No Longer Secretary of Labor-Designate Solis

By an 80-17 vote, the Senate today confirmed Representative Hilda Solis as Secretary of Labor. See, Solis Confirmed as Labor Secretary. Although it took awhile, for some time now it has been clear that this would happen.

What is new "news" is the appointment of Seth Harris as the Deputy Secretary of Labor. According to a Chicago Sun-Times story announcing a number of sub-cabinet level appointments including Harris, here is his background:

Seth Harris, Nominee for Deputy Secretary of the Department of Labor Harris was most recently the Obama Transition Project's Agency Working Group Leader for the labor, education, and transportation agencies. He is a Professor and the Director of Labor & Employment Law Programs at New York Law School. He is also a Senior Fellow of the Life Without Limits Project of the United Cerebral Palsy Association and a member of the National Advisory Commission on Workplace Flexibility. He served as the Chair of Obama for America's Labor, Employment, and Workplace Policy Committee and a Co-Chair of its Disability Policy Committee. During the Clinton Administration, he served as Counselor to the Secretary of Labor and Acting Assistant Secretary of Labor for Policy, among other policy-advising positions. Before joining the administration, he was a law clerk to Judge William Canby of the U.S. Court of Appeals for the 9th Circuit and Judge Gene Carter of the U.S. District Court for the District of Maine. He graduated cum laude from New York University School of Law where he was Editor-in-Chief of the Review of Law & Social Change. He received his Bachelor's degree from Cornell University's School of Industrial & Labor Relations.

Although it is not 100% clear that it is newly appointed Seth Harris, there is a Seth Harris blog on the Obama campaign website. See newest post here. Given the reference to the Disability Conference Call, which seems to match his duties as Co-chair of the Disability Policy Committee of Obama's transition team, I am assuming it is his, although I would welcome confirmation or correction if I am in error.

If in fact it is the newly appointed number two person at the Department of Labor's blog, it probably will not make any employers who read through the various postings sleep any better.

OSHA Preemption Fires a Blank in Oklahoma Gun Law Case

Yesterday the 10th Circuit reversed a district court's holding that the Oklahoma statute requiring employers to allow employees to bring guns to the employer's parking lot was preempted by the general duty clause of OSHA. Ramsey Winch, Inc. v. Bradley (10th Cir. 2/19/09) [pdf].

Although I had liked the result in the district court, I had both doubted that the rationale would hold up and also was concerned about creating too broad a use of the general duty clause. See my earlier post, Oklahoma Gun Law Case and the Law of Unintended Consequences.

The 10th Circuit also dealt with two constitutional arguments, that the statute resulted in an improper "taking" and was impermissibly vague, but they were no more successful than the OSHA preemption one.

I think the 10th Circuit has it right when it says that this is basically a political argument:

We need not decide the long-running debate as to whether allowing individuals to carry firearms enhances or diminishes the overall safety of the community.

A statute modeled on Oklahoma's is pending in the Texas legislature. See, Can't Ignore It Any Longer - The Texas Legislature Is In Session. Yesterday's decision makes the path for what it will take to avoid having such a statute clearer -- strong political action. Unfortunately, it does nothing to make it easier.

Measuring the Future of Employment Law Activity

I am on DOL's mailing list for their weekly unemployment claim report. Here's the one that came this morning:

In the week ending Feb. 14, the advance figure for seasonally adjusted initial claims was 627,000, unchanged from the previous week's revised figure of 627,000. The 4-week moving average was 619,000, an increase of 10,500 from the previous week's revised average of 608,500.

Losing your job is only one basis for an employment law suit, but is the most likely event that makes an employee go to a plaintiff's lawyer's office.

Of course most don't actually think about suing and most of those who do, do not have a viable claim and are probably told so. However, if you think of it just in terms of potential, just in the last two weeks, there have been approximately 1.2 million new potential plaintiffs created across the country.

The EEOC, The 5th Circuit and My First Post

On July 17, 2002 not knowing what I was getting into, this was my very first post on Jottings By an Employer's Lawyer:

For lack of a green card .....

Posted 9:55 PM by Michael Fox

No, not the kind typically associated with immigration issues, but the kind that accompanies certified mail and is used to prove when an item is received. Some time ago, the EEOC (at least where I practice) quit sending right to sue letters by certified mail. Since the time for filing a lawsuit is tied not to the date of the right to sue letter, but the date of receipt, it is easy to see the kind of problems that were certain to arise. Rather than having government certified (or quasi-government, depending on your view of the U.S. Postal Service's status) proof that the right to sue letter was received on a date certain it is now open to speculation. The 5th Circuit Court of Appeals has added its voice to other courts to at least provide a partial answer. When the date of receipt is uncertain or disputed, the Court will use a statutory presumption that it was received between 3 to 7 days after its date. In this case the court didn't need to be more certain since the suit was untimely regardless of which standard the court applied. Taylor v. Books A Million decided 7/15/02.

The argument for the three days is the period applied in the Federal Rules of Civil Procedure for service of documents by mail. That would make sense, and hopefully will be the standard applied when the Court is forced to decide that issue.

Yesterday the 5th Circuit decided a suit was timely notwithstanding a Katrina delayed receipt of a right to sue notice from the EEOC, Duron v. Albertson's LLC (5th Cir. 2/17/09) [pdf]. Saying what I felt those many years ago, the Court concluded:

In closing, we note that if the EEOC had followed its former practice of sending right-to-sue letters by certified mail, this dispute would, in all likelihood, have never arisen.

When that happens, I will happily update this post.

Dukes v. Wal-Mart, Not Over Yet, Not Even in the 9th Circuit

The folks at Shaw Valenza were busy working on Valentine's Day and were good enough to post the news that the 9th Circuit had granted an en banc review in the largest sex discrimination class action case ever certified, Dukes v. Wal-Mart. The original 9th Circuit opinion is here. [pdf] The granting of re-hearing is almost two years to the day from the original decision.

Unlike all other circuits, an en banc review does not mean all judges of the 9th Circuit, but a 15 member panel. Probably good that this one gets another set of eyes before the (barring settlement) inevitable petition for writ of certioari to the Supreme Court.

For some background on the underlying lawsuit check out the wikipedia entry here, which has already been updated with Friday's action.

Stimulating Whistleblowing

The Whistleblower Law blog, an advocate for whistleblowers has a detailed look at the McCaskill Amendment to the stimulus passed by Congress last week, Congress Enacts Robust Whistleblower Protections to Prevent Fraud in Stimulus Spending.

It analyzes protected conduct under the bill as including:

Gross mismanagement of an agency contract or grant relating to stimulus funds;

A gross waste of stimulus funds;

A substantial and specific danger to public health or safety related to the implementation or use of stimulus funds;

An abuse of authority related to the implementation or use of stimulus funds; or

A violation of a law, rule, or regulation that governs an agency contract or grant related to stimulus funds.

It is not just a public sector bill but also covers private contractors where the source for their payment are stimulus funds. It seems it is not only bank executives who will be picking up restrictions when they pick up newly allocated government monies.

Can't Ignore It Any Longer - The Texas Legislature Is In Session

I don't know if it has been that there is so much going on in Washington or a feeling that it is unlikely that anything too severe to employers will actually come out of the Texas legislature, but for some reason I have basically ignored our state solons. Although they joined us here in Austin in the middle of January, they are still basically in the organizational stage. The new Speaker of the House is to announce committee assignments only this week. Committee assignments taking time.

But a news item ($) in Employment Law 360 reminded me that there is at least one area where employers could be vulnerable: guns in parking lots. That's right, Senator Hegar (R-Katy) has now introduced SB 370. The key paragraph:

A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun ... who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.

One argument will likely be that a number of other states have passed similar measures. I can just hear my mother asking me: "If all your friends jumped off a cliff ..."