Jottings By An Employer's Lawyer

Tuesday, November 30, 2004

Advertising Campaigns and Workplace Safety - There Is A Connection

And Jordan Barab of Confined Spaces has picked up on it in today's post, Nothing Funnier Than A Trench Collapse. An article on an advertising campaign for the new Charlotte Bobcats NBA franchise highlighting cardboard cut outs of visiting NBA stars meeting with disasters (which is now being reviewed "in light of recent events"), sparks memories of an earlier ad campaign for Mike's Hard Lemonade and an OSHA Director's letter. The whole letter is worth checking out, not only for the serious point, but for the touch of humor. Here's the money quote:
Your current television commercial, featuring a construction worker who falls and impales himself on a steel rod and then retreats to a nearby bar for a glass of hard lemonade, is really in very poor taste. Putting aside the inexplicable subject matter (why do you apparently think that “Mike’s makes you forget you’re bleeding to death” is an attractive marketing concept?), the commercial is a graphic affront to workers, business owners, and government agencies who devote their careers to occupational safety. More importantly, I’m sure the families of the approximately 700 victims who die in similar construction accidents each year (not to mention the more than 90,000 workers who suffer serious but non-lethal injuries due to falls) are much more deeply offended than we are by your choice of “humor."

Some construction based ads like this really go way too far. Nice post.
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NLRB Fails Its Own "Smell Test"

Today's decision in Titanium Metals Corp. v. NLRB (D.C. Cir. 11/30/04) [pdf] is illustrative of a number of points that might be surprising for those who do not often deal with the world of unions and collective bargaining. In a time when individual rights are the dominant theme in employer/employee matters, the case is a forceful reminder that when a union represents the workers, it is the union's, not the individual employee's, interest which prevails.

Here, a worker was terminated following his publishing of his own newsletter (today, it no doubt would have been a blog) but also after allegations that he had committed a costly mistake and lied about it. In accordance with the collective bargaining agreement, a grievance was filed and resolved at the third stage by a letter of understanding between the union and the company:
Mr. Smallwood was not discharged for engaging in protected concerted activities under the NLRA. The Company recognizes the Union's rights to communicate with represented employees, to post notices and other related Union materials on plant bulletin boards as outlined in the collective bargaining agreement, and to engage in all other legally protected rights and activities, including, but not necessarily limited to, the NLRA ... The Company's reasons for discharging Mr. Smallwood included issues such as insubordination, inappropriate conduct toward the Company and supervisory employees, ongoing and costly workmanship related infractions, providing misleading and inaccurate information related to melting incident investigations, etc.
Because of the settlement at the third stage, the grievance was not submitted to arbitration and Smallwood's termination stood.

Smallwood filed an unfair labor practice charge with the NLRB alleging that he had been terminated for engaging in protected concerted activity. The Board issued a complaint and the Administrative Law Judge found he had been terminated in violation of the NLRA. The ALJ also rejected the company's argument that the Board should defer to the settlement agreement between it and the union. Under existing Board precedent, such deferral is required when three conditions are met: (1) the grievance proceedings were fair and regular, (2) all parties agreed to be bound, and (3) the results of the settlement are not clearly repugnant to the purposes and policies of the NLRA. The ALJ refused to defer on the 3rd ground, that the settlement was clearly repugnant to the purposes and policies of the NLRA.

The Board, while affirming the ALJ's decision disavowed the finding that the settlement was repugnant to the Act. Instead the Board held that the proceedings were not fair and regular. It based the finding on two reasons: Smallwood never received a copy of the grievance settlement and the reasons for termination stated in the settlement differed from what the company told Smallwood.

In rejecting both reasons, and refusing to enforce the Board's order relative to Smallwood's termination, the Court starkly points out the role of the union vs. the individual employee in the grievance process. With respect to the failure to give Smallwood a copy of the grievance, the Court said:
This is perplexing, for, in the context of this case, this fact is utterly innocuous. Smallwood knew he had been terminated; he knew that the Union did not settle the grievance on terms that were favorable to him; and he knew that the Union did not appeal the case to arbitration. In other words, he was clearly on notice of the fact that TIMET and the Union had resolved his grievance without providing him any of the remedies he had requested. He was free to ask his Union agent about the terms upon which his grievance was settled, but he did not do this. And the Board does not suggest that the Union withheld any materials related to Smallwood's grievance to which he was entitled under the collective bargaining agreement.

More importantly, it is legally irrelevant that Smallwood was not notified that the Union and TIMET had executed a Letter of Understanding with regard to his claims. Absent specified rights under a collective bargaining agreement, bargaining unit employees have no right to participate in contract grievance proceedings. ... Indeed, recognizing that a union is the collective bargaining agent of individual employees, the Board has made it clear that it will defer to grievance settlements even when a grievant objects to the settlement. ... The Board acknowledges that a union can settle an employee?s grievance over his objection, but argues that this case should be treated differently, because Smallwood was not informed of the precise terms of the settlement agreement between the Union and TIMET. ... This is a specious argument. Even if Smallwood had been notified of the precise details of the settlement, he could have done nothing to change it. The employer and union are the parties to the collective bargaining agreement and only they - not individual employees - determine how to interpret and enforce the agreement.
The argument that the reasons differed fared no better:
Assuming this is true, it does not support the Board?s conclusion that the settlement agreement was not fair and regular. The Union and TIMET were well within their rights to negotiate over Smallwood?s grievance under the contract grievance procedures and decide whether, and on what terms, Smallwood should be terminated.
In stretching for something on which to defend the Board's decision, its lawyer offered that this was a case that "just didn't smell right." Unfortunately, when pressed to explain what smelled bad about the case, she could "identify nothing that provides a legal justification for the Board?s refusal to defer to the settlement agreement." Ultimately, it was clear, at least to the Court of Appeals, it was the Board's decision which failed the smell test.

Congratulations to George E. Yund, a fellow member of the Management & Employment Law Roundtable, who argued the case for Titanium.

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Price of New York Street Food to Rise?

Perhaps, as Eliot Spitzer, the most famous state attorney general at least in recent memory, has broadened his sights from the board rooms of Wall Street, to the food vendors on New York streets. His most recent action -- a $450,000 overtime settlement under the New York wage and hour law on behalf of Central Park pretzel vendors. For a report with a British touch, check out the story by the London Times Wall Street correspondent. Could hot dogs be next?

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6th Circuit Upholds "Contractual" Statute of Limitations of 6 Months

When I am scanning circuit court decisions for this blog, I don't generally read the unpublished decisions. However, the good folks at the Daily Labor Report do, and so a tip of the hat to them for their reference to Thurman v. DaimlerChrysler Inc. (6th Cir. 11/19/04) (unpublished)[pdf], where the Court dismissed the plaintiff's claims against the employer as untimely based on the following clause contained in the DaimlerChrysler employment application:
I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.
Relying on apparently well established Michigan law, the court rejected Thurman's argument that the agreement should not be enforced because it was a contract of adhesion and also found that even under the heightened scrutiny for waiver of a civil right, the application in this case passed muster. It also rejected an argument that the application was superseded by the collective bargaining agreement which covered Thurman after she was employed.

Another example of the importance of that sometimes overlooked and under appreciated piece of paper otherwise known as the employment application.

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Monday, November 29, 2004

Bush Board Reverses Clinton Board, This Time on Joint Employer Units

One area where the substantive law can clearly change based on the winner of the presidential election is under the National Labor Relations Act. Not only can, but frequently does. The latest example is last week's decision in H.S. Care LLC (Case 29-RC 10101 11/19/04). In a 3 - 2 decision, the Board overruled its 2000 decision in M.B. Sturgis, 331 NLRB 1298 (2000). The Board succinctly summarizes what it did:
In Sturgis, the Board found that bargaining units that combine employees who are solely employed by a user employer and employees who are jointly employed by the user employer and a supplier employer are per-missible under the Act.

For the reasons discussed below, we hold, contrary to the Board’s decision in Sturgis, that such units constitute multiemployer units, which, in accordance with the stat-ute, may be appropriate only with the consent of the par-ties. Therefore, we overrule the Board’s decision in Sturgis and return to the Board’s longstanding prior precedent.
There have been at least two other well publicized reversals in the year since Bush appointees were finally in the majority. One involves whether graduate assistants are employees covered by the NLRA and entitled to be represented by unions. See Labor board reverses on graduate assistants in the Villager. The other was to return to the rule that existed prior to the Clinton Board, that employees in a non-union environment are not entitled to representation in disciplinary meetings. See, NLRB Reverses Itself Again - Now Says That Weingarten Rights Are Not Available to Non-Union Employees .

Although many would argue that such swings are unhealthy for labor relations because they create uncertainty, it is unlikely any political party that thinks, or even just hopes, it might soon have the power to change things in line with its way of thinking will be willing to agree to any sort of change. And of course to those who bemoan these recent changes, supporters of the decisions will point out in all three cases, the Board could accurately say it was returning to a prior position of the Board that had itself been reversed following a political change in power.

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Who's Packing in the Car?

May become a relevant question for employers in Oklahoma depending on a challenge to HB 2212, enacted last session by the Oklahoma legislature and supposed to become effective on November 1, 2004. The statute added the following provision to Oklahoma's concealed gun law:
No person, property owner, tenant, employer, or business entity shall be permitted to establish any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.
Employers with policies prohibiting possession of guns on their premises have sued in federal court and the enforcement of the act has been temporarily restrained by U.S. District Judge Sven Erik Holmes, the Chief Judge of the Northern District of Oklahoma in Tulsa.

Whirlpool initiated the litigation, but other major Oklahoma employers such as Williams Co. and Phillips 66 have now joined according to this AP story in the Bartletsville Examiner.

Although as a loyal Texas Longhorn who hates to given any cover for Sooners of almost any variety, this legislation did not just arise out of thin air. Instead as discussed in a Wall Street Journal article it came after 12 Weyerhauser employees were terminated following a 'raid' by the company a little over a year ago.

One blogger, Joe Kelley, who sees some the competing issues, offers his own temporary solution:
I’m a firm believer in the individual right to bear arms. I’m also a firm believer in the employers rights to set policy as it pertains to their employees. While I support their right to do so, I believe that Whirlpool is setting a ridiculous policy against guns in locked cars. Anyone intent on killing fellow employees will certainly not care about breaking insignificant company gun policy. A “No Guns” sign will not deter someone intent on murder.The only real short term solution to this problem is for gun-toting Whirlpool employees to park off-site and walk a little further to work.
It will be interesting to see how this "red state" resolves this issue.

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Good Business by Mihaly Csikszentmihalyi

In between scientific testing of the various qualities of margarita to be found at drinking and dining establishments in the lovely colonial city of Morelia and making an absolutely breathtaking trip to see the Monarchs gathered in their winter home, I managed to do some reading. One book was yet another "flow" book by psychologist Mihaly Csikszentmihalyi.

This differs however in that it is less about flow and more philosophical in nature. Basically Csikszentmihalyi argues that businesses (and more importantly their leaders) now have an obligation to do more than deliver a great bottom line. That they are now responsible for creating an environment where each employee can grow, thereby increasing the overall 'good' in society. A thoughtful topic and some very interesting ideas, but I would think quite likely to meet with skepticism in the very places he seeks to change. It is not a long book, and just as an introduction to his ideas on the "flow state" it is a good read and recommended.

If you want to check out how some other people viewed it here are some reviews: Kathleen Caldwell in Hope Magazine; The Corporate Asylum, Satire and Commentary for Discerning Employees; Cathy Alper at 800-CEO-READ Blog; Bruce Rosenstein in USA Today, who also provides a great function by providing a phonetic pronunciation of the author, Csikszentmihalyi (pronounced chick-sent-me-high); and of course the Amazon commentary.

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Is Arrest For Drug Paraphernalia Reasonable Cause for Drug Testing?

Government entities do not shed their constitutional obligations merely because they have their employer hat on, and one of those is the prohibition of unreasonable searches and seizure. Which is why a government, as opposed to a private sector, employer, must have reasonable cause before requiring a drug test of its employees. In Relford v. Lexington-Fayette Urban County Government (6th Cir. 11/24/04) [pdf] the Court noted the central question was whether an employee's arrest for possession of drug paraphernalia was enough to require him to submit to random drug testing. In good judicial fashion however, the Court chose to answer a slightly different question:
In directing Relford to participate in the drug and alcohol abuse EAP, the Commission found that he had been arrested for possession of drug paraphernalia, falsely called in sick, abused sick leave, and falsified a report. The nature of Relford’s employment misconduct, i.e., his dishonesty to his employer exemplified by his efforts to cover up the reasons for his work absence, when accompanied by his arrest for criminal trespass and possession of drug paraphernalia, reasonably suggests his use of the paraphernalia for the consumption of illegal narcotics. Whether a mere allegation of possession of drug paraphernalia, standing alone, would support reasonable suspicion sufficient to justify employee drug-testing is not before us. In the present controversy, however, the undisputed facts sufficiently establish reasonable suspicion that Relford was probably using controlled substances. As such, the order of the Commission directing Relford to participate in the drug and alcohol abuse EAP does not constitute an unreasonable search for Fourth Amendment purposes.
There were some other administrative and judicial proceedings which seemed to help the employee's cause and made it clear that the employer was not totally without fault. However, one wonders if the employee was not ultimately sunk by the fact that when he did submit to a drug test, he tested positive for the use of unlawful drugs. Although not technically relevant to the decision, as an advocate you know it matters.

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Qui Tam Action Dismissed, But Whistleblowing Claim Survives

The False Claims Act allows an individual to bring a claim against a company alleging that it has made a false statement to get paid by the government. The government can, but is not required to intervene. Since the successful plaintiff can have a substantial percentage of a multi-million dollar award, these can be high stake claims.

The FCA also provides protection against retaliation for an employee because of lawful acts "in furtherance of an action under this section." Like a case where an employer prevails on the substantive discrimination claim, but loses on retaliation, in Williams v. Martin-Baker Aircraft Company, Ltd. (D.C. Cir. 11/26/04) [pdf], the company/employer successfully defeated the qui tam action, but not the whistle blower claim which is remanded to the district court.

Initially, the district court had dismissed both the qui tam action and the whistleblower claim. Finding the qui tam complaint to be both "‘‘simultaneously excessively prolix and equally abstruse,’’ both courts found it failed to meet the heightened pleading requirement for fraud. The district court had also dismissed the whistle blower claim finding that the employee was terminated 18 months before he filed the claim. On appeal, the employer did not seek affirmation on that basis, a wise decision according to the Court because of its prior holding that actions in furtherance of a cause, will often include actions prior to filing suit.

Instead, the employer argued based on a separate line of cases that since the employee did no more than what his job required him to do (in this case reporting errors in pricing data being given to the government) it could not have been on notice that he was engaged in protected activity. While agreeing in principal with the argument, the Court found it inapplicable here holding:

By the same logic, however, when an employee acts outside his normal job responsibilities or alerts a party outside the usual chain of command, such action may suffice to notify the employer that the employee is engaging in protected activity. See Ramseyer, 90 F.3d at 1522-23 (holding that plaintiff failed to satisfy notice prong where plaintiff communicated information about noncompliance to her superiors, but ‘‘gave no suggestion that she was going to report such noncompliance to government officials’’); Neal v. Honeywell Inc., 33 F.3d 860, 861, 864 (7th Cir. 1994) (upholding whistleblower claim where plaintiff told employer’s legal counsel about fraud and counsel informed the government). Williams’s advice to NAVAIR ‘‘to continue to challenge’’ Teledyne’s cost or pricing data—Count III’s sole allegation of protected activity—represents just this type of action. Instead of merely reporting his concerns about Teledyne up Martin-Baker’s management chain, Williams went outside the company and alerted the government—the victim of any FCA violation. Indeed, Williams went well beyond Yesudian’s requirements for employees whose normal job functions include auditing responsibilities. Yesudian makes clear that such an employee need not ‘‘announce he ha[d] gone outside the institution,’’ 153 F.3d at 743, but Williams did precisely that.

So no big payoff from the qui tam action, but the whistle blower claim survives, at least for now.

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Sunday, November 28, 2004

All Department Heads Are Not Created Equal

At least not under the Equal Pay Act. That is the conclusion in Wheatley v. Wicomico County, Maryland (4th Cir. 11/22/04) [pdf], where the Director and Deputy Director of the Emergency Services Department, both female, argued that female department heads and assistant department heads were paid an average of $25,000 less than their male counterparts, a violation of the Equal Pay Act. Their argument:
all managers — regardless of department subject matter — ultimately perform the same supervisory duties. They all, for instance, prepare budgets, monitor employees, and conduct meetings.
A far too simplistic view according to the Court. It fails to take into account differences in subject matter and the differences in required skills. In fact, the Court held:
We decline to accept the argument, however, that employees with the same titles and only the most general similar responsibilities must be considered "equal" under the EPA. In actuality, plaintiffs present a classic example of how one can have the same title and the same general duties as another employee, and still not meet two textual touchstones of the EPA — equal skills and equal responsibility.

Revisiting an argument from times past, the court notes Congress was careful to choose "equal" not "similar" as the standard for eliminating discrimination in compensation on the basis of sex.

A second theory was lost because it was not raised until after the plaintiffs had rested and were facing what appeared to be (and ultimately was) a winning motion for judgment as a matter of law. Switching from comparing female to male department heads, the plaintiffs sought to argue that they were paid less than males who had been placed in a similar pay band in a recent compensation study. "Too late for that one," said both courts. Even if made timely it is unlikely that the argument would have flown as an EPA claim, but it is a reminder to employers that "pay banding" can create issues of equity in rather stark terms, since it is usually (as here) the employer who has claimed that all jobs in that category have similar value.

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This Employment Contract Is A "Badly Drafted Agreement"

It was just a bad week for lawyers in the 1st Circuit. The day before upholding punitive damages against a lawyer for her actions in connection with the settlement of a lawsuit, see Sometimes the Settlement Is Only The Beginning, the Court delivers a blunt assessment of an employment contract, at least partially drafted by the company's lawyer. Its view --"it is a badly drafted agreement." Ouch. Nadherny v. Roseland Property Company, Inc. (1st Cir. 11/23/04) [pdf]. The agreement in question was the employment contract of the head of the Boston office for the Roseland property development company. The district court granted summary judgment for the terminated employee, agreeing with his construction that he was entitled to a participation interest in 4 properties begun under his tenure. Although the development company's argument is that because he was not "vested" in any of the properties when he was terminated he lost all his interest, at the 1st Circuit, the more modest goal of just reversing the summary judgment in the his favor was successful.

While noting that the district court's view of the intent of the contract might ultimately prove true, the Court found it was not ripe for summary judgment. To show why, the court noted just a few of the problems with the language of the contract:

The contract language is ambiguous and subject to conflicting interpretations. At the least, three of the clauses appear to be at war with each other. The first sentence of Paragraph Eight reads: "You will be entitled to a participation interest in all new projects which originate out of Roseland's Boston office during the period of your employment." This sentence appears to give Nadherny rights in any project which originated during the period Nadherny worked for Roseland. Whether that reading is correct is cast into doubt by later sentences. That reading is at odds with the fourth sentence of Paragraph Eight, which reads: "Your interest in such new projects will vest at the same time that the Roseland Entity's interests vest." This can be read to give Nadherny rights only on vesting. But what "vesting" means is unclear.

As the district court recognized, the parties agree that such vesting occurs only at project closing/start. None of the projects at issue, it is agreed, had reached the closing/start stage at the time of termination of Nadherny's employment. In conflict with the reading that Nadherny had no rights in the project before vesting, Nadherny offers a supposedly reconciling interpretation: that "vesting" refers not to his right to receive payment but only as to when such payments are to be received. This is far from self-evident. The first definition of the word "vest" in Black's Law Dictionary is "to confer ownership of [property] upon a person." Black's Law Dictionary 1594 (8th ed. 2004). The ambiguity about vesting creates an ambiguity about the first sentence of Paragraph Eight.

There is a further ambiguity about the meaning of the two clauses in Paragraph Eight when they are read against the at will employment and termination clause in Paragraph Fifteen, which provides: "[E]either you or Roseland may terminate your employment and this relationship at any time with or without cause . . . ." This clause raises the question of what "this relationship" means and suggests it means something different from employment. But then, in turn, "relationship" is used in varying ways in other clauses in the contract. For example, in Paragraph Four, the contract refers to the agreement governing both "your relationship to Roseland and your interests in projects." This suggests that "relationship" is different from "interests in projects," but perhaps not from "employment." Yet it is also true that Paragraph Fourteen of the agreement permits Nadherny to enter into other development contracts after the "termination of our relationship." That Paragraph also provides that "all Roseland Business will remain with Roseland following termination of our relationship for any reason." The "relationship" language complicates rather than resolves the tension between the first sentence and the vesting sentence in Paragraph Eight.

The words alone do not decide the issue.

In all fairness to the drafter of the agreement, those "tensions" may very well have been what caused the deal to happen in the first place, as the court notes the contract "was a culmination of many months of discussions and draft proposals back and forth between Nadherny and Mr. Tycher." If that is what happened, it would certainly not be the first contract purposely made somewhat ambiguous by "papering over" a difference between the parties. That such a practice may be costly, does not mean that it will not only happen again, but often.

The opinion also has a good summary of the rules of contract construction, including my favorite:
"In short, words matter; but the words are to be read as elements in a practical working document and not as a crossword puzzle." Fleet Nat'l Bank v. H&D Entm't, Inc., 96 F.3d 532, 538 (1st Cir. 1996).

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Sometimes the Settlement Is Only the Beginning

What no doubt seemed like a relatively straight forward racial discrimination lawsuit filed by a terminated police officer in 1991 was settled in 1993 for $81,000 and reinstatement, providing certain conditions were met. Now almost a dozen years later, a separate controversy over the settlement is wending its way through the courts. The most recent stop, Powell v. Alexander (1st Cir. 11/24/04) is the affirmation of an award of $10,000 in punitive damages against the lawyer who represented the City in the original lawsuit. According to the district court's determination, Kathleen Alexander, as City Solicitor for Pittsfield, Massachusetts, set about a "course of conduct in delaying Powell's reinstatement [that] was, taken as a whole, "both outrageous and reprehensible," citing from the 87 page opinion from the district court. Powell, 221 F. Supp. 2d at 152.

Although the settlement agreement contemplated reinstatement, it was more than three years before the officer was back on the job. The dispute focused on his physical condition. Alexander was the central person overseeing the details of the reinstatement process for the City, and her failure to disclose a report from a City physician was what appeared to upset the courts the most. Quoting from the letter:
"The consensus was, given [Powell's] current state of health, that there would be currently no reason to limit his physical activity." Dr. Bird's letter concluded: "Now that the exact nature and stage of Mr. Powell's chronic liver disease is known, I feel that he does not have a condition which would disqualify him from returning to the police force." Dr. Bird's copy of the letter, which he kept in his business files, was accompanied by a sticky note that read, "Confidential per request [of] K. Alexander." Powell remained unaware of the letter's existence until it surfaced during discovery in the instant lawsuit.
Neither court accepted Alexander's explanation for why the report had not been disclosed while the issue of Powell's physical ability to return to work was the primary issue.

The Court had to weave its way through rather tangled law under §§1981, 1982 and 1988 as well as deciding whether or not Alexander was on notice that she was being sued in her individual as opposed to her official capacity. Rather than adopt some sort of bright line test as urged by Alexander, the Court aligned itself with a majority of other courts in using a "course of proceedings" standard. Here, the court found it sufficient to hold she had knowledge.

If Alexander had hoped for professional exoneration by appealing, she would have been better off paying the $10,000. To make matters even worse, the appellate court found Powell entitled to his attorneys fees and costs and remanded to the district court for the determination of the amount.

Having been involved in a three week jury trial where the primary dispute was on post-settlement conduct, I can vouch for the efficacy of settlement agreements where all obligations of the employer are complete upon the signing of the agreement and payment of the agreed amount. Sometime, as perhaps here, it is impossible to do that. But before concluding that the price for such a settlement is too high, one should contemplate what the cost has been of this now nearly 15 year controversy.

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Saturday, November 20, 2004

Morelia Bound

Although I hate to be missing in action for the official debut of the blogging network, I would much more hate to miss the previously scheduled trip to the winter home of the monarchs, Morelia, Mexico. Absent the unlikely combination of inspiration and working technology hitting at the same time, posting will be scarce to non-existent next week.

Have a great Thanksgiving and I will see you "back at work" after the holidays.

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Friday, November 19, 2004

Turmoil In the HR Department - Management Wins, Twice

For the 2nd time this week a circuit court of appeals affirms summary judgment on claims brought by former HR employees who seemed to be causing rather than resolving employment issues. In Friday's decision Luckie v. Ameritech Corp. (7th Cir. 11/19/04) [pdf], Ms. Luckie, an organizational development specialist was described as having a "toxic effect" on the department. Ultimately, put on a performance improvement plan, she didn't improve and was terminated. She sued alleging racial harassment and retaliation. On racial harassment, the Court noted it was atypical, since it did not involve "racial slurs, epithets, or other overtly racial behavior" but rather referred to three specific incidents, a comment that a minority employee of the department was a "dunce", an email sent by one of her subordinates complaining about her management and a comment by her supervisor that she wanted to change "the complexion" of the department. The court found only the last could have any conceivable relationship to race, and given that it was made in the context of a re-organization of the department, was not racial. In any event, the actions were not severe and pervasive.

Her retaliation claim fared no better as she could not show any direct evidence that her superior actually knew of her protected activity. Nor could she meet the prima facie case under the indirect method since she could not show she was satisfactorily performing her job.

As a last point, the court dealt with a fundamental hearsay issue. The plaintiff objected to evidence of comments (including the "toxic effect" on the department) made by others that were considered by the manager in making the decision. The objection -- hearsay; the answer, overruled. It is not hearsay because it is not offered for the truth of the matter asserted. Nothing more but restating the basic definition of hearsay, but music to the ears of any management side lawyer who has been thwarted in trying to get what is often 'critical' evidence admitted because the judge 'forgot' that all out of court statements are not hearsay.

Earlier in the week, the 5th Circuit upheld a summary judgment against a former HR employee, Marilyn Haley who alleged that she had been constructively discharged following her return from a stress induced FMLA leave. The stress arose after an employee survey raised concerns and criticisms about the HR department, including Haley. The Court found her evidence that she was micromanaged and that her position had changed insufficient to raise a fact issue as to whether she was constructively discharged. Haley v. Alliance Compressor LLC (5th Cir. 11/18/04) [pdf]. Absent discharge, she had no claim.

Although employers are often justifiably concerned when HR employees sue, perhaps attributable to the "they know where the bodies are buried" syndrome, as this week's result show, all is not always lost when they sue.

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Introducing - The Blogging Network

For those who have visited these pages before, you may have noticed a change, there is now a 3rd column, occupied by an advertisement, topped by a small phrase, An Affiliate of the network. That change marks the beginning (and my association) with a new venture of American Lawyer Media which today initiates the Blogging Network. I am honored to be joining seven other blogs as the first affiliates. In addition to Jottings, they include:
The Volokh Conspiracy founded by UCLA Law School professor Eugene Volokh and co-authored by 14 co-bloggers (mostly fellow law professors).
May It Please the Court by J. Craig Williams, a California business litigator.
My Shingle, by D.C. solo practitioner Carolyn Elefant.
I/P Updates by Bill Heinze, a practicing intellectual property attorney.
Crime & Federalism by Michael Cernovich, a third-year law student at Pepperdine University.
the [non]billable hour by Matt Homann, a practicing attorney, mediator, and an adjunct professor at his alma mater, Washington University Law School in St. Louis, Missouri, and
The Common Scold, by Monica Bay the editor in chief of Law Technology News.
Tying all of this together will be the Legal Blog Watch authored by Lisa Stone.

For those of you who have been readers in the past, hopefully not much will change, except that you will be joined by many more readers.

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Thursday, November 18, 2004

MDV - Boeing Hit for $2.5 Million in Age Discrimination Case

Yesterday a Kansas federal court jury returned a million dollar verdict against Boeing Company in favor of a veteran pilot who was passed over for a higher paid test pilot position because of his age and Cuban ancestry. The Grand Forks Herald has the story. The damages included
$1.5 million in punitive damages,$370,000 in what he would have been paid as a test pilot, $31,000 in back pay and $625,000 for pain and suffering.
One of the most interesting aspects -- the plaintiff, Mario Goico is a Republican state representative representing Wichita in the Kansas legislature. My guess is that he won't be the loudest voice about tort reform in the near future.


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Unionizing the Pizza Delivery Guy

Don't look now, but the fellow bringing your next pizza could be a member of the Association of Pizza Delivery Drivers, which at least based on the NYT story, Pizza Drivers Seek National Union may be the first union born in internet chat rooms. Although no successful elections yet, the group does have 600 members.

While I am not sure exactly what the union will do about it, one of the leaders does have a fairly graphic description of one of the hazards of the job:
A lighted pizza sign on a car in a bad area says, `Look at me -- I've got food, I've got cash and I'm unarmed.

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Wednesday, November 17, 2004

MDV: Lesbian Cop Wins Millions In Harassment Case

The headline from the AP story on the 1010 (New York's All News, All the Time) website about sums it up. Karen Caggiano, a former Essex County (NJ) sherrif's officer has recovered a huge verdict from a Union County state jury. Not a lot of details or even clear what the legal theory was, but her lawyers said Caggiano "testified that she had to use the same bathroom and locker room as male officers in the late 1990s, and that pictures of naked women were posted on lockers. She endured lewdness, including one sheriff's officer who repeatedly exposed himself in front of her."

Also not clear why the fact she is gay is important, other than perhaps to create more salacious headlines. The search I just ran turned up 13 entries, only one, from the Asbury Park Press, did not mention Caggiano's sexual identity in the headline. Instead it headlined the story, Woman gets $2.8M in harassment suit .

Probably the understatement of the year goes to Sheriff Armando B. Fontoura who said Tuesday that "he expected portions of the verdict to be appealed."

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Tuesday, November 16, 2004

Last Chance Agreement Strictly Interpreted by 5th Cir.

The airline business is a tough one, but at least one carrier had a bit of bright news today. The 5th Circuit upheld Continental's challenge to an arbitration ruling reinstating an employee it had terminated for violation of a last chance agreement, reversing the district court's grant of summary judgment. The Court did not buy Continental's argument that it should review the award under a "no deference" standard because it involved a Last Chance Agreement rather than a Collective Bargaining Agreement. Nevertheless, it agreed with Continental that it was entitled to win even under the appropriate deferential standard, since the award failed to "draw its essence" from the agreement. Continental v. International Brotherhood of Teamsters (5th Cir. 11/16/04) [pdf].

The LCA required that the employee abstain from all use of alcohol:
This includes mouthwash or other medications/substances which may contain alcohol. If your doctor prescribes medication which contains alcohol/narcotic drugs, you are required to inform the EAP staff of such medication.
The employee had not obtained a doctor's prescription for a drug containing alcohol, but instead had called the doctor's office to get an appointment and was told that he could not get a prescription over the phone, but could take over the counter medicine until then. Although the arbitral board found his action in keeping with the "spirit of the agreement," particularly since the employee had called the EAP to report that he was taking the medication, the 5th Circuit did not buy it. Instead it found
[b]y failing to require proof of a doctor’s order, the Board’s interpretation effectively reads “doctor” out of the EAP agreement. Such an interpretation is not an arguable construction of the agreements; thus, the Board exceeded the scope of its jurisdiction in fashioning its award."
Maybe it was just time for an airline to get a break.

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Monday, November 15, 2004

Tar Baby - Part II

Last year, 3 police officers won $3.4 million in their harassment case against the Glendale police department. The city appealed, but soon faced a second suit for retaliation. Now, that case has been settled for a total payment of $4 million, according to this story in the Los Angeles Times. Wonder if there could more? One wouldn't think so, but then maybe the Glendale police department should check with the folks at Kaiser Permanente.

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The Employee Tar Baby - When You Just Can't Let Go

That's what the folks at Kaiser Permanente must be thinking of their dealings with their former respiratory therapist, Stephan Pardi. He first raised claims of disability discrimination because of depression, and harassment when his supervisor refused to carry out the agreed to accommodations. Following a 2 year battle with numerous grievances, he was finally terminated. But on his way out, he first won a "five figure" award from an arbitrator for his discrimination and harassment claims, and then filed a charge of discrimination with the EEOC because of his termination. That charge ultimately resulted in a $130,000 settlement with Pardi, which included the agreement that his termination would be converted to a resignation.

But unknown to Pardi, the hospital had reported his termination to the Respiratory Care Board. The Board commenced its investigation just as his termination claim was being settled. The settlement occurred on January 13. Unfortunately, but not too surprisingly, just over 2 weeks later on February 1, when the investigator showed up, his file had not been corrected to show resignation rather than termination. Yep, you guessed it, a new cause of action.

Although Kaiser prevailed in the district court, today, the 9th Circuit reinstates some of that claim, finding both a breach of the settlement agreement, by not correcting the file soon enough, and certain post-settlement conduct that was actionable as retaliation. The retaliatory acts:
Kaiser failed to: (1) promptly delete Pardi’s termination for cause from its records, engaging in protected activity” and amount to actionable retaliation under this Court’s (2) inform the DCA investigator about the Settlement Agreement, (3) turn over to the investigator medical records that would tend to exculpate Pardi, and (4) turn over to the investigator evidence of Pardi’s history of complaints against Kaiser. And the Court's conclusion -- these acts are “reasonably likely to deter employees from expansive view of adverse employment actions. Pardi v. Kaiser Permanente (9th Cir. 11/15/04) [pdf].
You have to figure however these remaining claims get resolved, that Kaiser Permanente will probably be looking over there shoulder for Mr. Pardi for

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Pittsburgh Requirement for Union Agreement Not Preempted

A builder of a hotel approached the city of Pittsburgh seeking TIF (tax increment financing). The city responded, but tied to the funding a requirement that the hotel operator enter into a collective bargaining agreement. After some fits and starts, and faced with a loss of funding the operator entered into a Neutrality Agreement, which preserved its funding. After a card check failed, the union requested a second, and then filed for arbitration when the hotel operator refused. The company filed suit challenging the underlying validity of the Neutrality Agreement on the ground that it was pre-empted by the National Labor Relations Act. After surveying the fairly well marked contours of the law, the court found under these circumstances, the city was acting not as a regulator, but as a market participant. so that the Agreement was not pre-empted. HERE, Local #57 v. Sage Hospitality Resources, LLC (3rd Cir. 11/15/04) [pdf]. One way of looking at the result was that it was nothing more than the hotel operator had bargained for, but more importantly it reflects a way to use local political force to advance organized labor's interest. Some might argue that organized labor would be better served spending their time convincing workers of the merits of being represented, rather than seeking political power to utilize in top-down organizing. Regardless of the merits of that argument, at least in some circumstances, the use of local political strength remains a legal, and shown here, viable option.

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Friday, November 12, 2004

Think Comp Time Is the Answer? Might Want to Check with Cleveland

Private sector employers who are denied the use of comp time as a way of balancing their workforce and to meet the desires of their employees for more flexible working schedules have been seeking Congressional action for some time. But as with most things, it brings its own set of headaches as the City of Cleveland found today when a summary judgment it had obtained over the use of comp time was reversed and remanded back to the district court for further action. Beck v. City of Cleveland, Ohio (6th Cir. 11/12/04) [pdf].

The problem was whether the City's practice of not allowing officers to use their accrued comp time because it would require them to pay other officers overtime. Under the statute which provides for governmental comp time, an employer is required to permit it to be used within a reasonable time of making a request and "if the use of the compensatory time does not unduly disrupt the operation of the public agency." Although the district court bought the city's argument that it could be a "financial disruption", the Appeals Court was more persuaded by opinion letters from the Department of Labor and the reasoning of district courts which had addressed the issue holding that it is operational not financial disruption that is necessary to bar comp time's use.

While comp time would be a welcome addition to the private sector, and maybe one whose time is drawing nearer, it will bring its own new set of issues.

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Wednesday, November 10, 2004

Ever Wanted to Modify Your Benefits Plan and the Make the Effective Date Retroactive?

I am not a benefits lawyer, but have enough exposure to it to know that not infrequently an employer will adopt a plan amendment and make it retroactive, say to the first of the calendar year. I assume that in a large number of cases that may have no consequence and be entirely appropriate. But if you suspect that it might work to someone's disadvantage, such as providing a less desirable benefit for them, you should check out today's ruling in Depenbrock v. CIGNA Corp. (3rd Cir. 11/10/04) [pdf]. The court holds simply that a plan amendment that was actually signed on December 21, 1998 was not retroactive in the case of Mr. Depenbrock, even though the effective date specified in the agreement was January 1, 1998. CIGNA argued for an earlier date based on theories of ratification, going back to the date of the announcement of the plan change, the date a board committee authorized the CEO to make the formal adoption, the date the CEO approved a summary of the changes that were ultimately made, but all to no avail. The date it was signed is the effective date, at least as applied to this plaintiff.

The word of advice -- don't tarry in getting your formal documents done. Sometimes, or at least one time, it made a real difference.

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They Are Back! Legislators Begin Prefiling Bills for 79th Session of Texas Legislature

Hard to believe that the Texas legislature will soon be in session. We begin to get our first look at what might be in store by the bills which are prefiled, which began this week. Among the early bird bills that are labor and employment oriented are the following:
S.B. 41 an FMLA type act that would give time off from work to participate in certain activities of the employee's child. Would define employer as any employer with 10 or more employees and would provide up to one hour a month of unpaid time for meeting with teacher or attending other school function. Judy Zaffirini. (D - Laredo)
S.B. 70 Would provide a preference for potential state vendors for those who provide medical benefits for their employees. Eliot Shapleigh (D -El Paso)
S.B. 74 A Texas version of the Equal Pay Act that would be applicable to an employer with four or more employees. Eliot Shapleigh (D - El Paso)
The filing totals for the first 3 days, Monday, November 8 (135); Tuesday, November 9 (23); and Wednesday, November 10 (19). It would be nice to think that the number of bills will continue to decline, but don't count on it.

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Construction Labor Law - A New Blog

The NLRA is a world unto itself and unfortunately the lawyers with actual experience with it continues to decline. But within that rarefied field, is an even more arcane subject, construction labor law. And it's not just traditional labor law with 8(f) agreements, multiemployer bargaining groups and hiring halls that is different about the construction industry. There is Davis Bacon,its state and city counterparts, unique OSHA issues and many more that have a slightly or sometime significant twist from the non-construction world. Now, thanks to Jordan Schrader of Portland, Oregon, a blog for those topics exists, check out Construction Labor Law blog.

A title to the point. Welcome to the world of blogging.

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A Reminder Once Again - the NLRA Is Applicable in Non-Union Settings

USAA one of the nation's largest insurers was the unfortunate recipient of the D.C.Circuit's reminder that the National Labor Relations Act, which protects concerted activity, is just as applicable in a non-union setting as where organized labor is present. The Court affirmed the NLRB's finding of unfair labor practices arising out of the discharge of an employee for distributing 1,300 flyers to the desks of fellow employees. The flyer raised questions about employees who had lost their jobs in a reorganization. United Services Automobile Association v. NLRB (D.C. Cir. 11/9/04) [pdf]. Not only did the company lose, but it was a quick turn around as the case had been argued only a month earlier. The Board's ruling that was affirmed can be found here.

Among the Court's holdings, that the company's no solicitation rule even if lawful as written, was unlawful as explained and enforced, that the sole purpose of interviewing the individual involved was to find out who had engaged in concerted activity and that even though the employee had been evasive during the questioning, it was not sufficient under the circumstances to defeat her claim.

And sure enough, what all employers fear in defending any no-solicitation case, there was evidence of numerous violations including Avon catalogs. Not mentioned was the other favorite, football pools.

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Burden of Proof On "Direct Threat" Can Be On Employee

An ADA plaintiff making her 2nd trip to the 10th Circuit in her bid to get re-hired as a deputy sheriff comes up empty this time. In McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001), Jade McKenzie convinced the Court that summary judgment should not have been granted against her claim of disability discrimination. Sent back for trial, she lost.

Although the jury found that she was disabled, that she was otherwise qualified, that the defendant discriminated against her because of her disability, the jury also found that she posed a "direct threat" to the health and safety of herself and her co-workers and was therefore not qualified to be a peace officer. McKenzie v. Benton (10th Cir. 11/9/04).

After 10 year as a deputy with no problems, McKenzie began to suffer:
from a variety of psychological afflictions, including post-traumatic stress disorder (PTSD) related to childhood sexual abuse by her father. As her condition worsened, she began to miss work frequently. On August 15, 1996, McKenzie fired six rounds from her off-duty revolver into the ground at her father's grave.
After being placed on leave she "suffered serious self-inflicted wounds and drug overdoses requiring several hospital visits," although those seem to have been limited to a six week period immediately following the incident at her father's grave. When her leave pay was exhausted, McKenzie resigned but was told that she could re-apply when she was able.

The Court described what happened when she did re-apply:
Sheriff Dovala told McKenzie that he was unwilling to consider her application, even if she passed a psychological evaluation, and admitted that the Office was reluctant to hire her because of "liability" concerns and fear of public uneasiness related to her past illness. Sheriff Dovala said that members of his staff told him that "based upon what they knew about what had happened in the previous year," McKenzie "would be better off in some other field."

Sheriff Dovala admitted to McKenzie that he had passed over her application when positions became available in the department between November 1996 and October 1997. He acknowledged that when McKenzie visited with him in October 1997, he had met with his supervisors, Mark Benton and Lt. Kinghorn. Without a statutory psychological evaluation, they concluded that they were against considering McKenzie's application based on their knowledge of her prior psychological problems. See Wyoming's Peace Officer Standards and Training (POST) law, Wyo. Stat. Ann. § 9-1-704(b)(vii). Sheriff Dovala admitted that he did not consider any individualized assessment of McKenzie's present psychological profile when she was excluded from consideration for reemployment.
While that testimony seems tailor made to show discrimination, the defendant countered with two expert witnesses, both of whose testimony was challenged in the appeal court. The first was a psychologist who had not examined McKenzie and testified that:
[H]e could not testify that McKenzie was a direct threat, but said it was "reasonable" for the Department to conclude she was a "direct threat" based on past behavior. He stated that supervisory police officers were not qualified to perform psychological exams and that such supervisors were suited only for observing behavior. He also conceded that most police supervisors are unfamiliar with the "course" of PTSD, that over half of all people who have PTSD symptoms can recover within one year and PTSD is something one can recover from. He acknowledged that a psychological exam would be a way of determining whether someone had recovered from PTSD.
The second expert was a veteran police supervisor from Chicago:
On voir dire Officer Walton said he was not offering an opinion as to the reasonableness of the defendants' conduct as it related to compliance with the ADA, but only with respect to what a reasonable police supervisor would do. Officer Walton testified that it would be "totally improper" to re-hire McKenzie because she had engaged in dangerous behavior in shooting her father's grave. He also reviewed the medical/mental health history of the plaintiff and concluded that the mental health "history" of impairment precluded the reasonableness of re-hiring McKenzie. On cross-examination, Officer Walton admitted that his opinion was based solely on his knowledge of the mental health history of McKenzie; that he claimed no expertise in PTSD other than what he had read in the VFW journal.
Both experts were challenged on appeal, but the Court held that the district court properly exercised its gatekeeping authority and that the testimony was not reversible error.

The Court also found that the charge which placed the burden of proof on the issue of whether McKenzie posed a direct threat, on her was not error. Noting the unique aspects of a peace officer's job, the Court relied on the 1st Circuits reasoning in E.E.O.C. v. Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997) where it held:
Where those essential job functions necessarily implicate the safety of others, plaintiff must demonstrate that she can perform those functions in a way that does not endanger others. There may be other cases under Title I where the issue of direct threat is not tied to the issue of essential job functions but is purely a matter of defense, on which the defendant would bear the burden...
Although trying to determine what influenced a jury based on an appellate opinion is rank speculation, I can't help but believe that the crowning testimony might have come from seven fellow officers who "testified about their contacts with McKenzie before, during and after her illness in 1996, and said they would have trouble working with McKenzie due to their knowledge of her past disability as that affected their concerns about "trust," "confidence," and "comfort."

If nothing else, this case is a good reflection of the tension inherent in trying to remove the stigma of mental illness, particularly in certain types of employment.


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Monday, November 08, 2004

Working Notice - A Potential Problem

Michael Fitzgibbons, a Canadian counterpart who provides Thoughts By A Management Lawyer, discusses what happens when an employee who has been told he is to be terminated misbehaves in the interim period. See Misconduct During the Period of Working Notice. Working notice is not a term I am familiar with, nor is there a common law duty to provide reasonable notice of termination this side of the border. But the concept is certainly one that I understand and had occasion to deal with over the years. I would probably fit right in Michael's description as "not a big fan," while acknowledging that sometimes it can work for the benefit of all.

In fact at a meeting this week end of the Management Labor & Employment Roundtable, one of the items discussed that brought about one of those "think again" moments was stories of still current employees who had successfully litigated against their employer, and were now successful in their jobs. The point, notwithstanding possible problems in various situations, there are times that even those which would seem the most difficult may work and shouldn't be discarded out of hand.

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Department of Labor's 2004 FMLA Opinion Letters

Thanks to the Benefits Blog for the tip to check out the DOL's website for recent postings of FMLA Opinion Letters. See its discussion of the issue of counting employees from temporary agencies by both the temporary employer and its customer for purposes of determining FMLA coverage. The actual letter is here.

The second letter, a somewhat belated answer to a July 28, 1998 question, discusses the circumstances when an employer may request recertification quicker than the 30 days provided by the regulations. Among the reasons that might work, a history of Friday/Monday absences.


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Missing From Action? Unscheduled Absence Hits 5 Year High

If your employees are not showing up in greater numbers than in the past, you are not alone according to the story, Unscheduled absenteeism soars; reasons, solutions vary from HR News found at SHRM's website. Different methods are being used to try to combat the problem, which rose to 2.4% last year, a .5% increase from the year before. One company has gone from buying donuts for a department when they met certain attendance standards to $40 and $20 gift cards every two months to employees who meet attendance and safety goals. No report on whether the decline in the success of the donuts as a motivator was correlated with the rise of Atkins dieting among the workforce!

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Next Senate Chair of Health, Education, Labor, and Pensions Committee?

If as many seem to think, including the folks at the Daily Labor Report and this election article wrapup from a WSJ Reporter, Senator Judd Gregg moves over to chair the Budget Committee, the next in line to chair the Health, Education, Labor and Pensions Committee would be a Senator from Dick Cheney's home state of Wyoming, Mike Enzi, the only certified Human Resources Management Professional in the Senate. Check out a 2000 article concerning Enzi and his efforts on OSHA reform legislation, Mr. Enzi goes to Washington.

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The Basic Form - The Employment Application

A short article, Employment applications: The devil is in the details
from the Columbus Business Journal, is a good reminder of the things that should be included on yours.

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Sunday, November 07, 2004

7th Cir. No Constructive Discharge Just Because of Possible (Even Likely) Termination

When a teacher was told that the Superintendent was not going to recommend her contract be renewed for the next year, she took early retirement and then claimed constructive discharge. Skipping over the requirement of "unendurable working conditions" reaffirmed by the Supreme Court in Suders, she argued that merely having a "discharge lurking in the background" was sufficient. Wrong. Cigan v. Chippewa Falls School District (7th Cir. 11/5/04) [pdf].

After knocking down the constructive discharge issue, the Court also dealt with the pesky question of whether an employer who makes some attempt at accommodation has by that act treated the person as disabled, thus meeting the "perceived" prong of the definition. The Court both quickly explained and rejected her argument:
Cigan’s line of argument supposes that an employer offers accommodation only if it thinks that the employee suffers from a substantial limitation in a major life activity. The “only if” is vital; if employers accommodate for other reasons, then the fact of accommodation does not support an inference that a given employer must have regarded a given employee as disabled. Cigan does not try to justify the “only if” clause, and it would not be a sound inference. Decent managers try to help employees cope with declining health without knowing or caring whether they fit the definition in some federal statute.
The last sentence just illustrating that some good deeds do go unpunished.

Finally, although not required to decide the issue, the Court leaves little doubt that it would side with those courts that would hold that absent an "actual disability" there is no need for accommodation of one who is only "perceived" as disabled.

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Saturday, November 06, 2004

The Change That Didn't Happen - What A Kerry Administration Would Have Meant

Although not much talked about, the management side of the docket may have dodged a substantial bullet with Tuesday's election. While John Kerry's interests and expertise have been focused on foreign policy issues, his endorsement from the AFL-CIO noted his "91% AFL-CIO lifetime voting record on important working family issues." A change from Bush to Kerry would have probably been the most dramatic switch in labor/employment views in the White House since the Carter to Reagan transition almost 25 years ago.

Some of the specifics that will now not come to pass are the Kerry promise to appoint a Secretary of Labor "from the house of labor." Current Secretary of Labor Elaine Chao, wife of Republican Senator Mitch McConnell has expressed interest in moving to the Secretary of Transportation position. No word on who her successor might be if that were to happen.

The Democratic platform's promise -- "we will of course reverse this Administration's cuts in wages for working people by restoring overtime protections for hard-working Americans" -- were code words for repeal of the new Part 541 White Collar Exemption Regulations. Given that the changes have resulted in very few individuals losing their overtime protection, that probably would not have come to pass in any event and certainly is not likely now. While there could still be legislative action, given the outcome of the election and the reality of the issue, I don't see it as a likely change.

Labor reform type issues, many of which have been dreamed about since a serious effort was (ironically) defeated by a Senate filibuster in the Carter administration, will go back to the dream stage - a ban on permanent striker replacement, greater flexibility for the use of card checks, greatly increased penalties for violations of the NLRA, and of course the Bush Board will continue in place, although some nominations will have to make their way through the Senate.

To the extent John Edwards had been able to exert any influence on the domestic agenda, one could have expected his view to have been very much supportive of pro-employee litigation issues, even though his trial lawyer background was in the personal injury as opposed as to employment law arena. As major contributors, trial lawyers would certainly have been looking for some reward.

And of course 4 more years of court appointments, including, but by no means limited to the Supreme Court, will continue to influence the development of federal labor and employment law.

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Monday, November 01, 2004

How to Handle Telling the Boss (or Potential Boss) That You Are Pregnant

Interesting article, New boss should know of pregnancy, by Sue Shellenbarger of the Wall Street Journal, on the many facets to the question of when you tell your employer or prospective employer that you are pregnant. Another real world dilemma that men never have to deal with.

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