Failure to Cover Oral Contraceptives On Medical Plan - Sex Discrimination?

That is the question to be resolved in a lawsuit filed by Planned Parenthood in federal district court in Portland Oregon according to a story in Yahoo News, Workers Sue Railroad Co. for Birth Control Coverage. Clearly Planned Parenthood is no slouch in the pr department since according to Omaha tv station KVET, the lead plaintiff is Jackie Fitzgerald of La Grande, Ore, an Air Force and Gulf War veteran who has worked as a Union Pacific trainman since 1998.

Arbitration - Getting More Scrutiny from the Courts

Nice to see that I was right on the trend, or at least in agreement with Professor St. Antoine among others. Various commentators with different perspectives offer their views on why it is that arbitration is now getting more scrutiny from the court system in today's law.com article. Last week talking about a new 5th Circuit decision, I had a similar comment:

It appears that we may be entering a new era of arbitration jurisprudence. Even though the concept has been reaffirmed, and is if anything more frequently being used, rather than less litigation about arbitration, we are going to have more. The difference is it will now focus on contract formation, program content, integrity of the process (both actual and perceived) and standards for reviewing decisions. Undoubtedly one of the things lost, or at least diminished, will be the benefits of quicker, cheaper final determinations. Jottings (2/27/03)

Whether this is temporary or a transition to a different form of dispute resolution remains to be seen. It does at least make me think that lawyers who are concerned about the diminishment of the role of the jury, regardless of what you think of their own self interest, have more of a point than I have been giving them.

Is the Minimum Wage Now A Matter for City Hall? Yes, At Least in Santa Fe

Many cities have considered and/or adopted so called 'living wage ordinances' which generally set a minimum wage that is higher than the federally mandated standard. Almost always they are limited to city employees and city contractors. However, Santa Fe has taken it one step further and extended it all private and non-profit employers within the city limits of Santa Fe, if they have at least 25 employees. Next year the minimum wage will be $8.50 an hour and it will go up to $10.50 by 2007. The New York Times has the story and so does the U.S. Newswire. And for more information from the group that was pushing the ordinance check out the Santa Fe Living Wage Network.

Sarbanes-Oxley, OSHA and a Blue Light Special

OSHA is the agency designated by the Secretary of Labor to receive and investigate whistleblowing complaints filed under Sarbanes-Oxley. However, a Houston Chronicle story questions how successful OSHA will be in following up on those complaints. Although the story does not mention it, there is a difference between Sarbanes-Oxley and the retaliation statute under OSHA. The latter gives only OSHA the right to proceed, whereas SOX gives the employee the right to proceed, in court, if the administrative process has not been completed within 180 days of the filing of their charge. It is way too early to be giving OSHA a hard time for its SOX related duties. Although no doubt their time will come.


In a Detroit News story, KMart is showing how SOX might have a different kick. After being besieged with letters for over a 2 year period from a would be whistleblower "tease" using outdated KMart stationary, the company sent a tough letter to 2,700 employees, reminding them of SOX's protections for whistleblowers, but also suggesting that if they were withholding evidence of wrong doing they could be prosecuted for obstruction of justice. Some interesting comments on the nature of whistleblowers as well.

Temporary Injunction for Covenant Not To Compete - Irreparable Harm Required or Not?

The Texas law on covenants not to compete, has unusually strong language on the pre-emption of the common law. This was a result of a 1990's feud between the Texas Supreme Court and the legislature. The Court took a generally restrictive view of covenants not to compete, while the legislature favored enforceability. The pre-emption language is now the center of an important question: does it abolish the traditional requirements for a temporary injunction, such as showing irreparable harm? It is no exaggeration to say in many cases, that will be determinative of whether or not a party can obtain a temporary injunction. Within the last three months the question has been answered definitively by two separate courts of appeal. Unfortunately, for those who like predictability, it has been answered differently. In Norlyn Enterprises, Inc. v. APDP (Tex. App. - Houston [1st Dist.] 12/12/2002), the Court found irreparable harm was no longer required in light of the statute, reversing a district judge who had refused to enter a temporary injunction, sending the matter back for further proceedings in conformity with their ruling. However, this week, while noting the Norlyn Enterprises decision, reported here on 12/16/02, another court held that the traditional rules for temporary injunction were not displaced by the covenant not to compete statute, and upheld the denial of a temporary injunction because there was no showing of irreparable harm. NMTC, Corp. dba Matco Tools v. Conarroe.


Given the frequency of temporary injunction proceedings on covenant not to compete cases, and the importance of this issue, it seems likely it will end up in the hands of the Supreme Court. Hopefully soon.

Divided San Antonio Court Finds Breach of Covenant Not To Compete To Be "Illegal Activity" for Purposes of Libel

Parker, a former employee of Cram Roofing, with a valid covenant not to compete, sued his former employer for libel based on a letter sent to 12 companies that were prospective customers of Parker's new, and competing, business. In that letter, the former employer said: "Cram Roofing will seek to recover all profits obtained by your company as a result of ....Parker's illegal activities." Holding the covenant had the force of law, the majority opinion of Justice Duncan found the statement made by the employer was "substantially true", and could not be the basis for a libel claim. The Court rejected Parker's argument that "illegal activities" implied a violation of a penal statute. Cram Roofing Co., Inc. v. Parker (Tex. App. - San Antonio 2/26/03).


Justice Stone in her dissent noted that two business men had testified that to them the phrase implied engaging in criminal type activities. She would have affirmed the judgment.

Employment Related Legislation in the 78th Texas Legislature

A weekly update on employment related bills of general interest. Among the developments this past week were the first bills offered by Representative Aaron Pena, a plaintiff's employment lawyer, a comparable worth bill and the first employment bills being set for public hearing, including those that would ban the use of cell phones while driving, except under certain conditions. Actions taken this week are in bold.


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.

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.

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.

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. Set for public hearing on March 3, 2003.

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. Referred to Criminal Jurisprudence.

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. Public hearing scheduled on March 3, 2003.

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. Set for public hearing on March 4, 2003.

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.

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.

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.

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.

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. Set for public hearing on March 3, 2003.

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.

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.

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. Referred to Economic Development.

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 -145,408 Dallas) Requires employers to turn over any abandoned wage payments to the State Comptroller. Referred to Economic Development.

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.

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.

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.

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

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. 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.

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.

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.

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.

H.B. 1360 Aaron Pena (D - Edinburgh) Amends existing state law with respect to penalties for discrmination 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.

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

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. Referred to Business & Commerce. Set for public hearing on March 4, 2003.

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