Back In Session, Soon — The Texas Legislature

Posted 5:42 PM by Michael Fox

• HB 49 (2 steps, $6.25 and $7.25);
• HB 193 ($6);
• HB 236 ($6.15);
• HB 262 (2 steps, $6.65, $7.65 and then indexed using the CPI);
• HB 338 (3 steps, $5.85, $6.55, $7.25),

plus all would adopt the federal minimum wage if it were higher.

There is a bill that would extend protection against discrimination in employment on the basis of gender identity or orientation, HB 307.

A couple of the bills would impose various penalties on employers who have undocumented employees:

• HB 325, precluding house builders of more than 100 houses from participating in the statutory dispute resolution program;
• HB 351, prohibiting a grant from the Texas Enterprise Fund

There is a bill designed to gather information about big employers who do not provide health care insurance by obtaining information from applicants for charitable health care about their or their spouse's employers, HB 338.

Although not employment related, there are two anti-bullying bills applicable to educational institutions — a likely first step before moving the concept to the workplace:

• HB 68, creating an anti-bullying hot line. Bullying is not defined.
• HB 163, using bullying as a grounds for removing school from a public school class. The definition of bullying sounds very much like the tort of intentional infliction of emotional distress with one key change. Omitted is the "outrageous conduct" requirement which is supposed to allow judges to act as gatekeepers so that the tort is used only in the most egregious circumstances.

A more complete list of bills that employers might be interested in by sponsor and legislative description follows:

• HB 34 Solomons. Relating to the prohibition of certain payments or other inducements regarding a workers' compensation claim; providing an administrative violation.
• HB 38 Solomons. Relating to the requirement that applicants for certain licenses be eligible for employment in the United States.
  HB 48 Chavez. Relating to distributions from the employment and training investment holding fund.
  HB 49 Chavez. Relating to the minimum wage.
• HB 59 Isett, Carl. Relating to the management, security, and protection of personal information and governmental records; providing a criminal penalty.
• HB 68 Leibowitz. Relating to the creation of an anti-bullying hotline.
• HB 129 Truitt. Relating to defamatory statements posted on Internet websites.
• HB 163 Raymond. Relating to bullying as a ground for removing a public school student from class and placing the student in a disciplinary alternative education program.
• HB 193 Guillen. Relating to the minimum wage.
• HB 236 Alonzo. Relating to the minimum wage.
• HB 262 Coleman. Relating to the minimum wage.
• HB 307 Farrar. Relating to the prohibition of employment discrimination on the basis of sexual orientation or gender identity.
• HB 325 Leibowitz. Relating to construction projects employing undocumented workers.
• HB 327 Leibowitz. Relating to the minimum wage.
• HB 338 Leibowitz. Relating to the collection and reporting of employment information regarding beneficiaries of certain health care services and employee health benefit plan coverage.
• HB 351 Anchia. Relating to prohibiting a grant from the Texas Enterprise Fund to a recipient who employs an undocumented worker.
• HB 360 Straus. Relating to venue in civil actions brought under the federal Employer's Liability Act or the Jones Act.
• SB 21 Nelson. Relating to the imposition of additional inspection and background and criminal history check requirements for day-care centers.
• SB 53 Zaffirini. Relating to the civil liability of an employer or former employer of a mental health services provider who engages in the sexual exploitation of a patient or former patient.
• SB 54 Zaffirini. Relating to health benefit plan coverage for certain prosthetic devices, orthotic devices, and related services.
• SB 115 Van dePutte. Relating to certain political activities by a labor organization or an affiliate of a labor organization that receives state funds; providing a criminal penalty.
• SB 142 Zaffirini. Relating to the eligibility of certain victims of family violence for unemployment compensation.
  

Labels: political

What Is It About Art Teachers? Part II

Posted 1:13 PM by Michael Fox

This past summer the biggest news in Austin seemed to be about the nude photo's of an Austin art teacher. See, What Happens When the Art Teacher Is the Model? That case was resolved, but the art scene has shifted to Richmond, Virginia where another art teacher's website has gotten him into trouble. It also has led to what may arguably be the biggest groan of a headline of the year, the AP's Teacher in Crack Over Butt Art.

It seems that Stephen Murmer, a popular art teacher in the Chesterfield County Schools, is also an artist, selling his paintings for up to $900. But like Tamara Hoover, it was a website that got him to trouble. More specifically it was his video demonstrating his particular painting technique — "plastering his posterior and genitals with paint and pressing them against canvas" — which did him under.

Although leading to all sorts of bad puns, "cheeky creations" etc. it does raise a serious question about an employer's right to discipline for an employee's legal, if somewhat unusual, off-work behavior. The ACLU is looking at the case for Murmer.

This is not new ground for Murmer as a description of his technique and how it came to be appeared here in a May 2, 1999 post on the blog Stare. Although none of the art shows up for me, you can attempt to check out his paintings here.

Hat tip to Howard Bashman's How Appealing post.

Labels: privacy

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First "Bullying" Case Goes Down in Flames

Posted 10:54 AM by Michael Fox

When Dr. Daniel Raess, an Indiana heart surgeon, was sued as a "bully" for his conduct in the operating room and the result was a $325,000 verdict, it caused a flourish of publicity, in part because the expert witness for the plaintiff was Dr. Gary Namie, whose foundation, the Workplace Bullying & Trauma Institute, is a leading proponent for anti-bullying legislation. Check out my initial post, Is My One Man Quest Against Bullying Failing? "Bully case verdict ..."

That testimony has now come back to haunt the plaintiff, as it was the basis for the reversal of the verdict by the Indiana Court of Appeals last Friday, Raess v. Doescher (Ind. Ct. App. 12/8/06) [pdf]. And there was no question what the case turned on:

The following issue is dispositive: whether the trial court committed reversible error in allowing a witness to label Raess a "workplace bully."

The answer to that question was a clear — yes:

The confusion caused by Namie’s testimony is illustrated by the emphasis placed upon the testimony by Doescher’s counsel. Trial counsel referred to Raess as a "bully" in his opening statement, and in closing argument he referred to "bullying" numerous times. Counsel concluded his rebuttal closing argument by stating, "We ask for a verdict in favor of Joe Doescher. And, yes, that’s a verdict against workplace bullying and against the workplace bullying incident." .... In this case, where (1) the "workplace bullying" evidence had no probative value, (2) the evidence of assault was thin, (3) the verdict was almost completely dependent upon whom the jury chose to believe, and (4) trial counsel asked for a verdict on "workplace bullying," the label established by Namie’s testimony results in unfair prejudice to Raess by confusing and misleading the jury as to the issue.

If needed, the court drove one more nail into the "bullying" claim by holding that the trial court erred in not giving an instruction proposed by Dr. Raess that there was no such cause of action as "bullying":

"Workplace bullying" is not an issue in this matter, nor is there any basis in the law for a claim of "workplace bullying."

In other words, you are not to determine whether or not the Defendant, Daniel Raess, was a "workplace bully." The issues are as I have instructed you: whether the Defendant assaulted the Plaintiff, Joseph Doescher on November 2, 2001, and whether that assault constituted intentional infliction of emotional distress.

It's not a total loss for plaintiff however, as the case is sent back for retrial. If that happens, no doubt there will be less "bullying talk" and my guess, no Dr. Namie.

The case is of more than passing interest to me as I am going to be speaking on the topic, Bullying In the Workplace: The Newest Litigation Threat? at the SHRM National Conference in Las Vegas this June.

Update: On 4/8/08 the Indiana Supreme Court reversed this decision and reinstated the trial court's judgment against the surgeon. See, Bullying Indiana Style Makes a (Limited) Comeback.

Labels: bullying

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The Jury That Really Did Ask For A Calculator

Posted 9:57 AM by Michael Fox

I am not quite sure what the legal equivalent of urban myth is, but surely the jury that asked for a calculator would have been a prime candidate for that category, whatever it is called. Of course even urban myths often have a foundation in fact, and today's report of a $3 million dollar verdict from a federal district court in Michigan includes the following:

The jury of seven women and one man, though, needed only about four hours to figure out their unanimous verdict, asking U.S. District Judge Sean F. Cox first for a calculator after a couple of hours and then for instructions on how to fill out the verdict form.

I can only imagine how it must have felt on the defense side of the table after that request.

The plaintiff was a former state court clerk who alleged she had been fired following the election of a new judge, ironically in the same year she was named Employee of the Year. At least for a few days, before post-trial motions and appeals begin to work their way, Michele Horton can at least contemplate her good fortune:

The award, of which $2 million was for punitive damages, represents what Horton, who had worked at the court for 14 years, would have earned in about six decades of employment.

The two week trial offered a view into the inner workings of a court system, and from the details in the Macomb Daily story, Ex-court clerk wins $3 Million, it was not a very pretty one.

Today's MDV report is the first in awhile, but that reflects more on my lack of posting than the lack of verdicts. A number of MDV posts are still sitting in draft form — hopefully over the holidays I will catch up.

Labels: MDV

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Monday, December 11, 2006

BlackBerry and Driving - An Employer's Problem?

Posted 11:38 AM by Michael Fox

It was at least for one employer (and no doubt it's insurer)according to the Chicago Sun Times story, $4 mil. award in BlackBerry car accident. According to the story lead:

A 71-year-old Arlington Heights woman will get $4.1 million because a van driver last year ran a red light and crashed into her while he was looking down at his BlackBerry, attorneys said Friday.

Ironically, the employee was looking not at a text message, but using the BlackBerry as a navigational device because he was lost. Common sense tells us that multi-tasking (which according to some is a misnomer*), when one of the tasks is driving is a potential problem. Since the other task is often some sort of communication associated with their job — it becomes another problem for employers.

*The ubiquity, pervasiveness and mobility of new technologies encourage a simultaneity of activities that goes beyond anything our culture has heretofore ever known. Indeed, the ability to engage in multiple tasks concurrently seems to be the very essence or core motivation for the development of such technologies.Yet there is a long tradition of psychological and media communication research that indicates that our ability to engage in simultaneous task is, at best, limited (Fisch, 2000; Lang, 2000), and at worst, virtually impossible (James, 1890; Woodsworth, 1921; Broadbent, 1958). The Laptop and the Lecture:The Effects of Multitasking in Learning Environments, Journal of Computing in Higher Education.

Labels: HR general

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Monday, December 04, 2006

A Longing for the Cold War? HR Spies?

Posted 10:33 AM by Michael Fox

Maybe it's a temporary thing, but between the new James Bond movie and a Russian spy being killed by radiation poisoning, I thought I was having a cold war flashback when I saw the headline — HR spies inflitrate companies in search of employees.

The Boston Business Journal story detailed how such operatives were working:

The Indian newspaper The Hindu reported that employees were being planted as spies in rival firms for as little as a week. Perpetrators of this inside job were charged with accessing the company's employee databases and downloading names and contact information. After accomplishing this covert operation, the newspaper said, the spies returned to their original employers and collected a handsome reward. The data would later be sifted to identify potential job candidates that might be convinced to jump ship and join the ranks of the competition.

I never cease to marvel at the new challenges that serve to keep the world of human resources interesting.

Labels: HR general

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Sunday, December 03, 2006

Smoker's Suit Hits a Nerve

Posted 4:54 PM by Michael Fox

When you think of The Scott's Company you probably think about issues with your lawn (assuming that you think of them at all). But this winter, they are in the news for an employment matter. As with a few other companies, Scott's has adopted not just no smoking, but a no smoker policy.

Which led to the following, as summed up in the lead in a Boston Herald story:

A Buzzards Bay man peed into a cup and lost his job when the Scott Co. discovered he’d been inhaling more than the chemicals he sprayed on lawns - he was allegedly smoking cigarettes - according to a lawsuit he filed.

You might not be surprised to know that the employee has filed suit alleging violations of his privacy rights, but what is a unusual is the response it has caused. One web site, Do No Evil , already has more than 200 posts — although mixed, most comments were along these lines:

Our freedom is being chipped away at, little by little, always in the name of a perceived good. Allowing this to go on will at some point in time transform us to semi zombies at the beck and call of the righteous ones. Everything we do will become sanctioned for the "good of all". Free will, free expression, free movement, free thought will cease to exist as we know it today. Is this really the road we wish to travel on ???

Out of the Jungle did some great work in coming up with additional sources on the whole issue, and offered this point of view:

I am a non-smoker who is very grateful for the societal changes that reduce my exposure to second-hand smoke. But even I found it pretty disturbing that an employer would think it right to control employees' private behavior. It leads to all sorts of disturbing scenarios that have been raised as testing for various diseases and genetic pre-disposition for disease became possible.

A hat tip to Jon Coppelman at The Worker's Comp Insider for his post, Where There's Smoke, You're Fired, Revisited.

Labels: privacy

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Thursday, November 30, 2006

New FMLA Regulations? Not Quite, But A Start

Posted 2:54 PM by Michael Fox

In tomorrow's federal register the Department of Labor will be requesting input on a variety of topics on the FMLA, preliminary one supposes to providing a draft of proposed regulations. Included among the requests are a way to better define serious health condition:

• Section 825.114(c) states "[o]rdinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave." Have these limitations in section 825.114(c) been rendered inoperative by the regulatory tests set forth in section 825.114(a)? • Is there a way to maintain the substantive standards of section 825.114(a) while still giving meaning to section 825.114(c) and congressional intent that minor illnesses like colds, earaches, etc., not be covered by the FMLA?

You can find a copy of the complete request for information here.

Unless my memory fails, this is a different path than the DOL took with its proposed changes to the white collar exemptions. There the department issued a proposed rule, was soon eneveloped in a huge political firestorm and changed (watered down some would say) the final rule substantially.

Perhaps seeking to avoid going down that path again, the Department has chosen to post a number of topics that it is seeking input on — without a suggested rule. The initial public comment period will end February 2nd. Although it is not uncommon for public comment periods to be extended, if the Bush administration wants to make changes on its watch, there is not going to be a lot of time, so I would plan on getting any comments in sooner rather than later.

One source for information is the National Coalition to Protect Family Leave. You can check their website for background information on the sort of changes that they would suggest.

Here's a list of the 12 substantive areas that the DOL is seeking input on:

• Eligible Employee
• Definition of "Serious Health Condition"
• Definition of a "Day"
• Substitution of Paid Leave
• Attendance Policies
• Different Types of FMLA Leave
• Light Duty
• Essential Functions
• Waiver of Rights
• Communication Between Employers and Their Employees
• FMLA Leave Determinations / Medical Certifications
• Employee Turnover and Retention

Labels: FMLA

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Tuesday, November 28, 2006

D.C.Cir. Ducks A Constitutional Bullet

Posted 5:38 PM by Michael Fox

It was not just the 6th Circuit which was happy to avoid a tough constitutional call, see the discussion of the first amendment status of a USN tattoo here, but the same was also true in today's decision in Veitch v. England (D.C. Cir. 11/28/06) [pdf]. The issue in Veitch arises out of a well documented fight within the military chaplain corps between evanagelical chaplains and those from more traditional faiths. See the Washington Post story from last year, Military Wrestles With Disharmony Among Chaplains.

The Court explained it this way:

Veitch would have us confront a rather troubling constitutional question: whether chaplains in the armed services can be required to endorse “pluralism” in their religious practices. The services are understandably concerned about unit morale. And those of us old enough to remember World War II movies will recall scenes of chaplains at the front line performing services for soldiers of different religions. On the other hand, Veitch’s argument that a chaplain cannot be obliged to preach counter to his or her religious beliefs consistent with the First Amendment is hardly a frivolous claim. Fortunately for us—and unfortunately for Veitch—we need not decide this difficult question. We agree with the district court that Veitch may not raise this issue because his resignation was voluntary and because the Navy did not act unreasonably in refusing to permit Veitch to withdraw his resignation.

Although ducking the constitutional question, the Court does spend the rest of its opinion, including a concurrence, dispatching the resigned chaplain's argument that he was constructively discharged because of religious harassment. This is certainly not the last word on this issue.

Labels: constitutional rights, religion

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"Untucked Shirts" Not A Constitutional Right

Posted 4:46 PM by Michael Fox

At least according to the 6th Circuit. Roberts v. Ward (6th Cir. 11/27/06) [pdf]. The question got posed after the Kentucky parks department decided to clean up their image by implementing a new dress code which included:

hair length for men above the collar, no visible body piercings with exception of in the ear lobes for women only, no visible tattoos (long sleeves, pants, bandages, or wrist bands are approved ways to cover), and the proper wearing of the prescribed uniform in each department, which in most cases includes tucking in shirts and blouses.

Surprisingly it was the tucked-in rule that seemed to cause the most controversy.

When four workers pushed the issue to the point of losing their jobs, they sued claiming their constitutional rights had been violated.

The tucked-in plaintiffs did not fare well. The Court found that the policy:

• did not violate their first amendment right of freedom of speech since it was not about a subject of public interest;
• was not a violation of due process — they argued it had been arbitrarily implemented — since they could identify no property or liberty interest that would entitle them to due process protection;
• did not violate any equal protection right — they claimed the policy had a much more onerous impact on manual laborers who worked outside in the summer than it did on office workers. The Court noted such claims required a showing that the impacted group had "historically been the victim of discrimination or otherwise reflects invidious discrimination," and that plaintiffs had advanced no argument to support such claim.

A closer question according to the Court was that of one of the plaintiffs who in addition to not wanting to tuck his shirt in, also claimed a constitutional right to show his tattoo — USN —which he said showed his “support, loyalty and affection for the U.S. Navy.” Though closer, still not a winner.

First, with respect to the question of qualified immunity of the Park Commissioner, the Court held that it was not a sufficiently clear right to defeat the claim of qualified immunity. But the district court had also granted summary judgment for the state on substantive grounds, including no first amendment right to show the tattoo. On appeal, the 6th Circuit found the tattooed plaintiff's refusal "to comply with the dress code provided an independent basis for his dismissal, " sparing the Court the need to address the closer question of the First Amendment protection of his tattoo.

Labels: appearance, constitutional rights

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Monday, November 27, 2006

Dueling Dictionaries, Defamation and a Do-Over in the 5th Circuit

Posted 10:17 AM by Michael Fox

That sums up some, but not all of last week's decision by the 5th Circuit in Fiber Systems International, Inc. v. Roehrs (5th Cir. 11/22/06)[pdf]. Based on this decision, my guess is that there was not a harmonious gathering of the Roehrs family clan over Thanksgiving.

Instead, brothers Michael and Daniel who ended up on opposite sides of a corporate breakup and subsequent lawsuit were probably trying to sort out the various meanings of the court's 40 page decision. Basically, the short hand version seems to be that there was a dispute over ownership of a company (Fiber Systems)which was resolved by an agreement where one of the brothers and a number of other former owners left the employ of the company. But as with many employee partings, all was not over.

Instead, Fiber Systems accused the departing employees of violating the Computer Fraud and Abuse Act (which according to the 5th Circuit's decision they did) and accused them of being thieves which according to the 5th Circuit's decision was defamatory.

The defamation aspect of the case involved a "battle of dictionary definitions" as those accused of calling the others thieves relied on the definitions of that term in the Oxford Dictionary as a “kind of wild bee said to rob hives” and an “excrescence in the snuff of a candle” to show that the words were not per se defamatory. Unfortunately, those "arcane, nondefamatory definitions," were not what the words meant taken in the context that they were said, so the Court upheld the jury verdict that the departing individuals had been defamed.

It also upheld the jury's finding that the same employees had violated the CFAA. The underlying allegation was that they had:

“knowingly and intentionally accessed, deleted, downloaded, copied, took, and stole FSI’s confidential business and proprietary information and trade secrets, without authorization, from FSI’s computers,” misappropriated and stole FSI’s computer equipment, and used and disseminated the wrongfully obtained information through the new companies that they formed."

FSI sued for the cost of data recovery and for the use of their trade secrets. The jury awarded $36,000, finding a violation of § 1030(4) — "knowingly and with intent to defraud, access[ing] a protected computer without authorization, or exceed[ing] authorized access, and by means of such conduct further[ing] the intended fraud and obtain[ing] anything of value." However, the district court refused to enter judgment, finding that there was not a private cause of action under § 1030(4), only of § 1030(5). The 5th Circuit, joining every other circuit to consider the question, disagreed, not only finding a cause of action but that the jury instruction though perhaps flawed did not constitute fundamental error.

The do-over was a reversal of the lower court's dismissal of defamation claims against the corporate entitites, based on statements that the Court found were "almost identical to the defamatory statements that the district court ultimately submitted to the jury [on the individuals' defamation claims]." Those claims:

Exhibit 61, sent by FSI’s attorneys to the DSCC, stated that AOS “misappropriated and stole FSI’s trade secrets,” and that FSI’s trade secrets were “unlawfully distributed” .... Further, Exhibit 74, an e-mail from Michael Roehrs to the DSCC, accused AOS and OCS of “provid[ing] stolen proprietary information” to the DSCC, and stated that these acts were done to “launder [FSI’s] proprietary information and trade secrets.” Texas law criminalizes the knowing and unconsented “communication] or transmi[ssion of] a trade secret,” TEX. PEN. CODE ANN. § 31.05(b), and despite the district court’s belief that the e-mail was merely intended to update the DSCC as to the litigation at issue here, the statements alleging transmission of stolen trade secrets went beyond such a purpose.

were enough to justify a trial, although the 5th Circuit did note that the trial court had raised the possibility that the statements were privileged, an issue on which it expresses no opinion.

It is not all that unusual in a competitive environment for departing and then competing employees to result in hard feelings. It is also not unusual for litigation to follow. It is much less frequent to have that litigation played out in full, through a jury trial and the ensuing appellate process. That makes the Fiber Systems opinion somewhat rare, but also a good lesson on how actions taken and words spoken in the heat of battle can have real world and long term consequences.

Labels: competing employees

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Wednesday, November 22, 2006

No Backpay For Hostile Environment Alone

Posted 4:16 PM by Michael Fox

Today's decision in Spencer v. Wal-Mart Stores, Inc. (11/22/06)[pdf], makes one of those simple points that it is easy to overlook. Plaintiff made two ADA arguments — failure to accommodate and hostile environment. She did not claim constructive discharge. The jury found against her on the accommodation claim, but for her on hostile environment. It awarded $12,000 for emotional damages and $15,000 for backpay.

Wal-mart successfully argued that back pay is an equitable remedy, only for the court's determination and should not have been submitted to a jury. Since there was no claim of constructive discharge, there should have been no award of backpay. Both the district court and now the 3rd Circuit agreed, throwing out the $15,000 award.

And to make matters worse, although the trial court ultimately decided that plaintiff had been the prevailing party because of her win on the hostile environment issue, it also decided that her requested attorneys fees of just over $150,000 should be reduced by 75%. Given that the trial court had compared her success to what she had claimed to have suffered, over $500,000 in damages, and that she did not benefit in any way other than the $12,000 damage award since she had resigned, the appellate court did not find the trial court's reduction an abuse of discretion.

Labels: attorneys fees, damages, hostile environment

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Friday, November 17, 2006

Disparate Impact, Part Deux - When It Works

Posted 4:52 PM by Michael Fox

After writing less than 12 hours ago about how disparate impact cases are both difficult and "not every day fare," I am of course shown up by a decision affirming such a finding of disparate impact from another circuit court.

In EEOC v. Dial Corp. (8th Cir. 11/17/06) [pdf] the Court affirmed not only a finding of pattern and practice intentional discrimination, but also a disparate impact finding based on a weight lifting test for employees whose duties involved carrying and stacking boxes of sausage all day long. The test was found to be discriminatory to women, who went from holding almost half the jobs pre-test, to less than 8% of female applicants being hired in the last year the test was in use. In terms of magnitude, it was almost 10 standard deviations, far surpassing the two to three which is the key for establishing a disparate impact.

The test had been put in place to cut a high injury rate and it seemed to have had that effect. Still, the Court affirmed the lower court's finding that Dial Corp. had failed in showing a business necessity for the test. As often happens this boiled down to a battle of the experts:

Dial's physiology expert testified that the WTS was highly representative of the actions required by the job, and Dial claims that his testimony was not rebutted by EEOC which had no physiology witness. The district court was persuaded by EEOC's expert in industrial organization and his testimony "that a crucial aspect of the WTS is more difficult than the sausage making jobs themselves" and that the average applicant had to perform four times as many lifts as current employees and had no rest breaks. There was also evidence that in a testing environment where hiring is contingent upon test performance, applicants tend to work as fast as possible during the test in order to outperform the competition.

The 8th Circuit also upheld the district court's finding that in addition to back pay, the employer was liable for the amount of premiums paid for healthcare insurance the applicants would have been entitled to if they had been hired. The employer had argued that it should only be liable for actual medical expenses.

The Court upheld back pay for the entire period from application to the time of trial, notwithstanding the employer's evidence that based on the high rate of turnover it was unlikley that the applicants would have been employed for the entire period.

And even the one small victory for the employer, denial of back pay to an employee who had a felony conviction, was sent back for further factual finding.

Labels: disparate impact

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Disparate Impact - Not An Easy Path

Posted 6:23 AM by Michael Fox

That may be the lesson learned from yesterday's decision in yet another battle over police promotions in Chicago. Adams v. City of Chicago (7th Cir. 11/16/06) [pdf]. The specific fight was over a 1994 examination for promotion to sergeant that was used for promotions in February, 1997. Although all parties conceded that the test did have a disparate impact on minorities, plaintiffs were unsuccessful in finding the use discriminatory, at least according to the 2-1 decision.

The McDonnell Douglas equivalent test for a disparate impact case requires a finding of disparate impact which shifts the burden to the defendant to show that the practice was job related and consistent with business necessity. Just as Chicago conceded there was disparate impact, the officers challenging the practice conceded use of the test was job related and consistent with business necessity.

The success of the case depended on the officers' ability to meet their final burden, that "there was another available method of evaluation which was equally valid and less discriminatory that the employer refused to use.” Although finding that the lower court improperly rejected evidence of Chicago's practices after it stopped use of the test, the majority still felt even with that evidence, the plaintiffs' fell short -- failing to prove Chicago was presented with an equivalent method that it failed to implement.

Fully understanding the decision requires more study of the Chicago police promotion issue than I care to do, although the history of litigation involving at least 9 reported federal decisions over Chicago police department promotions (not counting Adams), certainly would provide some easily available materials. Nevertheless, for those involved in disparate impact case, which frankly are not your every day fare, this case warrants a close reading.

Labels: disparate impact

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Tuesday, November 14, 2006

FMLA Crow Fails to Fly Again

Posted 9:04 PM by Michael Fox

As did the 5th Circuit last year (see "Not As the Crow Flies" FMLA Regulation Valid ), the 10th Circuit gives Chevron deference to the DOL's regulation that the FMLA 50 employees within 75 miles rule, means "surface" not "linear" or in the vernacular, as the crow flies, miles. Hackworth v. Progressive Casualty Insurance Co. (10th Cir. 11/14/06) [pdf]. It was a particularly bitter pill since the distance between offices that would tip the balance was 75.6 miles.

The court rejected the argument that the regulation was arbitrary even though courts use "as the crow flies" miles in enforcing the 100 mile limitation on service of process under the Federal Rules of Civil Procedure and in analyzing the relevant geographic market for antitrust liability under the Sherman Act. A clever argument according to the court, but unavailing since the underlying purposes are different.

One argument that was not made was coverage by estoppel which has been attempted in other cases, generally unuccessfully as well. Hackworth had actually been granted an FMLA leave and only when she wanted to return did the employer pull out its handy map.

Labels: FMLA

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Workplace Safety in the New Congress

Posted 4:53 PM by Michael Fox

Last week I mentioned the new committee chairs that would become important to employers for at least the next two years, Senate here and House here. Today, Jordan Barab at Confined Space is getting more detailed on possible actions on the beat that no one is currently covering more completely than him.

Just his first example:

Senator Edward Kennedy (D-MA), who will chair the Senate labor committee, will reintroduce OSHA reform legislation that will increase penalties and provide coverage to many workers who are not currently covered by OSHA, like public employees. He can look forward to support from Rep. George Miller (D-CA) who will head the House Education and Workforce Committee. Miller, you will recall, was pushing a much stronger version of the MINER Act that was passed and signed by Bush last June following a series of mine disasters.

should be enough to cause you to click over for the rest of the post, What The Next Congress Holds In Store For Workplace Safety.

Labels: political

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5th Circuit - No Private Cause of Action Under HIPAA

Posted 11:45 AM by Michael Fox

Becoming the first circuit court to address the issue, the 5th Circuit of Appeals finds there is no private cause of action under HIPAA. Acara v. Banks (5th Cir. 11/13/06) [pdf]. The fact that enforcement powers are given to the Secretary of Health and Human Services strongly militates against a finding that Congress intended a private cause of action. Although it is the first circuit, the court notes it is in agreement with every district court to consider the issue.

The issue arose under an interesting fact pattern -- plaintiff was suing a doctor who allegedly disclosed her private medical information during the course of a deposition. According to papers filed in the district court case, Dr. Banks had treated Ms. Acara. When she sued an insurance company, he was deposed and it was his testimony in that deposition that led to the claim dismissed in the 5th Circuit's ruling.

Getting medical testimony can often be difficult; a contrary ruling in Acara would have upped the level of difficulty dramatically.

Labels: HIPAA

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Thursday, November 09, 2006

The Other Shoe - In the Senate Conference Room

Posted 3:31 PM by Michael Fox

With George Allen and Conrad Burns' concessions, it is now clear that our next Congress will be organized at least nominally by the Democrats. I suppose there could still be a curve if Joe Lieberman were to cast his lot with the Republicans. That seems unlikely and even if he had such thoughts, he could probably get more if he decided to do it somewhere down the line, a la Jim Jeffords.

Which means that come early January after the 110th Congress is sworn in, business will have not only George Miller in charge of the House Committee on Education and the Workforce, but Ted Kennedy, chairing the Senate counterpart, Health, Education, Labor & Pensions.

The sub-committee with jurisdiction over many of the federal employment statutes, Employment and Workplace Safety, could be chaired by Patty Murray (D-Washington) the current ranking member, although there could be shuffling among the various Democrats now that they are talking about chairs rather than ranking member status.

If nothing else, it should make for interesting posts.

Labels: political

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Wednesday, November 08, 2006

Coming Soon To A Congressional Committee Near You

Posted 10:30 AM by Michael Fox

If you were watching the pundits talk about the impact of the Democrats gaining control of the House, one of the things frequently mentioned was the senior members waiting (im)patiently to gain control of committee gavels. Although the names I heard most often were John Dingell (Energy & Commerce), Charles Rangel (Ways and Means), and John Conyers (Judiciary) one that I did not hear mentioned was George Miller (D - California), who will be the new chair of the Committee on Education and the Workforce. For those with interest in the subject matter of this blog, my guess is that is a name you will soon know well.

Although one hopes that the Democrats will learn from what just happened to the Republican party -- that the American people seem to be yearning less for partisan bloodletting and more for problem solving, less rhetoric and more action -- if the tone of Representative Miller's last pre-election posting on his website on labor matters is a harbinger of things to come, it could be a shrill two years:

Secretary Chao appointed a crony to lead a key labor commission under NAFTA. Chao's nomination of Knouse in the first place is itself enough cause for concern. But even more troubling is what Knouse did after taking office. If allegations against him are accurate, then Mr. Knouse repeatedly abused the public trust, using taxpayer dollars from three countries to fund his own lobbying activities. Secretary Chao must release all of the relevant records so that we can learn all the facts.

Unfortunately, the appointment of corrupt and inexperienced cronies to important positions in the federal government has become all too familiar during the Bush administration's tenure. And Congress' total failure to conduct oversight has allowed this unaccountable administration to run amock. It is time for a new direction in Washington.

Chair (to be) Miller got his wish -- and like the others who will soon have gavel in hand, the opportunity to be a different kind of leader -- not the same kind of leader only with a different ideology.

Labels: political

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Monday, November 06, 2006

Failure to Rehire As Retaliation

Posted 6:06 PM by Michael Fox

An employer who is sued by an employee is usually less than happy about seeing that same employee file for re-employment. It does seem asking a lot of human nature to assume that following a course of litigation all feelings can be put aside and "let bygones be bygones." On the other hand, filing a lawsuit is often clearly within the statutory definition of protected activity.

The real world answer is that most employees who have had to go to the trouble of suing a former employer are often not that interested in returning either. But it does happen, although as the 1st Circuit noted in Velez v. Jannsen Ortho, LLC (1st Cir. 11/3/06) [pdf], "claims of retaliation in the failure-to-hire context are sufficiently rare that this question is one of first impression for this court."

In Velez, the lower court granted summary judgment on two grounds. First it found bringing the first law suit unreasonable so it lost its protected status; or alternatively, it it was protected, the plaintiff had failed to show a causal connection between filing the first lawsuit and not being rehired. The 1st Circuit affirmed, but on more narrow grounds.

It did not address the reasonableness of the first lawsuit, and found the trial court's reliance on causation "awkward at best." Instead it focused on the generalized nature of her "application." The plaintiff had merely written letters expressing a desire for any position that HR considered her suited for.

The 1st Circuit demanded more setting up the prima facie test in a retaliatory failure to hire case as

1. she applied for a particular position,
2. which was vacant,
3. for which she was qualified, and
4. that she was not hired for that position.

It explained its rationale:

This specificity requirement is sensible and fair. An open-ended request for employment should not put a burden on an employer to review an applicant's generally stated credentials any time a position becomes available, at the risk of a Title VII claim.

Makes sense to me.

Labels: retaliation

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Wednesday, November 01, 2006

Intervening Events - A Classic Example

Posted 8:49 PM by Michael Fox

When a co-CEO claimed he was terminated in violation of the Minnesota Whistleblower statute less than one month after he reported a possible violation by the company of federal income tax laws in the way it paid its Board members for mileage, he probably thought the timing alone would get him past the prima facie case stage. Two problems -- one, the court pointed out, as not all courts do clearly enough, that generally timing alone is not sufficient to meet even a prima facie case; secondly, in this case intervening events "undermined any causal inference that a reasonable person might otherwise have drawn from temporal proximity." Freeman v. Ace Telephone Association (8th Cir. 11/1/06) [pdf].

And just what were the intervening events:

Two weeks after Mr. Freeman made his report to the board about the mileage issue, he admitted, in a sworn statement, to having a sexual relationship with the female employee and continuing that relationship after he promised the board that he would end it. He also admitted, moreover, that he lied to the board president, his co-CEO, and the company's human resources director about the relationship, that he used a company credit card to buy Viagra to continue the sexual relationship, and that he purchased private cell phones for himself and the female employee so that they could communicate secretly.

This case may also be part of a new employment law maxim - any time you see Viagra mentioned in the opinion, the employee is likely to lose.

Labels: whistleblower

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Tuesday, October 31, 2006

6th Cir. - Check Your Pension Plan

Posted 9:36 PM by Michael Fox

Particularly if it has a component that provides extra time for employees who become disabled before the regular retirement age, and denies those disability payments to those who work beyond regular retirement age. That's the lesson in today's en banc holding in EEOC v. Jefferson County Sheriff's Department (6th Cir. 10/31/06).

Although at first I thought this might be an application of a disparate impact analysis, instead the finding was based on disparate treatment. Finding the plan facially discriminatory, the majority found the EEOC had made a prima facie case without any other showing of intent and reversed summary judgment for the employer and its plan.

The dissent makes a sensible argument, at least to me, that the plan really provided only an insurance component to ensure that an employee who was disabled and thus prevented from working a full 20 years, would be entitled to what he would have been able to obtain absent the disability. A benefit that will now be lost under the majority's ruling.

Although the argument makes sense to me, it didn't carry the day, so if you have a pension plan that sounds at all like this, and employee's located within the confines of the 6th Circuit, a call to your friendly pension lawyer for a checkup is in order.

Labels: pensions

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Hospital Staffing - Grievance by Grievance

Posted 8:56 PM by Michael Fox

Is the upshot of the 1st Circuit's decision in Massachusetts Nurses Association v. North Adams Regional Hospital (1st Cir. 10/26/06). Having obtained a collective bargaining agreement that contained a provision dealing with staffing, the Union filed grievances that it had been violated on 9 shifts on one floor. Although the violations occurred in 2002, the decision of the arbitrator was not handed down until February, 2005. Finding the hospital in violation, he ordered that hospital cease and desist from future violations of the standard as well as pay additional wages to the nurses who actually worked the shifts, as well as paying the union what an extra nurse on the shifts in question would have earned.

In the spring of 2005, nurses reported additional violations, although only one occurred on the same floor as the previous grievances. Bypassing the grievance procedure, the Union filed a § 301 action in federal court seeking to apply the prior award to the new violations. Unfortunately, it ran into 1st Circuit precedent based on the traditional reluctance of courts to interfere with grievance proceedings. Finding the union could not meet the high standard --"no colorable basis for denying the applicability of the existing award to a dispute at hand" --the Court held the passage of time alone would be enough to give a colorable basis that the award should not be applied.

This has to be one of the more arcane points of labor law, which severely limits the group which will be interested. But what is of much more general significance is the term of the CBA, that the hospital is contractually obligated to -- "only keep and admit the number of patients that registered nurses can safely care for" and to "take measures such as adding nurses [and] stopping admissions . . . to ensure that this occurs." In a world where the future of healthcare is on everyone's mind, the fact that a union has gained that power is significant.

No doubt there will be different viewpoints as to the merits of such power -- but the fact that it is potentially significant, seems hard to argue with.

Labels: Labor

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Wednesday, October 25, 2006

6th Cir. Hands EEOC a Setback in Release War

Posted 8:29 AM by Michael Fox

One area of recent contention has been fights over employer's releases -- do they comply with the OWBPA, or worse, are they themselves retaliatory. That's the tact the EEOC took with respect to a severance agreement utilized by an employer that not only asked for a release of claims but also barred the employee from filing any administrative claims, including an EEOC charge. If a charge was filed after signing the release, the employer was entitled to the return of the severance payment.

The trial court granted summary judgment to the EEOC which argued the release was retaliatory on its face, calling it a “preemptive strike against future protected activity.” Disagreeing, the 6th Circuit in a 2-1 decision found while the bar on filing the charge was not enforcible, it was not on its face retaliatory. Probably realizing the complexity of the issues (not to mention the real world impact), the Court emphasized, the narrowness of its ruling:

SunDance’s mere offer of the SeparationAgreement does not amount to retaliation under ADA, ADEA, EPA, or Title VII, either as a facialviolation of those statutes’ antiretaliation provisions or under the conventional burden-shiftinganalysis. SunDance has not tried to enforce the Separation Agreement, and the question of theenforceability of the Agreement or any of its provisions is not before us.

EEOC v. Sundance Rehabilitation Corp. (6th Cir. 10/24/06) [pdf].

The dissent thought that the majority opinion was drawing too fine a line:

The majority in effect says that an employee who believes he or she has an EEOC enforceable claim or at a minimum is willing to testify in an EEOC enforcement action should sign the agreement, take the money and then go forward with the EEOC. If SunDance sues for a return of the severance pay, then the defense of retaliation should be raised and may carry the day. Any act by an employer which interferes with or chills a protected right is, I believe, contrary to public policy and in violation of the anti-retaliation provisions of the several statutes involved.

Most releases, at least in the 5th Circuit which has long held such requests are void as against public policy, make it clear that they do not bar filing a charge of discrimination with the EEOC. Today's opinion does nothing to change the wisdom of that approach.

Given the subject matter and the EEOC's position, I doubt this is the last word on this issue and maybe not even on this case.

Labels: EEOC, retaliation

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$15.5 MDV in the Big Apple

Posted 8:01 AM by Michael Fox

Hip hop, welcome to the painful world of employment law. That's no doubt how the founders of Source magazine, the self-described magazine of "hip hop music, culture and politics," must be feeling after finding themselves on the wrong end of a Manhattan jury verdict after being sued by their former editor-in-chief. Kim Osorio, the first woman to hold that position, alleged she was terminated in retaliation for filing a complaint of gender discrimination and then refusing to withdraw it.

The Daily News story during the trial summed it up this way:

They call it the Bible of hip hop, but The Source was a modern-day Sodom and Gomorrah behind the scenes, with executives watching porn movies and workspaces festooned with raunchy photos of topless women, a lawsuit claims.

The defense take was of course different -- using a variation of the "she knew what she was getting into" defense, it argued Osorio knew better than most that the hip-hop world was rife with raunchy language, profane lyrics and scantily clad women. According to its attorney:"
"That is the world that the plaintiff chose. She had many choices and she chose to work in hip hop. ... The Source is not Martha Stewart Living."

Nine days of testimony and four hours of deliberation later, the headline tells the story which view the jury bought -- Kim Osorio Wins $15.5 Million Judgement Against The Source.

Osorio summed it up:"Whether it's hip-hop, rock-n-roll, or the post office, there's still laws a company needs to abide by.'"

Labels: MDV

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Tuesday, October 24, 2006

A Border Problem of Different Sorts for Employers

Posted 1:13 PM by Michael Fox

An article with the phrase "employers have a new worry" naturally catches my eye,which is why I picked up the the TP! wire service link to today's NYT story, At U.S. Borders, Laptops Have No Right to Privacy.

The concern - all that confidential information contained on your employees' laptop as they cross borders may well be subject to search and review based merely on the desire of immigration officials -- no reasonable cause for a search required.

At least one group, Association of Corporate Travel Executives, is taking it up with the government to at least get some understanding of what the policies are. How big an issue, well purely anecdotal, but:

One member who responded to our survey said she has been waiting for a year to get her laptop and its contents back,” said Susan Gurley, the group’s executive director. “She said it was randomly seized. And since she hasn’t been arrested, I assume she was just a regular business traveler, not a criminal."

Labels: privacy

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Monday, October 23, 2006

The Real Cost of Litigation

Posted 1:05 PM by Michael Fox

Lord Hoffman, one of the judges on Great Britain's highest court is quoted in the article Making Civil Justice Sane by Philip K. Howard, on the true cost of litigation:

The problem was that judges had come to view litigation merely as a way of resolving private disputes and no longer appreciated that the proliferation of lawsuits affects the behavior of everyone in society. If judges don’t act as gatekeepers, drawing the boundaries of claims on behalf of broader society, then the mere possibility of a lawsuit will end up “diverting resources from activities where they are most needed and . . . restricting the liberty of individuals to enjoy their lives in their own way.

Anyway who has been involved daily in litigation will have a hard time disputing those words.

Which does not mean that all consequences of litigation are bad; no one could (at least seriously)argue that the workplace of 2006 is not better than the workplace of 1963, and that the Civil Rights Act of 1964 has played a large part in that difference, and much of what it has accomplished would not have happened but for litigation. But still, what Lord Hoffman says rings very true ... and finding the key to keeping the litigation benefits for society from outbalancing the costs to society is or should be the holy grail of the justice system.

A step, would be the recognition of those who sit on the benches of the wider impact when the focus is primarily (or even solely) on moving their docket.

A hat tip to JD Hull at What About Clients? for the link to the article.

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Comments:

A good follow-up question is what you do when lawsuits have in fact changed behavior. If the workplace today is better, is it in danger of regression if those behavior-changing laws weren't in place, or if they were watered-down by increasing the threshold required by "gatekeepers"?

I don't know the answer to this, but I do know that not many people are asking this. I put the blame for that on the fact that in the US there are scant few in politics who would want to address this problem. Both sides have knee-jerk views on this.

# posted by  Anonymous : 11:53 AM

 

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Friday, October 20, 2006

Major Change in Texas Non-compete Law

Posted 10:58 AM by Michael Fox

In a long awaited decision, the Texas Supreme Court today drastically alters the landscape for the enforcement of covenants not to compete. In Sheshunoff Management Services, Inc. v. Kenneth Johnson and Strunk & Associates, (Tx. 10/20/06) [pdf] , the Court modifies its earlier holding in Light v. Centel Cellular, to now permit a unilateral contract to support a covenant not to compete. This means employers who promise to provide confidential information in return for a covenant not to compete can enforce the agreement so long as they provide the confidential information to the employee before he departs.

Judge Don Willett in his opening paragraph lays out the change:

In this case we revisit the Court’s 1994 decision in Light v. Centel Cellular Co. and again consider the enforceability of covenants not to compete in the context of at-will employment. The question today is whether an at-will employee who signs a non-compete covenant is bound by that greement if, at the time the agreement is made, the employer has no corresponding enforceable obligation. Under Light, the answer to that question was always “no.” Today we modify our holding in Light and hold that an at-will employee’s non-compete covenant becomes enforceable when the employer performs the promises it made in exchange for the covenant. In so holding, we disagree with language in Light stating that the Covenants Not to Compete Act requires the agreement containing the covenant to be enforceable the instant the agreement is made.

There will be tons of ink written about the decision (including more by me), but cutting to the chase -- the central question about non-compete covenants in Texas law is no longer whether it is enforceable, but whether it is reasonable.

Hiring employers and departing employees are now in a whole new ballgame.

Labels: competing employees

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Wednesday, October 18, 2006

A Top 10 List You Don't Want to Miss

Posted 3:55 PM by Michael Fox

Or violate either for that matter. Check out Professor Paul Secunda's post on the Top 10 Violated OSHA Standards at the Workplace Prof Blog. Number 1 with almost 8,000 violations last year was § 1926.451 -- which you of course immediately recognized as the general requirements for scaffolding.

Labels: safety

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Tuesday, October 17, 2006

FRD Not Just Federal Rules Decisions Anymore

Posted 2:30 PM by Michael Fox

For those of us who remember when legal research involved a trip to the library not to the keyboard, when we see FRD our first thought is of Westlaw's specialized reporter interpreting the Federal Rules of Civil Procedure. But in today's world, FRD may more often stand for a new variant of discrimination law, family responsibility discrimination.

Before you panic, Congress hasn't passed a new statute, instead FRD is the terminology being promoted by the Center for Worklife Law at Hastings College of the Law. You know they are serious about it as they even have a hotline:

Employees: Think You've Been Treated Unfairly Because of FRD? Call our Hotline at 1-800-981-9495.

In case you aren't sure what might be involved here's their invitation to call the hotline:

Have you been subjected to employment discrimination just because you are a parent or caregiver? Family caregiver discrimination is discrimination on the job based solely on your status as a parent or caregiver. Mothers, fathers, and other caregivers have been passed over for promotion, denied leave, or forced out of their jobs -- sometimes with express statements from employers that their parental status was the reason.

Have you been told you may lose your job if you take time off to take your child to the doctor? Were you not considered for a promotion because your boss assumed you wouldn't want to travel with small children or elderly parents at home? Did you return from maternity leave to find you had been reassigned to a lesser position? If you answered "yes" to any of these questions, you may be the subject of family caregiver employment discrimination.

Here are some examples of real situations in which parents have successfully sued their employers:

• A mother was terminated from her job "because she was no longer dependable since she had delivered a child."
• A male Maryland State Trooper was denied leave to care for his newborn and told by his supervisor that his wife would have to be "in a coma or dead" for a man to qualify for leave as the primary caregiver.
• An employer told a mother that he didn't think mothers should work, saying "I don't see how you can do either job well," and that "women are not good planners, especially women with kids."
• An employer stated that he preferred to hire unmarried, childless women because they would give 150% to the job.

The above cases are obvious examples of outspoken discrimination. But there are less obvious forms of discrimination that are just as serious. In addition to being terminated or passed over for promotion, parents and caregivers might find they get less desirable job assignments, are forced to work difficult schedules, are denied training opportunities, or receive unjustifiably negative performance reviews. Some job applicants do not even get their foot in the door because of discriminatory hiring practices.

What can you do? Talk with one of the attorneys at WorkLife Law about your situation. If the attorney thinks you might have a case or might need legal advice, you will be given the name of an attorney near you who can meet with you to discuss your situation further. There is no charge to talk with a WorkLife Law attorney, but attorneys to whom you are referred will charge you their standard rates.

I have been seeing references to FRD and the Hastings program for the last few months, but it was an email from the SP3Group that brought it to my attention today, Family-Duty Discrimination Lawsuits Up.

Labels: family responsibility discrimination

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Comments:

Thanks for mentioning FRD -- it is a growing problem for employers, and one they can take steps to prevent. I'm writing to highlight what I hope is evident from our website -- we work with employers as well as employees. I am a management-side employment attorney as well as being deputy director of WorkLife Law, and I regularly advise employers on how to recognize and reduce their potential liability (which can be substantial -- one man won $11.65 million in an FRD lawsuit, and there are more than 70 verdicts over $100,000). We have information for employers on our website, and will soon have some trainings available for HR professionals and managers/supervisors of employees.

-- Cynthia Calvert, Deputy Director, WorkLife Law

# posted by  WorkLife Law : 10:28 PM

 

yes, thanks for mentioning FRD. I was recently fired from my employment after 32 years after disclosing to my new manager that my husband had been diagnosed with Alzheimers Disease and required 24/7 care.

# posted by  Anonymous : 8:50 PM

 

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Thursday, October 12, 2006

Whistleblower Still Whistling in the Dark

Posted 2:08 PM by Michael Fox

Back from an extended holiday, nice to note that some things haven't changed, including the inability of the first whistleblower ordered reinstated under Sarbanes Oxley -- David Welch -- to get reinstated. Instead he has lost round two before federal district judge Glen Conrad of the Western District of Virginia. CFO.com has the story, Judge Won't Enforce Whistle-blower Ruling.

A concise overview:

Welch's case seems to be caught in a perpetual game of legal ping pong. In 2004, two years after he was fired, Cardinal appealed a "recommended decision and order" by DoL Administrative Law Judge Stephen Purcell to reinstate Welch as CFO and award him back pay. The bank's appeal was denied in June by DoL's administrative review board.

Judge Conrad's opinion is that he does not have authority to force Cardinal Bankshares to reinstate Welch because there is no "final administrative order." Although his refusal to act is based on the limited jurisdiction of a federal court, he does note the problems that could be caused if a district court were allowed to intervene: “immediate enforcement at each level could cause a rapid sequence of reinstatement and discharge, and a generally ridiculous state of affairs.”

Judge Conrad agrees his ruling does not result in the speedy resolution intended by Congress, but he lays the fault at the DOL's door. He also notes Welch is not totally without remedy in this situation as he could file suit in district court, but with the unfortunate result that the review would be de novo. Technically true, but given Welch is currently seeking to uphold a favorable decision -- starting afresh is really only a Hobson's choice.

If Judge Conrad is correct, that means one of the early enforcement mechanisms of Sarbanes Oxley is of little significance. This is clearly not the last word, certainly not on Welch's case, or even on how the statute will ultimately be interpreted, but federal courts seem to guard their jurisdiction zealously, so it is by no means certain that Judge Conrad's view will not carry the day.

For a more detailed overview of Welch's frustrating journey see this earlier post, Latest Step in First SOX Reinstatement Case.

Labels: whistleblower

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Saturday, September 23, 2006

Three Things That Don't Mesh Well

Posted 9:37 PM by Michael Fox

A two week trial, a solo blog and an extended vacation --- although nothing wrong with any of these in isolation --- when they combine, at a minimum it means meager postings. And that has certainly been the case since late August when trial preparation got in high gear and now is about to go absolutely quiet as I head off for what feels like "well deserved" hols (as my favorite Brit would say).

Absent a cyber café coinciding with an inevitable urge to communicate -- about as likely as my Astros making the playoffs this year -- I will see you in mid-October.

Na shledanou -- auf Wiedersehen -- tot ziens -- cheerio

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Monday, September 18, 2006

MDV Update: Better, But More to Go

Posted 12:22 PM by Michael Fox

Earlier this summer I reported on two cases involving drivers which resulted in MDV's. Saturday, I updated the East coast verdict, where a Florida judge granted a new trial. Today, I update the 2nd case from the West coast -- which also has undergone judicial revision -- Calif. Judge Slashes $61 Million FedEx Verdict. Although better, not nearly the same sigh of relief that would have been heard, if like in Florida, the court had granted a new trial. Instead, the court still entered a judgment of more than $12 million.

Still, this is just round one, and before plaintiffs receive anything more than psychic income, there are multiple appellate levels to traverse.

Labels: MDV

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5th Circuit Holds Individual Government Employee Can Be Liable Under FMLA

Posted 11:14 AM by Michael Fox

An employee of the Texas Cosmetology Commission had a number of problems with her superiors following an incident where she was convicted of simple assault following an altercation with operators of a beauty school she was inspecting. (Texas doesn't get its reputation for taking "big hair" seriously for nothing.) After more problems she brought a suit against the new Executive Director of the agency arguing the ED should be individually liable under the FMLA as an "employer."

Although ultimately the 5th Circuit let the ED off the hook because the law was not firmly established when the claim was made in 2003, from this point forward, the law in the 5th Circuit is now clear:

We agree with the Wascura court that "t]he fact that Congress, in drafting the FMLA, chose to make the definition of "employer" materially identical to that in the FLSA means that decisions interpreting the FLSA offer the best guidance for construing the term "employer" as it is used in the FMLA. Wascura, 169 F.3d at 686. We have previously held that a sheriff is an employer for purposes of the FLSA. Lee v. Coahoma County, Miss., 937 F.2d 220, 226 (5th Cir. 1991), amended by 37 F.3d 1068 (5th Cir. 1993). Therefore our conclusion that plain language of the FMLA permits public employees to be held individually liable is consistent with our holding in Lee.

Modica v. Taylor (5th Cir. 9/13/06) [pdf].

In doing so, the 5th Circuit disagreed with some of its sister circuits, including ironically the 11th Circuit in Wascura, so I should say the law in the 5th Circuit is now clear until the Supreme Court says otherwise. For private sector employers the message should be equally clear. Just like under the FLSA, individual managers who take action with respect to FMLA matters may very well find themselves subject to individual liability.

Labels: FLSA, FMLA

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Saturday, September 16, 2006

MDV Update: Pulling the Plug on a $6 M Verdict

Posted 3:25 PM by Michael Fox

The huge sigh of relief coming from Broward County earlier this month didn't have anything to do with this year's so far relatively mild hurricane season, but from UPS after a judge granted its motion for a new trial in a workers compensation retaliation case. In late May, a jury awarded over $6 million following 3 hours of deliberations. See the story here. That result must have been influenced by "passion or prejudice" according to the judge. My initial report was here.

More often than plaintiffs would like, large jury verdicts are cut down or are reversed -- which doesn't change the lessons to be learned from how juries can react to situations that probably did not look all that bad viewed only from an employer's perspective.

Labels: MDV

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Tuesday, September 12, 2006

6th Circuit Limits ADA Claim in Weighty Decision

Posted 9:53 PM by Michael Fox

Denying a 405 pound dock worker's disability claim, the 6th Circuit holds that morbid obesity (“body weight more than 100% over the norm”), not caused by a physiological disorder, is not an impairment under the ADA. Since it is not an impairment, it can not be relied on to establish a "perceived as" claim. EEOC v. Watkins Motor Lines (6th Cir. 9/12/06) [pdf].

In a concurring opinion, Judge Julia Smith Gibbons finds the holding in part mandated by an errant comma when the EEOC adopted a prior regulation under the Rehabilitation Act:

The difference between the two regulations is slight but important. As noted above, § 1630.2 has a comma separating disorder and condition, whereas § 104.3 does not. This means that under the definition the agency intended to adopt, “physiological” modifies both “disorder” and “condition” rather than just “disorder.” In addition to this statement that the EEOC was adopting the definition of § 104.3, the actual definition given by the agency in the Federal Register does not contain the extraneous comma. See 56 Fed. Reg. at 35740-41. Finally, the definition of physical impairment for the Rehabilitation Act, 29 U.S.C. § 794, which is often interpreted coextensively with the ADA, likewise does not contain the extra comma. See 45 C.F.R. § 84.3(j) (2). Thus, the best reading of § 1630.2 is that the comma following “disorder” is scrivener’s error, meaning that the statute requires a “physiological disorder or condition” in order for a “physical impairment” to exist under the ADA.

Judge Gibbons also notes that it is possible that:

morbid obesity is a disorder that by its very nature has a physiological cause. This would preclude the need for a plaintiff to put forth evidence that his individual case was caused physiologically. No court or agency has ever adopted this position, however, and the EEOC has put forth no evidence, medical or otherwise, to support such a sweeping conclusion.

Bottom line, if you are attempting to make a disability claim based on morbid obesity -- it is critical it be tied to a physiological cause, at least in the 6th Circuit.

Labels: ADA

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Narrow Preemption for Aviation Drug Testing Says 2nd Circuit

Posted 9:04 PM by Michael Fox

Reviewing an issue that has split the 5th and 9th Circuits, the 2nd Circuit holds there is a narrow preemption of suits relating to drug testing in the aviation industry. In a dispute going back to a 1993 failed drug test, the court sends a suit brought by a terminated Delta flight attendant back to the lower court with many of his common law claims against the labs involved in the drug test intact.

According to the court, determining preemption is a two step process:

We think that the regulations call for a two-step analysis, then, for determining whether a state-law claim is preempted. First, state law is preempted if it "cover[s] the subject matter" of the federal rule. 14 C.F.R. Pt. 121, App. I § XI(A). When state law regulates conduct that is addressed by a specific provision of the FAA regulations, it is preempted. Second, state law is preempted if it "cover[s] the subject matter of . . . drug testing of aviation personnel performing safety-sensitive functions." Id. While some state laws may "cover the subject matter" of the drug testing of aviation personnel even if they regulate issues not specifically addressed by the FAA regulations, they are not preempted unless their relationship to such drug testing is so substantial as to interfere with the consistency and uniformity of the federal regulatory scheme.

Drake v. Laboratory Corp. of America (2nd Cir. 9/12/06) [pdf].

Although the labs being sued lost on their broad preemption arguments, they were not totally without success, as the court found:

• If Drake is asserting that conduct addressed by the federal regulations is "wrongful" under state law although it does not violate the federal regulations, such claims are preempted; and
• Drake's claim that the defendants-appellants acted negligently by "ignor[ing] industry standards and protocols for random drug testing" also appears to be preempted to the extent that it refers to "standards and protocols" other than those in the federal regulations.

Not as much as hoped for, but better than nothing.

Comments:

If the testers had bribed personnel to fix the results of his test, how would pre-emption apply to his case?

# posted by  Anonymous : 7:30 AM

 

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1st Circuit Notes Qualifiers on Burlington Northern v. White

Posted 8:32 PM by Michael Fox

Discussing the recent Supreme Court decision in Burlington Northern v. White, the 1st Circuit noted that it did not make a difference in the case before it, Carmona-Rivera v. Commonwealth of Puerto Rico (1st Cir. 9/12/06). The case involved a school teacher with a disability who complained not that her disability had not been accommodated (she did get her own private bathroom), but that it had taken too long. Her argument that the delay itself was retaliation fell on deaf ears, the court finding it nothing more the type of action "inherent in the workings of an educational bureaucracy."

The court also noted the qualifying factors in White:

The alleged retaliatory action must be material, producing a significant, not trivial, harm. Id. Trivial actions such as "petty slights, minor annoyances, and simple lack of good manners will not [normally] create such deterrence." Id. "Context matters," and "the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint." Id. at *11. While White slowly works its way into the consciousness of the courts, so far, nothing dramatic .... yet.

Labels: retaliation

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