If You Believe All Is Fair in Love and War And That Labor Relations Is War, Read On

For some union bragging about campaign tricks that work. The story is in dollars & sense, but taken from the aptly titled Troublemakers Handbook.

Winners and Losers from Sarbanes Oxley - Some Interesting Thoughts

Dwight Klingenberg has a survey of the winners and losers from the fall out of the first year of Sarbanes Oxley. Some surprises, like private companies being on the loser list, even though they aren't covered, and have you heard of the Treadway Commission? One of the winners. Check out his article here. Not surprisingly, one of the tips is to stay on top of the HR issues caused by Sarbanes Oxley.

5th Cir. Affirms Lower Court's Striking of Punitive Damages Ban to Make Arbitration Agreement Enforceable

The Fifth Circuit remains a court that is favorably disposed to arbitration as a condition of employment. In Hadnot v. Bay, Ltd. (5th Cir. 9/11/03) [pdf] the arbitration agreement banned the arbitrator from awarding exemplary and punitive damages. Since such a claim would be permitted under Title VII, the basis for the suit, Hadnot argued that the agreement should not be enforced. Rather than disallowing arbitration, the district court struck the ban on the arbitrator's authority and ordered that the case be arbitrated. The Fifth Circuit upheld the action, finding that now that punitive damages were authorized, there was no reason not to require arbitration.



The Fifth Circuit also rejected Hadnot's contention that there was no consideration, relying on the famous language in Light v. Centel Cellular that a promise which depends on continued employment is illusory, so that no employment at will agreement can support a contract. The Fifth Circuit holds it is In Re Halliburton not Light which controls. The agreement was made at the time of hiring, and both parties were bound no matter how long or short the employment might be.

Academic Study - 1991 Civil Rights Act May Actually Hurt Those It Was Intended to Help

The 1991 Civil Rights Act which added increased clout for those bringing discrimination claims, including the right to compensatory and punitive damages and jury trials to name just two items, may actually have resulted in making it harder for minorities to be hired in traditionally white male dominated job markets. At least that is the theses of an article [pdf] by Paul Oyer of Stanford University published in the Summer 2003 issue of Regulation magazine. The Atlantic's Stuart Taylor, Jr. discusses the article in his Legal Affairs column.



Here is the money quote that Taylor takes from Stanford Law Professor John J. Donahue III:

"Once the egregious discrimination is gone," Donohue says, "then litigation-based schemes to bring ever more fairness become more burdensome and of dubious effectiveness. Litigation is a crude weapon;you can't perform surgery with a saber. Unfortunately, Title VII has become a matter of religious dogma for many academics, and certainly for those who benefit;plaintiffs' lawyers and consultants;and therefore immune to any type of critical inquiry."

Those who have toiled in the employment litigation arena know all too well the truthfulnessess of those words. But as today's, at least temporary defeat of an attempt to change outdated wage and hour regulations show, the idea that Congress will ever roll back any benefit it has provided, regardless of the harm that it might be causing, is most unlikely.

Million Dollar Verdict Close to Home - $1.5 Million by Montgomery County Jury

Healthsouth Corp., which has not been faring well for other reasons, has another bad day with an adverse verdict in an employment law case brought in Montgomery County, Texas, which is just outside Houston. Dr. Helen Schilling, the former medical director at a rehabilitation center claimed she was terminated for refusing to engage in illegal conduct by extending the stay of patients or hospitalize patients who did not need it in order to keep a minimum level of census. HealthSouth argued she was terminated because she was hard to get along with and will ask the court to overturn the jury's award of $465,000 for back pay and mental anguish and $1.05 million in punitive damages. You can check out the story in Yahoo news.

Cell Phones and Liability For Employers - Cooley Godward Case Goes To Trial

The lawsuit brought by the family of a young girl who was killed by an associate of Cooley Godward who was driving while talking on a cell phone goes to trial next week. Law.com has the story. Although the facts relating to the law firm's liability are complicated by the criminal charges that were brought against the lawyer, it is inevitable that many employers will face this kind of suit in the future.

Harkin Amendment Passes - Wage & Hour Regulation Change On the Ropes

The Harkin amendment which has the effect of barring the DOL's proposed change to the white collar exemptions has passed the Senate by a vote of 54-45. See the story in US Today. The bill will now go to conference committee with the threat of a Presidential veto if the language is not removed. It will be several months before the ultimate fate is known, but given the coming political campaign this may be an idea where the time for change is long past due, but may still not have come.