Oklahoma Gun Law Case and the Law of Unintended Consequences

Another chapter in the on-going battle between state legislatures and employers over whether guns can be barred from company parking lots unfolds in the 10th Circuit Court of Appeals this morning when the fate of the Oklahoma statute is heard. The case being argued is Ramsey Winch Inc. v. C. Henry, case number 07-5166 For some background check out Who's Packing in the Car?

The district court issued a permanent injunction against the enforcement of the Oklahoma statute holding it was preempted by the General Duty Clause of the Occupational Safety and Health Act.

For those not acquainted with OSHA, the obligations of the employer are set forth in 29 U.S.C. §654(a):

a) Each employer

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

Section (1) is known as the general duty clause and (2) the specific duty clause. The latter leads to literally thousands of pages of regulations that specify detailed rules on everything from shoring of ditches to lockout prevention.

The district court held that it was the general duty clause that preempted the Oklahoma gun statute. Although credit has to be given to the creativity of employers' counsel for the argument, my first thought when I heard the grounds for the decision was how such a ruling could increase exposure to OSHA violations for other employers. For some general views on how the general duty clause works in the real world see Workplace Safety is a Shared Responsibility from Chemical Processing.com or Using the General Duty Clause from the National Council for Occupational Safety and Health.

Although I would hope the outcome of today's hearing is ultimately upholding the ban on Oklahoma's gun law, I also fear the highlighted use of the general duty clause may well lead down some paths that may not be as good for employers.

It might just emphasize one of the often overlooked aspects of the practice of law, that one of the most important laws of all is the law of unintended consequences.

Hat tip to Employment Law 360 for their story in today's edition, 10th Circ. To Hear Case On Guns At Work ($).

Bullying in the Air?

I hadn't heard or seen much about bullying in the workplace recently, but then a week ago two of my fellow bloggers both had posts: George Lenard wrote Is Workplace Bullying Cause for Concern? and Eric Welter has this post, Are Common Law Remedies an Alternative to Anti-Bullying Laws?

Both were sparked by other articles, George by a story based on the Indiana case involving a heart surgeon, see my post on the case here, and Eric on a legal article from the Bench & Bar magazine, a publication of the Minnesota State Bar Association.

I am not sure there is really any new spirit behind the movement for bullying legislation, other than the general pro-employee boost of the election, and the draft legislation has still not made noticeable headway in any legislature. Still, it is clear that this is a subject that makes for good press and the proponents of legislation to deal with it continue to plug away.

(On a related note, the author of the proposed draft legislation, Professor David Yamada, has a new law review article urging a new philosophical approach to employment law in the U.S. , moving from what he calls a "markets and management" approach to a "dignitarian" one. See the link to the article at Yamada on Human Dignity at the Workplace Prof Blog.)

Like all things in employment law, the longer it is talked about, the more it becomes a familiar concept and at some point there comes a tipping point where it begins gaining real traction. The difficulty courts will have in controlling claims that would arguably fall within such a nebulous standard would really be unprecedented. Employers should be making that case at every opportunity.

Immigration Battle Coming to Texas Legislature

Or at least it will if there is much action on bills to be filed by Representative Leo Berman (R-Tyler), Berman Will File 9 Bills About Illegal Immigration. The Texas legislature has not been heavily involved in the immigration fight that has been a major topic in some other state's recent legislative sessions but that could change this year.

According to the paper's story, the bills to be offered by Berman would among other things:

• challenge automatic citizenship under the 14th Amendment of the U.S. Constitution. The bill says the state of Texas will not issue a birth certificate to children of illegal immigrants born in the state;
• put an 8 percent surcharge on money wired from Texas to Mexico, Central and South America;
• make English the official language of Texas;
• require "sanctuary cities," such as Houston, Austin and Dallas, to enforce immigration laws or be held liable for nonaction;
• pass a bill similar to one passed in Oklahoma that would provide no public state benefits for illegal immigrants and authorizes law enforcement officers to take Section 287 G training with the U.S. Department of Homeland Security allowing them to deal directly with illegal immigrants; and
• require employers to verify citizenship of anyone they hire.

It will be interesting to see how much traction this type of legislation gets as Berman himself thinks it is possible that his proposed legislation will be blocked by the Senate or vetoed by the Governor.

It is also a reminder that we are into the second week of filing season for the 81st session of the legislature which convenes on January 9, 2009. Stay tuned for summaries of filings of bills of interest to employers.

One Hat Out of the Ring for Secretary of Labor

At least that is the report from PolitickerCA.com, a California political blog that styles itself as "Inside Politics for Political Insiders." The headline refers to Rep. George Miller, the Democratic chairman of the House Education and Labor Committee. Miller says no thanks to idea of becoming Obama's Secretary of Labor. Miller has represented the East Bay area since 1975.

There seem to be a lot more leaks from the Obama transition team than there were from the campaign, which may be a reflection that it is a much larger number of people or that it includes many who are not "schooled" in Obama's preference for no drama. Or, and this may be my hope more than anything, it may be that the transition team is not leaking and what you are hearing is more from the pundit class, both professional and amateur, and those who are advocating for particular candidates or for themselves.

More Political Predictions

John Phillips over at the The Word on Employment Law, has stuck his neck out to give his predictions on the top 6 legislative acts affecting employers that he thinks may be passed in the next Congress, Impact of Presidential Politics on Employment Law Issues — One Final Look.

His list in order, with my comments:

1. Employment Non-Discrimination Act - Given that this bill almost passed this Congressional term, I think its passage is almost certain. See my post on September 17, 2007 here. Perhaps the only suspense is whether it will include only sexual orientation or also the more controversial, sexual identity. It was that divide that caused the delay the last time. My guess, we get both.
2. Fair Pay Restoration Act - also known as the Lilly Ledbetter Fair Pay Restoration Act. I agree this will pass, but I think it actually might be the first. Even the current Congress nearly passed it as six Republicans joined with the Democrats to invoke cloture. Hard to see how it doesn't make it, and make it quickly. The Republicans actually offered an alternative that could be better, taking up the Supreme Court's suggestion in a footnote which indicated that it had not yet decided on the applicability of the discovery rule to Title VII claims. The Title VII Fairness Act would do just that. One difference to be noted is that the Lilly Ledbetter Act only applies to compensation claims, the Title VII Fairness Act all discrimination claims, so some might argue whether it is a better deal or not.
3. Healthy Families Act - I also agree with John that picking order is difficult and that some form of expansion of the FMLA will pass. This version gives 7 paid sick days, Senator Dodd has a version that would use the unemployment insurance system (probably not as likely) and there are several versions that would either lower the number of employees for coverage and/or expand the reasons that would trigger an automatic leave. Two likely possibilities: victims of domestic violence (averted once before only because of faulty drafting, see here) and school involvement.
4. Employee Free Choice Act - Clearly this is organized labor's number one item, and if the Democrats have a filibuster proof senate (which while not likely, is certainly possible), it is almost a certainty, and probably is in some form regardless of how the Senate votes turn out. My guess is that the likely "compromise" is to drop the card check provision, since it is the one that catches the most heat for doing away with "secret ballot elections" and instead require "quicky" elections, within a week to ten days after a petition is filed, but retaining the binding interest provision for initial contracts and the enhanced penalties. To me the binding interest arbitration should be the real poison pill for employers, but business better get organized quickly if it wants to make that point.
5. Civil Rights Act of 2008 - I actually think this bill has more likelihood of passage than John does. Currently because of a quirk in the law, race and most national origin discrimination and retaliation claims are not subject to damage caps, while sex, religion and disability claims are. The current limit is $300,000 in compensatory and punitive damages for the largest companies, and scaled down depending on the number of employees. (Age claims are treated differently.) That's a hard position for members of Congress to argue to their female, disabled and other constituents concerned about possible religious discrimination once it is pointed out. My argument would be to put caps on all claims rather than remove them all, but I don't think that will get much support.
6. FOREWARN Act– This would amend the WARN act to extend the time that has to be taken into account from 60 to 90 days, which would be a real problem as calculating coverage under the rolling time table is already difficult and this would make it even harder. This actually might get more attention given the recession and all the job lay-offs we are seeing, so it might get bumped up ahead of some of the others.

Two other acts that are high on my radar screen are the Arbitration Fairness Act which would ban requiring an employee to agree to resolve employment related claims by arbitration as a condition of employment, in effect eliminating binding arbitration as a means of avoiding jury trials in employment cases.

The second is the Protecting America's Workers Act which would toughen OSHA's whistleblower provisions, increase the penalties both civil and criminal and expand the coverage to the public sector. The financial crises and its impact on federal, state and local governments might actually hold the expansion to the public sector off for awhile as they could make a powerful argument about the extra cost that might get a sympathetic ear.

Whatever happens Tuesday, the next Congress will be far different for employers than those in the more than recent past. When you are watching the election results, obviously the most important decision will be the Presidency, but a close second will be the number of Senate seats claimed by the Democratic party. The closer to 60, the more likely that any of the above legislation will be passed. The final size of the Democratic control of the Senate might not even be known until December 2nd, if a run-off election is required in Georgia because neither major party candidate received more than 50% of the vote.

The tough decision for the employer community during the next Congress will be whether to go all out to prevent legislation it views as potentially harmful from passing (which will mean fighting over cloture in the Senate), which worked for the Labor Law Reform Act of 1977, or negotiate and get the best deal possible. That's what happened on the recently passed American with Disabilities Restoration Act.

And of course, business should always remember to urge Congress to consider incremental steps, given that employment and labor laws once passed do not get rolled back.

It's going to be an exciting ride. If it's not buckle your seat belt time, it's past time to make sure that you have one.

MDV's Rare According to Justice Report

The headline from a story in today's Law 360, 2005 Civil Damages Awards Rarely Broke $1M ($) caught my eye because of my interest in MDV's in employment law cases. (My reporting on such cases has been sadly neglected recently, which should certainly not convey that they have not been occurring.) The report mentioned in the article is a Department of Justice survey, Civil Bench and Jury Trials in State Courts, 2005 . Unfortunately, it does not have a lot of breakdown specifically related to employment cases. (Also important to note that a large number of employment cases are filed in the federal court system and thus are not included in this report.)

The three categories used by the report are torts, contracts and real property cases, with employment discrimination (319) and other employment disputes (558) considered under contracts. It is not clear from the report if retaliation claims are categorized as discrimination or other employment claims, or perhaps even somewhere else. There is a separate listing for defamation cases under tort claims, which likely includes some claims arising out of an employment setting.

According to the report 91.2% of the employment discrimination claims were disposed of by jury as opposed to bench trials, although in other employment disputes the figure was only 62.9% resolved by jury trial. (That could indicate that a number of administrative claims, like unemployment appeals, might be included.) The median award in employment discriminatory claims was $175,000 compared to an overall median of $28,000 in all types of cases, and plaintiffs won 60.9% of the trials. In the other employment disputes category, plaintiffs won 50.9% and the median award was $45,000.

Overall about 3% of all civil cases filed were resolved by a trial on the merits.

Well, Thank Goodness for Consensus

I couldn't help but chuckle at the lead paragraph in today's Daily Labor Report ($) article concerning proposed alcohol and drug testing rules in mines:

Although there is an apparent consensus that drug and alcohol use has no place in mines, many miners dislike the proposed rule recently issued by the Labor Department's Mine Safety and Health Administration, which would set standards for drug and alcohol testing of mine employees.

Actually, the discussion over the proposed rule, Alcohol and Drug-Free Mines: Policy, Prohibitions, Testing, Training, and Assistance, which was proposed on September 8th, deserves more than my tongue-in-cheek response accords it.

Instead it illustrates that even on things that are clearly just good common sense, any policy adopted to achieve such a goal is quite likely to be more involved and nuanced than it might seem on first blush. As one of my former law partners used to say, "every pancake, no matter how thin, has two sides."

With a new administration coming, regardless of Tuesday's election results, there are going to be a number of opportunities to review many issues related to the workplace. Although it will no doubt soon begin to sound like a broken record, I can not overstate enough the importance that these are both important and complex questions, and solutions should be thoughtful and incremental. Congress should remember, and be reminded constantly by their constituents, of one of the principles of employment laws -- whatever is passed will never be rolled back.