tag:blogger.com,1999:blog-78571168357487615772024-02-18T19:55:38.603-08:00Succes Of Lawngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.comBlogger1044125tag:blogger.com,1999:blog-7857116835748761577.post-74150041276493212752014-01-16T22:24:00.000-08:002014-01-16T22:24:05.059-08:00The 100 Absolutely Unbreakable Laws of Business SuccesBrian Tracy has traveled and worked in more than 30 countries, studying business, economics, philosophy, psychology, history, and entrepreneurship. The 100 Absolutely Unbreakable Laws of Business Success is based on those years of study and provides a wide-ranging view of the things that make some businesses -- and lives -- work, and others fail.
The author provides a wealth of practical advice distilled into 100 easy-to-follow laws covering the major areas of work and business, such as leadership, money, economics, selling, negotiating, and time management. He includes numerous examples to show how each law functions in the real world and practical guidance on applying it to one's life and work.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-52591317766843448232014-01-16T21:44:00.002-08:002014-01-16T21:44:55.572-08:00Deportation LawyerQuestion: Attorney Lerner, I understand that you are a deportation attorney. Can you describe what qualifications you have to represent clients in deportation proceedings?
Answer: Regarding Immigration Law, in 2000, I passed a rigorous examination and extensive experience requirements by the State Bar of California, Board of Legal Specialization. My firm handles all types of deportation cases from all over the United States. It is critical that you get an expert attorney to represent you for the deportation and removal cases, not just somebody who happens to be local. At the deportation or removal hearing, depending on the case, as a deportation lawyer, I can apply for many forms of relief to try to win the deportation case against the client. Some of these forms of relieve include political asylum, withholding of removal, and convention against torture, registry, adjustment of status, cancellation of removal, termination for deferred action, prosecutorial discretion, administrative closure among others.
Question: So what does a deportation attorney do at the actual hearings?
Answer: At the deportation hearing, a deportation attorney will be able to perform and guide the client through the entire through the process, the master calendar hearing, the contested hearings, and the individual hearings. Keep in mind that the master hearing is very important as it determines in many instances the direction of the case and should not be taken lightly. The contested hearings are very important as well as they will determine whether or not the charges against you will be sustained and whether the charge of removability will be issued. Finally, the individual hearing is critically important as this is the trial on the particular matter. There will be witnesses, testimony, evidence and other matters which will comprise of the entire trial. After the trial, the Immigration Judge will make a decision upon which you will either win or have to appeal. In any case, it is crucially important to have a qualified deportation attorney who is an expert and has years of experience as a deportation lawyer.
Question: How many years of experience as a deportation lawyer do you have?
Answer: As a deportation attorney, I have nearly 20 years of experience. With each case, I am better able to handle and help the client who is either in detention or fighting the case while not being detained.
Question: How can you take deportation cases all over the United States?
Answer: Because Immigration Law is Federal Law, an experienced deportation lawyer who is admitted as an attorney, can practice anywhere in the United States. As for deportation hearings in other States, I travel all over the United States to help clients. Many times, other than the Individual Hearings, the Immigration Judge will allow telephonic hearings. Since deportation and removal cases are very complicated, the client absolutely does wants an immigration attorney who is an expert deportation lawyer. There is too much at stake to hire somebody because they are local or simply charging a lot less money.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com5tag:blogger.com,1999:blog-7857116835748761577.post-21036698950610313792013-11-05T12:17:00.000-08:002013-12-04T20:35:14.537-08:00Two Names You May Not Know and May Never Hear Much AboutBut if you are at all interested in what may be coming out of new NLRB General Counsel Richard Griffin's office, and if you are an employer you should be, then you should at least know of Jennifer Abruzzo and Rachel Lennie, the new deputy general counsel and assistant general counsel respectively. See Corporate Counsel's, <a href="http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=1202626537355&kw=New%20NLRB%20GC%20Begins%20Building%20Labor%20Legal%20Team&et=editorial&bu=Corporate%20Counsel&cn=20131105&src=EMC-Email&pt=Afternoon%20Update" target="_blank">New NLRB GC Begins Building Labor Legal Team.</a><br /><br />Because the GC controls what cases are initiated the legal judgments as to what kinds of cases and the theories on which they will be brought will rest primarily in the hands of these three for the next four years.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-58270413738982738102013-11-05T10:58:00.000-08:002013-12-04T20:35:14.547-08:00The Things People Say and DoOne of the many changes that have happened since I first started practicing law in 1975, is the appearance of services which monitor the filings of new lawsuits and send summaries to law firms. One such excellent service is <a href="http://www.courthousenews.com/" target="_blank">Courthouse News Service</a>, which actually does a lot more than just prepare summaries of new lawsuits. In the first paragraph of their "about us" they note:<br /><br /><blockquote class="tr_bq"><span style="background-color: white; color: #333333; font-family: Georgia, serif; font-size: 12px;">Courthouse News Service is a nationwide news service for lawyers and the news media. Based in Pasadena, California, Courthouse News focuses on civil litigation, from the date of filing through the appellate level. Unlike other Internet-based publishers that simply aggregate information prepared by other content providers, Courthouse News publishes its own original news content prepared by its staff of reporters and editors based across the country.</span></blockquote><br />In any event, one of their recent reports of a filing of a lawsuit by a pro se plaintiff in Harris County, Texas was the following:<br /><blockquote class="tr_bq"><span style="font-family: "Times New Roman","serif"; font-size: 11.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">Plaintiff points to ... an executive assistant, as the source of such office hostility that plaintiff gave her an article titled "De-clawing cattiness at work." She was fired the next day. She wants $600,000 damages.</span></blockquote>And just in case you are wondering, it is at least theoretically possible that this did happen as a Google search reveals a 2005 article by Executive Coach Kay Cannon, <a href="http://www.kaycannon.com/pdf/Kay-Pulse_CattyBehavior.pdf" target="_blank">De-clawing Cattiness in the Workplace</a>.<br /><br />Apparently, no matter how good the advice, it was not appreciated.<br /><br /><br /><br /><br /><blockquote class="tr_bq"></blockquote>ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-67643045877807600692013-11-04T14:53:00.000-08:002013-12-04T20:35:14.555-08:00ENDA Half-way Home?For the first time ever the United States Senate seems poised to pass legislation that would prevent discrimination against gays, lesbians and transgendered individuals appears to have obtained the 60 votes that would allow it to pass. See, <a href="http://www.nytimes.com/2013/11/05/us/politics/bill-on-workplace-bias-appears-set-to-clear-senate-hurdle.html?pagewanted=1&_r=0&nl=us&emc=edit_cn_201311044" target="_blank">Bill on Workplace Bias Appears Set to Clear Senate Hurdle.</a><br /><br />However, with Speaker John Boehner in opposition, it seems unlikely that the bill will be put to a vote, much less pass the House. Although this is one issue on which big business is generally neutral, so stranger things have happened.<br /><br />In a speech last month, I predicted ENDA as one of the first pieces of employment legislation I expected, if the legislative gridlock ever melted.<br /><br />I will stick with the prediction, but I would be surprised if this were an issue that made gridlock disappear, even temporarily.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-34830518439624215432013-10-17T11:26:00.000-07:002013-12-04T20:35:14.562-08:00A Study That Won't Make You Feel Good in Half the CountrySara Murray of the WSJ has an interesting story this week about state legislation in the now 23 states that as of January will require employers to allow employees to bring weapons into their parking lots. <a href="http://online.wsj.com/news/articles/SB10001424052702303983904579095532026750354#printMode" target="_blank">Guns in the Parking Lot: A Delicate Workplace Issue</a>. <div><br /></div><div>What caught my attention was the mention of this statistic:</div><div><blockquote class="tr_bq"><blockquote class="tr_bq"> A 2005 North Carolina-based study in the American Journal of Public Health showed that workplaces that allowed guns were about five times more likely to have a worker get killed on the job compared to workplaces that prohibited all kinds of weapons.</blockquote></blockquote>For guns, the linkage was actually 5 to 7 times more likely. For those who want to get into the weeds, a link to an abstract of the study is <a href="http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449263/" target="_blank">here</a>.<br /><br />Now one study alone is not enough to dictate policy, but if I am an employer responsible for assembling a large group of humans 300+ times a year, it would certainly give me sufficient pause to ask for a concrete explanation of why such a legislative action makes sense.<br /><br /><br /><div><br /></div></div>ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-11327968245527805532013-10-07T09:05:00.000-07:002013-12-04T20:35:14.571-08:00Blogging Is a Habit<div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">And like any other habit, it is much easier to fall out of than create. I am always amazed how after working out regularly for several months, missing a couple of weeks can put me back to ground zero in terms of the work out “habit.”</span></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">That has certainly happened to me with blogging as well. But with the first Monday of October, which of course is the opening of the current term of the U.S. Supreme Court, it seems a like a good time to try to kick the habit back in gear.</span></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">At least I have been doing some things, including sharing some of my thoughts on the practice of law with the folks at the Paralegal 411 website: <a href="http://www.paralegal411.org/interviews/michael-w-fox/">http://www.paralegal411.org/interviews/michael-w-fox/</a></span></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">And there’s more in store. This Friday in Austin, Angie Marshall and I will be speaking at our firm’s seminar on:</span></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><b style="background-color: rgba(255, 255, 255, 0);">TITLE VII AND EMPLOYMENT LAW: THE FIRST FIFTY YEARS</b></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">When Congress passed the Civil Rights Act of 1964, it marked not only a turning point in civil rights, but the beginning of the imposition of an adversary system in the workplace. Trace the history of the development of anti-discrimination law, obtain a greater understanding of current cutting edge issues, and gain an insight into the future during this informative session.</span></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">There will be lots of other great speakers and topics as well, including former NLRB member, <a href="http://www.ogletreedeakins.com/attorneys/brian-e-hayes"> Brian E. Hayes</a>. For more information and registration information, check here: <a href="http://www.ogletreedeakins.com/events/seminars/2013-10-11/11th-annual-labor-and-employment-law-update">11<sup>th</sup> Annual Labor and Employment Law Update</a>.</span></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">And before the year ends, I will be speaking in lovely Charleston, South Carolina with <a href="http://www.ogletreedeakins.com/attorneys/peter-o-hughes">Peter Hughes</a> and Anthony Alfano, <i>Chief Employment, Labor & Benefits Counsel, </i>Tyco at a program designed exclusively for <a href="http://www.ogletreedeakins.com/events/seminars/2013-11-07/corporate-labor-and-employment-counsel-exclusive">Labor and Employment law in house counsel</a> .</span></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">Our topic:</span></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><b style="background-color: rgba(255, 255, 255, 0);">Trial Techniques for In-House Counsel: Don’t Make Juries Mad</b></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">Taking a case before a jury can be a nerve-wracking prospect for in-house counsel. The stakes are high and the results can be gratifying . . . or astonishing. This session will cover multiple trial issues and strategies, including juror insights and strategies for voir dire, challenging evidentiary issues, preparing witnesses, selecting experts, and more.</span></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><br /></div><div class="MsoNormal" style="margin: 0in 0in 0.0001pt;"><span style="background-color: rgba(255, 255, 255, 0);">And hopefully, by then I will also be back in the blogging habit.</span></div>ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-16954219798480047042013-08-01T18:21:00.000-07:002013-12-04T20:35:14.578-08:00Whose Side Are You On? The Perils of HR<div class="MsoNormal">I have often said that being a front line supervisor is the most difficult job in today's workplace. I think that is still true for a specific position. But if there is a department that is fraught with peril, it has to be the Human Resources group. <o:p></o:p></div><div class="MsoNormal"><br /></div><div class="MsoNormal">This came to mind because of a great article by Alison Green, <a href="file:///C:/Users/Mike%20Office/Downloads/a%20href=%22http:/money.usnews.com/money/blogs/outside-voices-careers/2013/07/29/5-secrets-you-should-know-about-hr%22">5 Secrets You Should Know About HR</a>. <o:p></o:p></div><div class="MsoNormal">The points Green makes, that HR knows things they can't tell you, that their job is to support the managers of the company not employees, to list just two, are true, but point up one of the problems for HR in the modern world. <o:p></o:p></div><div class="MsoNormal"><br /></div><div class="MsoNormal">Too often, the constituency that they are asked to serve is not made clear, or at least not explicitly so. Is HR an employee advocate, looking out for the interests of the employees? Maybe, and clearly that has a role, but in reality, the responsibility is more often in support of management, although that support often comes in the form of being the compliance policeman. <o:p></o:p></div><div class="MsoNormal"><br /></div><br /><div class="MsoNormal">This topic certainly deserves a lot more attention than this brief post. Until this issue is resolved at any particular company, HR will forever be sentenced to a very unhappy existence.<o:p></o:p></div>ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-66647623953014058602013-07-15T07:22:00.000-07:002013-12-04T20:35:14.587-08:00Pay Cards - Federal Standard Might Be HelpfulAlthough employers are often ambivalent, if not negative, about federal involvement in the workplace, there are time when it is beneficial. <br /><br />There is not anything that is more basic about the employment relationship than how employees get paid. I can still remember getting my 65 cents an hour pay as a delivery boy for Graves Drugstore, in cash, in a little white envelope every Saturday. For a 15 year old netting $35 a week that was fine, but not very scalable for a larger employer.<br /><br />And in a world where the number of the unbanked and underbanked is growing larger, see the Forbes article, <a href="http://www.forbes.com/sites/halahtouryalai/2012/09/17/who-needs-banks-number-of-americans-without-bank-accounts-rises/" target="_blank">Who Needs Banks?</a>, it's an issue that also impacts employees.<br /><br />One solution has been pay cards. But for a national employer using this means of payment means complying with a whole host of state laws, very few of which are specifically designed to address that particular issue. So, wending your way through the maze can be complicated, and that means expensive.<br /><br />So the NYT article, <a href="http://dealbook.nytimes.com/2013/07/11/16-senators-seek-inquiry-of-a-t-m-style-pay-cards/?ref=business">16 Senators Seek Inquiry of A.T.M.-Style Pay Cards</a>, highlights one of the times where at least some segments of the employer community might be happy with a comprehensive review of the issue and a federal solution.<br /><br />As the article points out, it is an area where there can be abuse. But abusing employees is not the desire nor intent of all but the most rogue of employers, and so reasonable rules and regulations that could be applied across the country no matter where the employee works would really be helpful. <br /><br />The devil is in the details of course, but my guess is that this is one area where common ground could be found and Congress might could actually solve a problem that exists for employers and make sure that employees are protected. <br /><br />Wouldn't that be a novel gift from Congress?ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-37541707681519607882013-07-02T05:30:00.000-07:002013-12-04T20:35:14.595-08:00Federal Government Action on Employment Discrimination Before Title VIICongress as early as the Unemployment Relief Act of 1933 made a policy declaration "That in employing citizens for the purpose of this Act no discrimination shall be made on account of race, color, or creed."<br /><br />Action to enforce the policy were much slower to develop. Nothing was passed by Congress.<br /><br /> In 1941 and 1943, President Roosevelt created two Fair Employment Practice Committees whose focus was on preventing discrimination by government contractors who were involved in the war effort. The first FEPC had only 8 staff members and no powers. The 1943 version was better staffed with 120 employees, but still no powers. They did receive over 8,000 complaints and held 30 public hearings, but their powers were limited to enforcing any decision by negotiation, moral suasion, and the pressure of public opinion. The powers of the second FEPC expired in June 1946.<br /><br />Under Presidents Truman and Eisenhower the federal government's efforts were focused on government contractors, but again with no real teeth.<br /><br />In March of 1961, President Kennedy issued <a href="http://www.eeoc.gov/eeoc/history/35th/thelaw/eo-10925.html" target="_blank">Executive Order 10925</a>, which established the President's Commission on Equal Employment Opportunity to focus on eliminating employment discrimination on the basis of race, color or national origin in both government employment and by government contractors. It also for the first time adopted the concept of requiring affirmative action on the part of government contractors.<br /><br />This Executive Order also required government contractors to file reports and gave the Commission the power to recommend suits by the Department of Justice and to debar contractors who failed to comply with its requirements. Much of the energy though was 200 "plans of progress" under which large companies set up voluntary recruitment plans designed to give minorities equal employment opportunities.<br /><br />It was this Commission on Equal Employment Opportunity that seemed to be the model for what was originally included in Title VII introduced in June of 1963.<br /><br />ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-354527883994713842013-06-30T16:36:00.000-07:002013-12-04T20:35:14.603-08:00June 1963 - Civil Rights Act IntroducedOn June 20, 1963, what became the Civil Rights Act of 1964 was introduced as H.R. 7152, in the 1st Session of the 88th Congress. It was referred to the Judiciary Committee which was chaired by Rep. Emanual Celler (D-NY). He referred it to a sub-committee, which he also chaired.<br /><br />On June 26, 1963, the first hearing was held with Attorney General Robert F. Kennedy as the sole witness.<br /><br />Since for purposes of this blog, the key provision was Title VII, which is the foundation for the advent of employment law, it is interesting to note some of the provisions of the bill as originally introduced:<br /><ul><li>It created four protected categories, race, color, national origin and religion;</li><li>It was designed to prevent discrimination in voting, education and public accommodations;</li><li>In the introduction it made the following statement: <em>It is also desirable that disputes or disagreements arising in any community from the discriminatory treatment on the basis of race, color, or national origin shall be resolved on a voluntary basis, without hostility or litigation. Accordingly, it is the further purpose of this Act to promote this end by providing machinery for the voluntary settlement of such disputes and disagreements.</em></li><li><em></em>There was a Title VII, which allowed the President to establish a Commission on Equal Employment Opportunity with a mission of eliminating discrimination on the basis of race, color, national origin and religion by government contractors and sub-contractors. It would have the powers given to it by the President and would be chaired by the Vice President of the United States, with the Secretary of Labor serving as the Vice-Chair.</li></ul>Obviously, a far cry from what would emerge as Title VII one year later in the bill as passed by the Congress and signed into law by President Johnson.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-1205911910997653272013-06-25T14:05:00.000-07:002013-12-04T20:35:14.610-08:00Let's Get a Grip, Employees' Rights Did Not End YesterdayReporting is no easy task. But I have heard several reports concerning the two Supreme Court decisions yesterday that convey misleading information, or at least don't put it in proper context. An example is <a href="http://takingnote.blogs.nytimes.com/2013/06/24/by-5-4-a-more-hostile-workplace/?nl=opinion&emc=edit_ty_20130625&_r=0">By 5-4, a More Hostile Workplace</a> by New York Times editorial board member <a href="http://www.nytimes.com/interactive/opinion/editorialboard.html" target="_blank">Teresa Tritch.</a><br /><br />My comments on the two decisions, <em>Vance v. Ball State</em> and <em>University of Texas Southwestern Medical Center v. Nassar</em> with links to the decision themselves, are <a href="http://employerslawyer.blogspot.com/2013/06/supreme-court-adopts-narrow-definition.html" target="_blank">here</a> and <a href="http://employerslawyer.blogspot.com/2013/06/but-for-not-motivating-factor-is.html" target="_blank">here</a>.<br /><br />There is no doubt that the employer prevailed in both cases, and that employers will benefit from the two decision in the future. But implying they will lead to a more hostile workplace or some of the other ills being proclaimed, are off the mark.<br /><br />The starting point of any discussion about the efficacy of employment law should start with a basic premise -- once an employer has been sued they have lost. The only question is how little they have lost. See (albeit in another context) my explanation of that point. <a href="http://employerslawyer.blogspot.com/2010/05/bullying-as-cause-of-action-one-large.html" target="_blank">Bullying As a Cause of Action - One Large Step Closer.</a><br /><br />Secondly, by definition all employees who bring cases based on their termination come from a pre-selected pool. That pool consists of individuals intentionally selected by a business manager or group of managers as not working out as an employee, or in cases of economic driven layoffs, not being the best to keep.<br /><br />You don't have to accept that all employers are free of discriminatory motives, although I would argue most are, to understand that just based on the hassle and cost of terminating an employee, not to mention the concern of being sued, that is not an action that will be taken lightly. Thus you should not expect that all terminated employees would have meritorious claims or that there should be some 50/50 split. That employers "win" most cases should be the rational rule, not some surprise. (Even then see prior paragraph, how "wins" by employers are really minimized losses.)<br /><br />With that small bit of context, which almost is never recognized in such articles, here are some additional comments (portions of the article in italics)<br /><div><blockquote class="tr_bq"><em>But according to a 5 to 4 decision by the Supreme Court today, the answer is no. With that ruling, the conservative majority — Chief Justice Roberts, and Justices Alito, Kennedy, Scalia and Thomas — has left many victims of workplace harassment without legal recourse.</em></blockquote></div>No victims of workplace harassment are without legal recourse. The importance of whether someone was a supervisor goes back to an earlier pair of Supreme Court decisions in which the Court determined what standard would be utilized to decide harassment cases. The Court decided that in cases of co-employees the standard would be negligence, that is, did the employer know (or should have known) about the harassment and failed to take action. <br /><br />In the case of harassment by "supervisors" the court held that there were two types of harassment. In those where in addition to the harassment there was a "tangible employment action," then the standard was strict liability, the employer would have no defense. However, if there was harassment by a supervisor, but no tangible employment action, the employer would be strictly liable unless it could establish a two part affirmative defense.<br /><br />In other words, the manner of proof depends on the status of the harasser and whether there was any tangible job action. There are three buckets: <br /><ol><li>co-workers (or third parties);</li><li>supervisors + tangible employment action; and</li><li>supervisors with no tangible employment action.</li></ol>Based on yesterday's decision, more people in the work force fall into bucket 1, as opposed to buckets 2 and 3. Each bucket is protected from harassment, just in different ways.<br /><br />To be fair, Tritch later qualifies her earlier statement:<br /><blockquote class="tr_bq"><em>Under Title VII of the 1964 Civil Rights Act, employers are liable for discrimination by a “supervisor,” but not by co-workers (unless the victim has reported abuse by co-workers to a supervisor who does nothing to remedy the situation.)</em></blockquote>The relegation of the whole first bucket to the parenthetical shows a misunderstanding of how harassment law works. It also fails to mention that the negligence standard covers not only situations where abuse was reported and the employer failed to act, but situations where the employer should have known abuse was occurring and failed to act.<br /><br />What Justice Alito was doing was defining what standard would apply. Since there are different methods of proof, it is not insignificant, but it is hardly the end of the world and it is certainly not removing protection from harassment from any employee.<br /><br />In the <em>Nassar</em> case, Tritch starts out on a wrong foot:<br /><blockquote class="tr_bq"></blockquote><blockquote class="tr_bq"><em>A second employment case, University of Texas Southwestern Medical Center versus Naiel Nassar, decided by the same 5 to 4 majority also thwarts the ability of employees to sue for discrimination under Title VII.</em></blockquote>The whole basis of <em>Nassar</em> is that there are different standards, in different parts of the statute, for discrimination and retaliation under Title VII. <em>Nassar </em>has absolutely no impact on any employee claiming that they have been discriminated against because of their race, color, national origin, religion or sex, the five protected categories under Title VII. It only deals with retaliation. <br /><br />The biggest error is this:<br /><blockquote class="tr_bq"><em>The university medical center appealed, saying that for Dr. Nassar to prevail, he had to show that retaliation was the sole factor leading to the job denial.</em> <br /><br /></blockquote>Tritch later repeats that mistake saying Justice Kennedy said that Nassar had to <em>"show that retaliation was the sole factor in the job denial." </em><br /><br />The trouble is he does not, even after yesterday's decision. <br /><br />There are at least three different standards for finding liability in employment cases. The easiest way to show the difference is to use mathematical terms, although it is admittedly an oversimplification:<br /><ol><li>motivating factor - Means that the person making the challenged decision had both legal and illegal motives in making the decision. For e.g. if 40% of the reason for firing an employee was her sex, and 60% her attendance, she could establish sex was a motivating factor.</li><li>but for - Means that in the same case, the employee would not have been fired for her attendance if she were a man. Using the mathematical terminology, she would have to show that sex was 51% of the reason she was fired.</li><li>sole reason - The employee would have to show that sex was 100% the reason she was fired.</li></ol>If as Tritch said, the Supreme Court had held that an employee had to show retaliation was the sole reason, it would have been a really big deal. But the Court didn't. It held that you had to use test #2, but-for, not test #1, motivating factor.<br /><br />Again, I am not saying it is not a victory for employers, nor insignificant. However, I would argue that in all fairness if it is not the only reading of the law as written, it is at least a fair reading of the law on which reasonable minds could differ. <br /><br />It also is a repeat of what the Supreme Court decided was the standard in ADEA cases in <em><a href="http://employerslawyer.blogspot.com/2009/06/supreme-court-says-no-mixed-motive-for.html" target="_blank">Gross v. FBL Financial Services</a></em>, and although there were similar cries that the world was ending for age cases, I haven't seen any support that has actually happened in the four years since <em>Gross </em>was decided. <br /><br />There are also good reasons why motivating factor is not a workable standard for use when we have jury trials. In fact I testified before the Senate Judiciary Committee to that effect when they were considering legislatively reversing <em>Gross</em>. See link <a href="http://www.judiciary.senate.gov/hearings/hearing.cfm?id=e655f9e2809e5476862f735da1512eb9" target="_blank">here</a>. I would like to say my testimony persuaded them otherwise, but I am fairly certain it had more to do with legislative grid-lock than anything I had to say. <br /><br />Employers definitely won yesterday. But in a system where employers lose just by being sued, to imply that these were drastic decisions demolishing the protections of the workplace, just goes too far. <br /><br />I mean, <br /><blockquote class="tr_bq"></blockquote><blockquote class="tr_bq"><em>The question now is how far and how deeply the infection will spread before Congress passes legislation to establish the E.E.O.C’s reasonable definition of “supervisor” as the law of the land.</em></blockquote><br />Really? Let's all get a grip.<br /><br /><br /><br /><br /><blockquote class="tr_bq"><br /><br /></blockquote><br /><br /><br /><br /><br /><br /><br /><br /><br />ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-619405822437355142013-06-24T08:38:00.000-07:002013-12-04T20:35:14.618-08:00"But For" Not "Motivating Factor" is Standard for Title VII RetaliationMaybe it is because I practice in the 5th Circuit, but today's other major Supreme Court decision for the employment law world, <a href="http://www.supremecourt.gov/opinions/12pdf/12-484_o759.pdf" target="_blank"><em>University of Texas Southwestern Medical Center v. Nassar</em></a><em>, </em>(S.Ct. 6.24.13) is by far the more important case. The Court holds that retaliation under Title VII will use a "but for" not "motivating factor" standard.<br /><br />Justice Kennedy writing for the majority, in language that is music to a defendant's ears, says it bluntly: "This, of course, is a lessened causation standard."<br /><br />Looking beyond this victory, does today decision (coupled with <em>Gross</em>) establish a default standard for all federal employment law statutes? Maybe.<br /><br />Justice Kennedy set out this rationale:<br /><blockquote class="tr_bq">The approach respondent and the Government suggest is inappropriate in the context of a statute as precise,complex, and exhaustive as Title VII. As noted, the laws at issue in <em>CBOCS</em>, <em>Jackson</em>, and <em>Gómez-Pérez</em> were broad, general bars on discrimination. In interpreting them the Court concluded that by using capacious language Congress expressed the intent to bar retaliation in addition to status-based discrimination. See <em>Gómez-Pérez</em>, supra, at 486–488. In other words, when Congress’ treatment of the subject of prohibited discrimination was both broad andbrief, its omission of any specific discussion of retaliation was unremarkable.</blockquote>The last part was the Court's way of explaining its prior (in my view) overly broad expansion of retaliation where Congress had not specified it. <br /><br />Going forward in reviewing other statutes, unless Congress specifically used "motivating factor" or other similar language, e.g. the language from SOX, "protected activity was a contributing factor in the unfavorable action," "but for" is the likely test.<br /><br />My guess is that this will turn out to be a chronological issue. Certainly any statute before 1991 is unlikely to have such specific language, but probably most statutes passed after the Civil Rights Act of 1991 will.<br /><br /><br /><br /><br />ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-69110771187760105252013-06-24T07:45:00.000-07:002013-12-04T20:35:14.674-08:00Supreme Court Adopts Narrow Definition of Supervisor for Harassment LawJustice Alito writing for the court succinctly sets out today's holding in <a href="http://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf" target="_blank">Vance v. Ball State</a> (S.Ct. 6/24/13):<br /><blockquote class="tr_bq">We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring,firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” <em>Ellerth</em>, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance and substantially adopted by several courts of appeals.</blockquote>For employers, at least in circuits that had not adopted the "nebulous" definition, this falls into the dodging a bullet category, and for those circuits which had adopted such a rule (Justice Alito specifically mentions the 2nd and 4th Circuits) it is a very positive day.<br /><br />Given the other opinions coming in the next few days, it is unlikely <em>Vance v. Ball</em> State will get much attention outside the labor and employment law bar. However, Justice Alito's opinion is one that is going to be worthy of substantial attention as it covers a number of important topics ranging from the importance of simplified jury instructions, the importance of summary judgment in certain contexts, the unique nature of the NLRA given its subject matter of regulating differences between labor and management not to mention the explication of <em>Farragher</em> and <em>Ellerth </em>which ultimately is the basis on which the case is decided.<br /><br />Justice Ginsburg writes the dissent and once again looks to Congress as the way out:<br /><blockquote class="tr_bq"><span style="font-size: small;">The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today. </span></blockquote>That's the same song that is being sung about the <em>Italian Colors Restaurant</em> decision, and my view is the same. Unlikely to happen any time soon. ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-88372187598781853512013-06-24T07:05:00.000-07:002013-12-04T20:35:14.730-08:00Supreme Court Will Decide Recess Board's FateIt would have been more of a shock (and an even bigger problem) if it had not done so, but today the Supreme Court granted cert of the D.C. Circuit's <em>Noel Canning</em> decision. See, <span style="color: black;"><a href="http://employerslawyer.blogspot.com/2013/01/what-now-for-nlrb-recess-appointments.html" target="_blank"><em><b>What Now for the NLRB? Recess Appointments Invalid</b> </em></a><em> </em>for the background.</span><br /><br />One small step toward removing the Board from its current legal limbo.<br /><br />In the long term, a potentially game changing decision on the powers of the Presidency versus the Senate.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-47278729507018760082013-06-20T08:22:00.000-07:002013-12-04T20:35:14.785-08:00Supreme Court Arbitration Jurisprudence - No Class Action If You Say SoCombining today's decision in <em><a href="http://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf" target="_blank">American Express Co. v. Italian Colors Restaurant</a></em>, (6.20.13) with its decision 10 days ago in <a href="http://www.supremecourt.gov/opinions/12pdf/12-135_e1p3.pdf" target="_blank"><em>Oxford Health Plans v. Sutter</em></a>, (S.Ct. 6.10.13) the Supreme Court's position now seems clear. If an employer wants to avoid class or collective actions, it can do so by having an arbitration agreement that precludes arbitration of claims on a class basis. But to be sure that happens, you need to be explicit about it. <br /><br />There is no doubt more nuance than that, and I have no doubt that there will be new arguments why such bans will not work, and it may be that there will be some courts will go for it, but the Supreme Court position seems quite definitive. <br /><br />The most logical way for it to be changed is legislative, and of course there has been legislation introduced for the past several Congresses that would ban requiring an arbitration agreement as a condition of employment. But at least for the foreseeable legislative future, that seems unlikely.<br /><br />The net result of these decisions is a rather clunky way to solve a huge problem that is plaguing the employer community, the collective FLSA (and class claims under state equivalents) action. The courts have been unwilling or unable to address that issue by establishing an appropriate standard for conditional certification. And now, because arbitration appears it will be a solution, that means a large number of employers who have not implemented arbitration plans will be re-thinking the decision. <br /><br />All of that will have impacts on the employment law world. It is unlikely that anyone can predict all of the ramifications with certainty. But that there will be a changed world now seems inevitable.<br /><br />Just as a side note, what ever you may think of the judicial view of Justice Kagan, who goes from writing for the Court in <em>Sutter</em> to dissenting today, you have to enjoy her clear cut writing. <br /><div><blockquote class="tr_bq">And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad. </blockquote></div>And a second side note, which surely can and will be amplified by those who really are students of the Supreme Court. particularly if I am right, some of Scalia's references to Justice Kagan's dissent, seem much more respectful than he sometimes is. When she was appointed, some of the commentary was that she might be able to build some personal bridges with members of the Court in the conservative wing and this makes me wonder if there is some, very small to be sure, signs that could be so.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-76458575509494064892013-06-12T11:47:00.000-07:002013-12-04T20:35:14.839-08:00After JFK's National AddressMedgar Evers, a field secretary for the NAACP was shot dead as he got out of his car in his drive way in Jackson, Mississippi. It was just one of many incidents in the summer of 1963 that kept the pressure for the passage of the Civil Rights Act of 1964 moving forward. <a href="http://en.wikipedia.org/wiki/Medgar_Evers">Medgar Evers</a> Wikipedia entry.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-44410303372391619252013-06-11T15:53:00.000-07:002013-12-04T20:35:14.895-08:00A Doorway Stand and One Big Step ForwardOn June 11, 1963, George Wallace made his famous "segregation forever" speech while standing in the door to block the integration of the University of Alabama. (Wonder what Coach Saban would think of that idea?). After President Kennedy nationalized the Alabama National Guard, Wallace stepped aside.<br /><br />Although that was certainly the iconic moment of the day, a much more important event occurred that evening when President Kennedy addressed the nation on the issue of civil rights. The NYT's editorial today talks about its significance, <a href="http://www.nytimes.com/2013/06/11/opinion/kennedys-civil-rights-triumph.html?nl=opinion&emc=edit_ty_20130611&_r=0">Kennedy’s Civil Rights Triumph</a>.<br /><br />For the first time, the President framed civil rights as a "moral issue." More importantly for the development of employment law, President Kennedy promised that his administration would be introducing and supporting a comprehensive civil rights bill that would cover among other things employment. <br /><br />Earlier in Congress, a civil rights bill had been introduced but it was fairly toothless. What was contemplated and what ultimately was introduced was a much more significant act. ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-77948533283744855892013-06-10T12:30:00.000-07:002013-12-04T20:35:14.949-08:00The Equal Pay Act of 1963, The First Tentative StepThe first 87 Congresses of the United States did not really give much thought to the relationship between an employer and its employees. When Congress had acted the focus was on regulating the power between organized labor (unions) and management. While certainly a major factor in the work world, those legislative actions only incidentally involved the basic relationship between the individual employee and their employer.<br /><br />In 1938, Congress had established some work place minimums, but even then it was as much a desire to help pull the country out of the depression as regulating the workplace. And with the limited exceptions that led to the 1947 Portal to Portal Act, the FLSA was a relatively minor player up until at least the 1980's.<br /><br />The genesis for the Equal Pay Act arose when women entered the work force in greater numbers during the war years. As early as 1945, "The Women's Equal Pay Act of 1945," was introduced. Subsequent versions were introduced regularly but never gained traction.<br /><br />In 1962, like the years before when the legislation was introduced, it was not "equal pay for equal work," but "equal pay for comparable worth," a much broader concept that would be fought again later.<br /><br />The comparable worth standard was strongly backed by the Kennedy administration and actually passed out of the House Committee. But on the floor, Representative <a href="http://history.house.gov/HistoricalHighlight/Detail/35561" target="_blank">Katharine St. George</a>, (R-NY) offered an amendment defining equal pay act claims as those "for equal work on jobs, the performance of which requires equal skills." The Senate concurred with the St. George amendment, but the bill failed to come out of conference and so it was not finally adopted until the next Congress.<br /><br />This time, the bill was introduced with the St. George amendment, dealing with the specific (and much narrower) situation where employers would hire men and women for the same position, but relying on societal and market norms, pay women less. <br /><br />The bill was signed by President Kennedy, 50 years ago today. The current version can be found here,<a href="http://www.eeoc.gov/laws/statutes/epa.cfm"><span style="color: black;"> </span>The Equal Pay Act of 1963 (EPA)</a>.<br /><br />One procedural aspect of the EPA was that it was drafted as an amendment to the FLSA, and in its early years contained the same white collar exemptions, a limitation not removed until 1972. <br /><br />The EPA was a limited piece of legislation and was quickly overshadowed by the much broader Civil Rights Act of 1964, passed one year later. <br /><br />But if nothing else it marked a major shift in Congress' willingness to enter the relationship between an employer and their employees. My personal view is that employment law as a discipline, really begins with the passage of the CRA. <br /><br />But if the EPA was not the baby that started employment law, it was at least the twinkle in Congress' collective eye.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-57620859786698915302013-06-09T20:39:00.000-07:002013-12-04T20:35:15.003-08:0050 Years Ago ...In the summer of 1963, the summer between the 7th and 8th grade for me, my main concern was playing first base for Tapp's Pony League baseball team. (It was Tapp's the furniture store, not the funeral home, although I doubt that many in the small town new, or for that matter cared.) In other parts of the country, there were much more significant matters as the civil rights movement which had been building since the mid-1950's was beginning yet another significant and violent summer.<br /><br />What I would do for a living was probably the furthest thing from my mind, but if I had been asked, one thing that I could not have answered is that I would be a lawyer specializing in employment law. That job didn't yet exist.<br /><br />I am certainly not the first person who has ended up spending a lifetime doing something that did not even exist when they were born. But I don't think when I exaggerate the role employment law has had not only on me, but on our whole society.<br /><br />For the last 10, now almost 11 years I have been making these notes, I have focused on current developments in the world of work. But it seems like a good time to look backwards and reflect on just how far we have come in the last 50 years.<br /><br />Although the civil rights movement is focused on the struggle and treatment of black Americans, the first tentative step toward this new discipline was focused on a different group and one particular problem. More about that tomorrow.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-86604650685530433352013-05-29T10:30:00.000-07:002013-12-04T20:35:15.058-08:00It's Not Your Father's ABA Any MoreAccording to my membership card, I first joined the American Bar Association in 1976. I was a first year associate at one of the large firms in Houston. A lot has changed about the practice of law since then. And like every other facet of life, not only is more change ensured, but the pace of change seems almost certain to increase as well.<br /><br />I know I would have been shocked if one of the articles in the ABA Journal of those early years, had been this one, <a href="http://www.abajournal.com/magazine/article/former_sec_lawyer_uses_crowdfunding_to_bring_whistleblower_actions/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly" target="_blank">Former SEC lawyer uses crowdfunding to bring whistleblower actions</a>. First, neither me, nor I daresay anyone else, would have known what either crowdfunding or whistleblower meant. <br /><br />For those who have checked in on this spot over the last decade, you know that one trend I noted early in the days of this blog and have been following is the possibility of a cause of action for bullying. I have gone from disbelief that it could ever happen, to now being resigned to the inevitability. It is only at the inception, but another trend I have begun to notice is the one I wrote about just one month ago, <a href="http://www.blogger.com/">A Ground Floor Opportunity? Litigation Finance<span id="goog_1401825709"></span></a>. Ted Siedle, the ex-SEC lawyer featured in the above article is taking a slight variant of the same sort of approach. In his case, seeking public financing to fund investigations that could lead to SEC awards under its whistleblower program. In the early years, an article in The Lawyer's Magazine, on raising money to initiate more litigation would more likely have talked about barratry, or some other pejorative term, rather than innovation. But of course that was when lawyering was a profession, not a business. <br />Bob Dylan nailed it:<br /><blockquote class="tr_bq">Come writers and critics<br />Who prophesize with your pen<br />Keep your eyes wide<br />The chance won't come again<br /><br />Don't speak too soon<br />For the wheel's still in spin<br />And there's no tellin' who<br />That it's namin'</blockquote><blockquote class="tr_bq">For the loser now<br />Will be later to win<br />For the times they, they are a-changin'<br /><br /><br /><br /><br /><br /> </blockquote>ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-36516872755927371232013-05-21T12:32:00.000-07:002013-12-04T20:35:15.112-08:00Yes Virginia, the Supreme Court Does Matter - A Cat's Paw in the 5th CircuitAlthough as an object fact we know that it is important when the Supreme Court issues a decision, see my discussion just above about the importance of a SOX case that will be decided next term, but it never hurts to be reminded.<br /><br />That was just what happened when I read the 5th Circuit's decision in <em><a href="http://www.ca5.uscourts.gov/opinions/pub/12/12-30290-CV0.wpd.pdf" target="_blank">Haire v. Board of Supervisors of LSU</a></em> (5th Cir. 5.21.13) which reversed a grant of summary judgment. Although that is still rare enough in the 5th Circuit to warrant a second look, what prompted this post was the difference that <em>Staub v. Proctor,</em> decided just over 2 years ago by the Supreme Court, made. (See <a href="http://employerslawyer.blogspot.com/2011/03/with-friend-like-justice-scalia-cats.html" target="_blank">With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly</a>.)<br /><br />Although the result might have been the same regardless of <em>Staub</em>, that's not what it sounds like. The case involved two LSU police officers vying for the Chief's job. The male not only got the interim position, but also the ear of the Chancellor. Even though the Chancellor made the decision to select him, not Ms. Haire, the actions of the interim male Chief, were what made the difference, at least according to Judge Jolly who wrote for the majority. <br /><br />I<br /><br /><br /><br /><br /><br />ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-2160446053589075052013-05-21T10:00:00.000-07:002013-12-04T20:35:15.167-08:00Sarbanes Oxley in the Supreme Court DockAnd on the Supreme Court docket for next term after the Court's grant of certiorai of a 1st Circuit decision which applied a narrow definition to the coverage of the first major financial regulatory act. <a href="http://media.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-2240P.01A" target="_blank"><em>Lawson v. FMR, LLC.</em></a> (1st Cir. 2.3.12) . The case's page on Scotus blog is <a href="http://www.scotusblog.com/case-files/cases/lawson-v-fmr-llc/" target="_blank">here</a>. <a href="http://www.scotusblog.com/case-files/cases/lawson-v-fmr-llc/"> </a><br /><br />The dispute involves the basic question of what employees are covered by SOX. The Court highlighted the disputed language: <br /><blockquote class="tr_bq">Whistleblower protection for employees of publicly traded companies. — No company with a class of securities registered under <a href="javascript:invokeFlexDocument('XEHE64003&jcsearch=15%20U.S.C.%20%2078l&summary=yes#jcite');"><strong><span style="color: #003399;">section 12</span></strong></a> of the Securities Exchange Act of 1934 (<a href="javascript:invokeFlexDocument('XEHE64003&jcsearch=15%20U.S.C.%20%2078l&summary=yes#jcite');"><strong><span style="color: #003399;">15 U.S.C. § 781</span></strong></a>), or that is required to file reports under <a href="javascript:invokeFlexDocument('X7FH2G003&jcsearch=15%20U.S.C.%2078o(d)&summary=yes#jcite');"><strong><span style="color: #003399;">section 15(d)</span></strong></a> of the Securities Exchange Act of 1934 (<a href="javascript:invokeFlexDocument('X7FH2G003&jcsearch=15%20U.S.C.%20%2078o(d)&summary=yes#jcite');"><strong><span style="color: #003399;">15 U.S.C. § 78o</span></strong></a>(d)), or any officer, employee, <i>contractor, subcontractor</i>, or agent of such company, <i>may discharge, demote, suspend,</i> <i>threaten, harass, or in any other manner discriminate</i> <i>against an employee</i> in the terms and conditions of employment because of any lawful act done by <i>the employee</i> —</blockquote>The parties presented two differing arguments for the meaning: (1) FMR argued only employees of publicly held companies are covered, and the highlighted language means that they are protected against actions from any of the highlighted individuals; (2) the individuals who worked for private companies that contract to act as advisers and managers to publicly held companies, argue that coverage extends not only to employees of publicly held companies, but to the "employees those public companies' officers, employees, contractors, subcontractors, or agent." The First Circuit in a 2-1 decision chose the first, more narrow option.<br /><br />The scope of the two is dramatically different. Hopefully someone with access to a lot of data will tell us how different, but I would bet that it would if the Supreme Court adopts the broader reading at least 10 times more employees will be covered, and that guess could be off by magnitudes of tens or even hundreds.<br /><br />The Administrative Review Board, the top administrative agency to rule, has taken the broader view of coverage. <a href="http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/SOX/10_111.SOXP.PDF" target="_blank"><em>Spinner v. David Landau and Associates, LLC</em></a> (5.31.12).<br /><br />A narrow reading would normally be subject to congressional change, but given the current state of affairs in Congress, it is highly unlikely that any such change would happen any time soon. (Although I will admit strange things do happen to move legislation at times.) <br /><br />But as of today, the Supreme Court's docket for next term got a lot more important for employment lawyers.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-87512055274283016052013-05-07T10:30:00.000-07:002013-12-04T20:35:15.223-08:00Another Bad Day in the DC Circuit for the NLRBToday, the D.C. Circuit struck down the NLRB's rule which required all employers over which it had jurisdiction to post a notice advising employees of their rights under the NLRA. <em><a href="http://www.cadc.uscourts.gov/internet/opinions.nsf/E16F1375FA672CCE85257B64004E8BB2/$file/12-5068-1434608.pdf" target="_blank">National Association of Manufacturers v. NLRB</a> </em>(D.C. Cir. 5.7.13). The majority opinion relied primarily on Section 8(c), the so called "free speech" provision which allows employers to advise employees of their view on unions as long as it is done in a non-coercive manner.<br /><br />It was a unanimous decision, with two judges concurring only to point out that in their view there was yet another independent basis to strike the rule down. <br /><br />And with the majority opinion quoting opinions authored by Chief Justice Roberts and Justice Scalia (and referring to a Justice Thomas concurrence), it is clear that the Court was writing not only for today, but for the anticipated appeal.<br /><br />In the more than 35 years I have been practicing, I can not remember a time when an agency that was involved in regulating the workplace has been in such disarray. It is hard to see a path to normalcy, and sometimes hard to remember even what that is when speaking of the Board.<br /><br />Whether in the long term that is a good or bad thing is not yet clear; but that it is taking us to uncharted waters is a certainty.ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0tag:blogger.com,1999:blog-7857116835748761577.post-3940141062933976322013-05-02T15:11:00.000-07:002013-12-04T20:35:15.278-08:00The Next Protected Class - Ex-consThe EEOC last year issued some updated guidance on <a href="http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm" target="_blank">Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII</a>. It laid out a blue print for how to plead a case under Title VII using the disparate impact theory of discrimination. Although not as common as disparate treatment cases, disparate impact cases tend to have much broader application because one of the requirements is a business practice that is applied uniformly with a disparate impact on a protected category.<br /><br /><a href="http://scholar.google.com/scholar_case?case=10962130828131841805"><i>Waldon v. Cincinnati Public Schools</i></a> (S.D. Ohio, 4.24.13) may not be the first case, but it is the first one I have seen where a plaintiff has followed the EEOC's invitation and at least gotten through an initial motion to dismiss.<br /><br />As on all employment law issues that arise in Ohio, Jon Hyman has a good look at the case <a href="http://www.businessmanagementdaily.com/35391/35391" target="_blank">here</a>, focusing on the dilemma where an employer has a federal mandate and state statute (in this case H.B. 190) that appear to conflict.<br /><br />His prediction (or at least hope) is that following state law will meet the exculpatory requirement of business necessity. Maybe <em>Waldon</em> will give us the answer as it progresses, but it is clear that until that issue is definitively resolved there are going to be a number of employers facing tough choices. <br /><br />But there are many employers who may find themselves having to defend similar actions without even the argument that they are protected by a need to comply with state law. Projecting hot areas of litigation is risky business, but if I had to bet, this is one area I would certainly be looking at. ngawurehttp://www.blogger.com/profile/14158301546530051416noreply@blogger.com0