Religious Discrimination - An Issue on the Rise
Posted
3:07 PM
by Michael Fox
Adam Geller of the AP has a story about risiing religous tensions in the work place. You can read it in Boulder's The Daily Camera.
Sloppy Drafting Nullifies Arbitration Agreement
Labels: arbitration
Unsworn Complaint to TCHR Starts 2 Year Statute Running
White House Brief Takes Cautious Stand in Race Case
Whistleblowing Can Pay Top Dollar, Or Not
Settlement of "Conduct Not Becoming His Gender" Case
Actually Even More Exciting Than I Thought - Class Action Arbitration Case Also Added
Labels: arbitration
This Term of the Supreme Court Just Got A Lot More Interesting for Employment Lawyers
Labels: FLSA
How Big Judgments, Even Though Often Reversed, Impact Litigation
Making Sure the FAA Is Applicable
Labels: arbitration
Challenge to Requiring FCRA Consent
Newest Workplace Problem? Bullying?
Labels: bullying
Dangers of Attorney Fees
Labels: attorneys fees
Texas Courts Back At Work
The latest workplace perk: limitless time off
How Many Times Will We Talk About the FLSA This Year? 4.1 million?
Labels: FLSA
Employee Handbook Creates Jury Question of Contract - Vt View
Wage and Hour - Paying for All the Time
Catching Up On Arbitration Decisions
Labels: arbitration
Are Your Employee's Complaints Getting Better?
Even Doctors Can Be Sympathetic Plaintiffs
Labels: MDV
Merry Christmas to All and to All A Good Night!
Time Honors Whistleblowers as Persons of the Year
Dangerous Precedent with Punitive Damages
Posted
9:05 PM
by Michael Fox
The trial court denied a motion to compel arbitration and the Court of Appeals denied a mandamus. In Re: C & H News (Tx. Ct. App. - Corpus Christi 1/16/03). The rationale was that the language of the agreement incorporated the employee handbook. Unfortunately, the handbook had language which allowed it to be modified at will by the employer.To be binding there must be consideration or mutuality of obligation, neither of which was present here because of the employer's ability to change at its will the scope of arbitration. The court refused to grant mandamus. One small jurisdictional note: the court had earlier held that the Federal Arbitration Act was not applicable and neither party objected. Under those circumstances, the appropriate remedy would have been appeal, not mandamus; although the court did not reject it on that ground.
Posted
8:30 PM
by Michael Fox
The statute of limitations issue under the TCHR is complicated. One definitive is that no claim may be brought "later than the second anniversary of the date the complaint relating to the action is filed." Tex. Lab. Code Ann. ยง 21.256 (Vernon 1996). In
Vu v. ExxonMobil (Tx. Ct. App. - Houston [1st], 1/16/03), the court holds that an unsworn complaint filed with the EEOC and forwarded to the TCHR started the 2 year statute running, since the later verified charge related back. In this case, the law suit was filed 2 years after the TCHR acknowledged receipt, meaning the court did not have to decide whether the time started running from the date the unsworn complaint was filed with the EEOC or received by the TCHR.
Posted
10:17 AM
by Michael Fox
The University of Michigan affirmative action case is not technically an employment case, but then neither was the Bakke decision involving admission to a state medical school. Nevertheless, since affirmative action is also a concept that arises in the employment law context, it was interesting to see the New York Times description of the difference between President Bush's public position and the actual brief filed by the Solicitor General. See White House Briefs Take Cautious Stand in Race Case. The most frequent debate of affirmative action in employment law was over how far Executive Order 11246, which regulates government contractors, could be pushed. For a long time now, the OFCCP which enforces the Executive Order, has backed off on trying to aggressively push affirmative action in terms of what were colloquially known as "quotas" and instead is primarily another agency enforcing more traditional discrimination theories.
Posted
1:52 PM
by Michael Fox
Or at least that's the allegation made by the state of California, when a computer consultant who first alerted state law enforcement officials to a problem with certain Hewlett Packard disk drives, switched to assisting Hewlett Packard in its defense against such claims. Yahoo! News, among others, indicates that for his work, the erstwhile whistleblower pocketed a cool $27+ million. A hearing over whether documents related to the dispute should be posted on the internet is being heard this afternoon in a Beaumont court room in a related Texas case. You can read about it here.
The HP consultant made out significantly better than a former Warren, Michigan city employee who was awarded $854,000 yesterday in his whistle blower claim against the city by a Detroit federal jury. After a political shake up and his testimony to a grand jury, he lost his position and his former subordinate, now boss, allegedly told him, "'Your job is to sit at this desk and count ceiling tiles. I have orders to harass you until you quit or are fired." You can read the rest of the story, including the city's version of what really happened.
And a former Mattel whistleblower, has an even more tragic (from her viewpoint) tale concerning the rewards of whistleblowing. As the Economist notes, rather than an exciting tale of undercover investigations and great rewards, what she got was an unsuccessful lawsuit (now on appeal) and disillusionment that perhaps 2002 was not really the year of the whistleblower, Time magazine not withstanding.
Posted
1:48 PM
by Michael Fox
Although settlements mean nothing in the way of legal precedent, the fact that a substantial employer (Babies "R" Us) is willing to pay a significant sum (just over $200,000) often has the actual effect of causing others to consider bringing such cases. Newsday.com has the story. The putative plaintiff was an 18 year old who quit after seven months claiming he was harassed because "he did not conform to societal stereotypes of how a man should look or behave." As often in employment law, one can see a slippery slope once those kinds of arguments become meaningful in terms of successful causes of action. Employer's concerns should be heightened since it was the EEOC which obtained the settlement.
Posted
5:01 PM
by Michael Fox
Although not an employment case, the Supreme Court Friday also granted certiorari in an important consumer arbitration case. In Bazzle v. Green Tree Financial Services, Inc., the South Carolina Supreme Court held that in the absence of language to the contrary, a court could impose class wide arbitration on an agreement to arbitrate. In two cases which were combined, the class arbitration had resulted in awards against Green Tree of approximately $10 and $9 million dollars. Obviously, the decision in this case could also be applied to class action type litigation under employment law arbitration schemes. The tenor of the case is that the dispute could have been avoided if the language of the agreement made it clear that class actions were not applicable. The dollars alone make this an interesting case, but it also is another indication of how important the law of arbitration is to this Supreme Court.
Posted
2:57 PM
by Michael Fox
Up until this point, the Supreme Court's employment law docket was mainly ho-hum for employment law cases. That changed last Friday with granting of cert in three cases, all of which could have a significant impact. The three are:1. Costa v. Desert Palace, Inc. The 9th Circuit en banc held that a plaintiff was entitled to a mixed motive instruction, which is a lower standard of proof, even without direct evidence of discrimination. If the Supreme Court affirms the 9th Circuit, it would make Title VII cases much easier to win for plaintiffs. For employers, the good news is that the 9th Circuit has a terrible record in employment cases before the Supreme Court.
2. Breuer v. Jim's Concrete. The 11th Circuit held that a case under the FLSA filed in Florida state court could be removed to the federal district court under federal question jurisdiction. Much to my surprise it noted that there was authority in the 8th Circuit that such cases could not be removed. The argument is that the FLSA says a case 'may be maintained' in any state or federal court of competent jurisdiction, and so the plaintiff argued once begun in state court, it should stay there. The 11th Circuit followed the 1st Circuit which also allows removal, but called on either the Congress or the Supreme Court to clarify the issue. The Supreme Court has taken them up on it. Since this Supreme Court seem to like states rights and all federal courts seem to like limiting their dockets, this is one definitely to watch.
3. Black & Decker Disability Plan v. Nord Another 9th Circuit case. The plan denied a disability claim, notwithstanding the testimony of three threating physicians that the individual could not do the job. The question was the appropriate standard of review and the deference that must be given to the treating physician. The employee argued for substantial deference, Black & Decker says not, and that numerous other circuits agree with it. The 9th Circuit agreed with the employee and the Supreme Court will now decide. Again, the 9th Circuit record is not good.
Posted
8:43 PM
by Michael Fox
Walter K. Olson is a frequent writer on the excesses of litigation. You can check out his website, Overwlawyered, where I picked up this link. Reason: Courting Stupidity: Why smart lawyers pick dumb jurors Here is his money quote, explaining why big verdicts, even though frequently reversed, still have a powerful impact on litigation: But the mere possibility that an extreme outcome will emerge from the process, and perhaps survive review and appeal, gets factored into negotiations in the majority of cases that are settled before a final verdict. With breast implants, asbestos, and many other mass tort episodes, a rash of arrestingly high verdicts helped educate recalcitrant defendants about the need to pony up substantial settlements.
If you've ever participated in settlement negotiations, you know it is true.
Posted
7:26 PM
by Michael Fox
The United States Supreme Court's decision in Circuit City made it clear that under the Federal Arbitration Act, agreements that employers require employees to sign are valid. What this recent decision by the Alabama Supreme Court, Potts v. Baptist Health System, Inc. (Ala. 12/20/02) shows the factual hurdles you must jump (at least in some states) to show that the transaction involved 'substantially affects interstate commerce', the test for the applicability of the FAA.
Posted
5:29 PM
by Michael Fox
A plaintiff who was allegedly fired for refusing to sign a consent to her employer obtaining a report under the Fair Credit Reporting Act has survived a motion to dismiss her complaint according to a story in the Harrisburg, PA Patriot News. Depending on the scope of the request and the ultimate outcome of the case, employers could end up in a catch 22, since any information obtained from a third party in the business of gathering such information requires the employee's consent. Plaintiff's counsel is Clifford A. Rieders, the former President of the Pennsylvania Trial Lawyers Association and the counsel for the Defendant, Vincent Candiello, is the chair of the Labor and Employment Law Section of the Pennsylvania Bar Association. This is one to stay tuned to.
Posted
5:22 PM
by Michael Fox
Maybe it didn't all end in grade school according to a report in the Star Tribune. According to Mike Meyers' story, employers are or should be more aware of the cost of bullying among its employees. It is getting academic attention as data from a study being done for the Veterans Administration was presented at a conference of the American Economic Association.
Posted
9:41 AM
by Michael Fox
The Odessa American has the sad story of an employer who went to trial and lost only $500 in actual damages, but then found itself faced with a $90,000 attorneys fee bill that it owed the plaintiff's attorney. The suit arose over the right to wear a union button and a 3 day suspension. The ultimate outcome may be different, but it serves as a good reminder that a decision to take a case all the way to trial brings into play two elements of damage, attorneys fees and pre-judgment interest, which are sometimes overlooked.
Posted
11:19 AM
by Michael Fox
Yesterday, there were several employment related decisions by the Texas Courts of Appeal. Among the decisions was Bauer v. Bob Thomas (Ct. App. - Fort Worth, 1/9/03) [pdf]. The parties had entered into a venture to open a new office for a logistics company. The agreement contained a statement that "under no circumstances would the [defendant] be required to continue this agreement if the [office] experiences a loss of $100,000 or more." After losing $37,000, the defendant shut the office down. Four employees sued alleging that there was an employment agreement that altered their at will status because of the statement, and for fraudulent inducement. The Court held that the statement was not sufficient to alter the at will status, and that there was no proof of fraudulent statements.
In Laredo Medical Group v. Lightner (Ct. App - San Antonio, 1/8/03), the Court again declined to find a covenant of good faith and fair dealing in the employer/employee relationship. In this case, the jury had been allowed to find such a relationship exists. The Court noted the Supreme Court's holding to the contrary in City of Midland v. O'Bryant, 18 S.W.3d 209 (Tex. 2000). The result in this case was to throw out a five plus million dollar award to the employee, which included over four million in punitive damages.
The same court also threw out an injunction based on misuse of trade secrets as being overbroad. Since the plaintiff had insisted on the broad wording and had not identified a lesser scope, the court found vacating the injunction rather than modifying it to be the appropriate step. Southwest Research Institute v. Keraplast Technologies, Ltd., (Ct. App - San Antonio 1/8/03).
Posted
10:54 AM
by Michael Fox
The Glasgow Herald has a story about a new workplace perk, limitless time off, that it attributes as an American invention. You can check out the story here. While I agree it does not fit with the stereotypical Scot, and American employers at time have come up with some pretty wild retention schemes, it certainly doesn't seem likely to be in place in these times. Sounds more like a clever Scottish worker trying to pull a fast one to me. My question after reading the story (now answered) is: what is a duvet day?
And for a different look at what real perks might work, see the Seattle Times editorial commending the 1,300 employee Yakima Valley Hospital on making Fortune's list of the top 100 places to work, and how they did it with relatively few resources.
Posted
7:49 AM
by Michael Fox
Another announced class action settlement for wage and hour violations. Law.com has the story on Aydin Corp.'s 4.1 million dollar settlement involving 83 employees classified as exempt, who successfully claimed overtime because of the company's practice of docking them for when they worked less than 40 hours in a week. Although much discussed several years ago, some companies still fall afoul of the relatively complicated rules on when it is permissible to dock exempt employees. Basic rule of thumb: when you start to dock exempt employees, stop; before proceeding, check and make sure it comes within the acceptable rules. Failure to do so can cost you much more than just overtime for the one employee, since in the worst case, it could destroy the validity of your exemption for all employees in that class.
Posted
10:52 AM
by Michael Fox
In what appears to be a throwback to the judicial rulings of 10 years ago, the Vermont Supreme Court has held that a specific disciplinary proceeding established in a company handbook, coupled with the employer's normal practice of following it, creates a jury question as to whether or not there is a contract. Dillon v. Champion Jogbra (Vt. 12/27/02). This is true notwithstanding a specific disclaimer that the employee remains at will and the disciplinary procedures are only guidelines to be followed. Interestingly, the opinion quotes a mid-90's University of Texas Law Review article that it finds indicates that at will employment relationships have 'fallen into disfavor'. It also cites the Michigan Supreme Court decision of Toussaint v. Blue Cross, a 1980 decision, from which the Michigan courts seem to have retreated with such decisions as Lytle v. Malady, 579 N.W.2d 906, 914 (Mich. 1998) which held that an express disclaimer in a handbook was sufficient to maintain the at will status of employees.
The viewpoint expressed by the 3-2 majority opinion, which seems destined to make it very difficult for Vermont employers to have both a handbook and maintain a clear at will status for their employees , along with the actions of Vermont's two senators, Patrick Leahy and Jim Jeffords, plus its former governor and now Democratic presidential candidate, Howard Dean, makes one wonder whether Vermont is seeking to become the 'east coast California' for employers. It is one way to slow economic growth and keep Vermont pristine for its current residents.
Posted
5:12 PM
by Michael Fox
Doffing and donning cases hit the red meat and later the poultry industries. Usually the issue was the time spent putting on and taking off protective gear. But even time spent taking on and off a plain white uniform, can lead to problems as Honda found out. The Lakeland, Florida Ledger has the story of Honda's change in policy and 1.2 million dollar settlement with the DOL.
This is just more evidence of the trend of large wage and hour claims, often brought in a collective action. Brent Hunsberger in the Portland Oregonian has a good story about the numbers filed in Oregon, where Wal-mart was recently tagged and a look at how such actions are growing nationally. Any time there are big dollars in a particular cause of action, you can be sure that more will follow.
Posted
9:07 PM
by Michael Fox
An early Christmas present for the accounting firm of BDO Seidman came in the form of a decision upholding their arbitration scheme with a departing partner. Under the accounting firm's program, the pool of arbitrators was limited to partners in the firm. The intermediate appellate court in Connecticut used a standard requiring more than the appearance of bias, but less than actual bias. Hottle v. BDO Seidman (Conn. App. 12/24/02).
Posted
3:26 PM
by Michael Fox
The internet is now the portal to knowledge, so it is not surprising that employees will often go there for information regarding what may be happening to them at work. And if they do a little work, they will find articles that could be truly helpful like lawyer Tim Willoughby's site regarding Missouri Employment Law. In one helpful (to employees) article, Making Complaints, he explains the importance of, and gives details on how to make, a valid complaint. The number of times employers will "luck out" because their employees don't know what their rights are, or how to protect them, are being reduced by such sites. Since I hope to do the same for employers with these comments, hard to argue against the approach!
Posted
3:04 PM
by Michael Fox
Usually when it comes to million dollar jury verdicts and doctors, it is complaints of run away juries and rising malpractice premiums. However, at least one doc probably has a different viewpoint after a Florida jury awarded him over $30 million for defamation and negligent supervision. You can read the story from the Saratoga Herald Tribune.
Although it is logical to think it would take a long trial to result in a big award, this was a 3 day trial. Even though it was not his legal claim, there was an element of whistle blowing, as he had contacted OSHA to complain about dangerous conditions at the defendant hospital. Even though these verdicts rarely stand in full, juries repeatedly show that the right set of circumstances can cause an immense negative reaction to the actions of employers. And that whistle blowers are, at least for the moment, the latest American hero.
Posted
7:13 AM
by Michael Fox
I hope every one is enjoying time with family and friends. Off for a week with mine and Lorna's. Depending on the vagaries of internet connections, egg nog and snow conditions, it may well be next year before I jot again!
Posted
1:37 PM
by Michael Fox
Lest we forget what the major story in 2002 was, Time's naming of three female whistle blowers from Enron, FBI and Worldcom as its "Persons of the Year" is a good reminder. BBC has the story. Although some may argue that the three were really not whistleblowers in the truest (and most risky) sense, that is not the point. Rather the fact that 6 of 10 Americans find whistleblowers heroes, makes it clear for all who practice in the employment law area that the protection of whistleblowing, and its first cousin, anti-retaliation statutes, are going to be prominent long after the current headlines and magazine covers are gone.
Posted
1:19 PM
by Michael Fox
Although not an employment law case, Friday's decision by the Ohio Supreme Court on punitive damages, caught my eye. Dardinger v. Anthem Blue Cross & Blue Shield(Ohio 12/20/02). The story itself is a sad one, with the denial of a request for an experimental cancer fighting drug being delivered the day after the insured's funeral. The Indianapolis Star has the story, and its headline has it right, calling it an 'historic ruling'.
Unfortunately, punitive damages, and particularly the threat of them is a driving force in many employment law cases. What the Ohio Supreme Court did was to affirm a large punitive damage award ($30 million) but the historical act was to specify that $20 million should go for cancer research at a state medical institution. Although a number of states have statutory mechanisms to divide punitive damages between plaintiffs and the state, this if the first time that a court has accorded itself such powers under common law. The dissent talks about the dangers of a court assuming such power.
In addition to taking on a clearly legislative function, for which it could be argued that courts are not particularly well suited, it increases the risk of potential defendants when juries think that they are empowered to fund civic needs out of 'punitive damages'. The court made clear that attorneys fees would be awarded out of the whole of the punitive damage award, so there will probably be little outcry from that quarter. In the on-going debate over punitive damages, this seems one idea that should not survive.
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