Happy New Year

Thanks to all who have stopped by this space in 2007. As you may have noticed, posting has been sporadic, particularly the last half of the year although still averaging 10 a month.

In the New Year my hope is to do better, but I am also going to be busy keeping New Year's resolutions to

• lose weight,
• exercise regularly,
• procrastinate less (maybe I need to think about that one some more) ,
• and at least half a dozen other worthwhile things

that should keep me thoroughly occupied till, oh, at least next weekend!

So rather than a promise of more regular posting perhaps I should just "borrow" and extend the Merry Christmas wish from the good folks at Wage Law, and offer this statement at this year's end:

"I may or may not post anything of substance between now and the New Year ......... 2009!"

But hopefully I will, at least on occasion.

Michael W. Fox

FMLA Expansion - Maybe Not So Quick

Dan Schwartz's Connecticut Employment Law Blog has been one of 2007's leading entries into the employment law blog arena. An example why is that even while vacationing he was keen enough to pass along a caution that the FMLA expansion that has been mentioned in several blogs recently (including this one), seems to have hit a Presidential snag. President to Veto Bill with Expanded FMLA Benefits to Military Families.

What's more impressive is that Dan is apparently the first to make the connection between the well publicized veto and the hit to the FMLA expansion, as my google news search a moment ago for "fmla and veto" came up with no hits. A huge tip of the hat for a scoop not only in the (relatively) small world of employment law blogging, but of the big time media as well.

It seems that the offending clause in a 1000+ page bill is § 1083 which provides in part:

Chapter 97 of title 28, United States Code, is amended by inserting after section 1605 the following:
`Sec. 1605A. Terrorism exception to the jurisdictional immunity of a foreign state

`(a) In General-

`(1) NO IMMUNITY- A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

That particular provision was of great concern to the Iraq government and the concerns have convinced the White House of the need to take action.
,
Since the pocket veto (last heard about in your high school senior civics class) is causing some political waves for President Bush, see In Surprise Step, Bush Vows Veto of Military Bill, and the bill was passed overwhelmingly by both the Senate and the House, it seems quite likely that after the first of the year everything will be worked out and the expansion will go through.

But as Dan says, "it's fair to say that this situation is fluid."

Staffing Firm Controller Scores Manhattan MDV

A company whose business is helping other companies find employees, also has its own, and with them the risk of employment litigation. One staffing company is keenly aware of that this morning as the N.Y. Daily News story, Exec wins 1.2M race, sex harass suit, makes abundantly clear.

Even worse than losing the verdict may be what happens on the first day of next year. According to the article:

Sydney Nurse, 43, isn't quitting her $100,000-a-year controller's job at the midtown employment firm, Concepts in Staffing. On Jan. 2, she'll be back running the accounting department. "She's going back to work because she should not have to give up her job because of racism," said Nurse's lawyer, Kenneth Thompson.

Ouch.

If the evidence quoted in the paper is reflective of the plaintiff's case, it's clear that they got to use one of a plaintiff employee's best arguments -- the arrogance of the employer. When Nurse suggested to the owner of the company that harassing comments might violate the law he was alleged to have said:

"I am the law. I'm Artie A. This is my company and I can do whatever I want."

According to the company's counsel, rather than discriminating, the owner of the company had a lengthy track record of promoting people of color. Pretty clear which way this particular jury viewed the two approaches.

A press release from Nurse's lawyer made even more explicit allegations about the testimony that was presented at trial, saying it included:

• Ms. Nurse being repeatedly called "Black B****" in the workplace
• Ms. Nurse being repeatedly groped, including the CEO grabbing her breast and pinning her against his desk while pressing his pelvic area against her backside.
• An employee rubbing paperwork on his pelvic area before handing it to Ms. Nurse while seated at her desk and then pumping his pelvic area within inches of her face.
• Another employee unzipping his pants and telling Ms. Nurse to "kiss this," while pointing to his pelvic area.
• The CEO making racially discriminatory remarks, including statements that he "did not want any blacks or Hispanics pictured on his company's website" and that he wanted a newly hired employee of color to be seated "in the back of the bus in the black and Hispanic section of the office".
• When told by employees that his comments and actions violated the law, the CEO openly told his employees, "F*** the law. I am the law."

Of course that's just one side of it and you can be sure that the employer thought going in that it had a strong chance that it either was not believable or that it had something to counter act it. And of course the employer may very well have the best of it, because there is a long way between a verdict and money in the pocket of the plaintiff.

Still, at least for me, it re-enforces two points:

1. when you have volatile evidence, if you lose, it's likely to be big; and
2. don't try employment law cases around Christmas.

Court Won't Enjoin Arizona Legal Workers Act

Absent some other last minute judicial intervention it appears that Arizona's law that imposes strict sanctions for hiring illegal workers is set to go into effect on January 1, 2008 as U.S. District Judge Neil Wake late yesterday denied a temporary injunction that would have delayed its implementation.

My Arizona colleagues including Kerry Martin and Scott Blaney, have been monitoring the situation closely and had this update late last night:

Arizona Legal Workers Act Survives First Challenge

Just hours ago, Judge Neil Wake of the U.S. District Court for the District of Arizona denied a temporary restraining order seeking to block enforcement of the Arizona Legal Workers Act. For now, it appears that Arizona’s sweeping new law aimed at stopping the employment of unauthorized workers in Arizona will take effect as scheduled on January 1, 2008. The Act allows for suspension and revocation of licenses of businesses that knowingly employ unauthorized workers.

Judge Wake previously dismissed a challenge to the law because the plaintiffs failed to name the proper defendants. Today, he reiterated that the plaintiffs’ delay in naming the proper parties was a basis for his decision. The plaintiffs have appealed the previous dismissal of their complaint to the Ninth Circuit Court of Appeals and also asked Judge Wake on Tuesday for an injunction while the appeal is pending, which he denied today. Judge Wake cited statements by Arizona County Attorneys that they would not take legal action against any Arizona employers until after February 1, 2008 as a further basis for his ruling. It is important to note, however, that the County Attorneys were explicit during Tuesday’s hearing before the Court that they can and likely will begin investigating complaints filed pursuant to the law beginning in early January.

Given today’s developments and the County Attorneys’ statements, Arizona businesses should prepare for the new law to take effect as scheduled on January 1, 2008.

Here's a link to my colleagues complete report. If you want a feel for those who have been actively supporting the act check out their home page.

'Tis the Season

Well not everywhere I guess. At least that was the thought that struck me when I read this description of a lawsuit filed this week in state district court in Dallas:

Defamation, malicious prosecution, negligence and IIED actions where the defendant coworker planted merchandise in the plaintiff employee's bags to frame her for shoplifting.

Always a new way for trouble to happen, no matter what time of the year.

MDV for Casino Whistleblower

A whistleblower who alleged she was terminated for reporting illegal activities to the Missouri Gaming Commission won a $1,000,000 verdict in Kansas City state court yesterday. The Kansas City Star reported it this way, Jury awards $1 million to woman who lost job at Harrah’s.
As is frequently the case, the story itself does not provide a lot of information about what caused the jury to decide the way it did. What is perhaps more interesting (to those looking on with only an academic, not personal, interest) are the three pages of comments that have come in from others about the lawsuit. It's a good way to get a feel for how strongly people react to employment law litigation, without having to put yourself in front of a jury for the experience.

8 Days of Christmas? No, 8 Parts of Executive Employment Agreement

Probably the lawyer in me that likes things that are organized in a way that enhances understanding, but a story in the Portland Business Journal about the 8 parts of an executive employment agreement struck me as a nice way to cover one of those topics that is perpetually on my "learn more about" list.

The eight parts listed by Portland lawyer, Paula Barran are:

1. duties,
2. obligations,
3. timing,
4. payment,
5. extra benefits,
6. parting,
7. prenup and
8. disagreements

Check the article for the details.

FMLA Expanded with Passage of Department of Defense Funding Bill

More action on the legislative front as Congress today adopted the first expansion of the Family and Medical Leave Act since its original passage. Although for a limited (and good) cause, the expansion is a big one.

It encompasses two kinds of leave --

• 12 weeks where "the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation and there is a "qualifying exigency" which is to be defined by the Secretary of Labor by regulation; and

• 26 weeks where an eligible employee who is the spouse, son, daughter, parent, or next of kin of an injured servicemember needs to take care of them. This is apparently a one time leave.

In short, the expansion which is part of the Department of Defense funding bill is designed to provide possible leave for families of servicemen for both active duty call ups and cases of injury.

Although it is part of a much bigger bill, the relative portions expanding the FMLA can be found here. President Bush is expected to sign the bill.

It is unclear when it will be effective, although arguably it could be as soon as it is signed by the President which should be in the next few days, even though obviously there will be no regulations for some time.

Stay tuned for more details.

More Gray Hair in the Cockpit - Commercial Pilots Can Now Fly to 65

One of the few age limitations* that has been enshrined in legislation bites the dust, as Congress unanimously passes legislation allowing pilots flying for commercial airlines to fly until age 65, rather than the current 60. See Southwest pilots union praises new 65 rule.

Although I am sure this has been in the works for sometime so that some of the kinks have been worked out, I can imagine that it is causing some major rethinking of personal plans as pilots who had been nearing forced retirement now have a decision to make, while many more junior pilots are now looking at more years in the second seat than they had planned.

I probably wouldn't have thought of this as an employment related topic had I not defended a most interesting lawsuit a decade or so ago caused by confusion about who this rule applied to. I knew it was going to be interesting when I read the complaint and it quoted from a comment written on the plaintiff's resume - "What, pray tell, do we do with this? He is approaching his 60th birthday." Sure enough Exhibit A to the complaint was a photocopy of the resume with what was clearly a yellow sticky note attached to it, that contained those words in the HR manager's handwriting.

How did it end up in the plaintiff's hands? A mysterious fax from the company's offices was all that was ever known.

As you might guess, "interesting" does not always mean fun.

* At least on the end I now most personally identify with!

A (Very) Belated Thanks To the Folks at Wage Law

I have learned that much like exercise it is quite easy to fall out of the habit of blogging. As anyone who has checked here regularly of late, it is apparent that I have fallen out of the habit. (And as others who know me personally can attest, I have fallen off the exercise wagon as well.) I have also fallen woefully behind with the current reading which is a pre-requisite to having anything to say.

So it is very belatedly in my effort to catch up on some back reading that I finally made it to a November 9th post at Wage Law, where Mark and Michael Walsh, the authors of that blog were kind enough to list me in the top ten of their favorite blogs. See Wage Law: The Best Law Blogs.

Having just stuck my toe into the murky waters of California's version of wage and hour law earlier this year, I have an even greater appreciation than I did before of the service that the two principals in the Walsh & Walsh law firm provide in keeping the rest of the world abreast of late breaking developments in what has to be one of employment law's hottest area.

Sound Advice on Handling Lawsuits

Although not directly related to labor and employment law, the thoughts of Stewart Weltman in a column in law.com's In House Counsel forum, Think Like a Plaintiffs Attorney to Lower Litigation Costs, are spot on.

Almost every point he makes is one I have come to understand over 30 plus years of handling employment law suits of various sizes, from small to big.

You really should read the article to get his take on things but here's the big picture:

• Prepare every case as if it was going to trial, that's the most certain way to get it settled favorably;
• Don't waste your time (and money) fighting over little things; and more things than you think are little things;
• Don't get involved in discovery disputes, but bend over backwards to provide all documents that are within the discovery requests of the other party;
• Use fewer, but more experienced lawyers; make sure that your trial lawyer knows the facts of the case well;
• The earlier you settle a weak case the better;
• Keep your "story" simple, and know what it is early on

Although he doesn't say it quite this way, have trial lawyers on your side, not "litigators."

Two 5th Circuit Approved Jury Instructions in Discrimination Case

In the age of the vanishing jury trial it is rare to get decisions on the validity of jury charges, so it is always nice to have 5th Circuit endorsed language. In Price v. Rosiek Construction Co. (5th Cir. 12/10/07) [pdf] the Court upheld a jury determination of no discrimination in the face of a challenge to two instructions.

The first was on the effect of a determination by the TWC-CRD or EEOC (here the TWC -CRD had issued a cause finding). The lower court had instructed that:

[a]ny finding or determination of the EEOC that discrimination occurred or that it could not find sufficient evidence of discrimination “is not dispositive of whether discrimination occurred."

The court further instructed:

The findings or determinations of the EEOC are therefore not binding on the trier of fact. You may, but are not required, to accept the findings in the EEOC reports. The reports do not relieve you of your obligation to review all of the evidence in the case and to make your decisions based on the facts as you read them.

The trial court had also given this instruction that employers will find helpful:

Title VII does not shield against harsh treatment in the workplace. Nor does the statute require the employer to have good cause for its decisions. Title VII is not a vehicle for second-guessing business decisions. The employer may take adverse action against an employee for a good reason, a bad reason, a reason based on erroneous facts, or no reason at all, so long as its action is not for a discriminatory reason.

Of course the Court was considering these instructions in light of a favorable jury verdict and under an abuse of discretion standard, but still they are now "5th Circuit" approved.

The Court also dealt with an issue currently pending before the Supreme Court -- whether so called "me too" evidence of discrimination should be allowed. And just as some of the U.S. Supreme Court justices apparently had concerns about allowing such evidence at oral argument, the 5th Circuit did as well.

It upheld the trial court's exclusion of evidence by a fellow employee of Price concerning discrimination against him. The Court was cautious, not wanting to get out too far ahead of what the Supreme Court might do, emphasizing that the other employee did not have any evidence about the decision maker in Price's case and in any event the testimony could have had only a slight effect.

Payday Claim Divides Texas Supreme Court

Those who view the Texas Supreme Court as a monolithic force against employees in employment cases might be surprised by the closeness of today's 5-4 decision holding that an untimely Payday Act claim pursued to conclusion through the administrative process bars a timely common law action for breach of contract for the unpaid wages on the ground of res judicata. Igal v. Brightstar Technology Information Group, Inc. (Tx. 12/7/07) [pdf].

Justice Dale Wainwright authored the majority opinion, and was joined by three of his fellow Supreme Court Justices, Green, Willett and Johnson and joined for all but one section by Justice Bob McCoy of the 2nd Court of Appeals sitting by designation for Justice Hecht who was recused.

Justice Brister wrote the dissent, joined by C.J. Jefferson and Justices O'Neill and Medina.

Although all agreed that the 180 day limit for filing a Payday claim is not jurisdictional, they disagreed over whether the finding that the claim was untimely was an adjudication on the merits, which they also seemed to agree was necessary for res judicata.

Although Justice Wainwright's opinion offered two reasons for the preclusive effect, one that the TWC had actually decided the merits (adjudication of disputed fact), that portion was not joined by Justice McCoy so the opinion of the Court is only on the second grounds, "a court’s dismissal of a claim because of a failure to file within the statute of limitations is accorded preclusive effect."

Although a far cry from the rhetoric of Justice Scalia in many of his dissents, Justice Brister's parry of the majority's statement that it was merely prohibiting a plaintiff two bites at the apple -- "this is not about biting apples twice; this is about a man’s wages" -- is fairly unusual in recent years.

The actual impact of this decision (beyond of course a very disappointed Igal) is not likely to be much since the facts will not often occur. My guess is for those who look for such things, the slight divide amongst justices may well be the intriguing aspect.