Performance Appraisals: Out Damn Spot!

That's a little overboard and Chris McKinney's post, Getting Rid of Performance Reviews at HR Lawyer's Blog, actually has some helpful ideas for making them better.

Performance appraisals has always been one of my hot buttons, second only to job descriptions. About the latter my standard comment is -- if they are up to date and complete, they are excellent -- however, that does not describe any job descriptions I have ever seen.

Performance appraisals are probably more often done better, but there are way too many that are done at the last minute and do little if anything to really improve performance, and quite often are more likely as nothing more than candidates to be Exhibit 1 in the Plaintiff's case against the employer.

5th Circuit Declines to Be Forum Shopped Under NLRA

Honoring one thing that stuck with me from Bernie Ward's federal court class, "federal courts are courts of limited jurisdiction," the 5th Circuit rejected an attempt to have it decide an appeal from a ruling by the NLRB in Bally's Park Place v. NLRB (5th Cir. 10/17/08).

The 5th Circuit noted the honesty of Bally's Park reason for wanting to be in the 5th Circuit, they thought it had a favorable precedent that might help them in trying to overturn their challenge to a union certification by refusing to bargain. Unfortunately, this subsidiary of Harrah's has no physical presence in Texas, Louisiana or Mississippi and their attempt to "borrow" their parent company's presence did not work, nor did the fact it did internet advertising, had an on line reservation system or that 5th Circuit residents traveled to New Jersey to visit their casinos.

The panel decision also honored something else I learned from Professor Ward, that courts should not decide unnecessary questions. Here the Court noted that Bally's had no physical presence in the 5th Circuit, but also noted that it was not necessary to decide whether that was an absolute requirement.

Judge Southwick was on the panel that issued the memorandum opinion and though he was in law school with me I can't remember if he was in my federal courts class or not. If he was, he did Bernie Ward proud.

The Lily Ledbetter Act on the Campaign Trail and a Broader Concern

It seems like everything is political these days. It may be because I am preparing for three presentations in the next three weeks on how the change in administration and a new Congress will impact the labor and employment law world, that it seems that way.

Lisa Takeuchi Cullen commented on the mention of the Lilly Ledbetter bill in the 3rd Presidential debate in her Work in Progress Column, Fair pay comes up in last night's debate . She mainly used that to pivot (I definitely have been watching/reading too much political commentary) to yet another portion of the Governor Palin interview with Katie Couric about this topic. Painful reading.

It is unusual for labor and employment matters to get aired in political debate, and while the Lilly Ledbetter Act and the EFCA are exceptions, neither is really at the top of anyone's campaign talking points.

As with the EFCA (and many other issues) political sound bites should be no substitute for careful and thoughtful study. Many, like Cullen, point out the likeability of Lilly Ledbetter and the fact that what happened to her, discriminatory pay over many years as found by a jury, taken away because she didn't file soon enough, doesn't seem "fair" or "right."

What gets mentioned much less often is that there is another way to remedy her precise situation than the proposed legislation. The Ledbetter Act really will result in litigation over decisions that were made many years ago. For those who have experienced the difficulty of accurately recreating the events in lawsuits over events that occurred three or four years ago, you can only begin to imagine how difficult it will be to defend a decision made 10 to 20 years ago.

The Ledbetter court itself pointed out an alternative that would have potentially protected Ms. Ledbetter and others like her, without opening wide the door to all the problems of a contrary ruling (which is what the Ledbetter Act would do). In a footnote, Justice Alito noted:

We have previously declined to address whether Title VII suits are amenable to a discovery rule. National Railroad Passenger Corporation v. Morgan, 536 U. S. 101 , n. 7 (2002). Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.

If a discovery rule were applicable, then Ledbetter could have argued that the statute of limitations did not begin to run until she discovered or should have discovered the discrimination occurred. If she had been successful, that would have protected her claim without opening the door as wide as the proposed statutory change will.

And there has actually been a legislative proposal, The Title VII Fairness Act that would do just that. If Senator McCain had chosen another female Republican, Kay Bailey Hutchison of Texas as his running mate rather than Governor Palin, Cullen's column might have referenced a much more coherent discussion of this issue since Hutchison is the author of the Fairness Act.

Hopefully, when it actually comes to acting on much of the potential legislation that is likely to appear in the next Congress, there will actually be a deliberative process that results in compromise legislation rather than one side running rough shod over the other. I know that those who advocate for the Lilly Ledbetter and EFCA bills will argue that turn about is fair play and for far too long it is their view point that has been the recipient of rough shod treatment.

Without trying to debate the merits of that argument, I would only hope that Congress and the new Administration realize that once employment laws are passed it is highly unlikely that they will ever be rolled back. The last example I can think of is the 1947 Portal to Portal Act, that limited some aspects of the Fair Labor Standards Act passed nine years earlier. (If anyone can think of any others, I would welcome hearing from you.)

It is also critical that Congress understand the tremendous impact labor and employments laws can have on productivity, costs and profitability, all of which inevitably impact employees.

Even if you do not agree on the wisdom or the degree, you can't help but agree that the difference between labor and employment laws in the US and Europe have likely had a significant impact on the relative success of the two economies. (An argument which of course sounded a lot better a month ago than it does today.)

I think it is quite likely that there are major changes in the labor and employment laws coming. The potential consequences and the fact that later correction by rolling them back is highly unlikely, argue strongly for incremental changes. Some might say it calls for the use of a scalpel, not a hatchet. We can only hope.

EFCA On the Fastest Track?

Well obviously, the first pre-requisite is an Obama win, but according to Mickey Kaus at Slate, inside sources are predicting fast action on organized labor's top priority. According to Kaus:

Dems are getting set to pass "card check" legislation fast next year, right out of the box, assuming Obama wins and the Democrats get their expected big Senate majority.

The EFCA passed the House this Congressional term but did not make it to the Senate floor because of a near party-line cloture vote.



One exception to the party line vote that does not bode well for the bill's opponents was Arlen Spector (R. Pa) who will be back, along with a crop of newly elected Democratic senators. The big question is how many of the latter. If none of the Democrats strayed and the two independents, including Lieberman voted the same as they did this year, eight would be the magic number needed.



If there are not enough votes for cloture without a compromise, one possibility is dropping the card check proposal and substituting quicky elections, while leaving the interest arbitration provision for first contracts. Since most of those arguing against the EFCA have focused on the most easily explained objection, doing away with the secret ballot, that compromise could easily move an otherwise stuck bill and still give organized labor an enormous boost. In fact, many think it is the interest arbitration provision which is the most dangerous part of the act.



Hat tip to Greg Kittinger at Laboring Away at the Institute for catching the Kaus article.

Colorado Truce - Management & Labor Compromise on Ballot Initiatives

Iit's always good to see management and labor work out their differences, although this is an unusual issue. The WSJ in its story, Executives Pledge Funds as Unions Drop Colorado Initiatives, details a compromise where the business community has agreed to help raise up to $75 million to defeat three anti-union proposals that will be on the November 4th ballot in Colorado, including one designed to make Colorado a right-to-work state.

In return, organized labor dropped four potential anti-business initiatives, including one that would have allowed employees to sue for injuries outside the workers compensation system.

What this confirms for me is the danger of making ballot initiatives too easy. Hard to believe that is the best way to come up with public policy.

Hat tip to the folks at Workplace Issues Today from the M.P. Catherwood Library, Cornell University.

It's Too Early, But Always Fun - Who Will be the Next Secretary of Labor?

The Congressional Quarterly gets a jump with Saturday's review of candidates for all the Cabinet posts in both a McCain and Obama Administration, including Labor Secretary. Although it's way too early to be making any predictions, to the extent they are accurate it does provide some helpful information in how each candidate might view the position. Although it may be intelligent speculation, I would be very much surprised if it was based on any "inside" information. My guess is that the campaigns have plenty on their plate without spending any time on filling "cabinets" that may never come to pass.

CQ's picks for McCain are two trade association representatives and a pol: Randel Johnson from the U.S. Chamber; former Governor of Michigan and now President of the National Association of Manufacturers, John Engler; and former Missouri Senator and Congressman, Jim Talent.

The three picks for Obama, are two pols and a leader from organized labor: Dick Gephardt, former House Majority Leader; Jennifer Granholm, the current Michigan Governor; and Linda Chavez-Thompson, before her retirement the number two person at the AFL-CIO.

If anyone has any links to other mentioned candidates for this or other labor and employment related slots in the next administration, or your own picks, please be sure and pass them on.

Domestic VIolence - a Lurking Issue

Articles, like Domestic violence often bleeds over into workplace from the Birmingham Business Journal, crop up ever so often. Almost every time I see one, it makes me think this continues to be one of those hidden issues that some day is going to come to the forefront on employers' radar screens.

Violence in the workplace is the most horrific aspect, but I can't help think that productivity issues are more prevalent. Many of the potential amendments to the FMLA include domestic violence as a trigger. When legislation starts recognizing it as an employment issue, may be the time it starts being more visible. If you haven't given it any thought, it might be a good idea.