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Google and Legal Research
Posted
3:48 PM
by Michael Fox
Someone else may have caught this before him, but my hat tip on Google's entry into legal research goes to Eugene Lee at California Labor Law, Google Offers Caselaw ... for FREE. Google comes out with tons of new offerings and not all of them last, so who knows about this project, but given what they have accomplished in other areas, probably worth keeping an eye on.
I went over to check it out and since I have been interested in the "mixed motive" issue as a follow up to my testimony before the Senate Judiciary Committee on the bill to overturn Gross v. FBL Services, thought I would try out "mixed motive." Here are the first five entries with that search on the Google scholar page, with the radio button for "Legal opinions and journals" checked:
Price Waterhouse v. Hopkins
Desert Palace, Inc. v. Costa
Mt. Healthy City School District Board of Education v. Doyle
NLRB v. Transportation Management Corp. and
Rachid v. Jack in the Box, Inc.Although that's not a very sophisticated search term, the first four cases are the key Supreme Cases in determining the history of "mixed motive." I would have thought Gross would have shown up high but it doesn't appear until the 8th page. Interestingly, the Rachid case is a 5th Circuit case which extended mixed motive to the ADEA without a lot of discussion, and has been sub silentio overruled on that point by Gross.
I doubt that many are canceling their Westlaw or Lexis accounts today, but it is an interesting development.
Wrongful Termination North of the Border
Congratulations to Workers' Comp Insider
More Government Talk: This Time to Your Employees
Labels: safety
A 5th Circuit Nugget for Assault Claims
Labels: torts
Wage & Hour: Not Just Collective Actions Anymore
Labels: FLSA
Can the NLRB Function With 2 Members?
Labels: traditional
5th Circuit On Continuing Violations
Here, it was the second exception that was fatal to plaintiff's claim -- the Court considered the employer intervention of separating the two, which did cause the earlier harassment to stop, an intervening action. When it viewed the events of the last incident of harassment (absent the circumstances of the first harassment), the majority found that they were not sufficiently severe or pervasive. Interestingly, the newest member of the 5th Circuit, and the last Bush appointment, Judge Haynes dissented on this point from Chief Judge Edith Jones' opinion. Labels: discrimination
Apologies, Both Past and Future For Not Posting
The Employment Law Case That Just Keeps On Going
It of course will be appealed. Amazing.
As for your analysis, cogent as always. I just wanted to throw this out for consideration. I did a search for "mixed motive" in the "California & Federal" database of Lexis-Nexis (sadly, I don't have Allfeds and Allstates). This is what came up:
1. Metoyer v. Chassman 504 F.3d 919
2. Harris v. City of Santa Monica 2009 Cal. App. LEXIS 1731
3. Desert Palace, Inc. v. Costa 539 U.S. 90
4. Remlinger v. Nevada 2000 U.S. App. LEXIS 4140
5. Mwaniki v. Ebay 2005 Cal. App. Unpub. LEXIS 8660
6. Cook v. La Marque 2008 U.S. Dist. LEXIS 29320
No Price Waterhouse! Gross v FBL does show up as no. 8 so that is better than Google for now.
Overall, I think Google's search results are superior.
Another thing to keep in mind is that this is only day one of Google's entry into legal research whereas Wexis has been around for decades. We probably need to reserve judgment for a bit.
Cheers,
Gene
Posted
3:26 PM
by Michael Fox
Canadian employment law is substantially different from that in the United States. David Doorey's eponymous workplace law blog is one that I follow just as a means of staying somewhat abreast. His post today,Is a “Consensual” Relationship Between a Manager and a Subordinate Cause for Dismissal? points out a couple of ways the laws of the two countries vary.
The case in question involved a manager who was discharged after he had engaged in not one, but two "consensual" sexual relationships with subordinates. The second one occurring shortly after he had been warned about the first relationship. Besides having what Professor Doorey calls one of the "great lines in recent Canadian legal jurisprudence": "The relationship was on its face consensual. Her interest in the affair was based in lust; the basis of his interest may have been the same or otherwise."
the case also points out a different liability standard and a different way of handling attorneys fees.
For liability there is a concept of "notice," which must be given if there is no cause. Fortunately for the employer, the court held that there was cause in light of a managerial employee's obligation to help ensure a workplace free of sexual harassment and, interestingly, protect the employer from claims of sexual harassment. It was a good thing, because the court went on to hold that if notice had been required it would have been 18 months worth of pay.
One of the differences that may be the most appealing to employers in the US is the way attorneys fees are handled. Here, since he lost the employee was liable for attorneys fees of the employer.
Not too surprisingly however, the court did not stick the employee with the full amount claimed by employer's counsel, which was almost $200,000. (Apparently Canadian management side lawyers are just as expensive as their American counterparts.) Instead, the manager was assessed $37,000. Still a hefty sum and one that would certainly discourage much litigation.
I think the record still belongs to the warden at the women's prison in Miller v. California Department of Corrections, 36 Cal. 4th 446 (2005), who was having affairs with at least three subordinates. Why would anyone practice employment law in any other state?
: 6:58 PM
Posted
2:48 PM
by Michael Fox
Congratulations to Workers' Comp Insider for being named as Lexis Nexis Workers' Compensation Law Center's top workers compensation blog for 2009! A copy of the Lexis Nexis announcement is here.
The folks at Lynch Ryan have been posting tremendously insightful and helpful information since September 2003. In a time when many blogs come and go, it is good to see them appropriately acknowledged for their efforts.
Posted
10:46 AM
by Michael Fox
That's what will be happening if the GAO's recommendation issued last week takes place. While studying how OSHA's Records Audit Process could be improved, one of their recommendations is that the Secretary of Labor "require inspectors to interview workers during records audits, and substitute other workers when those initially selected are unavailable."
According to the report, there are substantial disincentives for the reporting of injuries which can in some cases lead to pressure on health care practitioners to provide insufficient medical treatment.
The full report, Enhancing OSHA's Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data, was issued on October 15, 2009.
Will OSHA go along? According to the report, OSHA agreed with the recommendations.
Posted
1:26 PM
by Michael Fox
At the end of a First Amendment case brought by a professor who has been suspended from teaching duties (but was still being paid), the 5th Circuit affirmed summary judgment on his assault claim in the following paragraph: This leaves only DePree’s assault claim against Appellee Niroomand. Under Mississippi law, assault occurs where a person “(a) . . . acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” [cite omitted] According to DePree, Niroomand “aggressively walk[ed] toward [DePree], yelling at [him], repeatedly referring to [him] as a ‘son-of-abitch,’ and shaking papers in his face creat[ing] an apprehension in [DePree] of an imminent harmful or offensive contact.” Appellee Niroomand contends that DePree’s apprehension was not reasonable. We agree. Taken in context, these statements and actions could not create a reasonable apprehension of imminent, harmful contact. DePree and Niroomand had squared off in similar past confrontations without offensive contact. Nothing in the current claim suggests DePree could have reasonably feared Niroomand just because he cursed and rattled papers in DePree’s face. No triable fact issue of an assault arose here.
At some point, that is going to be a handy reference.
Posted
1:15 PM
by Michael Fox
Wage and hour compliance issues remain one of the potentially most dangerous areas for employers. Most of the attention has been focused on collective actions brought by a new generation of plaintiffs' lawyers who frequently focus on only those types of claims.
However, this press release last week from the Department of Labor, Grandville, Mich., restaurant operators ordered to pay more than $2 million in back wages and damages is a sobering reminder that there is a newly invigorated government agency that is conducting investigations and seeking back wages and penalties on behalf of employees.
The restaurants in question were 5 Chinese restaurants operated by a husband and wife team. It will take a lot of kung pao chicken to cover that fine.
Earlier this fall, the ABA Journal reported that the DOL had hired 250 new investigators for the Wage and Hour Division. Feds to Ramp Up Enforcement of ‘Rampant’ Wage-and-Hour Violations. And all of this activity is occurring without a permanent head of the group as President Obama's nominee for Administrator of the Wage and Hour Division, Lorelei Boylan withdrew her nomination last month. Lorelei Boylan Withdraws her Nomination for Wage and Hour Administrator.
While this may sound like a broken record (for those of you who still understand that reference), there's no likelihood that this problem is going away any time soon.
Posted
4:48 PM
by Michael Fox
Well obviously only in a very limited manner, and according to the DC Circuit, not at all. Three Circuits, the 1st, 2nd and 7th say it can, and now the Supremes will tell us. Justices to decide validity of two-member NLRB decisions.
Currently Obama's three Board member nominees have passed committee muster, but John McCain has placed a hold on one of the nominees, SEIU attorney, Craig Becker. NLRB Nominee Gets Mixed News From Senators My understanding is that Senator Harkin will not submit the other two candidates for a full Senate vote until a resolution is reached over Becker.
I assume that there is some way that this will all get worked out under the curious protocols of the Senate. It does seem to me though that an outsider looking at the whole way we deal with the NLRB membership, including long periods of time with less than a full Board, and the way that precedent is an almost non-existent concept even when we have a functioning Board, would have to say that it's not much way to run a railroad.
For some insight into just how the Senate nomination process works (or doesn't) check out, Fractured Nomination Process Leaves Regulatory Posts Vacant.
Posted
1:26 PM
by Michael Fox
Decisions related to the timeliness of a claim are most complicated when it involves hostile environment harassment, which almost always occurs over a period of time. Although the rule is fairly simple according to the US Supreme Court's decision in National R.R. Passenger Corp. v. Morgan, “so long as any act contributing to that hostile environment takes place within the statutory time period," it can get sticky in the application.
In Stewart v. Mississippi Transport Commission (5th Cir. 10/21/09) [pdf] the Court dealt with such a claim. The plaintiff had been harassed by her supervisor. After an investigation they had been separated, but 16 months later when her new boss retired, the old boss replaces him. He begins offensive conduct again. When she complains they are again separated. The question for the Court was whether or not the sexual harassment claim should include the events before the first separation. Ultimately, two members of the Court held that they should not be.
In reaching that conclusion, they referred to 3 limitations on the continuing violation rule also found in Morgan:
no single violation that encompasses the earlier acts;
other things, will sever the acts that preceded it from those subsequent to it,
precluding liability for preceding acts outside the filing window; or
powers, which must be exercised to “honor Title VII's remedial purpose ‘without
negating the particular purpose of the filing requirement.
Posted
11:45 AM
by Michael Fox
Posts have been exceedingly light recently as I have been both getting ready for vacation (which of course means posts will be non-existent until my return) and have spent the last several days preparing for and testifying yesterday before the Senate Judiciary Committee against overturning the Gross v. FBL Services decision of the Supreme Court this summer which nixed the mixed motive instruction for ADEA cases.
The future of mandatory arbitration was also a subject and frankly got a lot more attention than Gross. Senator Franken, one of the members of the Committee has taken that on as a major issue and that took up a lot of the hearing. For any who have an interest in seeing the hearing, there is a link to the webcast on the Committee's website.
More normal posting will hopefull arise following when I return and dig out from 2 weeks plus of accumulated email!
Posted
12:20 PM
by Michael Fox
Lawsuits that stretch out over the years are not all that uncommon, but the tale that started with a discrimination law suit that was settled in 1997, just had another major development, a $4.9 million dollar malpractice verdict against the attorneys who represented the initial claimant in her earlier successful malpractice claim against her original attorneys. 12 Years of Persistence Rewarded With $4.9 Million Verdict in Malpractice Case.
If I understood it all, here's a little bit more about the sequence:
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