$10,000,000 Sigh of Relief - Texas Supreme Court Reverses Intentional Infliction of Emotional Distress Claim
Posted
12:07 PM
by Michael Fox
All 8 justices of the Court who decided the case agreed with the result, although there were two concurring opinions representing the views of 3 of the justices. The majority opinion written by retiring Chief Justice Tom Phillips extended the "gap filler" analysis of its earlier opinion in Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998).
Basically, the tort of intentional infliction of emotional distress is designed only for those injuries that would otherwise go unremedied. Here there was a remedy under the Texas Commission on Human Rights Act (under which Zeltwanger has already recovered almost a million dollars), thus there was no need or basis for allowing her to circumvent the statutory caps of that statute by allowing her to recover for intentional infliction of emotional distress. The Court did hold that it was perhaps possible that a plaintiff could show facts independent of the sexual harassment claim which would support an IIED claim, but Zeltwanger did not meet that burden.
Justice O'Neill, joined by Justice Smith, concurred with the result but for a different reason. In her view in "attempting to cabin what has clearly become an amorphous and overused tort, the Court has fashioned a cure that is worse than the disease." She goes on to articulate the potential effects, envisioning cases where defendants are either confessing liability of a statutory violation or even being forced to prove a violation against themselves, to avoid liability under the intentional infliction cause of action. Instead of that approach, she would have emphasized yet again the high bar for the element of "outrageous conduct." In her view, only when "behavior repeatedly becomes so forceful and intimidating that a reasonable person would feel immediately threatened or afraid," is there a sufficient basis for IIED. Although the conduct here was "vulgar and reprehensible" it would not pass that bar.
Justice Hecht also concurred. His voice of reason about the tort of IIED, has been consistent and now well proven. Here in full, absent footnotes, is his concurrence:
I join the Court's opinion because I agree that the tort of intentional infliction of emotional distress does not lie in circumstances where liability is determined by other torts or by statute since "the tort's clear purpose is to supplement existing forms of recovery by providing a cause of action for egregious conduct 'that its more established neighbors in tort doctrine would technically fence out.'" This is consistent with, and not a departure from, my more fundamental position that the tort of intentional infliction of emotional distress should not exist at all for the reasons I explained eleven years ago in Twyman v. Twyman. Experience since then has done much to prove those reasons correct, but since the Court is not yet ready to throw in the towel, I accept a restriction that seems to have been latent in the thinking that created the tort, as best I have been able to understand it. [emphasis added]
I also agree with Justice O'Neill that the facts of this case do not rise to the level set by this Court in defining the tort. Jim Webber's conduct as Joan Zeltwanger's supervisor was certainly objectionable, reprehensible, at times even disgusting, but regrettably not that unusual (hence the enactment of a statutory remedy for sexual harassment in the workplace), and not "utterly intolerable in a civilized community." The fact that the trial judge and at least three justices on the court of appeals disagreed with this view, which is supposed to be a matter of law, and that their position is in no way flawed but is simply different from mine and at least two other Justices on this Court, makes me as uncomfortable as I was in Twyman that the core standard of liability for the tort is very subjective. But given the way the Court has defined the tort, the discomfort is unavoidable.
Today's rule is not based on the exclusive or preemptive nature of another remedy but on the nature of the IIED tort itself. I think Justice O'Neill is right that applying the rule will almost certainly prove highly problematic, but that prospect strikes me as one more reason to abandon the tort altogether. Until the Court reaches the same conclusion, the problems of the tort, including those created today, are a necessary evil.
Here's for a quick throwing in of the towel.
Final Sarbanes Oxley Rules Are Here
Posted
10:20 AM
by Michael Fox
If the Supreme Court Accepts Disparate Impact Under the ADEA -- Read Your Future
Posted
8:08 AM
by Michael Fox
KAPL successfully defended against a disparate treatment argument as the jury found there was no intent to discriminate on the basis of age. But finding themselves bound by prior circuit precedent that an ADEA disparate impact claim is viable, the Court affirmed the district court verdict that the employer's complex attempt to legally carry out a reduction in force failed.
Every employer or employer's counsel who doubts the importance of the upcoming Supreme Court decision should read this case for the types of issues that will have to be faced if Smith v. City of Jackson is not affirmed. Here, the court was probably less troubled than it might otherwise have been, since despite an apparently rigorous screening process, with several layers of review, 30 of the 31 employees selected for involuntary layoff were over 40.
But anyone who has participated in a similar exercise should empathize with the HR and legal personnel whose actions are now being second (and no doubt third and fourth) guessed by the plaintiffs' lawyers, judges and anyone else who is thinking how easy it would have been to avoid this problem. Easier seen in hindsight than at the time. And if disparate impact exists under the ADEA, then many will have the chance to see for themselves just how "easy" it is.
From White Collar Regs -- To White Collar Crime
Posted
7:43 AM
by Michael Fox
One move giving the bill some impetus is support, at least for a modified version, by Senator Enzi (R) of Wyoming. Although he proposes shorter sentences, where the primary difference is the number of years and it is an election year, it does not take much to envision a quick compromise to allow senators who running for re-election to show they are being tough on corporate scofflaws who flout safety rules at the expense of their workers. And in fact, folks who actually do, are neither sympathetic nor deserving of much protection. No mention of how such a revised version would fare in the House, but nevertheless an issue one should watch over the next few months.
New White Collar Regs - They Are Now!
Posted
7:05 AM
by Michael Fox
Labels: FLSA
Complete With Cartoons, and a Good Reminder About the Breadth of ERISA
Posted
6:16 PM
by Michael Fox
The Easiest Way To Get Unemployment - An Insider on Your Side
Posted
3:52 PM
by Michael Fox
Ok, I Take It Back -- FMLA's Key Employee Exemption Does Really Exist
Posted
8:16 AM
by Michael Fox
I didn't say it would never be used (successfully I mean) and the good folks over at the Daily Labor Report have in fact uncovered such a case reported here ($$) in today's edition. In Oby v. Baton Rouge Marriott,No. 03-495-B-M1 (M.D. La 8/10/04) the district court granted the employer's motion for summary judgment that the hotel was not required to reinstate Oby to her $41,000 year position as the housekeeping manager.
I should point out to those who might be thinking the hotel was hard hearted, that Oby was offered an equivalent position as the food and beverage manager. To those who would gloat over my misplaced criticism of the exemption as not likely to be utilized, the court found the employee "failed to dispute evidence presented by the hotel that she was a key employee whose job must be filled to prevent substantial and grievous economic injury to the operations of the employer."
Another factor was that the hotel succeeded only because it had done the basics of notifying her that she was a key employee and could lose her right to reinstatement. Actions taken at the front end of the leave. That's a good lesson to learn, do what is necessary to protect your options, even if you don't think that you will need or be able to ultimately exercise them. Kudos to the folks at the Marriott for getting it right.
Labels: FMLA
Does Your Texas Insurance Policy Protect You From Punitive Damages? 5th Circuit Laterals to the Texas Supreme Court
Posted
7:38 PM
by Michael Fox
Texas law to say the least is muddled. However, Judge Cummings ruled against the insurance company, holding it was not against the public policy of Texas to ensure punitive damages. In June the 5th Circuit heard arguments and many, far beyond the parties, were watching with bated breath. But today, the folks in New Orleans, perhaps recognizing a tough policy call in the need of making, tossed what might be a political hot potato to the Texas Supreme Court by certifying the following question:
Does Texas public policy prohibit a liability insurance provider from indemnifying an award for punitive damages imposed on its insured because of gross negligence?Of course the Texas Supreme Court doesn't have to accept, but it does make sense to give them the opportunity to address the issue rather than have the 5th Circuit "guess" what the Texas Supremes might ultimately decide when required to address the issue.
And of course deciding this question will not necessarily end the debate, since it focuses on "gross negligence." You could have a different answer if the standard was "intentional acts" which would be the basis under certain employment law statutes as opposed to gross negligence. But if the Texas Supreme Court holds it is against public policy to ensure against "gross negligence" then anyone holding a policy thinking they would be covered for punitive damages should be looking for some strong assurances, preferably backed up by a legal opinion.
If you can't wait to get more information you can check out articles pre-dating today's twist from lawyers at Vinson Elkins [pdf] or Baker McKenzie.
When It's Over, It's Over - Same Song, Second Verse
Posted
9:05 AM
by Michael Fox
XL was a party, by a letter of assent, to a collective bargaining agreement between the Red River National Electric Contractors Association and the IBEW. XL terminated the contract in accordance with its terms and sought to negotiate its own agreement. Failing to reach agreement, XL notified the Union it was no longer bound and acted accordingly. Disagreeing, the Union submitted the matter to "interest arbitration" provided under the CBA and obtained an award that XL was bound to a new agreement. When XL challenged enforcement of the award, the district court found that having properly canceled the agreement, XL was no longer bound to the interest arbitration provision, so the award should not be enforced. The IBEW argued, unsuccessfully, that whether the former agreement was properly terminated was for the arbitrator to decide. Wrong, says the 5th Circuit. The question of whether there is an agreement to arbitrate is a decision for the Court, not for the arbitrator.
Labels: arbitration
Behind a BLT, There Is More Than Meets the Eye
Posted
2:31 PM
by Michael Fox
Although amusing, I probably would never have posted it here were it not for another phenomenon that I found in checking out some of the other links. The story has apparently caught the attention of many in the blogosphere, if you are to believe the large number of comments (451 as of this posting) to the little green footballs blog, a blog popular enough to have its own entry in wikipedia.
You can check out the post and the comments at Freedom for Me, Not for Thee. Given the nature of lawsuits, it would be a surprise to me if there were not a lot more to this case than what is reported so far (or will ever be, for that matter). But what is clear, and I guess I had not appreciated before, is how visceral the reaction against the "Muslim" position appears to be. For those involved in managing the ever more complicated issue of religion in the workplace, it is worth noting.
I am initially amazed that a company can try to dictate what you can eat. I understand it's in Canada and not the U.S., but even so it seems as unlikely from there as it does here.
But then, after thinking for a while, there are some reasonable, non-religious reasons for this. Not many come to mind, but the one that springs immediately to the fore is peanuts.
The peanut allergy is so severe in some that it seems reasonable to forbid peanut consumption in an office that has someone with a strong enough allergy.
So, maybe this isn't to extreme... in the U.S. But, on the other hand, it IS a religious issue which always has some prickly thorns.
What do you think? Is this issue truly an attack against Moslems, or is the religious (and political) piece a side-issue to the question of your employer telling you what food you are allowed at work?
: 11:59 PM
Bullying Is On Its Way
Posted
6:39 PM
by Michael Fox
More seriously, the NIOSH press release on the study had the definition of bullying that was used for the study, "repeated intimidation, slandering, social isolation, or humiliation by one or more persons against another." It also revealed that most incidents of bullying appear to be peer to peer, not supervisor to employee as most would have guessed.
But more to my point, the more "bullying" is studied, talked about and seen ultimately to be a "workplace problem," the closer to a bullying cause of action we march. No one thinks any employee should be "bullied" but we all should be aware this is very slippery slope we appear to be beginning to traverse.
Labels: bullying
When Whistleblowing Pays Off Big
Posted
6:11 PM
by Michael Fox
"Three former Schering-Plough Corp. workers - Charles Alcorn, 40, Beatrice Manning, 57, and G. Raymond Pironti, 36 - will split a $31.7 million award from federal prosecutors. The details of fraudulent practices they gathered resulted in fines and damages of $345.5 million and settlement of criminal and civil charges that the company offered kickbacks to health insurers and billed Medicaid too much for Claritin allergy pills."And what does one do after the whistle has blown, so successfully? The one who appeared at the press conference announcing the story is, where else, law school.
A Look at the Legal Aspects of Gender Stereotyping
Posted
6:02 PM
by Michael Fox
OSHA Required to Disclose Safety Data
Posted
4:24 PM
by Michael Fox
I picked this article up from Confined Spaces, a blog focusing on "News and Commentary on Workplace Health & Safety, Labor and Politics" and written by Jordan Barab, who according to his bio "spent 16 years running AFSCME's health and safety program."
"No Good Deed Goes Unpunished" - Now Judicially Recognized
Posted
3:16 PM
by Michael Fox
11Indeed, the Clinic’s actions to which Doctor refers as waiver clearly appear to be gratuitous acts of kindness in unilaterally extending her medical coverage—— yet another example of the maxim that no good deed goes unpunished.Cooper v. Kelsey Seybold Medical Group P.A. (5th Cir. 7/26/04) [pdf].
Here the dispute between a physician employee and the employer physician group had a number of claims and issues, but the focal point of the "good deed" comment was the employment agreement, which had the following termination clause:
In any event, this Agreement is automatically terminated upon . . . your disability lasting longer than three (3)calendar months that prevents you from performing the essential functions of your position with or without accommodation (unless the [Clinic] reviews the circumstances and grants written waiver of termination).
The employee's contention was that two letters written after February 8, 2001 had waived the termination clause. Unfortunately, as the Court forcefully points out, once a contract expires, as it did here by its own terms (or to use the latin ipso facto) on February 8, 2001 there is nothing to waive. Thus, rather than being evidence of a waiver, the two letters in this case were nothing but "good deeds" punished in this case by a lawsuit.
Starbucks Union Woes Over?
Posted
1:07 PM
by Michael Fox
Lawyers Scare Workers with BB Gun Fights
Posted
11:42 AM
by Michael Fox
St. Louis — When police officers responded to a call in St. Louis County, they found women hiding under desks, in their cars and closets at an office building, some saying they had seen two men carrying handguns.
But Melinda Hagaman, who works in the building, told authorities not to worry.
"I knew it had to be the lawyers from down the hall," she told the St. Louis Post-Dispatch in Tuesday's edition. Police said two lawyers who work in the building apparently took part in a BB gun fight on Friday.
While I had hoped this article might lead to a heretofore unknown tactic for subduing disruptive employees, alas, it was, as one of the 'guilty parties' admitted, just another lawyer "acting like an idiot."
Could we make this stuff up?
Statute of Frauds in Employment Agreements - When Is It Applicable?
Posted
11:07 AM
by Michael Fox
Where the time of performance of a contract is uncertain and performance can conceivably occur within one year, the statute of frauds does not apply.Tabrizi v. Daz-Rez Corp. (Tx. App. - San Antonio) (8/4/04). While that allowed the former manager of El Maracumbe, a Tex-mex eatery on Austin Highway in San Antonio, to collect almost $40,000 on his breach of contract claim, it is still less than a totally happy day, as his even larger claim for lost profits is unsuccessful.
The Court reminds that proof of lost profits does not have to be exact, nor it is even necessary to submit underlying documents, but "[a]t a minimum, opinions of lost-profit estimates must be based on objective facts, figures, or data from which the lost-profits amount may be ascertained." And with that, the almost $200,000 jury award - a lot of Number 2, cheese enchilada dinners - is down the drain.
Employment Law as a Microcosm of the Rest of the World - Class Action Style
Posted
10:43 AM
by Michael Fox
15 Employees - Jurisdictional or Does It Go to the Merits?
Posted
2:24 PM
by Michael Fox
To get there the Court had to wade through two thorny factual issues: (i) whether or not delivery drivers were employees or independent contractors under the economic realities test used to determine employee status for Title VII purposes, and (ii) whether under last year's Supreme Court decision in Clackamas Gastroenterology Associates., P.C. v. Wells, 538 U.S. 440(2003) the two owners of the corporation and their wives should be counted as part of the statutory 15. The answers, to the dismay of the plaintiff and her counsel who had obtained a favorable jury verdict, were: independent contractors and no. The bottom line, case dismissed - no subject matter jurisdiction. Several other circuits would at least go the other way on the basic issue of whether the 15 employee limit is jurisdictional, so it could be that this might see the light of day in the Supreme Court.
If you are a New Orleans fan, you might know The Moonlight Cafe, famous either as a favorite writing place of emergency room doc/author Dean Paschal, the best burger in New Orleans, or of course a Garden District favorite, which according to Gambit Weekly's restaurant guide "comes to the rescue of many a night owl, delivering barbecue ribs, cheese fries, gyros, burgers, salads, po-boys and even steaks into the wee hours. " Delivering, but not, as now certified by the 5th Circuit, with their own employees.
Genetic Discrimination Information
Posted
11:52 AM
by Michael Fox
Shelton Padgett, 1948-2004
Posted
8:04 AM
by Michael Fox
 |
|
|
|||||||
|
|
|
|||||||
|
|
|
