A Pre-Cursor to the Arbitration Fairness Act Takes Another Step

Posted 10:16 AM by Michael Fox

SEC. 8116. (a) None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 that is awarded more than 60 days after the effective date of this Act, unless the contractor agrees not to:

(1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention; or

(2) take any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates that the employee or independent contractor resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress,false imprisonment, or negligent hiring, supervision, or retention.

(b) None of the funds appropriated or otherwise made available by this Act may be expended or any Federal contract awarded more than 180 days after the effective date of this Act unless the contractor certifies that t requires each covered subcontractor to agree not to enter into, and not to take any action to enforce any provision of, any agreement as described in paragraphs (1) and (2) of subsection (a), with respect to any employee or independent contractor performing work related to such subcontract. For purposes of this subsection, a ‘‘covered subcontractor’’ is an entity that has a subcontract in excess of $1,000,000 on a contract subject to subsection (a).

(c) The prohibitions in this section do not apply with respect to a contractor’s or subcontractor’s agreements with employees or independent contractors that may not be enforced in a court of the United States.

(d) The Secretary of Defense may waive the application of subsection (a) or (b) to a particular contractor or subcontractor for the purposes of a particular contract or subcontract if the Secretary or the Deputy Secretary personally determines that the waiver is necessary to avoid harm to national security interests of the United States, and that the term of the contract or subcontract is not longer than necessary to avoid such harm. The determination shall set forth with specificity the grounds for the waiver and for the contract or subcontract term selected, and shall state any alternatives considered in lieu of a waiver and the reasons each such alternative would not avoid harm to national security interests of the United States. The Secretary of Defense shall transmit to Congress, and simultaneously make public, any determination under this subsection not less than 15 business days before the contract or subcontract addressed in the determination may be awarded.

Importantly, it bars contractors and subcontractors that are funded by 2010 appropriations not only from entering into pre-dispute “agreements” with their employees that require arbitration of Title VII claims, but also from ENFORCING any such agreements that already exist. It also appears to apply to such “agreements” with ANY of the contractors’ employees, anywhere, not just those whose jobs are funded by defense appropriations.

Labels: arbitration

Comments:

Is this law meant to prohibit arbitration of all Title VII claims, or only those are "related to or arising out of sexual assault or harassment"? To me, the language is ambiguous, and the lack of a comma between "title VII of the Civil Rights Act of 1964" and "any tort related to or arising out of sexual assault or harassment" suggests that the only claims under Title VII that are covered are those "related to or arising out of sexual assault or harassment." Put otherwise, I think it can be argued that "related to or arising out of sexual assault or harassment" modifies "any claim" rather than "any tort." Or am I just being a wishful thinker? I don't know the legislative history of the amendment, other than that the case which promoted it involved both Title VII and tort claims arising from a sexual assault.

# posted by  Unknown : 3:04 PM

 

I think Jim has a good point. I am not sure on the legislative history, but given the arguments that were being made by Senator Franken and others, you could certainly make an argument that was the only evil it was dealing with was sexual assault. It would also explain why you would still be allowed to require arbitration of claims under other statutes such as FMLA, ADA, FLSA and not run afoul of the Amendment. Hopefully I was guilty of too much cynicism in thinking that Congress was trying to do more than it actually did. And that Courts will read the statute closer than I did on first blush.

# posted by  Michael Fox : 3:13 PM

 

One more thought or question, Michael. Suppose a collective bargaining agreement requires arbitration of whatever claims the Franken Amendment is meant to cover (which, as you discussed above, might be read as all Title VII claims), and does so in a way that passes muster under the Supreme Court's Pyett v. 14 Penn Plaza case from last term. Does the Franken Amendment apply, given that it covers obligations to arbitrate found in an "agreement with an employee or independent contractor," but says nothing about an agreement with a union? I have not seen anything to indicate whether this was considered in drafting the amendment.

# posted by  Jim : 10:36 AM

 

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Joint Commission and Bullying

Posted 1:17 PM by Michael Fox

If you have ever worked in or around hospitals, you know that two words that get everyone's attention are, Joint Commission. That's a shorthand description of an accreditation review that is a top to bottom scrubbing of every facet of an institution, with serious consequences if you don't meet the standards.

So when Professor David Yamada, the leading proponent of anti-bullying legislation notes that the Joint Commission has enacted standards that can be read as requiring anti-bullying procedures and training, I take note. See Workplace bullying in healthcare I: The Joint Commission standards.

Labels: bullying

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Labor and Employment Comes (Slowly?) Into the Electronic World

Posted 1:03 PM by Michael Fox

In looking at commentary on yesterday's granting of cert in City of Ontario v. Quon (more about that follows), I found a reference to an interesting law review article by William A. Herbert, Deputy Chair and Counsel for the New York State Public Employment Relations Board, provocatively titled, The Electronic Workplace: To Live Outside the Law You Must Be Honest.

While I haven't read the whole article, I was struck by one of his introductory comments:

In many ways, United States labor and employment law sleepwalked into cyberspace. Although there is wide societal recognition that new technologies are leading to the diminishment of personal privacy, there has not been an equal demand for changes in the legal paradigm.

There's probably a lot of truth to that, but I think that it is changing.

Besides not being able to open your email without the announcement of yet another seminar on social media, there's other evidence that we are actually moving beyond the platform to actual developments. One is a report from Richard Negri at today's workplace, Some Things I Took Away From The Organizing Conference Last Week. That's organizing as in bringing a union to your workplace, not as in straightening your closets. If you don't think it's a different world, just check out the power point presentation, Organizing & New Media in the Obama Era at the conference's web site.

And yesterday, the Supreme Court granted certiorari in the Quon case where the 9th Circuit held that notwithstanding the city's policy that it could review electronic messages on equipment furnished to its employees, the employee nevertheless had an expectation of privacy because of the way the policy was implemented. Although the case is likely to turn on 4th Amendment law that is not directly relevant to private sector employers, any action by the Court that seems to expand the privacy rights of employees is likely to have a ripple effect on related areas such as common law privacy claims.

It may be too early to say that labor and employment law is up to date on all forms of communication and interaction that we now live with on a daily basis, but there's no question that willingly or not, it is clear that we will soon be dealing with them.

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Friday, December 11, 2009

MDV the Malicious Prosecution Way

Posted 11:24 AM by Michael Fox

There are a myriad of ways that employers end up in front of a jury. One of the less frequent, but as seen by the result, no less dangerous, is a case for malicious prosecution. They usually arise like the facts in a federal court in Virginia last week. Clyde Bennett, a night shift foreman was fired and charged with grand larceny in connection with the embezzlement of computer equipment.

When that charge was later dropped, he filed a lawsuit against his former employer for malicious prosecution. According to the report from the Richmond Times Dispatch, the jury took less than half an hour to deliver its message. Jury awards $3.2 million to local trucking company employee.

Because the legal standards are relatively high, this verdict is likely to have a long way to go before it becomes a judgment that has to be paid. But it is a good reminder that any time one of the actions that an employer is considering is filing a criminal charge against an employee, that there is at least the potential for what at the time would seem preposterous -- that it could be the employer that ends up the defendant.

Labels: MDV

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Wednesday, November 18, 2009

Google and Legal Research

Posted 3:48 PM by Michael Fox

Someone else may have caught this before him, but my hat tip on Google's entry into legal research goes to Eugene Lee at California Labor Law, Google Offers Caselaw ... for FREE. Google comes out with tons of new offerings and not all of them last, so who knows about this project, but given what they have accomplished in other areas, probably worth keeping an eye on.

I went over to check it out and since I have been interested in the "mixed motive" issue as a follow up to my testimony before the Senate Judiciary Committee on the bill to overturn Gross v. FBL Services, thought I would try out "mixed motive." Here are the first five entries with that search on the Google scholar page, with the radio button for "Legal opinions and journals" checked:

Price Waterhouse v. Hopkins

Desert Palace, Inc. v. Costa

Mt. Healthy City School District Board of Education v. Doyle

NLRB v. Transportation Management Corp. and

Rachid v. Jack in the Box, Inc.

Although that's not a very sophisticated search term, the first four cases are the key Supreme Cases in determining the history of "mixed motive." I would have thought Gross would have shown up high but it doesn't appear until the 8th page. Interestingly, the Rachid case is a 5th Circuit case which extended mixed motive to the ADEA without a lot of discussion, and has been sub silentio overruled on that point by Gross.

I doubt that many are canceling their Westlaw or Lexis accounts today, but it is an interesting development.

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Comments:

Michael, thank you for the hat tip! I definitely wasn't the first to catch the news but maybe one of the first to blog about it in the legal community.

As for your analysis, cogent as always. I just wanted to throw this out for consideration. I did a search for "mixed motive" in the "California & Federal" database of Lexis-Nexis (sadly, I don't have Allfeds and Allstates). This is what came up:

1. Metoyer v. Chassman 504 F.3d 919
2. Harris v. City of Santa Monica 2009 Cal. App. LEXIS 1731
3. Desert Palace, Inc. v. Costa 539 U.S. 90
4. Remlinger v. Nevada 2000 U.S. App. LEXIS 4140
5. Mwaniki v. Ebay 2005 Cal. App. Unpub. LEXIS 8660
6. Cook v. La Marque 2008 U.S. Dist. LEXIS 29320

No Price Waterhouse! Gross v FBL does show up as no. 8 so that is better than Google for now.

Overall, I think Google's search results are superior.

Another thing to keep in mind is that this is only day one of Google's entry into legal research whereas Wexis has been around for decades. We probably need to reserve judgment for a bit.

Cheers,

Gene

# posted by  Unknown : 9:54 AM

 

Nice tips of employment lawyer's. In US employers whose work is one of the best and US is only the way where attorneys fees are handled. Well, Canadian employment law is different from that in the United States. Thank you very much........

# posted by  Alice Thomson : 4:35 AM

 

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Tuesday, November 17, 2009

Wrongful Termination North of the Border

Posted 3:26 PM by Michael Fox

Canadian employment law is substantially different from that in the United States. David Doorey's eponymous workplace law blog is one that I follow just as a means of staying somewhat abreast. His post today,Is a “Consensual” Relationship Between a Manager and a Subordinate Cause for Dismissal? points out a couple of ways the laws of the two countries vary.

The case in question involved a manager who was discharged after he had engaged in not one, but two "consensual" sexual relationships with subordinates. The second one occurring shortly after he had been warned about the first relationship. Besides having what Professor Doorey calls one of the "great lines in recent Canadian legal jurisprudence":

"The relationship was on its face consensual. Her interest in the affair was based in lust; the basis of his interest may have been the same or otherwise."

the case also points out a different liability standard and a different way of handling attorneys fees.

For liability there is a concept of "notice," which must be given if there is no cause. Fortunately for the employer, the court held that there was cause in light of a managerial employee's obligation to help ensure a workplace free of sexual harassment and, interestingly, protect the employer from claims of sexual harassment. It was a good thing, because the court went on to hold that if notice had been required it would have been 18 months worth of pay.

One of the differences that may be the most appealing to employers in the US is the way attorneys fees are handled. Here, since he lost the employee was liable for attorneys fees of the employer.

Not too surprisingly however, the court did not stick the employee with the full amount claimed by employer's counsel, which was almost $200,000. (Apparently Canadian management side lawyers are just as expensive as their American counterparts.) Instead, the manager was assessed $37,000. Still a hefty sum and one that would certainly discourage much litigation.

Comments:

Michael:

I think the record still belongs to the warden at the women's prison in Miller v. California Department of Corrections, 36 Cal. 4th 446 (2005), who was having affairs with at least three subordinates. Why would anyone practice employment law in any other state?

# posted by  Jeff Polsky : 6:58 PM

 

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Congratulations to Workers' Comp Insider

Posted 2:48 PM by Michael Fox

Congratulations to Workers' Comp Insider for being named as Lexis Nexis Workers' Compensation Law Center's top workers compensation blog for 2009! A copy of the Lexis Nexis announcement is here.

The folks at Lynch Ryan have been posting tremendously insightful and helpful information since September 2003. In a time when many blogs come and go, it is good to see them appropriately acknowledged for their efforts.

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More Government Talk: This Time to Your Employees

Posted 10:46 AM by Michael Fox

That's what will be happening if the GAO's recommendation issued last week takes place. While studying how OSHA's Records Audit Process could be improved, one of their recommendations is that the Secretary of Labor "require inspectors to interview workers during records audits, and substitute other workers when those initially selected are unavailable."

According to the report, there are substantial disincentives for the reporting of injuries which can in some cases lead to pressure on health care practitioners to provide insufficient medical treatment.

The full report, Enhancing OSHA's Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data, was issued on October 15, 2009.

Will OSHA go along? According to the report, OSHA agreed with the recommendations.

Labels: safety

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Saturday, November 14, 2009

A 5th Circuit Nugget for Assault Claims

Posted 1:26 PM by Michael Fox

Of all the so called employment law torts, one of the most simple and sometimes most difficult to deal with on summary judgment is assault. I once had a case where we were able to get several causes of action dismissed on summary judgment, but not sexual harassment and an assault claim against an executive arising out of a conference call that was being conducted by the plaintiff and the executive over a speaker phone. Fortunately at trial we were able to prevail on all claims.

But if I had that case again today, I would have at least some good support for why the assault claim should never have gone to trial.

At the end of a First Amendment case brought by a professor who has been suspended from teaching duties (but was still being paid), the 5th Circuit affirmed summary judgment on his assault claim in the following paragraph:

This leaves only DePree’s assault claim against Appellee Niroomand. Under Mississippi law, assault occurs where a person “(a) . . . acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” [cite omitted] According to DePree, Niroomand “aggressively walk[ed] toward [DePree], yelling at [him], repeatedly referring to [him] as a ‘son-of-abitch,’ and shaking papers in his face creat[ing] an apprehension in [DePree] of an imminent harmful or offensive contact.” Appellee Niroomand contends that DePree’s apprehension was not reasonable. We agree. Taken in context, these statements and actions could not create a reasonable apprehension of imminent, harmful contact. DePree and Niroomand had squared off in similar past confrontations without offensive contact. Nothing in the current claim suggests DePree could have reasonably feared Niroomand just because he cursed and rattled papers in DePree’s face. No triable fact issue of an assault arose here.

DePree v. Saunders (5th Cir. 11/13/09). [pdf]

At some point, that is going to be a handy reference.

Labels: torts

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Wage & Hour: Not Just Collective Actions Anymore

Posted 1:15 PM by Michael Fox

Wage and hour compliance issues remain one of the potentially most dangerous areas for employers. Most of the attention has been focused on collective actions brought by a new generation of plaintiffs' lawyers who frequently focus on only those types of claims.

However, this press release last week from the Department of Labor, Grandville, Mich., restaurant operators ordered to pay more than $2 million in back wages and damages is a sobering reminder that there is a newly invigorated government agency that is conducting investigations and seeking back wages and penalties on behalf of employees.

The restaurants in question were 5 Chinese restaurants operated by a husband and wife team. It will take a lot of kung pao chicken to cover that fine.

Earlier this fall, the ABA Journal reported that the DOL had hired 250 new investigators for the Wage and Hour Division. Feds to Ramp Up Enforcement of ‘Rampant’ Wage-and-Hour Violations. And all of this activity is occurring without a permanent head of the group as President Obama's nominee for Administrator of the Wage and Hour Division, Lorelei Boylan withdrew her nomination last month. Lorelei Boylan Withdraws her Nomination for Wage and Hour Administrator.

While this may sound like a broken record (for those of you who still understand that reference), there's no likelihood that this problem is going away any time soon.

Labels: FLSA

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Comments:

I read with interest your article on the Chinese restaurant case I just got done finishing a case involving a FLSA class action and a Chinese restaurant I often write about class actions on my blog, which is totally devoted to wage-hour issues. It is found at:
http://wagehourlaw.foxrothschild.com

Take care

# posted by  Mark Tabakman : 2:36 PM

 

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Monday, November 02, 2009

Can the NLRB Function With 2 Members?

Posted 4:48 PM by Michael Fox

Well obviously only in a very limited manner, and according to the DC Circuit, not at all. Three Circuits, the 1st, 2nd and 7th say it can, and now the Supremes will tell us. Justices to decide validity of two-member NLRB decisions.

Currently Obama's three Board member nominees have passed committee muster, but John McCain has placed a hold on one of the nominees, SEIU attorney, Craig Becker. NLRB Nominee Gets Mixed News From Senators My understanding is that Senator Harkin will not submit the other two candidates for a full Senate vote until a resolution is reached over Becker.

I assume that there is some way that this will all get worked out under the curious protocols of the Senate. It does seem to me though that an outsider looking at the whole way we deal with the NLRB membership, including long periods of time with less than a full Board, and the way that precedent is an almost non-existent concept even when we have a functioning Board, would have to say that it's not much way to run a railroad.

For some insight into just how the Senate nomination process works (or doesn't) check out, Fractured Nomination Process Leaves Regulatory Posts Vacant.

Labels: traditional

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Wednesday, October 28, 2009

5th Circuit On Continuing Violations

Posted 1:26 PM by Michael Fox

Decisions related to the timeliness of a claim are most complicated when it involves hostile environment harassment, which almost always occurs over a period of time. Although the rule is fairly simple according to the US Supreme Court's decision in National R.R. Passenger Corp. v. Morgan, “so long as any act contributing to that hostile environment takes place within the statutory time period," it can get sticky in the application.


In Stewart v. Mississippi Transport Commission (5th Cir. 10/21/09) [pdf] the Court dealt with such a claim. The plaintiff had been harassed by her supervisor. After an investigation they had been separated, but 16 months later when her new boss retired, the old boss replaces him. He begins offensive conduct again. When she complains they are again separated. The question for the Court was whether or not the sexual harassment claim should include the events before the first separation. Ultimately, two members of the Court held that they should not be.


In reaching that conclusion, they referred to 3 limitations on the continuing violation rule also found in Morgan:

1. the plaintiff must demonstrate that the “separate acts” are related, or else there is
   no single violation that encompasses the earlier acts;


2. the violation must be continuing; intervening action by the employer, among
   other things, will sever the acts that preceded it from those subsequent to it,
   precluding liability for preceding acts outside the filing window; or


3. the continuing violation doctrine is tempered by the court’s equitable
   powers, which must be exercised to “honor Title VII's remedial purpose ‘without
   negating the particular purpose of the filing requirement.

Here, it was the second exception that was fatal to plaintiff's claim -- the Court considered the employer intervention of separating the two, which did cause the earlier harassment to stop, an intervening action. When it viewed the events of the last incident of harassment (absent the circumstances of the first harassment), the majority found that they were not sufficiently severe or pervasive.

Interestingly, the newest member of the 5th Circuit, and the last Bush appointment, Judge Haynes dissented on this point from Chief Judge Edith Jones' opinion.

Labels: discrimination

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Thursday, October 08, 2009

Apologies, Both Past and Future For Not Posting

Posted 11:45 AM by Michael Fox

Posts have been exceedingly light recently as I have been both getting ready for vacation (which of course means posts will be non-existent until my return) and have spent the last several days preparing for and testifying yesterday before the Senate Judiciary Committee against overturning the Gross v. FBL Services decision of the Supreme Court this summer which nixed the mixed motive instruction for ADEA cases.

The future of mandatory arbitration was also a subject and frankly got a lot more attention than Gross. Senator Franken, one of the members of the Committee has taken that on as a major issue and that took up a lot of the hearing. For any who have an interest in seeing the hearing, there is a link to the webcast on the Committee's website.

More normal posting will hopefull arise following when I return and dig out from 2 weeks plus of accumulated email!

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Wednesday, September 30, 2009

The Employment Law Case That Just Keeps On Going

Posted 12:20 PM by Michael Fox

Lawsuits that stretch out over the years are not all that uncommon, but the tale that started with a discrimination law suit that was settled in 1997, just had another major development, a $4.9 million dollar malpractice verdict against the attorneys who represented the initial claimant in her earlier successful malpractice claim against her original attorneys. 12 Years of Persistence Rewarded With $4.9 Million Verdict in Malpractice Case.

If I understood it all, here's a little bit more about the sequence:

• Jackie Young, is part of a group that sued BellSouth for racial discrimination. Plaintiff's counsel was the firm of Ruden McClosky.
• In that case each plaintiff, including Young, received about $5,000 each.
• Those plaintiffs later learned that their attorneys had received $120,000 a year for 4 years, entered into a consulting agreement with BellSouth and agreed not to file any more employment cases against the company for one year.
• The original plaintiffs hired Becker & Poliakoff to sue the Ruden McClosky firm for malpractice.
• That case was settled for $8 million in 2002 with the proceeds split between 54 plaintiffs.
• During the settlement negotiations of that case, Becker & Poliakoff sued BellSouth on behalf of Young alleging continuing discrimination. That suit was dismissed when Becker & Poliakoff failed to respond to BellSouth's motion to dismiss.
• Young did not find about the dismissal for a year, she claimed because Becker & Poliakoff did not want to jeopardize the settlement of the first malpractice claim and their $2.6 million dollar fee.
• Now a verdict has been returned in the 2nd malpractice case, this one by Young against Becker & Poliakoff for the way her individual case was handled. The verdict $4.9 million.

It of course will be appealed.

Amazing.

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Monday, September 28, 2009

EEOC's Year End Rush - 2009 Version

Posted 9:01 PM by Michael Fox

Ross Runkel comments on recent litigation activity at EEOC announces 32 suits in past seven days. Although I don't know the numbers in recent years, I do know that there is always a rush to file lawsuits by the EEOC before the government year ends on September 30th. See my post of a year ago, It's the Last Week in September, So Be Ready for EEOC vs. ...

Labels: EEOC

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Friday, September 25, 2009

Bullying: The Movement that Keeps on Trying

Posted 12:56 PM by Michael Fox

David Yamada and I have very different view points on whether or not a bullying cause of action should exist (he drafted the model act that has been offered in a number of legislatures), but he is always a good source for monitoring what is going on and I take what he says seriously.

In a recent post, November’s Work, Stress, and Health Conference: A tipping point for workplace bullying research? commenting on the biennial meeting sponsored by the American Psychological Association, National Institute for Occupational Safety and Health, and Society for Occupational Health Psychology, he points to five specific sessions that specifically refer to bullying and a number of others that use terms such as 'workplace incivility, aggression, harassment, violence and mistreatment."

His thoughts:

It’s enough to make me wonder if we’re reaching a saturation level! But for now I’ll gratefully accept the abundance as sign that we’re reaching a good tipping point in terms of the mainstreaming of workplace bullying as an employment relations concern.

My position is not pro-bullying, just anti-legislation. My concern is that no matter how well drafted, it is too nuanced an issue for the courts to successfully handle. I am sure Professor Yamada will have more posts after the conference (early November) and that they will be well worth following, no matter where you are on this issue.

Labels: bullying

Comments:

Michael, thank you for those comments. At a time when so much of our civic discourse is so full of incivility, I appreciate when well meaning people can have honest differences of opinion and articulate them in a collegial way.

Best,
David Yamada

# posted by  David Yamada : 11:26 PM

 

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A UK/USA Split - Protection For Those Over 65

Posted 12:40 PM by Michael Fox

The British High Court has apparently just held that mandatory retirement at age 65 is permissible. 65 all out…….. ».

That's where the U.S. statutory protection, the Age Discrimination in Employment Act, started; but two amendments later, it has no upper cap.

Labels: age

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Monday, September 14, 2009

The Obama Board - EFCA Is By No Means the Whole Deal

Posted 4:31 PM by Michael Fox

The Employee Free Choice Act has certainly garnered the majority of ink and/or pixels in discussions about the possible changes in the law of labor relations, but it is by no means the only change on the horizon. In fact, as has now become abundantly clear, EFCA is subject to the vagaries of the legislative process which is biased in favor of doing nothing. What form of legislation, if any, can pass remains a very open question.

One other question however was decided on the night of November 4, 2008. When President Obama was elected it was certain that within some period of time there would be an Obama National Labor Relations Board. Currently the Board is operating with two members, but three others have been nominated and when they are confirmed, there will be a 3-2 Democratic majority.

For a look into what that may mean, two of my Ogletree Deakins colleagues, the father/son duo of Hal and Chris Coxson, have prepared a monograph for the U.S. Chamber of Commerce, The National Labor Relations Board in The Obama Administration: What Changes to Expect.

According to the Chamber's press release announcing the report:

The purpose of this publication is to provide an overview of how the law administered by the NLRB is likely to change during the Obama Administration. The vast majority of this analysis is focused on cases decided by the Board in recent years that Democratic Members of the Board dissented to and that organized labor has criticized. While some of these cases are high profile, such as the Board’s decision in Dana/Metaldyne that effectively gives employees notice before a union and an employer can circumvent the law’s secret ballot process for union recognition, others are much less well known. However, reversal of these technical rules, such as whether permanent strike replacement workers may be hired on an at-will basis, as discussed in Jones Plastics and Engineering Co., collectively will increase union leverage in every aspect of labor-management relations.

In addition to the changes to existing precedent, it is also possible that for the first time since the 1974 rules relating to health care institutions, the Board may engage in substantive rule making.

You can download the full report from Chamber's website [pdf]. Happy reading.

Labels: traditional

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Comments:

I've known Hal for several years. His analysis is usually on target. I look forward to reading his report. Thanks for providing the link.

# posted by  Bob in SA : 11:16 AM

 

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Friday, September 11, 2009

Did Kennedy's Illness Prevent EFCA Passage?

Posted 11:02 AM by Michael Fox

That seems to be what Senator Harkin was saying in yesterday's report in The Hill,Harkin: Kennedy’s illness stopped card-check vote back in July. According to the story, Harkin had an agreement supported by organized labor and with Kennedy would have had the 60 votes, but Kennedy was too ill to come to capital hill to vote.

The details of that agreement according to Harkin: "I will not say because it was closely held, it never leaked out and it still hasn’t." No kidding.

That EFCA was ever that close to actual passage would be a shocker. While I obviously don't know, something about it just does not ring true. And I am not the only one who wonders, Card Check: Harkin Then, Harkin Now.

Labels: political, traditional

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Monday, August 31, 2009

Employees in Limbo Land - EEOC Challenges the Solution

Posted 11:18 AM by Michael Fox

One of the great dilemma's for employers are employees who go on long term leaves of absence. Absent some sort of policy that puts a deadline on how long that leave can be, I have seen employers with untold numbers of individuals who may or may not still be employees. My term for them: "lost in limbo land."

In Texas, where workers compensation retaliation has always been a major cause of action, the law has evolved so that a leave policy which results in termination after a fixed period of time, applied uniformly without regard to whether the leave of absence was based on a work related or non-work related injury, is a valid defense to those claims. For a long time, we have cautioned that the EEOC took the position, at least theoretically, that such policies could be a violation of the ADA. However, during the Bush administration, as far as I know, they did not pursue litigation to that effect.

But as we all know it's now a new day and Employment Law 360 ($) has the story of a recent lawsuit filed in the the Northern District of Illinois, that raises that specific issue, UPS Medical Leave Policy Violates ADA .

The key paragraph from the Complaint:

Since at least 2002, UPS has maintained an inflexible 12-month leave policy which does not provide for reasonable accommodation of employees with disabilities and which instead provides for termination of their employment, in violation of Sections 102(a)and 102(b)(3)(A) and (b)(5)(A) of Title I of the ADA, 42 U.S.C. §§ 12112(a) and 12112(b)(3)(A)and (b)(5)(A).

Accompanied by this message from Stuart J. Ishimaru, the acting Chairman of the EEOC:

This case should send a wake-up call to corporate America that violating the Americans with Disabilities Act will result in vigorous enforcement by the EEOC. The ADA has been the law of the land for nearly two decades now, and employers simply have no excuse for failing to abide by its provisions.

With all due respect to acting Chairman Ishimaru, its not all that clear. And in fact, in the story, UPS denies that it has an automatic policy, instead saying it has granted exceptions to its policy for employees who seek accommodation under the ADA, and the 12 month deadline is "not automatic or absolute."

Although there is a long way from a complaint to an appellate decision that would provide a definitive answer, this one at least initially appears to be set up to do so.

Hopefully, as this case wends it way through the judicial process, the courts will understand that this is an issue that has significant practical impact and one in which a ruling that does not take into account the need for employers to have control over who and who is not an employee in situations involving long term absences, could wreak considerable havoc.

Update 9.14.09: This is obviously not a one time idea by the EEOC, or at least the Chicago Region, as Employment Law 360 ($) is reporting a second employer has been sued for having a one year leave policy. See, EEOC Targets Supervalu In New ADA Class Action.This suit is also filed in the Northern District of Illinois but it also merited its own press release from the Commission.

Labels: ADA

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Comments:

Good post highlighting a frustrating issue for both employers and employees!

Important to double check with state law in addition to the ADA. Here in Washington state I think there is a very good argument that as long as there is a potential return date - even if in the distant future - an employer cannot terminate an employee while on long term disability leave. This is because of Washington caselaw which states that unpaid leave can be a reasonable accommodation to a disability.

UPS may be arguing that it does not have an automatic or inflexible policy, but I have seen similar language in *many* executive level employment contracts. And every time, I argue against the inclusion of that paragraph.

This will be an interesting case to follow - thanks for discussing it.

# posted by  Unknown : 3:16 PM

 

Thanks for highlighting an issue that is frustrating to both employers and employees!

I think it is also important to look at state law in addition to the ADA for answers to this question. Here in Washington, the state anti discrimination law has been interpreted by our courts to make it clear that leave without pay is a reasonable accommodation for a disability. So, I have argued that as long as there is a potential return to work date - even if it is far in the future - means an employer cannot terminate the worker while on leave.

UPS may be arguing that its policy is not automatic or inflexible, but I certainly have seen such policies written into many executive level contracts. I'm usually arguing to have the language removed.

This will be an interesting case to watch - thanks for discussing it.

# posted by  Unknown : 3:19 PM

 

It has always struck me funny as I have cautioned my clients that the EEOC takes this ridiculous position regarding extended leaves beyond the FMLA 12 weeks that the EEOC in essence says, "attendance at work is not an essential function of work." What a joke. Here's hoping the EEOC gets tossed on its can in this case. Twelve months of leave is plenty. Indefinite leave, by its very definition is unreasonable.

# posted by  Anonymous : 5:09 PM

 

The EEOC got JPMorgan Chase & Co. to pay $2.2 million in 2006 (see http://www.lawroom.com/Story.asp?STID=1544 online) and United Blood Services to pay $650K in 2001 (see http://www.lawroom.com/story.asp?STID=509 online) due to inflexible leave limits.

The point is that the EEOC says the ADA requires an individualized assessment of "reasonable accommodation," rather than a blanket/uniform/inflexible rule.

Time off (including additional time off beyond a company policy or the 12 weeks of FMLA) is only a reasonable accommodation when it is likely to allow an employee to work; accommodations are only "reasonable" when they're likely to help an employee to work. There's no ADA requirement to accommodate employees to not work.

# posted by  Kent : 6:17 PM

 

This is a very troubling issue for employers. Personally, I have always struggled with leave as a reasonable accomodation for a disability under the ADA (and under the state law counterparts), as there seems to be no consistent policy or rationale for when it is or is not required. The comments by the EEOC, however, are reflective of an administrator totally out of touch with the reality of employers.

# posted by  kmlgeneral counsel : 8:21 AM

 

Pom, the EEOC "got" the employers to pay b/c the employers were tired of the bleeding, not b/c the EEOC was right. Not one single case that I've seen has supported this position. Moreover, your "the ADA requires accommodation of leave if it allows an employee to return to work" is hogwash. The ADA applies to those with disabilities who can perform the essential functions of a job, with or without a reasonable accommodation.

Call me foolish, but doing the job is typically an essential function of the job. You can't be performing your job's essential functions while on leave.

The EEOC is attempting to legislate an indefinite leave leave requirement b/c the EEOC doesn't like the fact that FMLA limits leave to 12 weeks. Employers are getting killed by this government and nobody seems to care.

# posted by  Anonymous : 7:33 PM

 

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Sunday, August 30, 2009

The Perks of a (Lifestyle) Blogger

Posted 5:25 PM by Michael Fox

When I started this venture more than seven years ago, maybe I should have chosen my topic more carefully. Although who could have predicted what blogging would become:

Blogger Test Drives An automaker is interested in providing vehicles for bloggers to test drive for a few days and to write about the experience. They’re not looking for auto bloggers, they’re looking for lifestyle bloggers who cover topics like travel, fine dining, and culture. They will arrange the drop-off and pick up of the vehicle. If you’re interested, please contact ......... with your blog name, content overview, URL, Technorati authority, and contact information. (From form email I received today.]

The first reader with a convincing argument connecting labor and employment law to, let's say luxury convertibles, get's the first ride!

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Comments:

Well, cars and employment law have a long history. Who could forget the NASCAR lawsuit (http://www.delawareemploymentlawblog.com/2008/06/11/start-your-engines-nascar-faces-harassment-suit/) or the boss who tried to convince a worker that she had won a "Toyota" which was really a "toy Yoda" (http://manpowerblogs.com/toth/2008/03/31/how-not-to-get-sued-on-april-fools-day/).

# posted by  Unknown : 8:17 PM

 

Reason #1: You represent the auto industry in collective bargaining and you need to assess the quality of the product.

Reason #2: Because they are well paid, labor and employment lawyers purchase a large number of automobiles; as a blogger well known among labor and employment lawyers, you are perfectly situated to provide them with recommendations on auto purchases.

# posted by  Bob Ambrogi : 9:30 PM

 

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Friday, August 28, 2009

The Latest On EFCA

Posted 1:17 PM by Michael Fox

The folks at EFCA Report who have been chronicling developments on this proposed legislation have their latest update, with some fairly definitive words from Senate Majority Leader Reid (D-NV) on EFCA: "Too Many Other Things on Our Plate". Of course, since the statement was made to the Las Vegas Chamber of Commerce, not a place where a pro-EFCA comment would likely be well received, it might be one of those statements that is subject to change.

Still, the other developments mentioned in their post, including the death of Senator Kennedy and the current state of Massachusetts law which, unless changed, means the earliest his replacement could be seated is the end of January, 2010, seems to me to make it more and more unlikely that EFCA will happen this year.

That of course does not mean that the battle for EFCA is over. One interesting question is whether other employment related legislation, ENDA or the Arbitration Fairness Act just to pick a couple, which most have felt were bottled up till EFCA was resolved stay there, or perhaps move closer to the front burner.

The big question of course is what happens in the longer term, the 2nd session of this Congress, or after the 2010 elections. I think more in organized labor may be resigning themselves that given how things have developed, they may need to keep their powder dry and see what the 2010 Senate looks like.

Depending on how that turns out, it is not impossible that EFCA proponents may someday count their blessings that this year's more effective than they had anticipated political opposition, the pitched battle over health care, the lack of a hard push by the Obama administration for their cherished goal and even the death of one of the bills' true champions, Senator Kennedy, might result in ultimately obtaining a bill that is closer to their desires than anything they could have obtained now.

Certainly not impossible, but likely?

Labels: political

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Monday, August 24, 2009

Social Media and the Employer

Posted 1:42 PM by Michael Fox

There is nothing startingly, or even really new, in this Q & A from the Birmingham Business Journal, What impact do you think the proliferation of online social media will have on human resource policies and employment law issues?. Although I must say it is going to be a brave employer who follows this advice, no matter how legally correct it is:

Employers must have a written policy against using recreational social media at work. It is a distraction, and the employee’s comments could incur liability for the employer based on defamation or laws prohibiting discrimination.

Just as a practical matter, if you are not going to follow it, it is probably better not to have a policy; and I doubt many companies can enforce such a policy these days.

But what really got my attention is just how much ink (well pixels really) this whole issue is attracting these days. I am a contributor, having given a couple of speeches, including national on-line programs for the ABA and other entities, and am scheduled for some more, but what this really makes me think is how much of a herd mentality we all have.

Probably the best comment came from a member of the audience at one of my speeches. He questioned why this was a continual topic, when there was never any law!

That may change, but as of now, there's lots more talk about the impact of social media on employment law, than there is either actual impact OR law.

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Comments:

Michael, there actually is quite a bit of impact, you just haven't seen much yet in litigation. For those of us dealing with employees on social networks from the in-house counsel side, social networking is taking up a great deal of our time as employees post items embarrassing to co-workers or the employer. We are having to train HR to understand that free speech comes with responsibility and that conduct which occurs away from work may still result in the loss of a job. I personally have dealt with dozens of employee terminations for things posted on social networks within the last 12 months.

# posted by  Anonymous : 8:29 AM

 

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Friday, August 21, 2009

A Different Form of Health Plan

Posted 1:15 PM by Michael Fox

I am, as always it seems, behind on reading other blogs. And so probably the last thing I needed was to add another to my google reader list (a fairly recent change since Microsoft said it was no longer going to support onfolio, my all time favorite). But, just a couple of posts from Labor Law Guy an anonymous 'journalist' who says "labor law is just a current obsession in an otherwise undistinguished career" (which I heartily doubt), made me add another any way.

And amid all the ballyhoo about health care his report on a Japanese tax on obesity, Time to Tax Fatsoes Like They Do in Japan?, while no substitute for other ideas, might be something to think about.

Of course, I probably feel more favorably inclined since my new 'running' program seems to be causing a few of the accumulated pounds to fall away. Once that trend is gone, I will of course see the error of my ways in thinking that it could be an appropriate solution.

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Tuesday, August 18, 2009

Senator Harkin and the Secret Ballot

Posted 3:15 PM by Michael Fox

Although it does not look like that the card check provisions which would effectively eliminate the secret ballot for determining union representation will survive, at least in any EFCA type bill passed by this Congress, there is still some irony in the comments of Democratic Senator Tom Harkin, who is leading the push for the bill in making the following comment about his fellow Democratic Senator:

“Every two years the caucus could have a secret ballot on whether a chairman should continue, yes or no,” said Sen. Tom Harkin (D-Iowa), the chairman of the Senate Agriculture Committee. “If the ‘no’s win, [the chairman’s] out. “I’ve heard it talked about before,” he added."

The chairman who might be ousted by such a secret ballot election is Max Baucus, D-Montana who is cross-wise with Harkin on the details of the healthcare plan, according to the article in The Hill, Dems warn Baucus with gavel threat.

Apparently what's good for the goose is not necessarily good for the gander.

Labels: traditional

Comments:

talk about hypocrisy!

# posted by  Bob in SA : 10:09 AM

 

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Mine Safety Commissioner Moves Back to Chair

Posted 12:27 PM by Michael Fox

Reprising a role she held in the Clinton administration, current member of the Mine Safety & Health Review Commission Mary Lucille Jordan has been designated by President Obama as the Chair, see announcement here. Before being appointed to the Commission, Jordan worked for the United Mine Workers for more than 17 years as an attorney.

Although it gets less publicity than its cousin, OSHA, MSHA is the counterpart for the mining industry and obviously in recent years has been in the headlines with some well publicized mine tragedies. The Mine Safety & Health Review Commission is the judicial body which reviews determinations made by ALJ's.

Although it is not an area I have had much experience with my firm is fortunate to have a large collection of MSHA lawyers in our Washington office including Michael Heenan, who has been "toiling in the mines" (well not literally!) for more than 40 years. It is one of those sometimes hidden specialties, but critical if you are covered by MSHA.

Labels: safety

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Ignorance of the FMLA Is No Excuse; In Fact, It Could Be Evidence

Posted 9:26 AM by Michael Fox

That's just one lesson to be learned from the 10th Circuit's decision in DeFreitas v. Horizon Management Corp. (10th Cir. 8/14/09) [pdf]. In reversing the lower court's grant of summary judgment on DeFreitas interference with FMLA claim, the Court noted:

It would be eminently reasonable to believe that an employer who was ignorant of the FMLA—as Mr. Terry admitted he was before Ms. DeFreitas complained of her firing—would engage in the very practice that the FMLA was enacted to prevent [firing employees who missed too much work for medical care].

The opinion is also a good example of how employers can easily get trapped by their own policies and words. Here, although the claimed reason for termination was conduct uncovered while she was out on medical leave for 6 weeks, the Court found that:

• she had progressed rapidly from entry level to Vice President within two years;
• there were no written warnings for performance issues;
• there were numerous written positive comments from various members of management about her performance;
• although the company had a progressive discipline system that emphasized no employee would be terminated without receiving a written warning and being given a chance to improve, that did not occur;
• the employer's handbook said that every terminated employee would be given an exit interview including putting in writing the reasons for the termination and the policies that have been broken, but this was not done in her case.

Vince Lombardi said football is two things: blocking and tackling. The absence of written documentation of poor performance and not following your own procedures, might just be the HR equivalent.

Labels: FMLA

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Comments:

What I find surprising is that the district court thought to grant summary judgment on these facts. The timing of the termination just after the employee had disclosed that she would need medical leave -- that timing alone should've been sufficient circumstantial evidence to raise a triable issue of fact. I find it mind-boggling that district court judges continue to dismiss claims even where there is close proximity in time. Then again, that is exactly what the judge did to me in my last FMLA case.

# posted by  Unknown : 2:38 AM

 

Good points for employer and employees, alike. But, too many times summary judgment has been granted despite the presence of many of these same facts.

# posted by  tom crane : 11:08 AM

 

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Thursday, August 06, 2009

Justice Sotomayor Confirmed, To Be Sworn In Saturday

Posted 5:59 PM by Michael Fox

On Saturday, Justice Sonia Sotomayor will become the third female and first Hispanic justice of the United States Supreme Court following today's 61-38 roll call vote in the Senate.

Given that Justice Sotomayor will replace Justice Souter, a consistent member of the current Court's 'liberal' wing, it seems unlikely that her presence will make for a short term dramatic change in the court's direction or voting patterns.

Listening to the speeches for and against Judge Sotomayor, one of the things that struck me is that it is perhaps time for us to put to rest Judge Roberts famous metaphor that he would serve just as an umpire, calling balls and strikes with complete impartiality. Putting it aside is not to impugn Justice Roberts' integrity when he made those comments, but rather to recognize that even umpires set their own strike zone.

Bruce Weber had a similar thought in his article last month in the NYT, Umpires v. Judges.

But if you really want to look at it just from a baseball perspective, check out A Zone of Their Own or this quote from an amateur umpire's guide:

On warm summer night I watched a pitcher working his stuff against a senior umpire I have worked with and respect. It was men's league and particularly humid that night. After watching three of "his best" go for naught he said to the umpire, "Blue, where's your strike zone?" My friend replied, "You've got nine innings to find it!" The umpire's strike zone is the umpire's strike zone. I can assure that pitcher that if my friend was calling "ball" it wasn't even near the plate, for he taught me to "go in expecting a strike every time!"

Floating out over that plate is almost a perfect cube, about 15 inches up in the air, nearly 22 inches wide, 24 inches high and yes, 22 inches deep. "I call a big zone." Why? Because I think strikes. Working with younger ball players you have to think that way. Sure, as the quality of the player increases some think an umpire might boil an inch or two, maybe more, off the top but then he remembers that the quality of the batter has also increased so they feel he adds an inch or two at the sides. Its all relative. Truth is, call the same "strike-able" zone at all levels unless the rules specifically dictate a change. No umpire can give an inch to this level, take off two in the next age group, call at the shoulders in another, and claim a consistent strike zone.

Your league and its traditions will define the strike zone as much as any rule book will. By some books every pitch that crosses the batter shoulders would potentially be a strike.. Does any umpire really call them up that high? Some associations call at the belt buckle as the top of the zone, others call half-way down the calf as the lower part. In some areas "painting the black" is the norm while in others the ball has to have the full plate. Regardless of your definitions, restrictions or instructions THINK STRIKES ON EVERY PITCH! A pitch has to convince you it is a ball before you will not call it a strike. This positive mental approach will increase your consistency and move the game along more than any other mechanic you can learn.

It may be awhile before we do this again, but now would be a good time to realize that while deciding Supreme Court cases may be both more complex and with higher stakes than merely calling balls and strikes, neither is an exact science.

Just as the umpire who calls them as we see them, is viewed as right, and the one who calls them any other way is a bum; the Justice who calls them the way we view the law is interpreting the law (good), while the one who calls it in a way that we wouldn't, is making law (bad).

It's an oversimplification, but no more so than most of the rationales we hear for votes on Supreme Court nominations, including the one just concluded today. Surely, Senators you can do better.

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Wednesday, August 05, 2009

Atlantic City Jackpot - Disability Claim Leads to MDV

Posted 7:39 PM by Michael Fox

Actually that headline is a little too frivolous for what are clearly serious subjects, employers facing disability claims and depression as a disability. When the two came together before an Atlantic City jury the net result was a verdict for Scott Jones, a 55 year old salesman, Depressed worker wins $1.8 million over firing from gas company.

One of the killer lines that is sure to strike terror in any employer's lawyer's heart: "Jones' annual reviews showed he performed satisfactorily." Just yesterday in a training session, I was pointing out that performance appraisals are always key exhibits in an employment trial, and the real question is whose exhibit will they be. Here, it sounds as if they were Plaintiff's Exhibits, which always spells trouble for the defense.

Problematic performance appraisals and the fact that Jones was nearing his 20th anniversary with the company, with nothing more, would be enough to make it clear that this could be a problematic trial if things went south.

Based on the result, they did.

Labels: MDV

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Sunday, August 02, 2009

Trying to Avoid Layoffs, Employers Turn to Furloughs

Posted 3:28 PM by Michael Fox

Which is a good idea, but one that possesses some legal risks (what doesn't?). One of the primary areas of concern is compliance with wage and hour law. The Department of Labor has put out a timely FAQ, Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues.

If you are considering some form of furlough or related way of reducing costs without eliminating employees, this is a good place to start on the various issues that might arise.

Hat tip to Richard Tuschman at the Florida Employment Law Blog for catching this one.

Labels: FLSA

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Thursday, July 23, 2009

EFCA - The Aftermath of a Compromise

Posted 6:14 PM by Michael Fox

Although last week's NYT story announcing a compromise had been reached to drop the card check portion of EFCA has turned out to be either a trial balloon, a non-event or premature, depending on who you listen to, it has been interesting to see the reaction by advocates on both sides.

The business community has been quick to point out that a killer provision, binding arbitration, remains, which means there can be no compromise. Many union activists are seeing the loss of card check as the end of the line.

Adam Turl, writing in the Dissident Voice is in that camp, but has a somewhat more nuanced view. He acknowledges that EFCA, even without card check could be a significant victory for labor, but doesn't see it in the cards:

However, since Democrats already gave away card check without a fight, there is little reason to believe they will mount a vigorous defense of the compromised EFCA when the Republicans move in to destroy what remains.

Who killed EFCA?

From my perspective it is far too early for anyone to be performing autopsies on the failed EFCA, but Mr. Turl has some very insights into what has been going on behind the scenes by those who would like to see it passed.

Labels: traditional

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Monday, July 20, 2009

As Proud as GE Is of Jack Welch ....

Posted 8:55 AM by Michael Fox

My guess is that lawyers there are happy that he didn't make this speech while he was still CEO, Jack Welch: Women Take Time Off for Kids at Their Peril. Or at least how his speech to the national SHRM conference in New Orleans is being reported.

Among the quotes from the speech as provided by the ABA Journal on line publication, "“There's no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences." Also that women who take "take time off for family could be passed over for promotions if they are 'not there in the clutch.'"

And just in case the point was not made:

Welch said women who take time off can still "have a nice career," but their chances of reaching the top are smaller, according to the Wall Street Journal account. "We'd love to have more women moving up faster," he said. "But they've got to make the tough choices and know the consequences of each one."

It may be that some of his comments were pulled out of context that would have made them seem a little less damning, and it also may be that he is speaking the mind of what many in the workplace (women and men) actually think. In other words saying what is real, not what would be ideal.

But if you were having to defend a discriminatory failure to promote because of gender case brought by a female executive who has taken one or more parental leaves, you would not feel grand about having these words standing as fairly large hurdles to overcome.

Labels: family responsibility discrimination

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Friday, July 17, 2009

EFCA --- Compromise a Done Deal?

Posted 9:37 AM by Michael Fox

The New York Times, Democrats Cut Labor Provision Unions Sought, is reporting that a compromise that drops card check in return for 5 day quickie elections now has the support of 60 senators, enough to ensure passage. Although all details are not being released, the hint is that binding arbitration is still included and there may also be equal access provisions to allow unions to campaign on an employer's premises.

If this pans out, it will be by far the most dramatic change in labor law since I took Professor Jerre Williams labor law course at the University of Texas Law School in the fall of 1973. And if it does include binding arbitration for first contracts, it will be a total revamping of the underlying principles of American labor law. Unfortunately, the last part has received relatively little attention.

One of the most interesting aspects is the immediate reaction of some from organized labor. Jonathan Tasini, who is a passionate advocate for employees at his Working Life blog is disgusted:

"Card check" was the the thing that the bill was about--or so we heard for lo these many months. Now, it's left to the labor movement to explain why what will be left is good enough. That will be an interesting exercise.

We could also admit two things. One, when it comes right down to it, the kind of people labor supports in the Democratic Party are not reliable when it comes down to a fight-or-die moment for workers. Second, the strategy to pass the bill was an insiders game that never engaged the public, partly because we left the campaign in the hands of some people who are entirely clueless about talking to anyone but themselves.

Another option is for some people in the labor movement to decide that maybe it's worth saying, "to hell with you all" and come up with a better organizing and political strategy that does not rest on relying on people who will sell us out in a heart beat.

So Much for the 'Card Check Bill.'

More interesting to me was a 'tweet' from SEIU President Andy Stern, "we expect a vote in the bill or by amendment on majority sign-up in both houses of Congress." EFCA Compromise? at TPM, which follows that "clearly this compromise won't go down without several spoons full of sugar. "

The fact that Stern, who clearly knows the political reality, is making such a comment brings out the cynical fear that what is happening is what many in the business community feared all along. Card check was a stalking horse all along. The rejection of card check is going to be pitched as standing up to organized labor, and to aid in that perception many in organized labor (who secretly are ecstatic with what now seems within their grasp) berate the Democrats for selling them out.

Feeling victory based on the outcry of their opponents, many in the business community whose opposition was focused primarily on the card check provision will think that their mission has been accomplished and turn to other matters.

And almost under the radar, American labor law will be fundamentally changed.

The other thing that adds fuel to that thought is organized labor's desire to have a vote this month. Senate leaders are apparently of the opinion that it can't be done until September. (I am not quite sure why the Senate would want to undergo two more months of battering on this issue, because if they think its been hot up till now, they have not seen anything yet.) If no vote is scheduled until September then it might all come unraveled even if on this particular day in July the votes are there.

Because this is literally about how the American workplace functions, all with an interest, should stay very much engaged.

Labels: traditional

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Comments:

Michael:

You lead by example for the rest of the employment law bloggers, who are really just trying to be half as insightful as you are and muster up a third of your stamina!

May many more great posts follow--I'll certainly be reading!

Best,

Molly DiBianca
Delaware Employment Law Blog

# posted by  Molly DiBianca : 10:23 PM

 

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Thursday, July 16, 2009

Seven Years of Jottings. Why?

Posted 11:54 PM by Michael Fox

If on July 17, 2002 when I made my first post, I had a goal to blog until retirement, today would have marked the 1/2 way point, if not to retirement at least to the time when I reach my full social security retirement age. However, I had no goal and no real plan, just trying out a new and interesting technology. I chose to write about a topic I that I knew something about.

The "why" question is one I have asked on numerous occasions, and one I am sure my law partners over the years have asked as well, although I must say never directly of me.

In good blogging fashion, I will refer you to an excellent article by Cliff Tuttle at Pittsburgh Legal Back-Talk, Why Blog? 10.5 Good Reasons, which is what I would have hoped to have been wise enough to write, if I answered the question in full.

Two points, I would particularly emphasize, self-education and reinforcement of learning. A third that is implied if not explicit, is having my own research repository, which has proved to be helpful both to me and to my colleagues over the years.

I would also agree with Cliff that marketing by itself is not a sufficient reason.

As I noted in last year's posting on the 6th anniversary, the number of blogs focusing on labor and employment law is far more than the three I can think of that existed at the end of my first year. (The two others - George Lenard and Michael Fitzgibbon continue as well.) After my list of 49, by April of this year, the folks at Delaware Employment Law Blog, were able to come up with their Top 100 Employment Law Blogs, and I would guess that there have been new ones since that post.

For the future, I intend to continue blogging, maybe writing more about traditional labor law as I think that is going to be more relevant in the near future and returning to stories of MDV's which for some reason seems to have lagged of late. (My posting, not the verdicts themselves.)

For those who have stopped in at some point during the last seven years, thanks.

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Comments:

Mr. Fox:

Thank you for posting about my article on blogging. I have received a lot of positive feedback on "Why Blog?" which has been gratifying. It has also reinforced my resolve to keep doing it and to do it well.

I don't have an employment law blog on my blogroll at present, so I am adding yours. I read the blogs on the Pittsburgh Legal Back Talk blogroll frequently and have been known to feature them in my posts.

Cliff Tuttle

# posted by  Anonymous : 10:00 AM

 

Michael, thanks for the thoughtful post. I definitely agree with the "repository" reason. More often than not, I post to record my understanding of an area of law at the peak of my understanding. On numerous occasions, I have searched my own blog to refresh my recollection of the law. And the reinforcement of learning is another powerful reason to blog. In short, I think blogging makes you a better lawyer.

# posted by  Unknown : 12:43 PM

 

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Wednesday, July 15, 2009

Not Much Posting, But Still Talking

Posted 8:00 PM by Michael Fox

Posting has been light of late, but speaking events continue no matter what.

For the rest of the month you can catch me at the Texas Association of Business and SHRM State Council 2009 Employment Relations Symposium. More political talk, The Obama Labor & Employment Agenda. Biggest news, so far labor & employment issues have not really been very high on President Obama's agenda. Not to say that there isn't a lot to talk about though.

And next week, I move to internet as a participant on an ABA panel, Understanding the Legal Issues Surrounding the Social Networking Websites that Teenagers and Employees Love.

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Wednesday, July 08, 2009

Two HR Giants Merge

Posted 1:22 PM by Michael Fox

There are not many (if any) HR consulting firms larger than Towers Perrin and Watson Wyatt so their merger as reported at the SHRM website, Consulting Giants Watson Wyatt and Towers Perrin Merge, is pretty big news for those who use or would consider using either of these groups.

The combined firm, to be known as Towers Watson & Co., would have approximately 14,000 employees and revenues of nearly $3 billion.

For those who wonder about who is taking who, while Towers get's the first name, the new CEO will be John Haley, the current CEO of Watson Wyatt.

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Monday, June 29, 2009

Supreme Court Gives Victory to New Have Firefighters

Posted 11:20 AM by Michael Fox

Appropriately enough given the venue, Daniel Schwartz at the Connecticut Employment Law Blog has one of the first substantive analyses of this morning's Supreme Court decision in Ricci v. DeStefano (S.Ct. 6/29/09) [pdf].

He also gives good counsel about not rushing to conclusions about the outcome until the 93 pages of the various opinions can be more than just skimmed.

Still, some basics are clear. The 5-4 opinion with Kennedy in the majority and writing the opinion is not a shocker. The 4-4 split is along the well known divide of Scalia, Thomas, Roberts and Alito vs. Stevens, Ginsburg, Souter and Breyer. And given the headline, it is clear that it was the conservative quartet that came out on top this time.

Justice Ginsburg took her role in providing the dissent (38 pages itself).

Among the points:

• it is based on Title VII, not constitutional principles, so it is equally important to private sector employers as well as government employers.
• Justice Kennedy saw the role of the majority to provide guidance to lower courts and parties when an employer is faced with a possible disparate impact case on one hand and a disparate treatment on the other;
• The test is fairly easy to describe -- an employer can not rely on the threat of a disparate impact case as a defense to a disparate treatment case unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. "
• Applying that test is not likely to be all that easy.
• Sure to be much discussed is what Justice Ginsburg meant when she said, "The Court's order and opinion, I anticipate will not have staying power." Another veiled suggestion for legislative override?

Probably the biggest surprise is that given that New Haven had prevailed on summary judgment, the Supreme Court could easily have sent the case back to the trial court for it to apply its newly established standard. However, rather than doing so, it seems to have jumped a step and handed victory to the firefighters:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I think that's Supreme Court talk for "this one is over," although I am not sure that will actually turn out to be the case.

This decision is going to get tons of scrutiny and comment, largely because Judge Sotomayor was on the panel of the 2nd Circuit which had a different outcome. To the extent that the commentary focuses on the case itself that's good, when it goes off on how it impacts on her abilities/views etc. I am less interested.

My first instinct is that it is an important case, but applies to a situation that does not come up all that often.

However, the reason that has not come up all that often in recent years is that the OFCCP has changed its direction, with much less emphasis on affirmative action via AAP's and much more attention to discrimination. To the extent that under the Obama administration, that emphasis switches back to what employers subject to EO 11246 faced in much earlier times, the case could be even more important.

Although there's that Ginsburg tease, 'not much staying power.'

Labels: discrimination

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Comments:

By your title to this post, do you imply there are "have" firefighters and "have not" firefighters?

# posted by  Kent : 6:33 PM

 

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Thursday, June 25, 2009

The Price of Discrimination in England

Posted 8:13 PM by Michael Fox

One of the blogs I follow is from PJHLaw, a Stamford, Lincolnshire, UK law firm that refers to itself as "Exclusively Employment Law Solicitors". Today, they had an interesting summary of 2008 awards in discrimination cases, Equal Opportunities Review.

The key numbers -

Average/ Median Compensation Awards in 2008

Age Discrimination £15,080/4,503

Disability £21,339/£8,000

Race £18,200/£6,325

Sex Discrimination £13,312/£9,109

Sexual Orientation £33,724/£6,364

Combined £37,655/£26,014

It would be interesting to see a similar study of American awards.

Labels: discrimination

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Tuesday, June 23, 2009

Oregon Statute Could Bar Captive Audience Speeches in Union Campaigns

Posted 5:04 PM by Michael Fox

Last Friday, the Oregon House passed SB 519 a bill that was passed earlier this month by the Oregon Senate. As passed, the bill would preclude an employer from mandating that an employee attend certain meetings.

The bill prohibits:

An employer or the employer's agent,representative or designee may not discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize or take any adverse employment action against an employee:

(a) Who declines to attend or participate in an employer-sponsored meeting or communication with the employer or the agent, representative or designee of the employer if the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters;

and political matters:

includes political party affiliation, campaigns for legislation or candidates for political office and the decision to join, not join, support or not support any lawful political or constituent group or activity.

And to round it out, constituent group or activity, includes:

but is not limited to, civic associations, community groups, social clubs and mutual benefit alliances, including labor organizations.

Net result, if it should ever come to pass, a major impact on union organizing campaigns as traditionally run.

Still, the "could" in the headline deserves heavy emphasis. Before this bill allows the first employee to skip a scheduled meeting, it must be signed into law by Oregon's Gov. Ted Kulongoski. According to an AFL-CIO website, at least before its final passage, the Governor had said he would sign the bill. Oregon Bill Bans Mandatory Meetings.

The second big hurdle is the anticipated litigation that this statute is pre-empted by the National Labor Relations Act and/or that it is unconstitutional. My guess is both arguments are formidable, but it will take some time for them to play out.

Although it is not generally expressed in exactly these terms, for purposes of labor and employment law in America the fundamental principle is that "jobs" have belonged to the employer. This Oregon statute may only be a "left coast" thing, or it could be a sign that we may are approaching a major shift from "jobs" belonging to the employer, to "jobs" belonging to those who hold them.

Whether you think that is a good thing or a bad thing, it should not be overlooked that such change would be of epic proportion.

Labels: traditional

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Thursday, June 18, 2009

Supreme Court Says No Mixed Motive for Age Cases

Posted 4:38 PM by Michael Fox

One of the more anticipated decisions of this Supreme Court was going to answer under what circumstances a mixed-motive decision would be appropriate. Since the whole procedural law of mixed-motive cases seems muddled, help from the Supremes on any aspect was eagerly anticipated.

But today in Gross v. FBL Financial Services (S.Ct 6/18/09)[pdf] the Supreme Court took a pass on that specific question, and instead answered the question it (well at least the 5 in the majority) really wanted to answer:

Can you ever have a mixed-motive instruction under the ADEA?

Since the answer was no, the question the rest of us were waiting for, under what circumstances do you get one, remains an open question, at least for Title VII cases.

The reason the 5-4 opinion went the way it did, with Justice Thomas writing it, has to do with differences between the ADEA and Title VII, in particular on the issue of the burden of persuasion.

Even worse, the majority teased us with the idea that perhaps the Supreme Court might if it had it to do over again jettison the mixed motive idea, since it has been so difficult for the courts to implement. (Unfortunately, that idea seems likely foreclosed by the Congressional amendments to Title VII discussed in Justice Thomas' opinion.)

Workplace Prof's first look, thinks it could also impact ADA cases. More detailed analysis will be forthcoming from many I am sure.

My first take -- its an important decision, for now. However, since it is based on a question of statutory interpretation, stay tuned for the Jack Gross Mixed-Motive for Old Folks Bill coming to a Congress near you soon.

Labels: age

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Thursday, June 11, 2009

Texas Employers Unemployment Rate Headed Up

Posted 9:46 AM by Michael Fox

Hardly a surprise I suppose, but Tom Pauken, Chairman of the Texas Workforce Commission which handles unemployment claims in Texas, has confirmed that employers should be prepared for a substantial rise in their unemployment tax rate.

According to a story in today's Dallas Morning News:

Pauken said that though things could still change, it's probable that the commission next year will need to raise an amount from employers comparable to the amount raised in 2003 – or 2.4 percent of all taxable wages.

See, Employers' unemployment insurance taxes likely to rise, workforce commission chairman says.

No doubt employers in other states will be in a similar, unhappy, situation.

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Monday, June 08, 2009

Arbitration Fairness Act is a Trio, Not a Duo

Posted 3:44 PM by Michael Fox

A reader of my post last week, Arbitration Fairness Act - A Fatal Linkage for Employers, would be forgiven for not understanding that there is a third interest group other than employment and consumer transactions in which arbitration would be banned if the bill passes.

That ban would be for pre-dispute arbitration in franchise agreements. And as you might guess, there are differences of opinion in that industry as well, see Franchisors, Franchisees at Odds Over Arbitration Fairness Act, a story at a franchising specific blog, blue maumau.

According to the author, Lionel Hutz:

The International Franchise Association opposes this bill. Franchisee groups such as the American Association of Franchisees and Dealers, the Coalition of Franchisee Associations and Dunkin’ Donuts Independent Franchise Owners supports it.

The franchise part of the bill may impact the fewest people of the three areas in which pre-dispute arbitration agreements would be banned, but it may also be the group where feelings are the deepest.

My guess is that employers who want to keep the ability to mandate agreement to arbitration for disputes as a condition of employment, ought to distance themselves from that aspect of the bill as well and should push for separate treatment. Even then, it will be an uphill fight.

Labels: arbitration

Comments:

That's gotta be a pseudonym -- Lionel Hutz is the name of the lawyer on "The Simpsons."

# posted by  Anonymous : 11:47 AM

 

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All Politics is Local - the EFCA Ramifications

Posted 9:38 AM by Michael Fox

Speaking to a labor rally before an important speech to the Pennsylvania State Democratic Committee, Senator Specter said he knew that if you want to be elected in Pennsylvania, you have to come to labor.

And then there was this exchange on EFCA:

"You want our vote? We want yours," shouted retired iron worker John Heinlein. That started a bit of give-and-take with the senator.

"I understand your job is on the line and I understand my job is on the line...I think you will be satisfied with my vote on this issue," Mr. Specter responded."

Specter "proud to be a Democrat," he tells party conclave here .

Following Specter's conversion there has been little doubt where he would end up on any EFCA compromise, but the Post-Gazette article makes clear why.

Still Pennsylvania is not Arkansas, Nebraska, Colorado, Louisiana or Maine. And it might well be those states 'local politics' that ultimately determine the fate of some form of EFCA.

Labels: political

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Friday, June 05, 2009

5th Circuit Reverses MSJ in Chronic Fatigue Syndrome Case

Posted 12:30 PM by Michael Fox

In a lengthy opinion, the 5th Circuit today reversed summary judgment for the employer where the district court found plaintiff's chronic fatigue syndrome was not a disability under the ADA. EEOC v. Chevron (5th Cir. 6/5/09) [pdf].

The Court also reversed the alternative holding that plaintiff's completion of the medical questionnaire without mentioning her previous diagnosis of CFS 15 years earlier justified her termination.

Although this was not based on the new amendments to the ADA, my guess is that it is a harbinger of things to come -- fewer summary judgments in ADA cases.

Labels: ADA

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Arbitration Fairness Act - A Fatal Linkage for Employers

Posted 10:40 AM by Michael Fox

The Arbitration Fairness Act would eliminate pre-dispute arbitration agreements in consumer, franchise and employee matters. I have long argued that because everyone (including me) does not like them snuck into the fine print of consumer agreements that employers were going to be in trouble unless they could break the linkage between employment and consumer agreements.

I never really had a good short rationale as to why there was a major difference, although clearly there is. Fortunately, the true distinction is highlighted in an article by Richard M. Alderman of the University of Houston Law Center, Why We Really Need the Arbitration Fairness Act: It's All About Separation of Powers. Here's the abstract of Professor Alderman's article:

Congress is currently considering the Arbitration Fairness Act, which prohibits pre-dispute mandatory arbitration clauses in consumer contracts. This article reviews the use of consumer arbitration to demonstrate that in consumer cases arbitration is used to eliminate consumer disputes, not to provide an efficient alternative forum. More importantly, it is suggested that the widespread, in fact near universal, use of consumer arbitration conflicts with the core American belief in separation of powers. Through arbitration, business can effectively divorce itself from the civil justice system, eliminating the judicial branch from consumer disputes. The only way to reverse this dangerous trend is through the prohibition contained in the Arbitration Fairness Act.

I emphasized the sentence that points out the key difference between consumer agreements and employment situations. Whatever you might say about mandatory arbitration of employment disputes, it is not fair to say that they are designed to prevent claims from being heard.

I personally have handled more than twenty-five such matters which went all the way to hearing, and although the percentage of arbitration cases that go to hearing as opposed to lawsuits that goes to trial, is considerably higher, I have handled a lot more claims that were in arbitration that were resolved somewhere along the way before going to hearing.

I think that is an important distinction between the two, and a good rationale for why they should be treated differently. For those employers who have arbitration programs, it is time to act and start making this distinction and others to your legislators. My view is that is the only way employment arbitration is going to survive.

Labels: arbitration

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Thursday, June 04, 2009

EFCA - The Dangers of Reporting

Posted 9:15 AM by Michael Fox

I, like many noticed a story that was circulating yesterday from a California radio station that Senator Feinstein D-CA had made major news in a meeting with Santa Clarita Chamber of Commerce members by announcing that she would not support EFCA in any form. For anyone following the story, that sounded suspect and it didn't take long for the "breaking news" to be squelched.

Fairly effectively in this report from Firedoglake, “Feinstein Bailing on EFCA” or “Reporter Punk’d By Chamber of Commerce”?, which includes an update with the following:

Speaking on background, a confidant of the senator went a bit further. "This must be [Shaffery's] first rodeo because the story hasn't changed much. It has been the same: She is looking for a compromise. And anyone who says otherwise is engaging in some wishful thinking."

Clearly efforts to compromise are being made. That they continue to be talked about makes me believe that organized labor is at least still debating whether to accept a compromised version of EFCA or take an all or nothing approach for the current bill. Doing the latter would delay any bill until 2011 and be dependent on not only gains in the Senate in 2010 elections, but also a change of heart on the part of a number of current Democrats who are not too keen on certain provisions.

Just to reiterate there are three key components to the bill. Here's my current view on where things stand:

• Card check as proposed in the original bill is gone. Although consensus has not been reached on exactly what will replace it, there are lots of ideas being floated. My guess is that some sort of agreement that will pass muster can be reached, probably some form of expedited election and additional access for union organizers;
• Binding arbitration to ensure an initial contract, in my view by far the most dangerous portion of the proposed EFCA, is still up in the air and could prove to be the deal breaker;
• Increased penalties for violations of the NLRA has not got a lot of attention yet. I think that is because most agree some change is necessary and there is an assumption that if a deal can be reached on the two other issues, this one can be resolved as well.
• Although possible, it seems fairly unlikely that anything could be passed until Al Franken is seated, but that seems to getting closer in time.
  

If organized labor is willing to take less than the original bill, and it seems to me that is the case, then this summer is, or at least should be, going to be a period of heightened vigilance for the employer community, regardless of what you may read about the various 'opponents' of the bill.

Labels: political

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