even in sending that claim back to trial, Judge Bauer, who authored the court's opinion offered this:
So it is easy to see why this case went to trial.
Still, the bottom line result is the same. A jury didn't like what the school district did and let it know with its $2 million plus verdict. The reporter did catch, which many don't, the distinction between verdict and ultimate recovery noting that under the ADA it would be greatly reduced by the statutory damage caps.
When I started this post, I had intended to offer my thoughts on why it is that so many MDV's involve public sector defendants, but having rambled on about the difficulties of newspaper reporting, that subject is best saved for another day.
Unfortunately, I doubt that I shall have to wait long for the opportunity.
I say all of this based purely on my own experience. In the relatively few cases I have had which have been the subject of much publicity, I can accurately say that the stories often were less than adequate in portraying reality. The most obvious was a six week trial in a smaller Texas city which at the time had two newspapers. In most common terms, one "was for the plaintiff" and one "was for the defendant." Each day for most of the six weeks and even leading up to it, the story was the front page headline on both papers and was quite detailed, frequently running over to multiple inside pages. A neutral observer might fairly have wondered if they were even reporting on the same case. And although I was certainly not neutral, I did know what was going on and would have to admit that neither was very close to really expressing it.
Which brings me, long way round so to speak, to the report in Eau Claire Leader Telegram of Tuesday's verdict in a Madison, Wisconsin trial of a teacher's disability claim. Former Somerset teacher wins $2 million lawsuit.
If the newspaper report is accurate (see above) then all it would have taken to accommodate Renae Ekstrand's disability, depression caused by Seasonal Affective Disorder, would have been allowing her to switch classrooms to one with a window. An accommodation that another teacher would have been willing to make.
The fact that such a simple thing didn't happen, makes me think there is much more to this story.
In fact, we know there is because this case had an appellate history before going to trial. First, a district court granted summary judgment for the school district. That was partially reversed by the 7th Circuit, which rejected Ekstrand's constructive discharge claim, but sent the failure to accommodate claim back for trial, presciently holding that "we disagree with the district court that no reasonable jury could find in favor of Ekstrand's failure-to-accommodate claim."
But even in sending that claim back to trial, Judge Bauer, who authored the court's opinion offered this:
Ekstrand v. School District of Somerset(7th Cir. 10/6/09).From the sparse record in this case I assume that the School District of Somerset has high standards. Its Web site proclaims its motto: Learning Today to Succeed Tomorrow. In a district like this, parents quite naturally take an interest in who is teaching their children. And I can't imagine that many parents would be too pleased to have their first-graders in a classroom taught by a teacher who, to quote the court's opinion, suffered from “fatigue, anxiety, hypervigilance, tearfulness, racing thoughts, and trouble organizing tasks” plus “inability to concentrate ․ retrieve words, make decisions ․ focus on the needs of her students ․ hypersomnia ․ panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide” in the fall of 2005. While I can imagine that an employer like UPS might be able to accommodate a delivery person with these kind of issues, I have a hard time understanding how a school district could do the same for a first-grade teacher. This makes me wonder if Ms. Ekstrand, in the context of teaching, could ever establish that she was a “qualified individual with a disability” under the ADA in the fall of 2005 or that an accommodation that would be necessary to ameliorate her condition would be “reasonable.” This issue deserves, I suggest, a close look on remand.
So it is easy to see why this case went to trial.
Still, the bottom line result is the same. A jury didn't like what the school district did and let it know with its $2 million plus verdict. The reporter did catch, which many don't, the distinction between verdict and ultimate recovery noting that under the ADA it would be greatly reduced by the statutory damage caps.
When I started this post, I had intended to offer my thoughts on why it is that so many MDV's involve public sector defendants, but having rambled on about the difficulties of newspaper reporting, that subject is best saved for another day.
Unfortunately, I doubt that I shall have to wait long for the opportunity.
Tuesday, 5 October 2010
If You Have a Choice, Would You Bifurcate Punitive Damages?
That was a question I was discussing with a colleague Friday just before we gave a seminar presentation on Things that Employers Do to Make Juries Mad, and Pay for it with Big Verdicts. Fortunately in our case it was purely hypothetical.
But I was reminded of it when I saw today's report of a follow up punitive damage award of $4.8 million, after an earlier award of $3.4 million in compensatory damages. See, Former Rite Aid Employee Wins $4.8 Million Punitive Damages Award.
The award to Maria C. Martinez came in a disability and retaliation case, with the retaliation following her complaint that she had been sexually harassed.
The Beverly Hills Courier story says the defense counsel urged the jury not to award punitive damages, saying they "had already sent the chain store a strong message with the compensatory award." The sad fact is that is pretty much all there is to say.
In Texas state courts, the defendant gets to make the election. Unless there are strong and unique reasons not to, I opt against bifurcation. Basically, I don't want to be in the position of the defense attorney, having to come back after the jury has already hammered you, and your message is "now we get it." A hard sell when you have pushed hard to win on liability.
The clearest benefit is that you get to keep out the net worth of the company in the trial on the merits, but unless it is a stealth company, most jurors know that you are big.
I don't think that small benefit comes close to the cost of losing the opportunity of having it all settled in one bite, where if you have any jurors on your side, they probably have the best opportunity to effect a reasonable compromise.
And another factor I had not really considered is the anger of the jury. Sure, they are angry with you, because they found against you, including the issue, usually some sort of malice, that will justify punitive damages. But it's not that anger I am talking about.
It is the anger that they had to come back and do it again. Since jurors are not told about the possibility of punitive damages (at least in Texas), they are not aware when they answer that magical question a certain way they have just insured another day or two of jury service. Not exactly something that most of them are excited about.
Maybe that's why it only took one-half hour of deliberations to more than double the amount awarded.
Update (5.2.13): I don't follow up on MDV's, although I probably should, because almost always they end up looking much better than they did on the day that the verdict was rendered. Here, thanks to a comment, is the result of this one at the appellate court. Martinez v. Rite Aid (CA Ct. App. 2nd Dist. Div. 7) (4.23.13).
But I was reminded of it when I saw today's report of a follow up punitive damage award of $4.8 million, after an earlier award of $3.4 million in compensatory damages. See, Former Rite Aid Employee Wins $4.8 Million Punitive Damages Award.
The award to Maria C. Martinez came in a disability and retaliation case, with the retaliation following her complaint that she had been sexually harassed.
The Beverly Hills Courier story says the defense counsel urged the jury not to award punitive damages, saying they "had already sent the chain store a strong message with the compensatory award." The sad fact is that is pretty much all there is to say.
In Texas state courts, the defendant gets to make the election. Unless there are strong and unique reasons not to, I opt against bifurcation. Basically, I don't want to be in the position of the defense attorney, having to come back after the jury has already hammered you, and your message is "now we get it." A hard sell when you have pushed hard to win on liability.
The clearest benefit is that you get to keep out the net worth of the company in the trial on the merits, but unless it is a stealth company, most jurors know that you are big.
I don't think that small benefit comes close to the cost of losing the opportunity of having it all settled in one bite, where if you have any jurors on your side, they probably have the best opportunity to effect a reasonable compromise.
And another factor I had not really considered is the anger of the jury. Sure, they are angry with you, because they found against you, including the issue, usually some sort of malice, that will justify punitive damages. But it's not that anger I am talking about.
It is the anger that they had to come back and do it again. Since jurors are not told about the possibility of punitive damages (at least in Texas), they are not aware when they answer that magical question a certain way they have just insured another day or two of jury service. Not exactly something that most of them are excited about.
Maybe that's why it only took one-half hour of deliberations to more than double the amount awarded.
Update (5.2.13): I don't follow up on MDV's, although I probably should, because almost always they end up looking much better than they did on the day that the verdict was rendered. Here, thanks to a comment, is the result of this one at the appellate court. Martinez v. Rite Aid (CA Ct. App. 2nd Dist. Div. 7) (4.23.13).
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