Labor Day, A Day After - Should We Put This To A Vote?

Any thoughts on how the following legislative finding might fare in today's Congress?

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

And if we wanted a second proposition to vote on, does the following stand up?

The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.

I think the answer is self-evident. The chances of passage of either is nil.

Still they do currently reflect what is the stated policy of the United States as contained in the existing National Labor Relations Act.

I hate to add to the burdens of our already strained political system, which quite frankly does not look as if it can solve any of its too many pressing problems, but at some point, we need to come to a concensus on what we want our labor policy to be.

For too long now, the political attention paid to the NLRB has been one of neglect and acceptance of the fact that with each political turn we should anticipate the wholesale reversal of "established" law. That has happened with the Obama Board, as it happened with the Bush Boards, as it happened with the Clinton Board etc.

When you can't agree on what the policy should be, it is ludicrous to think that the current one is apt to be successfully implemented.

Regrettably, I think that is something all should be able to agree on.

More Things I Have Learned Recently: Virtual Polygraphy

Nothing says you are on top of things like keeping up on your jargon, so I was grateful to Chris Pentilla, otherwise known as the Workplace Diva, for her post Would You Take A Polygraph To Get A Job? and my first notice of "virtual polygraphy."

The term was taken from Michael Schrage's article on the Harvard Business Review Blog network (something else I learned about), The Future of Lie Detection in the Workplace.

Because Schrage is a research fellow at MIT, some of what he says is even too much jargon for me:

But the real revolution emerging is not the greater transparency of a LinkedIn here and the statistical significance of a "lie detection" algorithm there; it's their linkage, fusion and aggregation. Verification is becoming multimodal. Multimodal verification assures greater personal veracity. In other words, networking these technologies creates a rising deterrent to dishonesty. The odds dramatically increase that deceivers will be tripped up by their misrepresentations and mannerisms.

but I think I get the general idea.

More importantly, I think the bigger point is that it seems as if more and more of our fellow Americans are willing to bend the truth on things big as well as small.

Whether or not we can develop technology to cope with it is an interesting question, but the reasons why more people are willing to not tell the truth, if in fact that is correct, is an even more important question, one that causes for more soul searching.

Which reminds me that on my summer reading list was James B. Stewart's, Tangled Webs: How False Statements are Undermining America: From Martha Stewart to Bernie Madoff. 

Not much time left in the summer.

Blogging As a Habit, Or Not

When I started this little venture more than nine years ago now, I knew nothing about blogging. Almost a decade later I now know more, but I continually learn new things.

This summer what I have learned is that just as with many other things, posting is a habit. For a long time, I posted with great regularity, but this summer I most definitely have not.  In fact, to quote my friend and Canadian counterpart, Michael Fitzgibbons who has been at this almost as long as me, "I just can't believe it's been nearly 2 months since I wrote my last post.... the longest gap in 8 years."

Modify the time frames slightly and it works for me as well.

Michael of course is growing his new law firm which is a better excuse than I have. I have been busy with my regular law practice, working on some special projects for my firm and spending way too much time griping about the hottest summer in Austin's history.

But most of all what I have learned is that if I don't post regularly, like any other good habit, it doesn't take long before posting slips out of the conscious mind.

Mea culpa.

Making Government a Little Less Bothersome - Here May Be an Opportunity

In a May address to the American Enterprise Institute, Cass Sunstein of Nudge fame, and also the administrative czar of the the Obama administration, announced the result of a four month study of regulations whose costs out weighed their benefits.

Not too surprisingly in today's atmosphere, almost no one was pleased -- one group saying it was at best only a small step and their polar opposites arguing it was a step in the wrong direction and at best was taking resources away from more important regulatory action. See the Huffington post article for the comments, Obama Regulatory Review Announcement Finds Few Fans.

(Or if you actually care to see exactly what Mr. Sunstein said, here's a link to his prepared remarks.)

What brought this to mind was the BNA DLR ($) story this morning about a May 31st informal opinion letter from the EEOC dealing with confidential data from both an ADA and GINA perspective.  The conclusion:

maintaining personal health information and occupational health information in a single Electronic Medical Record, particularly one that allows someone with access to the EMR to view any information contained therein, presents a real possibility that the ADA, GINA, or both will be violated.

I didn't read the opinion letter close enough to know whether I agree with its conclusion. Nor do I know enough to say that there is a substantial benefit to keeping both personal  and occupational health information in a single electronical medical record, although intuitively it sounds as if there would be.  But assuming the letter is right, and that having one EMR is both a cheaper and more satisfactory alternative than having to keep them separate, this would seem exactly the sort of undertaking that I would hope governmental agencies are looking at.

Although the individual cost might not be all that great, the collective costs to all employers could be substantial, and there is also something appealing about thinking that government was in fact thinking of how things could work better for everyone, but in a way that protects interests of both employers and employees.

It might take some revising of regulations, or perhaps even some statutory adjustments, but it would be nice to think rather than just advice to keep them separate, there is even now within the EEOC some one following up to see if there might not just be a better way. 

Hopefully, if there is, they will let us know.

A Reminder to Trial Lawyers -- As If We Needed It

Not only to trial lawyers, but their clients, when wondering what can happen in a jury trial, to the name OJ Simpson, you can now add Casey Anthony.

Wal-Mart Stores, Inc. v. Duke -- A Sigh of Relief

Analysis will come later as all I have done is read the highlight and the line up of  judges. Judge Scalia's majority opinion was joined in some parts by all justices, while Justices Ginzberg, Breyer, Sotomayor and Kagan dissented from some.

The loud sound you heard was corporate America finally relaxing.

Frankly, I don't think anyone who is serious about an orderly resolution of disputes, where all parties have a fair shot at proving their allegations or defenses, has any other feeling.

The court's opinion is here.

Update: Now that I have read the opinon, here are some more substantive thoughts.

First, an ironic and sad footnote to today's opinion. Professor Richard Nagareda achieved what I assume is something highly desired by any academician, have one of your articles play a key role in a seminal Supreme Court decision. Professor Nagareda achieved that today, as both opinions the majority by Justice Scalia and a concurrence and dissent by Justice Ginzberg cite frequently from his Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009).  Unfortunately, Professor Nagareda died last October at the much too early age of 47, shortly after taking a position with Vanderbilt University School of Law.

 Today's case deals with the fine points of Rule 23, which is the vehicle for creation of class versus individual trials. It was widely used in the early days of Title VII, but its use had fallen off until the last few years. In part this was tied to the Civil Rights Act of 1991 which for the first time permitted jury trials and compensatory damages.  Courts generally held the compensatory damages were not suited for class actions.

In the last few years though, a new plaintiffs strategy emerged. Get a large enough class together, don't seek compensatory damages, just back pay and punitive damages,  get it certified and then force the defendant to settle because of the costs of defending and the uncertainty and difficulty of trying such a large case.  Wal-Mart v. Dukes was the largest of all, and frankly was a good case from an employers standpoint to end up before the Court.

Today's decision is going to severely restrict the use of class actions in discrimination cases going forward. The details will be fleshed out, but the Court unaminously made clear that cases where monetary issues, including back pay dominate (i.e. almost if they exist) then certification under Rule 23(b)(2), plaintiffs' preferred suit and the one it tried in Wal-Mart, is not appropriate. (Kudo's to the 5th Circuit, for having this position in advance.)

Much more important to Wal-Mart, and probably going forward, all of us, the 5-4 majority made it much more difficult to meet the standards for any class without a very tangible, specific job practice that it can be tied to. A standardized test with a disparate impact probably meets the standard but on first blush that seems to be about the closest bright line that we have.

The 5-4 opinion seems to pull the teeth from what I have always considered one of the more dangerous Supreme Court opinions, Watson v. Fort Worth Bank and Trust, a 1988 decision which seemed to permit a disparate impact case any time an employer's promotion practices were subjective (which was every employer) and there was a disparate impact (almost every employer).

For the short term, I think the focus will shift back to individual law suits and plaintiffs, or more aptly, the plaintiffs' bar, will regroup and decide what avenues there are left to pursue cases within a class framework. 

Although this case does not deal with the Fair Labor Standards Act and the collective action it permits, which are outside the purview of Rule 23, much of what the Court said could clearly be applicable to the way such cases are now being certified and handled.  I think you can start seeing Wal-Mart v. Dukes cited to district courts in FLSA cases starting today. What I will be looking for is when the district court cases start citing it back.

Here are a few of the early reports on today's decision:

• HR Lawyers Blog
• Workplace Prof Blog
• What's New in Employment Law

While I Am in the Land of Aloha, the Legislature Permits Guns on Employer Parking Lots Premises

I am vacationing on the Garden Island, but taking some time tonite to catch up on what's been going on. When I left Texas the legislature was still in session, although I thought all the economic problems would keep them from doing too much mischief potentially harmful to employers.

But I was as wrong about that, as I was right about how great Kauai would be.

While I was playing, Russell Cawyer at Texas Employment Law Update was posting on the passage of S.B. 321, which puts Texas in company with those states which prohibit employers from barring employees who are licensed to carry weapons from having them in their locked cars in the employers parking lot. There are a couple of exceptions, but they are not going to pick up many employers. Like other states, there is indemnity protection for the employer, although there is that troublesome exception for "gross negligence."

I am not a fan of these laws, although I can't say that I can post of any adverse consequences that have occurred in other states. Hopefully, I won't have occasion to update this post in the future with such a report.

Aloha.