With less than one month to go in the session, the pace is beginning to pick up. Here is an up to date summary of the status of employment related bills:



House of Representatives

H.B. 50 Sylvester Turner (D – Houston) Mandatory leave for employees to attend school conferences, and penalties against retaliation for exercising that right. Referred to Economic Development. Public hearing on March 19, 2003 left pending in committee.

H.B. 105 Norma Chavez (D - El Paso) Provides for unemployment benefits, without charge to an employer's account, if an employee is forced to leave employment because of domestic violence. Referred to Economic Development. Scheduled for public hearing on April 23, 2003.

H.B. 126 Lon Burnam (D - Fort Worth) Requires parity for mental illness in disability insurance policies sold in state of Texas. Referred to Insurance.

H.B. 152 Ron Wilson (D – Houston) Limits an employer's ability to obtain so called 'dead peasants insurance,' where an employer obtains a policy on lower paid employees with itself as a beneficiary. Referred to Insurance. Public hearing on March 10, 2003, pending in committee

H.J.R. 18 Suzanna Hupp (R – Lampasas) A constitutional amendment to grant a broad right of privacy. In California, a similar constitutional amendment was used as a basis for finding the constitutional right of privacy extended to non-government employers. Referred to State Affairs. Testimony taken on March 3, 2003. Still pending in committee.

H.B. 181 Jessica Farrar (D – Houston) Allows an individual who receives deferred adjudication to legally deny the arrest and prosecution, except for a subsequent criminal prosecution. This would impact information employers are able to obtain when hiring. The bill passed last legislative session, but was vetoed by Governor Perry. Correction of referral, now referred to Law Enforcement. Public hearing on March 17, 2003, committee substitute considered in committee, still pending in committee.

H.B. 281 Paul Moreno (D – El Paso) This is not technically an employment bill, but is likely to be one of the most talked about and contested non-financial bills of this session. It would make it a misdemeanor (punishable by a $100 fine) to talk on a mobile phone when driving, unless the car is stopped or the phone is operated without the use of either hand. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 328 Warren Chisum (R – Pampa) An attempt to allow employers the opportunity to obtain information from applicants about prior workers compensation claims and injuries. The legislation modifies the Texas Commission on Human Rights Act and the Texas Workers Compensation Act, but unfortunately can not shield employers from the Americans with Disabilities Act which prohibits such inquiries. Referred to Business & Industry. Testimony taken on March 4, 2003 still pending in committee.

H.B. 355 and H.B. 356 Harold Dutton (D – Houston) These are two education leave bills, similar to some of the amendments that have been suggested for the federal Family Medical Leave Act. One would require employers to give time off to employees to meet with teachers, counselors or principals; the other to attend certain school activities. The bills also create new causes of actions against employers for refusing to provide the time off. Referred to Economic Development. Public hearing on March 19, 2003, pending in committee.

H.B. 359 and H.B. 371 Harold Dutton (D – Houston) These two bills attempt to limit the use of mandatory arbitration. The first would prohibit arbitration of Texas Commission on Human Rights Act or Title VII claims, the second would prohibit mandatory arbitration until an employee had worked for an employer for at least 90 days. Even if these bills were to pass, if the agreement were covered by the Federal Arbitration Act, these restrictions would be pre-empted. Most, but not necessarily all, employment relationships will be covered by the FAA. Referred to Economic Development. Public hearing on March 19, 2003, left pending in committee.

H.B. 379 Harold Dutton (D – Houston) Requires employers to allow employees to review their personnel files. Similar legislation has been offered for several sessions. It would make failure to comply by the employer an unfair employment practice, which is treated as a violation of the Texas Commission on Human Rights Act. Referred to State Affairs.

H.B. 570 Fred Brown (R –Bryan) For non-subscribers to workers compensation, the bill would cap liability at $250,000 for work place injuries to employees. In order to qualify for the cap, the employer must have insurance meeting certain limits. Referred to Business & Industry. Public hearing of April 1, 2003 withdrawn from the schedule.

H.B. 574 Jessica Farrar (D – Houston) Amends the Texas Commission on Human Rights Act to prohibit discrimination against individuals on the basis of their sexual orientation or gender identity. It would also protect anyone from being treated differently because of the sexual identity of individuals with whom the employee associates. Referred to Business & Industry. Public hearing on March 25, 2003, left pending in committee.

H.B. 624 Jose Menendez (D - San Antonio). Basically a refined version of Representative Moreno's H.B. 281 which prohibits use of mobile phones while driving. This version has more definitions, some exceptions for emergency calls, and a range of fines that increases if the violation occurs in a school zone. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 643 Arlene Wohlgemuth (R - Burleson) A technical amendment to the punitive damages cap. Currently, the cap is not applicable where the defendant engages in certain criminal activity. The amendment would require a conviction before the cap would not be applicable. Under the current law, plaintiffs are able to argue that certain conduct should be outside the cap because it meets the literal language of the current statute, even though there has been no criminal prosecution. Referred to Civil Practices.

H.B. 705 Burt Solomons (R - Carrollton) Provides a defense against a claim of negligent hiring for employers whose employees enter another's home for purposes of repairs or delivery of goods. The defense would only be available if the employer obtained a criminal record from the Department of Public Safety. The bill gives the employer the right to have that access. Referred to Civil Practices. Public hearing held on April 2, 2003, left pending in committee.

H.B. 772 Dawnna Dukes (D - Austin) Similar to H.B.105, would allow an employee to quit a job if advised to by a law enforcement officer, a licensed medical practitioner or a licensed counselor because of domestic violence or stalking and still receive unemployment benefits. The employer's account would not be charged. Referred to Economic Development. Scheduled for public hearing on April 23. 2003.

H.B. 804 Charlie Geren (R - Fort Worth) Amends Texas minimum wage law to pre-empt any city ordinance setting a minimum wage. It does not apply to government contracts or tax-abatement agreements. In light of recent adoption of a living wage ordinance by Santa Fe, New Mexico, this bill may now get more attention.Referred to Economic Development. Passed the House on April 8, 2003 and sent to the Senate. Referred to Business & Commerce. Scheduled for public hearing on April 22, 2003.

H.B. 810 Eddie Rodriguez (D - Austin) Prohibits discrimination by state agencies on the basis of sexual orientation or gender identity. Referred to State Affairs.

H.B. 812 Roberto Gutierrez (D - McAllen) Provides that 75% of any award of punitive damage award will go to the Permanent University Fund. The plaintiff would receive 15% and plaintiff's attorney 10%, notwithstanding any other contractual agreement. Referred to Civil Practices.

H.B. 826 Yvonne Davis (D - Dallas) Requires employers to turn over any abandoned wage payments to the State Comptroller. Referred to Economic Development. Reported favorably without amendment on April 9, 2003. Sent to Local & Consent Calendar on April 17, 2003..

H.B. 945 Lon Burnam (D - Fort Worth) Would set a minimum wage for state and local governments. The minimum wage would be the higher of the federal minimum wage or one calculated based on the federal poverty guidelines. Based on the 2002 guidelines, the minimum wage would be $8.70. Referred to State Affairs. Public hearing on April 7, 2003, pending in committee.

H.B. 978 Dawnna Dukes (D - Austin) Restrictions on certain business entities being the designated beneficiary of life insurance policies. Referred to Insurance.

H.B. 995 Ken Mercer (R – San Antonio). Expands the public whistle blower statute to also include protection from retaliation for reporting a waste of funds to an appropriate governmental agency. Referred to Government Reform. Public hearing on April 8, 2003, pending in committee.

H.B. 1018 Mike Villarreal (D – San Antonio) Would provide a preference by state and local governments for vendors who were certified as family friendly by the Texas Workforce Commission for providing employee dependent care benefits. Public hearing on March 10, 2003, pending in committee.

H.B. 1045 Joe Deshotel (D – Port Arthur) Creates an alternative base period for computation of unemployment compensation benefits to remove a period of extended medical disability. Referred to Economic Development. Public hearing on March 12, 2003, pending in committee.

H.B. 1136 Mike Villarreal (D – San Antonio) Prohibits discrimination in employment, housing or public accommodations because of sexual orientation. Referred to State Affairs. Scheduled for public hearing on April 22, 2003.

H.B. 1142 Glenn Lewis (D – Fort Worth) Requires health insurance plans to provide for an annual physical with certain basic lab tests. Referred to Insurance.

H.B. 1221 Barry Telford Prevents a chargeback to an employer's account if unemployment benefits are provided because the employer was called to active duty military service after January 1, 2003. Referred to Defense Affairs & State-Federal Relations. Passed the House on April 3, 2003. Referred to Veteran Affairs and Military Installations.

H.B. 1244 Senfronia Thompson (D - Houston) A repackaged version of comparable worth. Prohibits discrimination in compensation by paying less to a person in a protected class for a person in an equivalent jobs under similar conditions. The amount of litigation and control of the workplace that this would create is almost unimaginable. It was a bad idea when first introduced and has gotten no better over time. Referred to Economic Development. Scheduled for public hearing on April 23, 2003.

H.B. 1245 Terri Hodge (D - Dallas) Amends the unemployment statute to allow workers who are locked out by their employer, or who are idled because of a work stoppage at another location to receive unemployment compensation benefits. Referred to Economic Development. Scheduled for public hearing on April 23, 2003.

H.B. 1282 Brian McCall (R - Plano) This is not an employment bill, but an anti-spam one, so certainly one worthy of watching from at least my mailbox's perspective. Referred to Economic Development. Passed by the House on April 3, 2003. Referred to Business and Commerce.

H.B.1359 Aaron Pena (D - Edinburgh) Would make it more difficult to offer evidence of past sexual conduct in civil related cases by adopting the standards and procedures of Rule 412 of the Federal Rules of Evidence. This is the first employment related bill offered by Representative Pena, who in his day job, is the leading plaintiff's employment lawyer in the Valley. Referred to Civil Practices. Scheduled for public hearing on April 23, 2003.

H.B. 1360 Aaron Pena (D - Edinburgh) Amends existing state law with respect to penalties for discrimination against national guard personnel, by removing the current cap on damages which was limited to six months pay, adding punitive damages and utilizing the caps applicable to TCHR claims based on number of employees, with a maximum of $300,000 for compensatory and punitive damages by employers with more than 500 employees. An interesting choice, since it will be hard to argue against increasing penalties against employers who discriminate against those who might be called to serve in the Iraq conflict. Referred to Defense Affairs and State-Federal Relations. Public hearing on March 20, 2003, left pending in committee.

H.B. 1496 Burt Solomons (R - Carrollton) Establishes a study to review and propose legislation to strengthen the anti-abuse provisions of the unemployment compensation laws, including increasing collections of overpayments. Referred to Economic Development. Scheduled for public hearing on April 9, 2003.

H.B. 1524 Senfronia Thompson(D - Houston) Amends the Texas Commission on Human Rights Act to make it illegal to inquire of an applicant, or of any person who knows the applicant, about their sexual orientation. Referred to State Affairs.

H.B. 1550 Bill Zedler (R - Arlington) Prohibits unions from spending any portions of dues for political purposes without obtaining a specific authorization from the union member. Referred to Economic Development.

H.B. 1645 Kevin Bailey (D - Houston) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs.

H.B. 1684 Beverly Woolley (R – Houston). Amends the TCHRA so that the issuance of a right to sue letter by the EEOC would also trigger the 60 day deadline for filing a lawsuit under the TCHRA. This would be extremely helpful in making sure that lawsuits are timely filed and eliminate a major flaw in the current situation. Referred to Economic Development.

H.B. 1819 Rene Oliveira(D - Corpus Christi) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Economic Development. Passed by the House on April 3. 2003. Referred to Business & Commerce. Scheduled for public hearing on April 22, 2003.

H. B. 2001 Harold Dutton (D - Houston) Adds a federal medical support notice to the requirement that employer’s must follow in withholding from their employee’s. Referred to Juvenile Justice & Family Issues. Reported favorably by Committee and sent to Local & Consent Calendar on April 11, 2003.

H.B. 2028 Aaron Pena (D - Edinburg) Although applicable only to local governments, this is noteworthy of the type of legislation that may be offered by Representative Pena, who is also an employment lawyer representing employees. This legislation establishes a Sabine Pilot cause of action for employees who are required to commit an illegal act. Unlike the common law version, it does not have a sole cause standard. It also establishes punitive damage caps tied to the size of the agency, provides for civil penalties and under certain circumstances would require an audit of a local government that has been found liable and assessed damages of more than $10,000. Referred to State Affairs.

H.B. 2170 Burt Solomons(R - Carrollton) Sunset legislation concerning the renewal of the Texas Workforce Commission. Contains a number of substantive changes. Referred to Economic Development. Set for public hearing on April 9, 2003.

H.B. 2347 Sid Miller (R - Stephenville) Provides that all punitive damages go to the state general fund. Referred to Civil Practices.

H.B. 2395 Frank Corte (R - San Antonio) Would substantially rewrite the common law of defamation by requiring that there be a request for correction or clarification of defamatory statements, and limiting recovery to actual damages if a correction or clarification were made in a timely manner. Referred to Civil Practices. Scheduled for public hearing on April 23, 2003.

H.B. 2698 Ryan Guillen (D - Rio Grande City) Eliminates the 7 day waiting period for unemployment compensation. Referred to Economic Development.

H.B. 2933 Kino Flores (D - Mission) Transfers the Texas Commission on Human Rights to the Attorney General. Referred to Government Reform. Scheduled for public hearing on April 22, 2003.

H.B. 2949 Reuben Hope (R - Conroe) Requires that a waiver of right to a jury trial use specific language and be in 16 point type. Part of the required statement is that the waiver is not required by law. Referred to Civil Practices. Public hearing held on April 9, 2003, pending in committee.

H.B. 3060 Kino Flores (D - Mission) Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Correction in referral, now referred to Licensing & Administrative Procedures.

H.B. 3065 Joe Deshotel (D - Port Arthur) Would require that any jury mirror the racial and ethnic make up of the county in which it is picked. Referred to State Affairs.

H.B. 3160 Jaime Capelo (D - Corpus Christi) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs. Public hearing scheduled for April 9, 2003.

H.B. 3220 Dwayne Bohac (R - Houston) Amends the workers compensation statutes to allow for a request for clarification on a determination of maximum medical improvement and related technical changes. Public hearing scheduled for April 22, 2003. Referred to Business & Industry.

H.B. 3278 Ryan Guillen (D - Rio Grande City) Creates a cause of action for employees terminated because they are served or comply with a subpoena. Referred to Business & Industry.

H.B. 3308 Jaime Capelo (D - Corpus Christi) Amends the Texas Payday Act to allow payment by direct deposit. Referred to Economic Development. Scheduled for public hearing on April 23, 2003.

H.B. 3379 Norma Chavez (D - El Paso) Amends the Texas Commission on Human Rights Act to prohibit an English only rule, with certain exceptions. Referred to Economic Development.

H.B. 3401 Bill Zedler (R - Arlington) Repeals the little "Davis Bacon" laws which require a prevailing wage for certain governmental contracts. Referred to Economic Development.

H.B. 3430 Trey Martinez Fisher (D - San Antonio) Amends the Texas Arbitration Act to make it more difficult to require arbitration of consumer matters where less than $50,000 is involved, adds additional standards for appeal, including an additional standard of review based on the correctness of the arbitration award itself, and allowing an appeal of denial of a motion to compel even when the Federal Arbitration Act is applicable. Referred to Civil Practices.

H.B. 3462 Mike Villarreal (D - San Antonio) Amends the Texas Commission on Human Rights Act and the Workers Compensation Act to make it clear that an employee's immigration status alone does not bar him from being covered. Referred to Border and International Affairs. Public hearing held on April 2, 2003. Committee substitute reported favorably on April 2, 2003. Vote reconsidered on April 3, 2003 and left pending in committee.

H.B. 3463 Mike Villarreal (D - San Antonio) Couples a prohibition against sexual orientation or gender identity discrimination (including a prohibition against discrimination because of the gender identity or sexual orientation of those the employee associates with) with a prohibition against recognition of same sex marriages. Referred to State Affairs.

Senate

S.B. 33 Judy Zaffirini (D – Laredo) Establishes a right to leave to attend certain school functions for employees. Referred to Business & Commerce.

S.B. 61 Judy Zaffirini (D – Laredo) Modifies the existing law on criminal background checks for nursing home employees and applicants. Referred to Health and Human Services.

S.B.137 Rodney Ellis – (D- Houston) Prevents employers from obtaining 'dead peasant's insurance.' Referred to State Affairs.

S.B. 328 Royce West (D - Dallas) Requires an arbitrator and/or arbitration services provider to file a public disclosure within 30 days of the entry of the award by the arbitrator. Failure to do so could result in a fine, and multiple failures could result in the arbitrator being barred from court ordered arbitrations and being listed on a public list maintained by the Office of Court Administration. The disclosure would require the names of the parties, the general nature of the claim and the relief sought, the award by the arbitrator and the costs charged by the arbitrator and the arbitration services provider. It is designed to be a supplement to existing arbitration laws, including the Federal Arbitration Act. Referred to Jurisprudence.

S.B. 374 Tommy Williams (R - Woodlands). Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Passed the Senate and sent to the House. Correction in referral, now in Licensing & Administrative Procedures.

S.B. 390 Rodney Ellis (D - Houston) The first Senate bill to prohibit use of a cell phone while driving. Referred to Criminal Justice.

S.B. 819 Troy Fraser (R - Horseshoe Bay) Amend workers compensation statute so insurance carrier can challenge compensability even if it misses the seven day deadline for beginning benefits or contesting the injury. Although able to challenge compensability, missing the deadline would constitute an administrative violation. Referred to State Affairs.

S.B. 820 Troy Fraser (R - Horseshoe Bay) Amends workers compensation statute to make first impairment rating final if an objection is not filed within 90 days. Referred to State Affairs.

S.B. 844 Gonzalo Barrientos (D - Austin) Would remove the restriction on local governments from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to Intergovernmental Relations.

S.B. 956 Robert Duncan (R - Lubbock) Directs the state auditor to study ways of improving collection of overpayments of unemployment compensation and for the Texas Workforce Commission to implement those methods. Referred to Business & Commerce.

S.B. 981 Kim Brimer (R - Fort Worth) Amends the unemployment compensation statute to remove disqualification because of a labor dispute at another facility. Referred to Business & Commerce. Scheduled for public hearing on April 22, 2003.

S.B. 997 Royce West (D - Dallas) Requires an arbitrator to provide certain information about an arbitration, including a copy of the award, to the Office of Court Administration within 31 days of the award. Would allow parties to request that the record be sealed under the same standard applicable to court documents. Referred to Jurisprudence.

S.B. 1190 Eddie Lucio (D - Brownsville) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Business & Commerce.

S.B. 1298 Frank Madla (D - San Antonio) Requires hospitals to adopt policies to improve the workplace for nurses and other employees including more use of ergonomics and plans for workplace violence. Referred to Health & Human Services.

S.B. 1333 Gonzalo Barrientos (D - Austin) Transfers the Texas Commission on Human Rights to the Attorney General. Referred to Government Organization.

S.B. 1478 Royce West (D - Dallas) Amends the whistleblower statute applicable to public entities by permitting a report to be made not only to an appropriate law enforcement authority but also an employee within the employing governmental agency who has the authority to act on the complaint. Substitutes an amount of ten times the annual salary (not including overtime) of the employee for the existing damage caps which are tied to the size of the governmental entity. Referred to Jurisprudence. Scheduled for public hearing on April 23, 2003.

S.B. 1648 Kyle Janek (R - Houston) Amends TCHRA to start time for filing suit run from receipt of right to sue notice from either the EEOC or the TCHR. Referred to Jurisprudence.

S.B. 1740 Rodney Ellis (D - Houston) Requires a jury to have the same racial and ethnic composition as the county in which it is selected. Referred to Jurisprudence.

S.B. 1806 Chris Harris (R - Arlington) Provides penalties for an employer failing to comply with a national medical support order. Referred to Jurisprudence. Scheduled for public hearing on April 22, 2003.

While the Business View Is That HIPAA May Be Too Much

Privacy groups suing to rescind the recently effective rules, feel they don't go far enough. Business Insurance caught the filing of a suit in a federal district court in Philadelphia over the rules which were effective earlier this week.

Why Your Employees Go To A Lawyer - Unclear Paycheck Stubs

At least one group did. When a group of nurses at Stroger Hospital in Chicago couldn't understand their paycheck stubs, they sought a lawyer's advice. In addition to clarification, the lawyer also determined that they had not been paid properly for overtime. The net result, a $4 million settlement of the wage and hour class action case according to a story in Crain's Chicago Business. At least this employer can sleep easier in the future as one of the conditions of the settlement was a redesign of the check stub so it can be better understood. While it seems rather simple, one thing that employees are keenly interested in is their paycheck and the employer who isn't careful with the details concerning paychecks is asking for closer scrutiny.

There's Never A Dull Moment In Employment Law

Other lawyers seem to be in a constant state of envy over the 'juicy details' of the cases that appear on the dockets of employment lawyers. For example, from today's summary of cases recently filed in state district court in Austin, a pro se complainant brings an:

Employee discrimination action in which the plaintiff was suspended without pay over a public display of affection with his same-sex partner while sitting in a company car, seeking punitive damages.

Oh no, some management side employment lawyer will soon be saying, not another "public display of affection" case for punitive damages! Thank goodness for State Farm v. Campbell [pdf].

How to Figure Out if You’re an Employer of Choice

At least according to an article in workforce.com by San Francisco State professor John Sullivan.

Talk About Bad Timing - Marine Fired For Harassment

An employer who investigates and finds an employee has been involved in harassment and terminates them, is often doing the right thing. But you have to believe the folks at Hyundai who mailed a letter notifying Clifford Moffitt of his termination may be having second thoughts at least about the timing. According to the Orange County Register the letter was opened by his wife, since Sgt. Moffitt, formerly the national collections manager for Hyundai, is on active duty with the Marine 4th Reconnaissance Unit in Iraq. And did I mention his wife was pregnant with their third child? Not to worry, Gloria Allred, usually on the other side of cases, is already lined up as his attorney.

HIPAA, Now More Than Just Talk

After what seems an interminable amount of time to build up to it, the effective date of HIPAA has arrived. The Society for Human Resource Management has put together a list of helpful links. The long awaited arrival of this event was duly noted by a number of bloggers including Naked Ownership, Ernie the Attorney, and the University Attorney. Whether this will turn out to be a true Pandora's box, or just a false alarm as to the havoc it could cause, will only be told as we experience it.

Bush for Keeping EEOC Open

If you have been following the possibility of a lengthy ((19 days or so) furlough for many EEOC employees, you will be happy to know that President Bush has sent a supplemental request to the House of Representatives. See Text of a Letter from the President to the Speaker of the House of Representatives.

Oral Arguments in Breuer v. Jim's Concrete of Brevard, and a Prediction

On April 2, the Supreme Court heard oral argument on whether or not FLSA cases filed in state courts can be removed under federal question jurisdiction. Although when certiorari was granted, it raised fears on my part, that the Court would use this as a chance to limit the dockets of federal courts. I felt better after the Solicitor General filed a brief advocating the position that such cases were removable. After reading the transcript [pdf], I am less concerned. Although predicting how a court will decide based on oral arguments can be dangerous, I would be willing to say those (like me) who believe that such cases are removable, will be happy when the decision is issued.

Whistleblowers Have A Good Week - Part II

Linda Fagan, a former chief resident in the OB/GYN program discharged six months before she finished her residency, an act her attorney says was the "ultimate blackball, obtained a $2.5 million jury verdict from the Stamford Hospital. She maintained, and the jury agreed, that her termination was a result of her complaints about the lack of training that she and the other OB/GYN residents were receiving. You can read the story here.

Whistleblowers Have A Good Week - Part I

A hard fought and well documented whistleblower lawsuit ended the jury phase Friday night with a $4 million dollar verdict for Thomas Dunn, the former CFO of Enterprise Rent-A-Car. Dunn maintained he was terminated from his $650,000 per year job was for challenging the business practices of the company as it contemplated going public. In an unusually well covered trial that began on March 15, 2003. Christopher Carey of the St. Louis Post-Dispatch had his first story before the trial started, and the story of closing arguments and the jury's seven hour deliberations before its 9-3 verdict late Friday evening.


It seems fairly clear that this is one of those cases where the defense feels strongly that it has a legal defense to the claim as well as a factual one. Now that becomes a $4 million dollar evaluation. And a reminder for all, as my civil procedure professor, Albert P. 'Pappy' Jonessaid to a class of budding trial lawyers, "remember, there is no cash register at the back of the courtroom."


For those interested in following the story on an almost daily basis here are the links to Carey's reports on the trial:

March 18 Former Enterprise head accountant says he was stunned by his dismissal

March 19 $5 billion IPO was Enterprise goal, ousted executive says

March 20 Dunn didn't report alleged Enterprise misdeeds

March 21Dunn says he clashed with peers, superiors at auto-rental company

March 24 Accountant contradicts some testimony in wrongful-firing case

March 25 Former boss says Dunn's failings were undocumented

March 26 Dunn's ex bosses say investigations into him didn't involve concerns about accounting

March 27 Professor says accounting at Enterprise was unusual, even under Thomas Dunn

March 28 Enterprise was preparing for IPO, trial shows

March 31 Former employees criticize Dunn's management style

March 31 Judge refuses to dismiss Enterprise suit

April 1 Workers say they sought transfers because of Dunn

April 3 Audit officer says he never verified criticisms of Dunn

April 4 Judge throws out key part of Dunn's lawsuit over firing

April 7 Tom Berutti testifies that complaints he reported were unsubstantiated

April 8 Dunn's boss says he warned him about alienating others

April 10 Enterprise chief says other executives were having problems with Dunn

April 10 Enterprise chief says Dunn never raised illegality

April 11 Enterprise case goes to the jury

The petition initiating the lawsuit was filed in May, 2001.

Slow Week In the Texas Legislature - For Employment Issues At Least

Although overall things are beginning to heat up, there was not a lot of movement on employment related issues this past week. Here are the bills on which some action was taken:

H.B. 804 Charlie Geren (R - Fort Worth) Amends Texas minimum wage law to pre-empt any city ordinance setting a minimum wage. It does not apply to government contracts or tax-abatement agreements. In light of recent adoption of a living wage ordinance by Santa Fe, New Mexico, this bill may now get more attention.Referred to Economic Development. Passed on April 8, 2003 and sent to the Senate. Legislative exchange made it clear that it does not apply to living wage ordinances which set a higher minimum wage for any local governmental entity.

H.B. 945 Lon Burnam (D - Fort Worth) Would set a minimum wage for state and local governments. The minimum wage would be the higher of the federal minimum wage or one calculated based on the federal poverty guidelines. Based on the 2002 guidelines, the minimum wage would be $8.70. Referred to State Affairs. Public hearing on April 7, 2003, pending in committee.

H.B. 995 Ken Mercer (R – San Antonio). Expands the public whistle blower statute to also include protection from retaliation for reporting a waste of funds to an appropriate governmental agency. Referred to Government Reform. Public hearing on April 8, 2003, pending in committee.

H.B. 1136 Mike Villarreal (D – San Antonio) Prohibits discrimination in employment, housing or public accommodations because of sexual orientation. Referred to State Affairs. Scheduled for public hearing on April 16, 2003.

H.B. 1221 Barry Telford Prevents a chargeback to an employer's account if unemployment benefits are provided because the employer was called to active duty military service after January 1, 2003. Referred to Defense Affairs & State-Federal Relations. Passed the House on April 3, 2003. Referred to Veteran Affairs and Military Installations.

H.B.1359 Aaron Pena (D - Edinburgh) Would make it more difficult to offer evidence of past sexual conduct in civil related cases by adopting the standards and procedures of Rule 412 of the Federal Rules of Evidence. This is the first employment related bill offered by Representative Pena, who in his day job, is the leading plaintiff's employment lawyer in the Valley. Referred to Civil Practices. Scheduled for public hearing on April 16, 2003.

H. B. 2001 Harold Dutton (D - Houston) Adds a federal medical support notice to the requirement that employer’s must follow in withholding from their employee’s. Referred to Juvenile Justice & Family Issues. Reported favorably by Committee and sent to Local & Consent Calendar on April 11, 2003.

H.B. 2395 Frank Corte (R - San Antonio) Would substantially rewrite the common law of defamation by requiring that there be a request for correction or clarification of defamatory statements, and limiting recovery to actual damages if a correction or clarification were made in a timely manner. Referred to Civil Practices. Scheduled for public hearing on April 16, 2003.

H.B. 2949 Reuben Hope (R - Conroe) Requires that a waiver of right to a jury trial use specific language and be in 16 point type. Part of the required statement is that the waiver is not required by law. Referred to Civil Practices. Public hearing held on April 9, 2003, pending in committee.

H.B. 3060 Kino Flores (D - Mission) Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Correction in referral, now referred to Licensing & Administrative Procedures.

H.B. 3220 Dwayne Bohac (R - Houston) Amends the workers compensation statutes to allow for a request for clarification on a determination of maximum medical improvement and related technical changes. Referred to Business & Industry. Public hearing scheduled for April 15, 2003.

Senate

S.B. 374 Tommy Williams (R - Woodlands). Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Passed the Senate and sent to the House. Correction in referral, now in Licensing & Administrative Procedures.

Update on SARS in the Workplace from One High Tech Center

The Austin Business Journal has a survey of the impact on various high tech companies with Austin affiliations. It is not a pretty picture at this point.

Ouch - That Hurts - Corporate America Doesn't Think Much of Texas Legal System

Or at least that is the story of a poll was done by Rochester, N.Y.-based Harris Interactive Inc. for the U.S. Chamber of Commerce sponsored Institute for Legal Reform. The Houston Business Journal reports that Texas ranked 46th in terms of perceived fairness of its state justice system. Those polled were companies with revenues exceeding $100 million. Here is the 80+ page study itself. So much for all of those cutting remarks we make about California, although it is only slightly better at 44. The good news is that we were better than Louisiana, Alabama, West Virginia and the home of Trent Lott. However, West Virginia and Mississippi got asterisks based on recent changes to their laws which may help in the future. Go here to see an ad [pdf] for Texas that the Chamber has prepared.

If You Think Having a Union, Doesn't Mean You Have A Business Partner, Read This

When an employer has a union, its obligations under the NLRA can put it in what would seem to be a very odd situation. For example, consider these facts:

In February 1999, National Steel installed a hidden camera in a manager’s file cabinet in an attempt to discover who was using the office at night when the manager was not at work. It discovered that a member of Local 67, one of the union locals covered by a National Steel CBA, was using the office to make long-distance telephone calls. National Steel discharged the employee, and Local 67 filed grievance over the termination.

During the course of the grievance proceeding, the union requested information about the hidden cameras. National Steel refused on the basis that disclosing it would defeat the purpose of the cameras. Seems reasonable enough, except the NLRB disagreed, and now the 7th Circuit has agreed with the Board. In National Steel Corp. v. NLRB (7th Cir. 4/7/03) [pdf], the Court held that National Steel had a duty to bargain with the union over the hidden cameras and information that might be necessary for the union to fulfill their obligation to represent the members of the bargaining unit. The Court goes to pains to make it clear that they are not holding any certain outcome is required, such as the actual disclosure of the information, as even they could see the foolishness of that position. However, the company must engage in the bargaining process. That is the type of distinction that is a favorite of judges, academicians and politicians. While creating a process that is certain to impact the activity and which often is outcome determinative, they can steadfastly maintain that they have not required it. Some I am sure do it because they don't realize the effect of their action, but the more clever practice it as a regular art.

Union Lawyers - No, Unionized Lawyers - A First in the Private Sector

The Teamsters latest organizing success would seem an unlikely target, the lawyers who work for Parker Stanbury's Phoenix office. The firm which has five offices contracts with a pre-paid legal services provider and the attorneys provide mostly phone advice, working under a quote of resolving 2 1/2 complaints per hour. Law.com has the story. Although the salary of $50,000 may not sound bad to many of their fellow Teamsters, it is below market rates according to the newly organized. But in tones that will not be familiar to anyone who has ever been involved in any organizing drive, the main complaint - problems with poor management.

Corporate Defendants Have Constitutional Rights As Well - The Supreme Court On Punitive Damages

Since I did not pay nearly as much attention as I should have in my first year constitutional law class, I was relieved at the thought when I graduated and went to work doing labor and employment law, that it was unlikely that I would ever have to deal with what seemed like a specialty utilized in the real world mainly by the criminal and media law bars. Of course, as with many other things I thought right out of law school, I was wrong. And yesterday's Supreme Court decision in State Farm Mutual Automobile Insurance Co. v. Campbell (U.S. 4/7/03) [pdf], proved it again. Although not an employment law case, the Supreme Court's 6-3 decision may have a significant impact on employment law litigation. In one of several major holdings, the Court sets an almost bright line (while specifically saying it is not) of only a single digit ratio of punitive damages to actual damages. For a more general analysis of the decisions check out the usual suspects, How Appealing and SCOTUS, for their usual high quality commentary.


With respect to employment law, I think one effect could be the impact on the decision making process of employers on whether to press forward to trial rather than settle. The threat of an emotionally enraged run away jury, often reflecting as much their personal experience in the work place than the facts of the particular case, awarding an astronomical sum, has often been a contributing factor in making the decision to settle. In some cases, employers have gone even futher and implemented programs of arbitration required as a condition of employment in an attempt to avoid facing juries at all. Although the initial reaction of the business community and the leaders of the tort reform movement is one of elation, it will be interesting to see how it plays out in the employment law world. It might be that it will cause more employers to take chances with cases that they might otherwise have settled. And sometimes when the rules become clearer and more reasonable, the overall effect is that we get more not less. In this case that could mean more punitive damage awards that are within the newly defined limits. As with most changes in the law, the true impact of this decision won't be determined for sometime.

Do Media Reports, Employment Seminars etc. Create Problems?

I couldn't help think that when reading a CNET story that was picked up in Business Week, and a lot of other publications as well. It was certainly a well researched story on how an employer could be held liable for not blocking porn spam. Sometimes, I think problems get created when those knowledgeable of theories in the area don't have anything else to do but conjure up horror stories of what might could be done. Unless I missed it, no actual case of any employer being charged with such a violation was included in the story, just speculation.

Arbitration Or Not - New Data

New Study Shows Arbitration is Better Than Lawsuits for Individuals. In the on-going debate on whether employees whose employers are forcing them to agree to arbitrate as a condition of employment are being harmed, this study finds not that great of a difference between arbitration and federal court litigation, and what difference there is seems favorable to employees.

Three Months Down,Two to Go - Where Things Stand In the Texas Legislature

Employment law issues are not the top item in this session of the legislature. Items such as Tort Reform (which of course could have a substantial impact on employment related litigation) and the budget deficit have taken top billing, as well as the attention of the legislators. Still some of the bills tracked here have begun to move, with the first handfull being passed by one house. For a full list of bills which were introduced see the March 16 Jottings entry, which has been updated through April 5th.


What follows are the bills which have at least had or are scheduled for their initial public hearing described by their current status:


Passed by One House of the Legislature

H.B. 1221 Barry Telford Prevents a chargeback to an employer's account if unemployment benefits are provided because the employer was called to active duty military service after January 1, 2003. Referred to Defense Affairs & State-Federal Relations. Passed by the House on April 3, 2003.

H.B. 1282 Brian McCall (R - Plano) This is not an employment bill, but an anti-spam one, so certainly one worthy of watching from at least my mailbox's perspective. Referred to Economic Development. Passed by the House on April 3, 2003.

H.B. 1819 Rene Oliveira(D - Corpus Christi) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Economic Development. Passed by the House on April 3. 2003.

S.B. 374 Tommy Williams (R - Woodlands). Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Passed the Senate on March 20, 2003. Referred to House Committee on Economic Development.

Scheduled for Consideration This Week

H.B. 804 Charlie Geren (R - Fort Worth) Amends Texas minimum wage law to pre-empt any city ordinance setting a minimum wage. It does not apply to government contracts or tax-abatement agreements. In light of recent adoption of a living wage ordinance by Santa Fe, New Mexico, this bill may now get more attention.Referred to Economic Development. Placed on General State Calendar for April 7, 2003.

Scheduled for Hearing This Week

H.B. 826 Yvonne Davis (D - Dallas) Requires employers to turn over any abandoned wage payments to the State Comptroller. Referred to Economic Development. Scheduled for public hearing on April 9, 2003.

H.B. 945 Lon Burnam (D - Fort Worth) Would set a minimum wage for state and local governments. The minimum wage would be the higher of the federal minimum wage or one calculated based on the federal poverty guidelines. Based on the 2002 guidelines, the minimum wage would be $8.70. Referred to State Affairs. Set for public hearing on April 7, 2003.

H.B. 995 Ken Mercer (R – San Antonio). Expands the public whistle blower statute to also include protection from retaliation for reporting a waste of funds to an appropriate governmental agency. Referred to Government Reform. Scheduled for public hearing on April 8, 2003.

H.B. 1496 Burt Solomons (R - Carrollton) Establishes a study to review and propose legislation to strengthen the anti-abuse provisions of the unemployment compensation laws, including increasing collections of overpayments. Referred to Economic Development. Scheduled for public hearing on April 9, 2003.

H.B. 1684 Beverly Woolley (R – Houston). Amends the TCHRA so that the issuance of a right to sue letter by the EEOC would also trigger the 60 day deadline for filing a lawsuit under the TCHRA. This would be extremely helpful in making sure that lawsuits are timely filed and eliminate a major flaw in the current situation. Referred to Economic Development. Set for public hearing on April 9, 2003.

H.B. 2170 Burt Solomons(R - Carrollton) Sunset legislation concerning the renewal of the Texas Workforce Commission. Contains a number of substantive changes. Referred to Economic Development. Set for public hearing on April 9, 2003.

H.B. 2949 Reuben Hope (R - Conroe) Requires that a waiver of right to a jury trial use specific language and be in 16 point type. Part of the required statement is that the waiver is not required by law. Referred to Civil Practices. Public hearing scheduled for April 9, 2003.

H.B. 3160 Jaime Capelo (D - Corpus Christi) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs. Public hearing scheduled for April 9, 2003.

Public Hearing Held, Now Pending In Committee

H.B. 50 Sylvester Turner (D – Houston) Mandatory leave for employees to attend school conferences, and penalties against retaliation for exercising that right. Referred to Economic Development. Public hearing on March 19, 2003 left pending in committee.

H.B. 152 Ron Wilson (D – Houston) Limits an employer's ability to obtain so called 'dead peasants insurance,' where an employer obtains a policy on lower paid employees with itself as a beneficiary. Referred to Insurance. Public hearing on March 10, 2003, pending in committee

H.J.R. 18 Suzanna Hupp (R – Lampasas) A constitutional amendment to grant a broad right of privacy. In California, a similar constitutional amendment was used as a basis for finding the constitutional right of privacy extended to non-government employers. Referred to State Affairs. Testimony taken on March 3, 2003. Still pending in committee.

H.B. 181 Jessica Farrar (D – Houston) Allows an individual who receives deferred adjudication to legally deny the arrest and prosecution, except for a subsequent criminal prosecution. This would impact information employers are able to obtain when hiring. The bill passed last legislative session, but was vetoed by Governor Perry. Correction of referral, now referred to Law Enforcement. Public hearing on March 17, 2003, committee substitute considered in committee, still pending in committee.

H.B. 281 Paul Moreno (D – El Paso) This is not technically an employment bill, but is likely to be one of the most talked about and contested non-financial bills of this session. It would make it a misdemeanor (punishable by a $100 fine) to talk on a mobile phone when driving, unless the car is stopped or the phone is operated without the use of either hand. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 328 Warren Chisum (R – Pampa) An attempt to allow employers the opportunity to obtain information from applicants about prior workers compensation claims and injuries. The legislation modifies the Texas Commission on Human Rights Act and the Texas Workers Compensation Act, but unfortunately can not shield employers from the Americans with Disabilities Act which prohibits such inquiries. Referred to Business & Industry. Testimony taken on March 4, 2003 still pending in committee.

H.B. 355 and H.B. 356 Harold Dutton (D – Houston) These are two education leave bills, similar to some of the amendments that have been suggested for the federal Family Medical Leave Act. One would require employers to give time off to employees to meet with teachers, counselors or principals; the other to attend certain school activities. The bills also create new causes of actions against employers for refusing to provide the time off. Referred to Economic Development. Public hearing on March 19, 2003, pending in committee.

H.B. 359 and H.B. 371 Harold Dutton (D – Houston) These two bills attempt to limit the use of mandatory arbitration. The first would prohibit arbitration of Texas Commission on Human Rights Act or Title VII claims, the second would prohibit mandatory arbitration until an employee had worked for an employer for at least 90 days. Even if these bills were to pass, if the agreement were covered by the Federal Arbitration Act, these restrictions would be pre-empted. Most, but not necessarily all, employment relationships will be covered by the FAA. Referred to Economic Development. Public hearing on March 19, 2003, left pending in committee.

H.B. 574 Jessica Farrar (D – Houston) Amends the Texas Commission on Human Rights Act to prohibit discrimination against individuals on the basis of their sexual orientation or gender identity. It would also protect anyone from being treated differently because of the sexual identity of individuals with whom the employee associates. Referred to Business & Industry. Public hearing on March 25, 2003, left pending in committee.

H.B. 624 Jose Menendez (D - San Antonio). Basically a refined version of Representative Moreno's H.B. 281 which prohibits use of mobile phones while driving. This version has more definitions, some exceptions for emergency calls, and a range of fines that increases if the violation occurs in a school zone. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 705 Burt Solomons (R - Carrollton) Provides a defense against a claim of negligent hiring for employers whose employees enter another's home for purposes of repairs or delivery of goods. The defense would only be available if the employer obtained a criminal record from the Department of Public Safety. The bill gives the employer the right to have that access. Referred to Civil Practices. Public hearing held on April 2, 2003, left pending in committee.

H.B. 1018 Mike Villarreal (D – San Antonio) Would provide a preference by state and local governments for vendors who were certified as family friendly by the Texas Workforce Commission for providing employee dependent care benefits. Public hearing on March 10, 2003, pending in committee.

H.B. 1045 Joe Deshotel (D – Port Arthur) Creates an alternative base period for computation of unemployment compensation benefits to remove a period of extended medical disability. Referred to Economic Development. Public hearing on March 12, 2003, pending in committee.

H.B. 1360 Aaron Pena (D - Edinburgh) Amends existing state law with respect to penalties for discrimination against national guard personnel, by removing the current cap on damages which was limited to six months pay, adding punitive damages and utilizing the caps applicable to TCHR claims based on number of employees, with a maximum of $300,000 for compensatory and punitive damages by employers with more than 500 employees. An interesting choice, since it will be hard to argue against increasing penalties against employers who discriminate against those who might be called to serve in the Iraq conflict. Referred to Defense Affairs and State-Federal Relations. Public hearing on March 20, 2003, left pending in committee.

H.B. 3462 Mike Villarreal (D - San Antonio) Amends the Texas Commission on Human Rights Act and the Workers Compensation Act to make it clear that an employee's immigration status alone does not bar him from being covered. Referred to Border and International Affairs. Public hearing held on April 2, 2003. Committee substitute reported favorably on April 2, 2003. Vote reconsidered on April 3, 2003 and left pending in committee.

Grapevine Type Evidence Not Enough for Slander

Almost every employment defamation case features an element of grapevine knowledge, that is never attributable to any source. Although it seems obvious that such unattributed statements are not a sufficient foundation for a defamation claim, because it shows up in so many cases, it is always nice to have a case which has that explicit holding. Trostle v. Combs (Tx. Ct. App. - Austin 4/3/03) does so. It also threw out a more specific allegation for lack of evidence based on personal knowledge.

Retreat By First Court of Appeals - Movant for Temporary Injunction in Non-Compete Case Must Show Probable Harm

Resolving a dispute it created with the Beaumont Court of Appeals reported here last month, the First Court of Appeals has re-examined its holding in Norlyn Enterprises and reversed its opinion on the impact of Section 15.51 of the Texas Business & Commerce Code on traditional equitable principles for a temporary injunction. In Cardinal Health Staffing Network, Inc. v. Bowen (Tx. Ct. App. - Houston [1st Dist.] 4/3/03], it now holds that in order to obtain a temporary injunction in a non-compete case, a court must find that there will be irreparable harm. Interestingly in doing so, it points to two contrary decisions by the Dallas Court of Appeals in 1990 and 1993 and now respectfully disagrees with them. It also declines the invitation of Cardinal Staffing to adopt the 'inevitable disclosure' rule, saying it would not matter in this case even if adopted, but raising doubts about whether it should be. The opinion notes that Court voted to consider it en banc, presumably necessary since it was overruling a prior decision of the court.

Freedom of Speech to Complain About Your Termination to Your Best 30,000 Friends At Your Last Place of Work?

Maybe, but can you do it through the company's e-mail? GigaLaw has the story about the ongoing litigation to resolve just that question. Former Intel engineer Ken Hamidi is trying to convince the California Supreme Court that he does. Two lower courts have agreed with Intel's position. How Appealing has a couple of references to the oral argument that was heard yesterday.


Hamidi is not alone as such prestigious groups as the Electronic Frontier Foundation have filed friends of the court briefs. If you are really interested check out their brief [pdf], or for those truly interested go to the website devoted to this case. If nothing else, this should make employers aware of what can await in the way of internet communications when they take on a dedicated and technologically savvy employee.

SARS and the Workplace - One Canadian Province Responds

Even before the war in Iraq ends, SARS may be the next major issue that American is forced to deal with. The workplace is not immune, and so ultimately it will raise questions for employers. In Ontario, the provincial government has already issued a news alert pointing out the interaction between WORKPLACE LAWS AND SARS. Since so many companies now have employees who travel globally on a regular basis, questions are being raised not only about policies with respect to their travel, but also as to whether employees who have traveled should immediately return to the workplace. Tech companies with Asian operations seem to be in the vanguard of those affected according to a Washington Post story. For up to date information, check out the CDC webpage related to SARS.

Sweeney's Successor At the AFL-CIO?

Businessweek has a profile on Bruce S. Raynor, the President of UNITE, touting him as one union leader who seems to be making things happen. It's his union that is behind the class action wage and hour against Cintas that was noted here last week.

Textbook Application of Standard for Disability Under ADA - 5th Circuit

Yesterday's opinion by Judge Smith is a classic examination of the three part test that a plaintiff must pass before establishing the presence of a disability under the ADA. The claim was based on plaintiff's chronic pancreatitis. In Waldrip v. General Electric Co. (5th Cir. 4/1/03) [pdf], the court turned first to whether or not it was an impairment. The court found that chronic pancreatitis had been found to be an "impairment" in its own precedent, as well as the EEOC regulations. Additionally, GE did not contest that it was an impairment. Turning to the second requirement, the question was -- did the impairment affect a "major life activity." Here plaintiff claimed it affected eating, which the court held met the Supreme Court standard of "an activity of central importance to daily life", was more important than many other activities found to be major by prior 5th circuit cases, that three other circuits had found eating to be a major life activity with no contrary decisions, and the argument was supported by the EEOC's regulations.


But it was the third issue, which the court labeled the "linchpin" of the determination, that was the stumbling block for the plaintiff. The question is -- did the impairment "substantially limit" the activity of eating. Here, plaintiff's proof completely failed. His only proof was that he occasionally had to miss a few days work when his pancreatitis acted up. At most it showed only a temporary limitation which is not sufficient. Although breaking no new ground, this decision is a reminder of the heavy burden a plaintiff bears to establish the initial foundation of an ADA case -- that there is a disability as defined in law, not just a serious, even dangerous, health condition.

Request For Indefinite Leave Doesn't Cut It Under the ADA - 11th Circuit

The 11th Circuit seeks out a middle ground on whether or not an individual is qualified if he needs an indefinite leave of absence to recover in order to do the essential functions of his position. In Wood v. Green (11th Cir. 3/31/03), the Court did not rule a request for a leave might not be appropriate under other circumstances, but that it is not where there are no temporal limits. In doing so it relied on the regulations which focus on a present ability to do the essential functions, not a future ability.

3rd Circuit Severs Offending Cost Provisions and Enforces Arbitration Agreement

Weighing in on an issue that has arisen in several circuits, the 3rd Circuit finds that the determination of whether a provision that requires that attorneys' fees be borne by each party, regardless of other statutory law, and that the employee should pay 1/2 the cost of the arbitration, makes an arbitration agreement unenforceable is a question of state law. Applying, Pennsylvania law, they find the test is whether the primary purpose of the contract can be carried out after the offending provisions are struck. In Spinnetti v. Service Corp. International (3rd Cir. 3/31/03) [pdf], the answer is yes. After striking the offending provisions, the primary purpose, resolving disputes through arbitration rather than traditional litigation, could still be accomplished. The court upheld the district court's striking the provisions which left the employer responsible for the costs of the arbitration and subject to responsibility for attorneys fees under applicable statutes, like Title VII, if appropriate.

Oh Those I-9's, and the Criminal Law - Another Case Where the Employer is In The Middle

In 1986 (could it really have been that long ago?), the Immigration Reform Control Act was passed making it illegal for an employer to hire undocumented aliens, but also increasing penalties for discriminating against individuals because of their national origin. The way to avoid being caught in the middle was the now infamous I-9. [pdf]. But what was not accounted for was the tremendous boon in the false document market. Or at least that was what a jury apparently believed in acquitting Tyson Foods' of criminal charges of conspiring to hire illegal workers. As reported by the AP part of the company's defense was the Department of Justice brochure, Look At The Facts, Not the Faces. [pdf]. As one juror noted, there was just too much "gray area" for employers. Too often when society has goals that are not aligned -- prevent illegal immigration but don't discriminate because of national origin -- employers are left to sort it out. When it becomes criminal for getting it wrong, it may be time to rethink the issue.