"Not As the Crow Flies" FMLA Regulation Valid
In Sprow, we concluded that measuring "as the crow flies" is the proper method for measuring the 100-mile distance for service of process under what was then FED. R. CIV. P. 4(f) and is now FED. R. CIV. P. 4(k)(1)(B). 594 F.2d at 417-418. In coming to this conclusion, we specifically rejected the use of road miles because that standard lacks uniformity and simplicity. Id. Even assuming arguendo that Rule 4(k)(1)(B) and 29 U.S.C. §2611(2)(B)(ii) are similar enough to warrant comparison, it is not necessary for us to address whether the considerations discussed in Sprow would lead to a better rule than the one devised by the Secretary of Labor because, in a Chevron case like this, the only question for us is whether the Secretary's construction of the statute is permissible, not the best. Having found that it is permissible, our inquiry is at an end. Labels: FMLA
Posted
11:32 AM
by Michael Fox
Here, the question was how the 75 miles was to be measured, as the crow flies or over public roads, as specified in 29 C.F.R. § 825.111(b). In Bellum v. PCE Constructors, Inc. (5th Cir. 4/25/05) [pdf] the Court had no qualms giving Chevron deference to the rule. Bellum had argued that since the statute said 75 miles and did not set out a rule for how it was to be measured it should be done literally.
The Court first determined whether the statute was ambiguous in light of the traditional rules of statutory interpretation which include "the text itself, its history, and its purpose." Here, by means of a hypothetical using the Grand Canyon the Court illustrated how Bellum's rule would seriously undermine the purpose of the 75 mile rule, to minimize the impact on employers with limited work forces: Suppose that Company A had its headquarters along the south rim of the Grand Canyon and a branch office on the other side only 25 miles away as the crow flies. Suppose further, quite plausibly, that the shortest distance between the two by public roads is 120 miles. Now, imagine that Company B has its headquarters next to a straight-line interstate highway and a branch office 80 miles away also right along the interstate. Under Bellum's reading of the statute, Company A would be bound by the FMLA but Company B would not be. Given that the purpose of the exception at 29 U.S.C. § 2611(2)(B)(ii) is to relieve the burden of FMLA compliance on companies with widely dispersed operations, it would make no sense to construe the statute in a way that subjects Company A but exempts Company B.
That second step (and standard) was important because in its own case law, the 5th Circuit had adopted the "as the crow flies" calculation for how the 100 mile rule for the service of process is determined. This was pointed out in a post-argument submission as a follow up to a question by one of the members of the panel. Having found a 5th Circuit case endorsing the crow-flying rule, Bellum and his counsel were no doubt encouraged. It was not meant to be however as the Court dealt with it in this footnote:
Hiring For Security Sensitive Positions - Check Out This White Paper
One item that caught my eye was Of course, having just returned from 3 marvelously cool days at Jazz Fest, and all the pleasantries that New Orleans offers in way of music and food (well not ALL, but I did partake of my fair share) it could just be that my brain is addled. When I dig out of the accumulated email and other issues and realign the synapses, more regular posting will hopefully follow.
Posting Envy
Not Quite Man Bites Dog, Chapter 2
The first time I was asked about my blog by anyone outside my normal every day circles, that question did come up. Although my answer didn't show up in the American Lawyer article way back in November '02, I remember telling Matt Black that I had not at the time, (nor did I ever) ask permission of the management committee at my then firm. Maybe I wasn't too worried because at least in Black's view, I wasn't doing anything terribly controversial: However, that was just a long winded way of getting to today's post, which is in fact about the employee as blogger issue. Fast Company's lead to its story, Blogging at Work, got my attention:
Near MDV in Ageism Case in Tacoma
Ageism is 40 years behind the other isms, such as sexism, racism, and lesbianism. ... Ageism is a form of sexism because it is mostly directed at old women.
"For Cause" May Differ For Purposes of Termination or Severance
Business firms almost always reserve the right to fire an employee (unless the employee is protected by a collective bargaining agreement) if the firm decides that the employee's performance is unsatisfactory. But it is precisely because of the insecurity of such employment -- the determination that Joy's performance was unsatisfactory was based on a criterion selected by the firm after she went to work for it, rather than being specified in her employment contract -- that employment contracts often provide for severance pay. Joy was leaving a good job to go to work for HGI and in doing so may have been taking a risk (though, with her mentor leaving Hewitt, maybe there would have been a risk in her remaining there), especially since she was going to be working in what was a new line of business for HGI. If she lost her job she would need money to tide her over while she looked for a new job. Hence the severance-pay provision in her employment contract with HGI. The precise meaning that the word bears in the contract cannot be determined just from reading the contract, as HGI argues. It is a considerable irony that a firm that is in the business of consulting on executive compensation failed to draft a contract that clearly specified the compensation rights of one of its own executives. Although that is the important part for Ms. Joy, Judge Posner is not through educating, noting the different circumstances where evidence might be allowable to determine the meaning of "cause" in this contract. Even if the meaning of the contract had been clear on its face, that did not necessarily mean all extrinsic evidence is excluded: Extrinsic evidence, which is to say evidence besides just the written contract itself, is admissible to demonstrate that the contract may not mean what it says, provided the evidence used to show this is "objective" in the sense of not being merely self-serving, unverifiable testimony.
1st Circuit - Post Reeves v. Sanderson Analysis of Pretext Evidence
Plaintiff attempts to establish this kind of pretext by firing a spirited volley of some twelve charges, with the hope that the resulting smoke will be considered proof of fire. We consider them carefully but conclude that the smoke dissipates with the firing of each charge.
The Conscientious Objecting Pharmacist - An Appropriate Follow Up to the Prior Post
Although I have not done any in depth analysis, my guess is that this issue would become more legally significant to an employer, as opposed to just a difficult pragmatic and moral issue, if the WRFA were to become law. That is certainly the hope and view of some advocating its passage. The Family Council's website discussion of the WRFA clearly states their view of its purpose: Policy Goal: The passage of the Workplace Religious Freedom Act (WRFA) would help to ensure that American workers will not have to choose between their faith and their job. The WRFA would create a climate that encourages both the government and private sector to greet employee requests for religious accommodation with respect and consideration rather than suspicion. In 1996, Kmart fired Karen Brauer, an Ohio pharmacist, for refusing to dispense Micronor, a birth-control pill. K-mart did so even though Ms. Brauer had informed them when she was hired in 1989 that, based on her religious beliefs, she would not do so. The WRFA would restore the intent of Congress in Title VII by providing clear statutory guidance to those employers who wish to comply with the law but are unsure what level of deference the law requires. The WRFA is also good for business, as it is likely to significantly reduce employee lawsuits and any associated costs. The argument for the validity of the WRFA should be on the basis of whether the costs that will be incurred by business (which of course ultimately means by all of us as consumers), as well as the costs to those who might be harmed by newly empowered employees exercising rights given them by the WRFA, are worth it to obtain the policy goal being sought.
Workplace Religious Freedom Act - Consensus On Neither the Right Nor Left
College Kids - A Worker's Best Friend?
When Your Expert Takes the 5th
Is My One Man Quest Against Bullying Failing? "Bully case verdict ..."
When a jury recently ordered an Indiana heart surgeon to pay $325,000 to a hospital employee on a claim of "workplace bullying," experts who have studied the subject said it was a significant decision in a growing, yet murky, area of law. During his final argument, [plaintiff's attorney] described Raess as a domineering manager who viewed himself as untouchable and wanted to put Doescher in his place when the perfusionist threatened to tell hospital administrators that Raess had verbally abused other members of his staff. "It's not abuse, according to him, to yell and scream and cuss at somebody," Betz said of Raess. "He was on his throne over there." This is the story of the ruination of a 17-year career of a perfusionist by Dr. Raess because of a workplace bullying incident," said Kevin Betz, Doescher's attorney. Life for Gary changed in 1996 when his wife -- Dr. Ruth, with her doctorate in clinical psychology -- was trampled by a horrific woman boss. The couple's subsequent fight for justice led to their 1998 founding of the Campaign Against Workplace Bullying, bringing the international adult anti-bullying movement to America. People finally realize what they've been going through has a name," said Natalie Nissen with the Workplace Bullying & Trauma Institute in Bellingham, Wash. "They call and say, 'Oh. That's me. I've been bullied.' We are constantly noticing an increase in the number of calls we get." Labels: bullying
North Carolina: Home of National Champs and Latest MDV
lent $828,000 in federal money to 24 businesses in an attempt to spark entrepreneurial activity in low- and moderate-income areas of the community. But some recipients gave false addresses and then disappeared, while others repaid little or nothing. "We are shocked by the verdict. We don't believe it is supported by the evidence in any way. We are looking at all our options, including the option of appeal. On the other hand (and when there is a large verdict, there is always another view): In a post-trial statement, Hinton's counsel said he had offered to settle the case for $15,000 and reinstatement, which obviously sounds a lot more reasonable now. It also would seem to mean that the case ended up playing out a lot stronger than he thought it would. The good news for the City, besides that this is a long way from the end of the process, the federal judge threw out the claim for punitive damages. The bulk of this award, $1.5 million was for mental anguish. Think what it could have been. To check out the day by day description of the trial from Stevenson's reporting see his stories of April 7, April 6, April 5, and April 4. Even from the little information that can be gleaned from the newspaper reporting, this case is a good reminder that when you enter a court room literally anything, and I do mean anything, can happen. Labels: MDV
From S&M to Harassment Victim - A Most Unusal Twist of a Tale
What Makes Work Meaningful? Answer That and I May Be Out of Work
Employer Using Temporary Help Agency - Who Is Protected by Workers Compensation Bar?
In consideration for [Interim’s] performance of the Services, [Interim] shall receive as sole payment, the hourly rates negotiated with Exel Logistics Operations in the respective market plus the markups reflected for the appropriate classification of temporary labor for the respective market as set forth in Exhibit A1 (Rate Schedule). The markups in Exhibit A1 include all costs, overhead and burden associated with providing temporary labor to Exel Logistics, including but not limited to costs associated with testing, background investigations, training, workers compensation, insurance, etc. No fees may be billed other than the markup on the hourly rate. [emphasis added] Nothing in the contract between Interim and Exel indicates that Interim was required to obtain a workers’ compensation policy that named both parties as insureds, or that Interim was required to obtain a separate policy for Exel. The contract indicates the opposite.
SARBOX Trap for the Unwary - Appeal Within 10 Days, Or Else
If Ecolab’s counsel was unsure whether the ten-day limitation applied to Ecolab’s appeal, it could have simply contacted the Board to inquire as to the applicable limitations period. Counsel did not do so. Counsel for winning employer: I have a question. I don't know if the other side is going to appeal. I don't want to since I won and am happy. But if they do file an appeal, I am concerned whether I need to file an appeal to preserve my right to argue that the ALJ got a couple of points wrong, even though I won on the merits. Can you tell me -- do I need to appeal to preserve those rights? And if so, do I have to do it within 10 business days of the ruling? Definitive Voice of the Board: Of course you do, my friend. On information and belief” appears to be legalese for “Counsel didn’t actually research the question in all fifty states – this is my best guess.” Such statements reflect a lack of substantiation for the position argued and we give such arguments the insubstantial weight that they merit. FRAP 5(b), applicable to appeals by permission, provides that any party may file an answer in opposition to a petition or a cross-petition within seven days after the initial petition is served. But the initial petition is not submitted for approval until after the time has run for the cross-petition. Accordingly under the FRAP, a party may have to file a “potentially unnecessary and wasteful appeal in order to ensure the preservation of its own appellate rights.” It may well be that the decision reached by the ARB is required by the rules which did not conceive of every possible situation, or even that it is what the rule makers intended. Still I do not think it likely that a system which requires such a waste of resources will ultimately survive. If it does not go away by judicial construction, then surely a rule change is in order. But whether it goes away quickly, or never, is really irrelevant to my main complaint -- the tone of the Order, which in my view reflects neither sound judicial reasoning, nor more importantly, appropriate judicial temperament.
Things Are Bigger On Wall Street, Including the MDV's
UBS argued, unsuccessfully, that Mr. Chapin's conduct was not discriminatory because he treated everyone badly, and that male employees had also complained about him. And what were the discovery fights all about? Well perhaps it might have been another reason why the jury felt as it did. One of Zubulake's lawyer's was quoted in Newsday's trial story as suggesting: The case was also notable for the number of e-mails and other evidence that were destroyed along the way. The verdict [will] send the message, "Don't try to hide the truth." An employee discrimination suit like Zubulake vs. UBS Warburg is a case in point. UBS Warburg only archived outgoing and incoming email for their registered traders on optical disk. The Zubulake discovery request sought internal mails which were stored on backup tapes. Recovery costs for a sample set of email on five initial backup tapes cost $19,003.43, or about $4,000 per tape. A second round of discovery requests resulted in additional costs of more than $100,000, before related litigation fees. Labels: MDV
Litigation on Steroids - $1.2 MDV in San Diego
But in reality it was not the drug angle that seemed to be the big issue with the jury. Two members were quoted as saying they "didn't see any intent to suggest illegal drugs." And another that "as a coach, he didn't tell the [hospitalized player] to do anything wrong." So what was it that got to the jury? Maybe it was that the principal who decided not to renew the whistleblower's probationary contract was none other than the wife of the coach who had recommended the drink. It is not clear from the article what the defense argument was, but from another comment by a juror it appears it might have been that the wife/principal was unaware of the incident. If so that didn't sit well, as the juror put it: "I found it hard to believe that a husband and wife would not communicate on that issue." Labels: MDV
Discrimination On the Basis of Looks
One of their most recent examples, a federal lawsuit brought by a Harvard University librarian who alleges she has repeatedly been passed over for promotions because she is seen as "just a pretty girl" in "sexy" attire, which went to trial last week, was decided yesterday with the plaintiff losing. Although the publicity buzz came from the "pretty girl" tag line, the legal hook was a race and gender discrimination claim. The New York Lawyer headline, "Pretty Girl" Librarian Loses Suit Against Harvard, pretty well sums it up. While I agree that discrimination on the basis of looks happens and that creative lawyers will try to stretch existing laws to cover that behavior given half a chance, I don't know that I would go as far as the Atlanta employment lawyer quoted in the AJC article who opined, "These kinds of things are going to gain more attention. This is potentially the next area of significant claims explosions against employers." Well maybe, but not something I am going to lose a lot of sleep over. Labels: appearance
Top Hat Plan = Zilch for Executives In Bankruptcy Scenario
An MDV Close to Home - San Antonio Jury Awards $4.6 Million
According to a statement by a spokesman for Jana Smith's counsel, "After wrongfully terminating Ms. Smith, Lowe's management defamed her by telling co-workers and third parties that she was terminated for theft, stealing or other unlawful conduct." Lowe's post-trial statement, besides expressing the usual disappointment, said Smith "admitted violating company policy by using her employee discount to buy a ride-on lawnmower for her husband's employer, and also violated policy by handling a return of the equipment after it was used." Not hard to tell which side of the story this particular jury identified with. Labels: MDV
Converting the Uninsured - A New Reason for Challenging Independent Contractors
Major Law Firms Reduce Rates
Not Quite Man Bites Dog
Posted
6:01 PM
by Michael Fox
DNA or Fingerprint Checks —As technology advances and as databases become more extensive and better-connected, DNA and fingerprint testing becomes more important as a method of evaluating applicants. From a risk management perspective, not identifying someone's history with respect to an issue such as child molestation is foolish for positions in which your applicant will be dealing with children. There are also laws that require fingerprinting for certain positions, such as childcare workers, law enforcement and some social service employees.
The paper doesn't quite make clear the import of its reference to DNA checks, but it does make me think that legislators who are rushing to pass laws prohibiting use of DNA information may have more relevance to the real world than I have customarily thought.
Posted
4:40 PM
by Michael Fox
Oh to be able to post the following: Lack of Posts
Sorry for the lack of posts. I am in Switzerland for work related matters.
As found in full last Friday at Mathias' Unions-Firms-Markets blog.
Posted
2:48 PM
by Michael Fox
Functional though the format can be, attorneys may have difficulty satisfying its inherent bias: punchy, attitudinal expression. Demonstrating expertise in public can make one cautious. "I've been careful not to do anything very far out," concedes Fox. It shows. Only one visitor to Fox's site has posted a comment. Fox says he is "still trying it out," and hasn't formally alerted anyone to the site. (emphasis added)
Not sure I have advanced all that far since then. The debate over employee blogs has reached new heights ever since a blogger who works for a blog company has been reprimanded for blogging about employees blogging.
Sort of like an employee of a union filing an unfair labor practice charge, which was the first chapter of Not Quite Man Bites Dog . As the story (originally in the New York Times) plays out, it wasn't a serious reprimand, (the company was Technorati), in fact it sounds more like a mild mannered request. Still it makes a good point -- when a company whose core business involves blogging is sensitive, it's easy to see how employers who still think a blog is some sort of mud pit or jelly roll, would be concerned.
Posted
5:55 PM
by Michael Fox
According to the Tacoma News Tribune, the verdict was somewhat unusual because Brian Watson was only 49 years old. The 21 year Wyeth employee did not fault the elimination of his senior account manager dealing with Safeway stores. Safeway had apparently consolidated its regional and local buying and only made such decisions at a national level. His complaint was that he wasn't able to find another position, including one for national sales manager that went to a 35 year old female with no prior experience in pharmaceutical sales, his area of expertise.
The other phrase that caught my attention was Wyeth's statement that he was not a "high potential employee" worthy of promotion. Judgments about potential it seems to me are quite often problematic. I wonder if they are really worth the effort and risk?
This was clearly not an open and shut case, after 3 weeks of trial the jury spent almost two full days in deliberation. And it is clearly not the end of the story, because as I have done before and probably should put in every story about an MDV, the quote from my Civil Procedure professor, Pappy Jones --- "Remember, ladies and gentlemen, there's no cash register at the back of the court room." But that's cold comfort for the trial lawyer and those involved in the trial during the period between verdict and the final resolution, no matter how it turns out. Wyeth brands that the plaintiff managed included Robitussin, Dimetapp and Advil. Wonder if they have a good antacid?
Posted
5:47 PM
by Michael Fox
The Court first noted the problems with dictionary definitions in ascertaining the intent of drafters since they usually give a range of "linguistic possibilities," but "rarely do they help a court decide which one the drafter of the contract or statute in question intended." Here it was even worse, as the court picked a definition which Judge Posner finds it clear that the contract actually precluded.
Posted
5:05 PM
by Michael Fox
Noting that both parties agreed plaintiff had established a prima facie case of age discrimination, the Court found the real battle turned over whether his evidence of pretext was sufficient. Alas, for the plaintiff, it was not:
A good case for employers and their counsel that summary judgment is not nearly as close to extinction as some would have you believe.
Posted
5:55 PM
by Michael Fox
Posted
3:38 PM
by Michael Fox
Posted
2:30 PM
by Michael Fox
On the other side, in fairness to the college age activists, the Georgetown student hunger strike in support of living wages for campus workers did seem important to the Georgetown's administration "compromise agreement" on a living wage for its employees. Check out A Living Wage Victory at the Georgetown Independent.
Posted
1:39 PM
by Michael Fox
More for the "you can't make this stuff up" category. The Washington Post story, For the Expert Witness, a Few Tough Questions has the story of the downfall of a self-professed expert, Robert David Madrid. His c.v. included: an undergraduate degree from the University of Maryland, a master's degree from Georgetown University, a medical degree from Harvard and a PhD from the Massachusetts Institute of Technology.
Given those credentials, one might question why he was working for a P.I. firm in Anniston, Alabama. It all resolved itself in the following court room colloquy, where in today's parlance, you might say he pulled a Greenberg: "Included in [your] CV . . . are some specific mentions of schools that you claim you have attended," the prosecutor said. "Did you, in fact, attend the University of Maryland?"
Thanks to Blog702 for the heads up.
Madrid responded, "On the advice of counsel, I plead the Fifth Amendment."
Posted
10:14 AM
by Michael Fox
But at least according to the lead paragraph of the AMN story we appear closer to the top of that slippery slope:
Curious as to exactly how the Indiana courts managed to become the first state to adopt the new cause of action of "bullying," I was mollified with a little googling, to find that it had not done so, instead it was the standard (albeit not a favorite of mine) cause of action, intentional infliction of emotional distress. See the report of the jury verdict at morelaw.com.
For more on the details of the trial check out the Indianapolis Star post-trial story. Although a verdict for the plaintiff, the jury was not as incensed as it could have been, refusing to award punitive damages. Some of plaintiff's counsel's final argument actually gave a motive rooted in a more traditional claim, whistleblowing:
First, counsel for Doescher utilized the bullying terminology in describing his case: The case is a clear-cut example of the phenomenon [of workplace bullying]. I concluded based on what I read and heard, Dan Raess is a workplace abuser.
And Dr. Namie not only testified, but was spinning the story to the Indianapolis Star, post-trial, emphasizing his particular cause, claiming, "this is the first time a workplace bullying case has been heard in the United States." The story also notes that laws to make workplace bullying illegal have been introduced in both the Washington and Hawaii legislatures, which of course has been heartily supported by his organization.
And now, those like me who practice on the employer side of the docket, are adding to the publicity (including of course this post itself), for example see a report from a leading Indianapolis law firm which notes "a new trend appears to be emerging," which it bases on "the popularity of workplace bullying legislation combined with the jury verdict in the Doescher case," all of which according to the article "suggest[s] that employers must brace themselves for the emergence of a new potential risk of liability." That frankly seems a little overblown since none of the legislation has passed and the Doescher case is a trial court verdict using a traditional cause of action that is being spun to be the bullying case break through.
But, there is no question, that the anti-bullying forces have been successful enough to semantically change the debate, in this one instance from the rather clinical sounding "intentional infliction of emotional distress" to "bullying in the workplace" which may more easily connect with the hearts and minds of jurors, and thus potentially the pocket books of employers. I think we are a few steps closer to that slippery slope.
I was mobbed from 1999-2002, and it nearly killed me. At that time, I had no words for it, nor did I believe the behavior existed outside my situation.
The supervisor who mobbed me also mobbed my next two successors. After the third person left this position, I began to realize that the problem was not me...and then I found the book "Mobbing." And that's when a whole new world opened up to me.
I am happily employed now but I do think about what happened to me every day. If you want details about my situation, please respond in Ninevah, the yahoo community for workplace mobbing. Thanks again.
: 12:16 AM
: 4:39 PM
Posted
9:10 PM
by Michael Fox
Based on Stevenson's stories during the coverage of the trial (see links below), Ava Hinton was a 17 year employee in the City Housing Department. She claimed she had reported problems with the City's small business loan department. Apparently the program began in 1999, and under it the city :
Hinton was not fired until July, 2003. The City claimed she was fired for wrongfully approviing $1,280.50 to be used on weatherizing improvements owned by her and her mother. Hinton admitted that it was a "mistake" but testified that it had been approved by her supervisor.
In looking at the evidence as reported in the Herald-Sun, it is easy to see why the City spokesperson said after the trial:
Posted
7:43 PM
by Michael Fox
The former client is now retired and Peacher is now a leader in the local chapter of the National Treasury Employees Union. You really can't make this stuff up.
Posted
3:42 PM
by Michael Fox
Worthwhile is both an interesting blog and also a new magazine, although my not too diligent efforts to find a copy at a bookstore have not been fruitful. I am frequently impressed by posts which make me look at things a little differently than before, always a good thing.
Posted
1:18 PM
by Michael Fox
Both Exel and Interim were successful at the trial and intermediate appellate level. Today, the Supreme Court agrees that the temporary employment agency is protected by the bar and affirms their dismissal. However, after a detailed anaylsis of the provisions of the Texas Labor Code, the Court sends Exel, the primary employer, back to the trial court for further proceedings to show that it has coverage itself. As the Court noted:
Often the "details" of insurance, including workers compensation, are not scrutinized until after an injury occurs. Today's decision is an important reminder that every employer in this situation should check now to be sure that it has the protection it believes it does.
Today's decision is also worth noting for a couple of other points. First, it goes against the standard view that the Court is an "anti-employee" court, since it actually reversed a pro-employer ruling. Secondly the author of the opinion is the much beleagured Judge Priscilla Owen, one of the infamous "Filibustered 10" whose nomination to the federal appellate bench has been caught in the malestrom of political posturing.
Posted
5:03 PM
by Michael Fox
Take the following situation: A whistleblower complaint goes to trial before an ALJ with three contested issues: was there protected activity, was the employer aware of it, and was there a causal connection to the adverse employment action (in this case a termination). ALJ finds plaintiff engaged in protected activity, company had at least constructive knowledge of the activity, but there was no causal connection between the protected activity and the termination. Bottom line, plaintiff loses, case thrown out, employer and its counsel happy, employee and his counsel not so happy. That is the scenario so far in Heinrich v. Ecolab, Inc. 2004 Sox 51 (ALJ) (2004) [pdf].
Next scenario. Unhappy employee files an appeal with the Administrative Review Board on the 10th business day after the ruling, the last day for an appeal under the rules. Within 8 business days, employer's counsel files cross-appeal. (Although the purpose of the cross-appeal is not clear, I am assuming the employer wanted to ensure it would be able to advance its arguments that the ALJ was wrong on the issue of protected activity, which included an argument that SARBOX should have a materiality provision, and on the issue of knowledge.) The ARB issues an Order to show why the employer's cross-appeal should not be barred as untimely for not being filed within 10 business days of the decision by the ALJ.
Employer's counsel, quite reasonably argues that it seems unlikely Congress intended every successful litigant should of necessity file a "defensive appeal" when it would have been quite happy to let the case slide into oblivion unless the losing party tries to keep it alive. It makes sense to me, although it is clear that there is no explicit procedure for cross-appeals in the final SARBOX rules. Employer's counsel, also reasonably it seems to me, argues that Federal Rule of Appellate Procedure FRAP(4)(a)(3) and "on information and belief” every state court's rules of procedure offer a reasonable period of time for a winning party to submit a cross-appeal if the opposing party chooses to initiate an appeal.
Then comes the ruling. Appeal dismissed. Henrich v. Ecolab, Inc.. ARB CASE NO. 05-036 (3/31/05) [pdf]. The Administrative Review Board first notes there is no procedure under the SARBOX rules for a cross-appeal, but goes on to say that is not jurisdictional and thus subject to equitable modification. However, it finds none of the traditional reasons for equitable extensions applicable here. While I would not necessarily agree that ruling is absolutely required under the circumstances, nor that it makes sense, that is not my main issue with it. Instead it is the treatment of counsel's argument, outlined above, by the ARB that I find, to put it mildly, less than charitable.
First, the Board notes that courts 'have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." Under the circumstances, that seems an unduly harsh characterization of what happened here, particularly when the ARB concedes that there is no evidence that the other party has in any way been disadvantaged. But then the Board goes on the offensive (or so it seems to me from the opinion). Characterizing the employer's argument to be that it did not know it needed to file an appeal within 10 days, the Board wrote:
Then to add insult to injury, the ARB jumps on the employer's argument "based on information and belief" about the state appellate rules with the following footnote:
And in a final snippy (but not particularly well reasoned point), the Board says that the employer's counsel cited them to FRAP 4(a)(3) which does give a period of time to cross-appeal after the opposing party, but that rule applies to appeals of right, not permissive appeals like ones before the ARB. Instead, the Board said the more appropriate rule would have been FRAP 5(b) which is related to permissive appeals:
The way I see it, the ARB will now reap what it has sown, and will soon get a rash of "defensive appeals" by any winning party that did not prevail on every possible point. That of course will cost all litigants more time and money and the ARB will now be forced to file, docket, review and ultimately dismiss a large number of appeals which will ultimately not be necessary. (And the last thing I want to hear is about an overworked ARB that needs more resources.)
Posted
10:27 PM
by Michael Fox
The plaintiff, Laura Zubulake, a former Asian bond salesman claimed she was passed over for a manager's job in favor of a male. When she filed a complaint with the EEOC, she was fired within three months. The jury ruled for her on both her gender discrimination and retaliation claims.
According to the Newsday story on the trial, Zubulake's lawyers argued that she should be awarded between $9.7 to 10.2 million. Why was the jury willing to award almost 3 times as that?
The Times article has some interesting possibilities. Perhaps the jury didn't like the "he was bad to everyone" defense:
This case had gained prominence even before it went to trial as the Court had addressed a number of electronic discovery issues. See Judge Scheindlin's May, 2003 decision, one of the first opinions to set out a procedure for dealing with the whole issue of electronic discovery including the costs. And that was not the only time the Court had to address the discovery issues, as Seyfarth & Shaw noted in a client bulletin.
And to add insult to injury, even before the verdict, the case was already being used as an example about the costs of discovery in an electronic world. Ziplip, a company that describes itself as the 'technology leader in email archiving for compliance, had used the case as an example of the costs of email discovery in a press release about a new product:
This has the appearance of one of those cases that, at least from the defendant's perspective, was just snake bit. And the truth is, once that becomes apparent, they rarely get better.
Posted
9:09 PM
by Michael Fox
Posted
8:43 PM
by Michael Fox
Posted
9:26 AM
by Michael Fox
I will leave it to the true benfefits lawyers for a more complete explanation, but the decision was clear enough to me to know that if I were the hopeful beneficiary of deferred compensation in a shaky company (and in today's world who really knows?) I would be remembering the old adage about the benefits of the bird in the hand.
Diane Pfadenhauer, www.strategichrlawyer.com
Posted
3:48 PM
by Michael Fox
I missed the original reports of the trial which lasted for four days the last week of February. The case was tried before Judge Xavier Rodriguez, who may be the only Board certified labor and employment lawyer sitting on a bench in Texas. According to the news story, four hours of the trial was consumed by the jury deliberations. That works out to about a $1.15 million per hour of deliberation.
The way I caught the story was a tombstone ad in the April Texas Lawyer, by the plaintiff's firm congratulating themselves -- make that, announcing the verdict. Maybe I am still old school, but somehow the announcements of such things by the lawyers involved makes me a little squeamish. Of course I have never gotten a $4.6 million verdict either, and not that likely to on this side of the docket. Although the press can't make Lowe's all that happy, the truth is that at least as of today according to the Pacer docket sheet, Judge Rodriguez still has not entered judgment, which is of substantially more economic significance than the jury verdict. I will wait for the tombstone on that one.
Posted
10:06 AM
by Michael Fox
Although the numbers strike someone with no knowledge of the actual facts as somewhat suspect, it has motivated the Labor Department of Hawaii to initiate the crackdown. One big step was a ruling against Manawa Lea Health Services Inc. of Honolulu, which is one of about 50 companies that provide services for the elderly and disabled using primarily part-time and on call workers.
The issue is interesting enough that a number of my professional colleagues, members of the Management Labor and Employment Roundtable, will be convening in Hawaii later this week to study the matter in depth. Well, maybe there are other reasons!
Posted
10:45 AM
by Michael Fox
One need not look at the date of posting to know what this is, Major Law Firms Reduce Rates, courtesy of The Wired GC. But check it out for a good laugh.
For a somewhat more serious review of the very related subject, the future of the billable hour, check out this discussion at Adam Smith, Esquire. As one who has been bemoaning the billable hour for most of my 30 years of recording them, I still see all the reasons why it does not seem to make sense, but am now resigned to the fact that the tide will not turn until long after I have turned in my last timesheet.
: 10:44 PM
Posted
10:25 AM
by Michael Fox
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