Thursday, December 22, 2011
One Prediction That Had Some Legs
Posted
4:22 PM
by Michael Fox
Now a few days before year's end the 5th Circuit decides Vaughan v. Woodforest Bank (5th Cir. 12/21/11). Ms. Vaughan, a white bank manager who managed a work force that was almost all black was terminated for what was described as "inappropriate comments in the presence of employees and customers that created a perception of racial discrimination and uncomfortable environment due to lack confidentiality."more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race.
The Court reversing a summary judgment in favor of the employer discussed the three comments that were said to underlie this conclusion. Without really saying so, the Court seemed to be saying that the comments did not seem to them to set a racial tone. Although its unclear how much it influenced the decision, it did note that the manager who made the decision to terminate Vaughan had a view that any discussions of race were problematic: "we cannot talk about race in the workplace" and "if you talk about race in the workplace it's racial discrimination."
Probably pushing my luck, but I sense that this particular type of case may have more than a one year run.
Labels: discrimination
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Tuesday, December 20, 2011
Why Employers Don't Like Statutes Creating Causes of Action
Posted
12:56 PM
by Michael Fox
If you accept my basic premise, when a a lawsuit has been filed, the employer has lost, and from that point on, the only question is how much, then that argument makes sense. The issue is finding the balance, and I would argue that we have plenty of such legislation and could have a "holiday" to use a phrase currently in the political discussion from any additional new statutory causes of action. Particularly since causes of action never go away.
What brought about this particular post was a decision last week by the 7th Circuit which is a true head scratcher, DeGuelle v. Camilli (7th Cir. 12/15/11) [pdf].
Among other things you had a
- A Sarbanes Oxley complaint filed against a privately held company, so there was no coverage;
- A RICO action predicated on the actions related to tax accounting that the terminated employee had been raising for years, and where
- the Court relied on the provision in SOX that prohibits termination of a whistleblowing employee, because it is a listed statute for a predicate act for RICO purposes.
Because it is a review of summary judgment in favor of the employer, which was reversed, the Court had to accept all the allegations as true, and by doing so you have to assume egregious conduct including intentional tax violations and cover up.
But what is also true is that the employer had already sued the employee in state court for disclosing confidential information and obtained a judgement of $50,000 against him. To be fair, that is on appeal.
I obviously have no knowledge of who is right and who is wrong, but I do know that we have created in a relatively short period of time a very complex web of legal arguments for employees who are fired to say their termination was illegal. This decision points out how such statutes interact to create even more ways.
Whether that is good or bad is a legitimate question, but we really are reaching the point where a weighing of the good and bad is in order. Not just an automatic more is better.
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Friday, December 16, 2011
The 9th Circuit Does Their Part On Oracle Case, Extending California Labor Laws
Posted
5:50 PM
by Michael Fox
Basically, what happened is that Colorado based trainers who work for California based Oracle, brought a suit claiming that they should be paid in accordance with California wage and hour laws for the days they did training in California. The District Court rejected the claim. A 9th Circuit panel reversed. After a request for en banc hearing, the question was certified to the California Supreme Court. The Supreme Court basically gave the same answer the 9th Circuit had -- California law is applicable for the days the instructors worked more than a full day in California. See, Sullivan v. Oracle Corp. (Cal. S.Ct 6/30/11).
This week, the 9th Circuit completed the round trip (and engaged in a little mutual back patting), allowing as how, just like they did in their original opinion, the California Supreme Court got it right. They threw out some constitutional arguments on the part of Oracle and remanded the case for further proceedings. Sullivan v. Oracle Corp. (12/13/11).
How much training did they do? Not all that much. One plaintiff did 150 days in Colorado, 32 in California and 52 days in other states. The next year, 150 in Colorado, 12 days in California and 20 days in other states and the third year of the period, 150 in Colorado, 30 days in California and at least 19 days in other states. The other two plaintiffs had even less time in California.
The only thing that prevents this decison from being a total disaster is the following paragraph:
The contacts creating California interests are clearly sufficient to permit the application of California’s Labor Code in this case. The employer, Oracle, has its headquarters and principal place of business in California; the decision to classify Plaintiffs as teachers and to deny them overtime pay was made in California; and the work in question was performed in California.Which keeps alive an argument that the case is only applicable to California based employers, although I am sure that cases are already in the works to challenge that aspect of the case.
Ultimately, I think this is an issue that the Supreme Court has to take up. From my prior experience there is precious little law on how we deal with state laws on "traveling" employees.
Talk about an impact on commerce.
Hopefully I am wrong, but I would not be surprised if this were one of the hot new things in 2012. And after enough are filed, maybe we will start to get some answers. Hopefully better ones than this weeks ruling.
Labels: FLSA
Comments:
Over 20 years ago my company, Woolworth, which had POB's in all 50 states, was faced with a claim that an employee, based in Colorado, whose duties took her to 5 states, none of which was CA, had a duty to deduct CA income tax because her named appeared on a payroll in the regional office, based in Burlingame. I told them no way, and said if they wished to pursue that asinine claim, we'd defend it. They folded. Today, I'm not so sure they would. CA's broke and clutching at straws.
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# posted by 
: 12:35 AM
: 12:35 AMMonday, October 31, 2011
The Law of Unintended Consequences: Immigration and E-Verify
Posted
2:15 PM
by Michael Fox
The story of one flower grower's attempt to utilize E-Verify, the national registration system that allows an employer to check on worker's eligibility (after they are hired) has made it very difficult to staff his green houses, particularly during the spring growing season. Even accounting for some hyperbole his quote is fairly chilling: "Those who want to work fail to pass E-Verify, and those that pass fail to work."
The system, now utilized by about 5% of America's employers according to the article, would be mandatory if a bill, H.R. 2885 introduced by Representative Lamar Smith (actually my congressman) were to become law. If you want to check out the E-Verify website for yourself, go here.
The bill has been passed by the House Judiciary Committee, and is still pending in the House Education and the Workforce and Ways and Means. See here for Congressional action.
The stop in Ways and Means is not just an idle one, since according to a 2008 Congressional Budget report, a national mandate would cut federal tax revenue by more than 17 billion dollars (that's billion with a B).
Everyone knows that immigration is a major problem that actually needs a solution. And it seems to me to be area where the law of unintended consequences could be particularly relevant.
A hat tip to Kriss Dunn at [the hr capitalist] for his post, 99 Problems: E-Verify Ain't One ...
Labels: immigration
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Friday, October 21, 2011
Missed This New Jersey MDV the First Time Around
Posted
10:18 AM
by Michael Fox
A city prosecutor, Michele D'Onofrio won a verdict of $1.38 earlier this year when a New Jersey jury determined she had been terminated for reporting that a municipal judge had been drunk on the bench. Today's headline was about an additional $1.26 million awarded by the court for attorneys fees and costs.
Another powerful reminder that when you lose an employment law trial, at times the attorneys fees can be just as big a hit as the underlying award.
A 2007 post at the Victim of (Judicial) Greed blog, Heating Up has much more detail about the underlying suit which appears to have been against a law firm headed by a former New Jersey governor and was for sexual harassment as well as the whistleblowing complaint.
Which underscores another point, there is often much, much more to any story than appears on the initial reading, and that is particularly true in most cases of legal reporting.
Labels: MDV
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Friday, October 07, 2011
A Timely Follow Up -- The Importance of Action Not Words
Posted
5:44 PM
by Michael Fox
The first part of that title is a big step for employer's solving the bullying problem; but it only works, it you follow through.
Labels: bullying, HR general
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Giving Aid to the Enemy: The Healthy Workplace Act Explained
Posted
12:04 PM
by Michael Fox
I concur -- it is an excellent slideshow. And if you have any interest in the issue (or just want to see a very impressive presentation) I encourage you to check it out.
Recommending that you check it out, could seem strange given my repeated opposition to the passage of the HWB. And to be clear, the "enemy" referred to in my headline is not really accurate. Bullying behavior is wrong and should be addressed and with that I am in common cause with David and the other supporters of the HWB.
Our difference, and it is a substantial one, is how best to get there. I do not believe the legal system, the HWB's preferred method, is capable of making the types of nuanced distinctions required to enforce the HWB.
As Exhibit A, I offer the presentation. When you check it out, pay careful attention to the types of behavior that can be called "bullying":
- false accusations
- yelling, shouting, screaming
- exclusion and "the silent treatment"
- withholding resources necessary to do their jobs
- behind-the-back sabotage and defamation
- put-downs, insults, and excessively harsh criticism
- unreasonably heavy work demands
I know that the HWB attempts to put in procedural protections to ensure that a suit can't be based on "just a bad day at the office," but as someone who is in the trenches where those battles are fought, I know it will not work. (Let me rephrase that, it could work, but at a tremendously prohibitive cost in both judicial and employer resouces. Lawyers, however, would benefit tremendously.)
Relying on trial courts to be effective gatekeepers on this issue is simply a flawed strategy. First, it ignores the basic principle that when an employer is sued they have lost. See my earlier post, Bullying As a Cause of Action: One Large Step Closer. Given the HWB to work with, any lawyer who could not craft a viable complaint on what he or she is told by any employee who is unhappy with their workplace, should turn in their bar card. Remember the standard for chucking it out at that stage, which would still cost the employer the cost of retaining counsel and making an initial pleading, generally requires the court to accept as true anything that is alleged in the complaint.
Secondly, it has not worked even when there was a much higher bar. In Texas, the Supreme Court has repeatedly lamented the failure of lower courts to serve in the gatekeeper function in cases of intentional infliction of emotional distress, where the standard is:
only where the conduct has been so outrageous in character, and so extreme in degree, so as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts, Section 46 cmt. d (1965).If the trial courts can't screen out cases where the test is "outrageous conduct" we can't possibly expect them to do so where they are being asked to make subtle distinctions involving the kinds of conduct listed above. In fact, it would require what courts from the Supreme Court on down have frequently insisted they are not interested (or capable) of being, "super personnel departments" as the 1st Circuit described it.
The key to regulating inappropriate conduct lies in employer action. And in the presentation, there is a section on how such conduct is harmful to business. That is the case that needs to be made.
Let's just make it in the C-Suite, not the courthouse.
Labels: bullying
Comments:
If workplace bullying is not made illegal, how do you give incentive to employers to change their rules? Your argument isn't clear as to how the bill would be impractical. Or perhaps it simply needs to be communicated in laymen's terms instead of legal. Either way, it's more productive to complain about something when you offer a better alternative.
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# posted by : 10:28 PM
: 10:28 PMTuesday, October 04, 2011
Disparate Impact and the Non-Traditional Plaintiff
Posted
3:47 PM
by Michael Fox
Throughout the year I have noted other cases. And now Molly DiBianca who is always on top of things at the Delaware Employment Law Blog has picked up yet another case recently decided by the 3rd Circuit, Disparate Impact of Newark, NJ’s Residency Requirement .
In Meditz v. City of Newark, (9.28.11) [pdf] a white male analyst job applicant was rejected by the City of Newark because he did not live within the city limits. The Court summarized the case in perfect disparate impact terms:
Meditz alleges that the residency requirement adopted by Newark for its non-uniformed work force has a disparate impact on white, non-Hispanics because Newark‟s population does not reflect the racial make-up of the relevant labor market in the surrounding area. As a result, white, non-Hispanics are under-represented in Newark‟s non-uniformed work force.Although there were a number of statistical comparisons, one was between the City of Newark and Essex County, the county had 42.96 % white, non-Hispanic employees in the non-uniformed ranks compared to Newark's 9.24%.
The decision has a good discussion not only about the statistical basis for finding disparate impact, but how to determine the relevant job market and the correct standard for the business necessity defense.
About the only thing that this case does not stand for is that lawyers are being more receptive to bringing claims on behalf of non-minority plaintiffs. Mr. Meditz represented himself, including at oral argument.
Labels: discrimination
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Maybe Not So Ho Hum at the Supreme Court: FLSA and Wal-Mart v. Dukes
Posted
10:35 AM
by Michael Fox
10-1202 CHINESE DAILY NEWS, INC. V. WANG, LYNN, ET AL.The use of Wal-Mart Stores, Inc. v. Dukes in an FLSA case is a key link for those who are advocating for greater control by the courts of FLSA collective actions. Unfortunately, as the 9th Circuit opinion shows, while the case is an FLSA case it is also a Rule 23 case on the state law claims. So, the linkage is not as definitive as one would like.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011). Justice Breyer took no part in the consideration or decision of this petition.
And according to the Employment Law 360 story ($) Citing Dukes, Supreme Court Vacates $7.7M FLSA Award, which tipped me off to the case, the argument that got the Supreme Court's attention was in fact the 9-0 portion of Wal-Mart v. Dukes:
In its petition, the Chinese Daily News leaned heavily on the decision, in which the Supreme Court unanimously ruled that claims for injunctions or declaratory rulings in class actions typically don’t allow for monetary payments.For a more aggressive attempt to use the Dukes decision in a pure FLSA context check out the mandamus action recently filed in the 6th Circuit, In Re HCR ManorCare ($). The employer which had been ordered to send notice under the two-step Lusardi standard had challenged the court's continued use of such standard in light of Dukes. Unfortunately, last week, the Court denied the petition.
However, if (like me) you are looking for glimmers of hope, the Court did note "Moreover, “because mandamus is a discretionary remedy, a Court may decline to issue the writ if it finds that it would not be ‘appropriate under the circumstances’ even if the petitioner has shown he is ‘clear[ly ] and indisputabl[y]’ entitled to it.”
To be fair, the Court did not find that the employer was entitled to the writ. However, with these cases and others, it does appear that small chinks in what heretofore has been a fairly impermeable wall protecting easy passage to conditional certification for FLSA collective actions are beginning to occur.
Although it would be disruptive to the financial income of lawyers who practice on both sides of the FLSA docket, I can't think of a single trend in employment law that could be more important.
Labels: FLSA
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Sunday, October 02, 2011
First Monday in October - Ho Hum for L&E Types
Posted
5:52 PM
by Michael Fox
In fact, at least according to one of the Justices the Court does not have many exciting civil cases in general for a somewhat surprising reason, Justice Kennedy says fewer “big civil cases” on Supreme Court’s docket due to arbitration.
It's not as if there are none and as always, the SCOTUS Blog is great source of information. The current cases with a labor and employment flavor include:
- 10-553 Hosanna-Tabor Church v. EEOC. Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.
This is actually set for argument in the first week of the Court's term and is a private sector case. As a general rule the lower courts have interpreted the ministerial exception to Title VII broadly, and I would anticipate the same by the Supreme Court.
Update: Although I doubt that it has little relevance to the decision, I was struck by this article, Red Mass Marks Start of Supreme Court Session from today's New York Times discussing The Red Mass, at least the Supreme Court style which is held on the 1st Sunday in October at St. Matthews Cathedral in D.C. This Court now consists of six Catholics, three Jewish members and no Protestants. - 10-1016 Daniel v. Maryland Court of Appeals. Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.
- 10-1121 Knox v. SEIU. (1) May a state, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction? (2) May a state, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures.
10-1062 Sackett v. EPA. (1) Whether petitioners may seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 §704; and (2) whether, if not, petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violates their rights under the Due Process Clause?
Although I have not compared the statutes I can see some parallels to whistle blower statutes, e.g. Sarbanes Oxley, which allow for pre-hearing reinstatement during the pendency of the case.
Probably more important are potential cases where cert is pending that could be accepted.
- 10-1546 Carder v. Continental Airlines. Whether the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provide service members a cause of action when their civilian workplace is sufficiently poisoned with harassment based upon military status so as to alter conditions of their employment.
The 5th Circuit decision held as a case of first impression that there was no cause of action. (The matter was handled by Jeff Londa and Flynn Flesher of the Houston office of Ogletree Deakins.)
Update 10.3.11: The Court has denied cert in today's Order List. - 10-1163 Opp v. Office of the State's Attorney of Cooke County. For purposes of the Age Discrimination in Employment Act, who is a worker “at the policy making level”?
Update 10.3.11: The Court has denied cert in today's Order List. - 11-204 Christoper v. SmithKline Beacham Corp. (1) Whether deference is owed to the Secretary of Labor's interpretation of the Fair Labor Standards Act's outside sales exemption and related regulations; and (2) whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives.
On a personal note, I can never note the opening of the Court's new term without remembering fondly one of my former partners, Bob Mebus, who always used the occasion to change to his fall wardrobe. (In Texas a somewhat arbitrary line I can assure you.) Although Bob, who was one of the great traditional labor lawyers in Texas is now retired, I would be surprised if he does not still mark the occasion.
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Thursday, September 29, 2011
Workplace Violence Gains Formal OSHA Investigation Procedures
Posted
10:49 AM
by Michael Fox
Two industry groups get singled out for particular focus:
Healthcare and Social Service Settings
This category covers a broad spectrum of workers who provide healthcare and social services in psychiatric facilities, hospital emergency departments, community mental health clinics, drug abuse treatment clinics, pharmacies, community-care facilities, residential facilities and long-term care facilities. Workers in these fields include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses, healthcare workers, social and welfare workers, security personnel, maintenance personnel and emergency medical care personnel.
Late-Night Retail Settings
This includes entities such as convenience stores, liquor stores and gas stations. Factors that put late-night retail employees at risk include the exchange of money, twenty-four hour operation, solo work, isolated worksites, the sale of alcohol and poorly-lit stores and parking areas.In determining whether to conduct an investigation, OSHA personnel are to take into consideration known risk factors as identified by NIOSH; whether it is in one of the high risk industries identified by OSHA (see above) and whether feasible abatement methods exist to address the hazard(s).
There is no specific violence in the workplace standard, but there is the general duty clause, and the Directive mentions some other standards that might come into play:
- 29 CFR 1904 Recording and Reporting Occupational Injuries and Illnesses.
- 29 CFR 1910.151 Medical Services and First Aid.
- 29 CFR 1926.23 First Aid and Medical Attention
- 29 CFR 1926.35 Employee Emergency Action Plans
Labels: HR general, safety
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Wednesday, September 28, 2011
ADA Cases Are No Longer Unwelcome in Plaintiff Counsel's Offices
Posted
12:48 PM
by Michael Fox
Based on several conversations I have had in the last few months with attorneys who regularly represent employees, the most significant aspect of that scenario was that she was not terminated two months earlier. If she had been terminated in December, 2008, before the broad amendments to the Americans with Disabilites Act became effective, she might never have been the happy beneficiary of this headline from last week's WCF Courier, Former UIU employee awarded $1.1M by civil jury.
Many of those attorneys I have talked with said while they formerly turned away ADA cases because they were such summary judgment targets, they were now giving them a much closer look.
Headlines and jury awards like this, will do nothing to discourage that view.
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Suit By EEOC Not Covered Under EPLI Policy
Posted
11:59 AM
by Michael Fox
Big claims, big settlement -- $2,000,000 plus another $700,000 in legal fees.
No question but that all of the allegations are clearly covered under the policy.
But the definition of covered "claim"? That was a different story. It read simple enough:
a civil, administrative or arbitration proceeding commenced by the service of a complaint or charge, which is brought by any past, present or prospective ‘employee(s).’Since the underlying case settled, the law suit was between the employer and the EPLI carrier, who argued that the claim was not covered because it was not brought by a 'past, present or prospective employee.'
You know it is no longer a simple proposition, when the Court summarizes some of the arguments in this way:
Hard to believe, but it gets even worse when the Court goes on to note that what the Employer was really referring to was the grammar principle of the "last antecedent rule."In its Response to [the Insurance Company's] Motion, [the Employer] elaborates that the use of a comma followed by the word “which” means that the qualifying phrase modifies only the subject that immediately precedes the comma – in this case, only to “complaint or charge.” [The Employer] asserts that if [the Insurance Company] intended to require that the “proceeding” be brought by an employee, the entire phrase “commenced by the service of a complaint or charge” should have been offset with commas.
But the bottom line in the trial court -- no recovery as not covered by the policy. Cracker Barrel Old Country Store, Inc. v. Cincinatti Insurance Co., 3:07-cv-00303 (M.D. TN 8/11/11). If you are the employer, that's a big ouch.
Two thoughts:
- Given the dollar amount and the result, it is likely the 6th Circuit will get to weigh in on this decision;
- In corporate risk departments right now, EPLI policies are being re-read and calls are being made to brokers making sure that suits brought by governmental entities on behalf of employees are covered.
Labels: EPLI
Comments:
Dear Mr. Fox:
A great note. Thank you. I am re-looking at coverage in all of my cases.
A great note. Thank you. I am re-looking at coverage in all of my cases.
# posted by : 1:54 PM
: 1:54 PM
Wow...thanks for the heads-up on this ruling. The summary judgment order is dated September 21, 2011 (Docket Entry 193).
Joe English
Taylor English Duma
Atlanta GA
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Joe English
Taylor English Duma
Atlanta GA
Tuesday, September 20, 2011
Federal/State Cooperation on Independent Contractor Issue
Posted
11:26 AM
by Michael Fox
For governments the bottom line is that when an individual is an employee, it gets more money and it is more easily collected, than when an individual is an independent contractor. If you are an adherent of the "follow the money" line of reasoning, that is enough to make you take notice that you should make sure that your independent contractors, really are that.
The states that have signed agreements so far (and thus states where you really should turn up your own scrutiny, rather than wait for someone else to do so) are Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington, with New York and Illinois lurking in the wings.
Labels: HR general
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Wednesday, September 14, 2011
Fact Checking Me -- Congressional Rollbacks of Pro-employee Legislation
Posted
5:56 PM
by Michael Fox
We have been doing this several years now (I can't quite remember how it started, but I think it had to do with too much wine at some speaker's dinner.) In several of these presentations I have said, and will probably do so tomorrow unless someone saves me from error by fact checking me, that I am not aware of a time since the Portal to Portal Act of 1947, when Congress has rolled back or taken away any pro-employee legislation that it has passed.
Can any one think of anything to the contrary?
Comments:
Hmmmm. How about 2004 white collar regs that expressly permitted certain suspensions without pay of exempt employees?
in the 16 years following the 1938
enactment of the FLSA, the Department of Labor (DOL) established the key
regulatory tests defining whether an employee can be classified as an
exempt white-collar worker.
Doreen Boxer - Top Public Defender
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enactment of the FLSA, the Department of Labor (DOL) established the key
regulatory tests defining whether an employee can be classified as an
exempt white-collar worker.
Doreen Boxer - Top Public Defender
Bullying Litigation -- Not in the Workplace Yet
Posted
5:13 PM
by Michael Fox
Fortunately, the article is confined to bullying litigation (and the underlying legislation which gives rise to that litigation) in educational institutions.
But in case you didn't catch my earlier post about the camel's nose in the tent strategy for those who seek to legislate against such behavior in the workplace check out Anti-bullying Legislation for Schools, An Inevitable Tie.
Labels: bullying
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Tuesday, September 13, 2011
Coming to a Bulletin Board Near You on November 14th, Or Maybe Not ...
Posted
6:06 PM
by Michael Fox
All true, true, and true. In fact my very first 5th Circuit argument was just such a case, NLRB v. Datapoint (5th Cir. 1981).
But unless a suit filed by the NAM, or some other similar action is successful, this November 4th, this poster, in its final formatted version that was published by the NLRB today will grace the bulletin board of every employer covered by the NLRA regardless of whether or not they currently have a union, as of November 14th.
This was the result of rule making on the part of the Board, a technique rarely used in the past.
In addition to a list of things that are illegal for either an employer or a union to do, the poster provides the following information:
Under the NLRA, you have the right to:One view of postings is that they are much like the warning on the side of a lawnmower that you should not stick your hands into the blades, they are so ubiquitous that no one pays any attention.
• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.
But one never knows, although it may well be that we will soon find out.
A hat tip to Jeffrey Hirsch at Workplace Prof Blog, who was the first to call to my attention that the final version, in his words, "suitable for framing" was now released, although he gives his own hat tip and cautionary warning.
Update: Thanks to Russell Samson at the Dickinson Law Firm in Des Moines for catching that I was trying to force posting 10 days earlier than required. The effective date of the new rules which require the posting is 75 days after they were released or November 14, 2011. The Board's equivalent of an FAQ on the new posting requirement (which confirms the correct date) is here.
Labels: traditional
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Tuesday, September 06, 2011
Labor Day, A Day After - Should We Put This To A Vote?
Posted
1:17 PM
by Michael Fox
It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.
And if we wanted a second proposition to vote on, does the following stand up?
I think the answer is self-evident. The chances of passage of either is nil.The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.
Still they do currently reflect what is the stated policy of the United States as contained in the existing National Labor Relations Act.
I hate to add to the burdens of our already strained political system, which quite frankly does not look as if it can solve any of its too many pressing problems, but at some point, we need to come to a concensus on what we want our labor policy to be.
For too long now, the political attention paid to the NLRB has been one of neglect and acceptance of the fact that with each political turn we should anticipate the wholesale reversal of "established" law. That has happened with the Obama Board, as it happened with the Bush Boards, as it happened with the Clinton Board etc.
When you can't agree on what the policy should be, it is ludicrous to think that the current one is apt to be successfully implemented.
Regrettably, I think that is something all should be able to agree on.
Labels: traditional
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Wednesday, August 31, 2011
More Things I Have Learned Recently: Virtual Polygraphy
Posted
5:45 PM
by Michael Fox
The term was taken from Michael Schrage's article on the Harvard Business Review Blog network (something else I learned about), The Future of Lie Detection in the Workplace.
Because Schrage is a research fellow at MIT, some of what he says is even too much jargon for me:
but I think I get the general idea.But the real revolution emerging is not the greater transparency of a LinkedIn here and the statistical significance of a "lie detection" algorithm there; it's their linkage, fusion and aggregation. Verification is becoming multimodal. Multimodal verification assures greater personal veracity. In other words, networking these technologies creates a rising deterrent to dishonesty. The odds dramatically increase that deceivers will be tripped up by their misrepresentations and mannerisms.
More importantly, I think the bigger point is that it seems as if more and more of our fellow Americans are willing to bend the truth on things big as well as small.
Whether or not we can develop technology to cope with it is an interesting question, but the reasons why more people are willing to not tell the truth, if in fact that is correct, is an even more important question, one that causes for more soul searching.
Which reminds me that on my summer reading list was James B. Stewart's, Tangled Webs: How False Statements are Undermining America: From Martha Stewart to Bernie Madoff.
Not much time left in the summer.
Comments:
The effectiveness of virtual polygraphy depends on the intelligence of the individual moreso than their honesty. In preparation for a life of dishonesty, it is very simple to lie all over the virtual world if you're smart. It is the liar who didn't think this thru that will get snagged by virtual polygraphy.
Yes, the bigger issue is why people feel free to be dishonest. You know, Facebook almost trains people to present themselves as they would like, not as they necessarily are. It's like liars' school. Scary.
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Yes, the bigger issue is why people feel free to be dishonest. You know, Facebook almost trains people to present themselves as they would like, not as they necessarily are. It's like liars' school. Scary.
Tuesday, August 30, 2011
Blogging As a Habit, Or Not
Posted
12:41 PM
by Michael Fox
This summer what I have learned is that just as with many other things, posting is a habit. For a long time, I posted with great regularity, but this summer I most definitely have not. In fact, to quote my friend and Canadian counterpart, Michael Fitzgibbons who has been at this almost as long as me, "I just can't believe it's been nearly 2 months since I wrote my last post.... the longest gap in 8 years."
Modify the time frames slightly and it works for me as well.
Michael of course is growing his new law firm which is a better excuse than I have. I have been busy with my regular law practice, working on some special projects for my firm and spending way too much time griping about the hottest summer in Austin's history.
But most of all what I have learned is that if I don't post regularly, like any other good habit, it doesn't take long before posting slips out of the conscious mind.
Mea culpa.
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Monday, July 11, 2011
Making Government a Little Less Bothersome - Here May Be an Opportunity
Posted
1:59 PM
by Michael Fox
Not too surprisingly in today's atmosphere, almost no one was pleased -- one group saying it was at best only a small step and their polar opposites arguing it was a step in the wrong direction and at best was taking resources away from more important regulatory action. See the Huffington post article for the comments, Obama Regulatory Review Announcement Finds Few Fans.
(Or if you actually care to see exactly what Mr. Sunstein said, here's a link to his prepared remarks.)
What brought this to mind was the BNA DLR ($) story this morning about a May 31st informal opinion letter from the EEOC dealing with confidential data from both an ADA and GINA perspective. The conclusion:
I didn't read the opinion letter close enough to know whether I agree with its conclusion. Nor do I know enough to say that there is a substantial benefit to keeping both personal and occupational health information in a single electronical medical record, although intuitively it sounds as if there would be. But assuming the letter is right, and that having one EMR is both a cheaper and more satisfactory alternative than having to keep them separate, this would seem exactly the sort of undertaking that I would hope governmental agencies are looking at.maintaining personal health information and occupational health information in a single Electronic Medical Record, particularly one that allows someone with access to the EMR to view any information contained therein, presents a real possibility that the ADA, GINA, or both will be violated.
Although the individual cost might not be all that great, the collective costs to all employers could be substantial, and there is also something appealing about thinking that government was in fact thinking of how things could work better for everyone, but in a way that protects interests of both employers and employees.
It might take some revising of regulations, or perhaps even some statutory adjustments, but it would be nice to think rather than just advice to keep them separate, there is even now within the EEOC some one following up to see if there might not just be a better way.
Hopefully, if there is, they will let us know.
Labels: EEOC
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Tuesday, July 05, 2011
A Reminder to Trial Lawyers -- As If We Needed It
Posted
4:19 PM
by Michael Fox
Labels: trial
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Monday, June 20, 2011
Wal-Mart Stores, Inc. v. Duke -- A Sigh of Relief
Posted
9:33 AM
by Michael Fox
The loud sound you heard was corporate America finally relaxing.
Frankly, I don't think anyone who is serious about an orderly resolution of disputes, where all parties have a fair shot at proving their allegations or defenses, has any other feeling.
The court's opinion is here.
Update: Now that I have read the opinon, here are some more substantive thoughts.
First, an ironic and sad footnote to today's opinion. Professor Richard Nagareda achieved what I assume is something highly desired by any academician, have one of your articles play a key role in a seminal Supreme Court decision. Professor Nagareda achieved that today, as both opinions the majority by Justice Scalia and a concurrence and dissent by Justice Ginzberg cite frequently from his Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009). Unfortunately, Professor Nagareda died last October at the much too early age of 47, shortly after taking a position with Vanderbilt University School of Law.
Today's case deals with the fine points of Rule 23, which is the vehicle for creation of class versus individual trials. It was widely used in the early days of Title VII, but its use had fallen off until the last few years. In part this was tied to the Civil Rights Act of 1991 which for the first time permitted jury trials and compensatory damages. Courts generally held the compensatory damages were not suited for class actions.
In the last few years though, a new plaintiffs strategy emerged. Get a large enough class together, don't seek compensatory damages, just back pay and punitive damages, get it certified and then force the defendant to settle because of the costs of defending and the uncertainty and difficulty of trying such a large case. Wal-Mart v. Dukes was the largest of all, and frankly was a good case from an employers standpoint to end up before the Court.
Today's decision is going to severely restrict the use of class actions in discrimination cases going forward. The details will be fleshed out, but the Court unaminously made clear that cases where monetary issues, including back pay dominate (i.e. almost if they exist) then certification under Rule 23(b)(2), plaintiffs' preferred suit and the one it tried in Wal-Mart, is not appropriate. (Kudo's to the 5th Circuit, for having this position in advance.)
Much more important to Wal-Mart, and probably going forward, all of us, the 5-4 majority made it much more difficult to meet the standards for any class without a very tangible, specific job practice that it can be tied to. A standardized test with a disparate impact probably meets the standard but on first blush that seems to be about the closest bright line that we have.
The 5-4 opinion seems to pull the teeth from what I have always considered one of the more dangerous Supreme Court opinions, Watson v. Fort Worth Bank and Trust, a 1988 decision which seemed to permit a disparate impact case any time an employer's promotion practices were subjective (which was every employer) and there was a disparate impact (almost every employer).
For the short term, I think the focus will shift back to individual law suits and plaintiffs, or more aptly, the plaintiffs' bar, will regroup and decide what avenues there are left to pursue cases within a class framework.
Although this case does not deal with the Fair Labor Standards Act and the collective action it permits, which are outside the purview of Rule 23, much of what the Court said could clearly be applicable to the way such cases are now being certified and handled. I think you can start seeing Wal-Mart v. Dukes cited to district courts in FLSA cases starting today. What I will be looking for is when the district court cases start citing it back.
Here are a few of the early reports on today's decision:
- HR Lawyers Blog
- Workplace Prof Blog
- What's New in Employment Law
Labels: discrimination
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Sunday, June 05, 2011
While I Am in the Land of Aloha, the Legislature Permits Guns on Employer Parking Lots Premises
Posted
11:48 PM
by Michael Fox
But I was as wrong about that, as I was right about how great Kauai would be.
While I was playing, Russell Cawyer at Texas Employment Law Update was posting on the passage of S.B. 321, which puts Texas in company with those states which prohibit employers from barring employees who are licensed to carry weapons from having them in their locked cars in the employers parking lot. There are a couple of exceptions, but they are not going to pick up many employers. Like other states, there is indemnity protection for the employer, although there is that troublesome exception for "gross negligence."
I am not a fan of these laws, although I can't say that I can post of any adverse consequences that have occurred in other states. Hopefully, I won't have occasion to update this post in the future with such a report.
Aloha.
Labels: HR
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Thursday, May 26, 2011
Arizona Immigration Law Valid According to Divided Supreme Court
Posted
11:49 AM
by Michael Fox
The nitty-gritty of the legal argument is this. When Congress passed the Immigration Reform & Control Act, it expressly pre-empted ""any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens."
It is the parenthetical phrase "(other than through licensing and similar laws)" that the Arizona legislature has driven the proverbial truck through, and now the Supreme Court has backed them up.
I will leave it to the immigration experts to talk about the impact on that particular body of law. The politico's can talk about what will happen from a political standpoint. My amateur observation is that many states, including Texas, will pass similar laws, a move will be made in Congress to roll back the savings clause, and all of these actions will be more for political purposes than for resolution of a national problem.
From a positive perspective, it is possible given that the defendant in this case was the U.S. Chamber of Commerce that this will be the spark (or explosion) that leads to serious discussions to come up with a rational national solution. (And I say to myself, and pigs may fly.)
One concern raised by the Chamber and the dissenting justices is that employers will choose not to hire Hispanic employees in order to avoid any threat of the rather severe sanctions that can be imposed on them. The majority opinion authored by Justice Roberts rejected that argument:
As a textbook statement of what the world should be like, I would not quarrel with the logic of Justice Robert's statement.The Chamber and JUSTICE BREYER assert that employers will err on the side of discrimination rather than risk the “‘business death penalty’” by “hiring unauthorized workers.” [cites omitted] That is not the choice. License termination is not an available sanction simply for “hiring unauthorized workers.” Only far more egregious violations of the law trigger that consequence. The Arizona law covers only knowing or intentional violations. The law’s permanent licensing sanctions do not come into play until a second knowing or intentional violation at the same business location, and only if the second violation occurs while the employer is still on probation for the first. These limits ensure that licensing sanctions are imposed only when an employer’s conduct fully justifies them. An employer acting in good faith need have no fear of the sanctions.
As someone who every day sees how the real world works, it could not be further from reality. Employers who have had too many instances where their proper actions have been sustained only after lengthy and expensive court processes, will be hard to convince at the sub-conscious level that this scheme does not pose potential problems for them and alter their actions accordingly.
Today's decision leaves me with two distinct thoughts about the Supreme Court, not the merits of this case.
First, I regret that we no longer look for regular practicing lawyers for the Supreme Court, but choose them from judges, government lawyers and appellate specialists. From my small niche of labor and employment law, it seems to me that the Court is far out of touch with what happens in the real world of the workplace.
Secondly, it makes me think about the political rhetoric against "judicial activism" and that "judges should not make law."
I don't think anyone seriously believes or can even say with a straight face that when Congress passed the savings clause that is the subject of this lawsuit that they were consciously deciding that states should be able to gain such a dominant place in the enforcement of the immigration laws. The situation was much different then, but no one really believes that the Congress which passed IRCA, which contains the language quoted above, made a conscious decision to endorse legislation like the Arizona statute. The fact is Congress didn't think about it in this context, nor was there probably any reason for them to do so.
That is not a criticism of the Supreme Court for doing their job. Because Congress didn't think about it in this case, and can never think of every possible situation, we have given to the courts the powers to fill in the gaps, to supply the answers where Congress gave us none. Hopefully that is done using consistent legal principles, but even doing so will rarely point to one correct answer; in this case it clearly resulted in multiple answers. The only way we know what is the "correct answer" is by counting the number of judges on each side.
Which means nothing more than that all the political rhetoric about appointing judges who will not make law, just follow it, is just political bs. Everyone wants judges who will apply the principles the way they want them applied in these situations. That's our system and that's fine.
What bothers me is politicians who either don't understand the system, or more cynically understand the system, but are not honest about it and hide behind the false statement that judges' job is not to make law, just interpret it.
I have not studied it enough to know whether I think today's decision was a legally correct one or not. What I do know is that in making it and in his opinion for the court, it would be ludicrous to say that Justice Roberts was just acting as an umpire. His job is very different, and frankly much more important, than that. In this case, Congress did not give us the clear cut answer and now the Court has.
Labels: immigration, Supreme Court
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Thursday, May 19, 2011
DOL Help for Employer On OSHA Reporting
Posted
9:25 AM
by Michael Fox
Although not as cool as an "app" the DOL's various elaws are helpful. The most recent, and what prompted today's post, is one to help an employer know if an incident is recordable under OSHA. To walk you through the regulations in a systematic form, check out theOSHA Recordkeeping Advisor.
For an employer not sophisticated in OSHA requirements, it's a good first step.
Labels: safety
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Tuesday, May 17, 2011
Legislative Override of Supreme Court
Posted
2:47 PM
by Michael Fox
Although this bill has been introduced now for several sessions, the latest is at least tied to the Supreme Court's recent decision in ATT Mobility LLC v. Concepcion which upheld an arbitration agreement that prohibited class actions. See Franken's press release from earlier today here. The bill would ban mandatory arbitration both in consumer transactions and in the workplace (with an exception for arbitration provided for by collective bargaining).
Still, having testified at the Judiciary Committee hearing in the fall of 2009 where Senator Franken challenged mandatory arbitration, I have some personal experience with how strongly he feels about this bill. Here's a link to the testimony on the arbitration issue (fortunately for me I was testifying about the Gross decision).
For supporters of arbitration, although it would seem that passage of the AFA would be out of the question in this Congress, I wouldn't necessarily turn out the lights. If, and that' certainly is a big if, the idea that arbitation is unfair in a consumer setting could touch a chord in a large number of people (and it does not seem to have done so yet) this is one that could catch momentum quickly.
Particularly since arbitration is not something that most legislators have strong feelings about one way or another. For those who think it is a good thing in employment matters, the fact that prohibiting in the employment context always gets linked to banning it in consumer transactions is not comforting.
Update (05/19/2011 ) - Although the text of the bill is not yet posted on the official Senate website, it is S.B. 987 and should be available in the next few days. From seeing a copy of the bill on BNA's Daily Labor Report, one interesting thing is that the bill has dropped the ban on arbitration in franchise agreements which was present in prior versions. Presumably, that was done to remove the objections of some. See the comment from the Defense Research Institute, which also points out that the bill contains a provision that would nullify another Supreme Court arbitration decision, Rent-A-Center West, Inc. v. Jackson, 120 S. Ct. 2772 (2010). The 2011 version of the Arbitation Fairness Act requires that decisions on the enforcibility of the arbitration agreement be made by the court, not an arbitrator.
Labels: arbitration
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Tuesday, May 10, 2011
Now an iPhone App for Wage and Hour Litigation
Posted
9:28 AM
by Michael Fox
But when the Department of Labor releases an app for iPhone, iPod and iPad with this description:
DOL-Timesheet for iPhone, iPod touch, and iPad on the iTunes App Store, it sounds blog worthy to me.... a timesheet to help employees independently track the hours they work and determine the wages they are owed. .... This new technology is significant because, instead of relying on employer's records, workers can now keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.
Technology, as employers have found with email, can be a two-edged sword. It will be interesting to see how this one plays out down the line.
A hat tip to my Indianapolis colleague, Christopher Murray, for pointing this out.
Labels: FLSA
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Wednesday, April 27, 2011
Arbitration As Protection Against Class Actions
Posted
2:05 PM
by Michael Fox
Here, it was a consumer agreement under a system that could hardly be called unfavorable to the individual, in fact the district court had found that the individual couple who were attempting to lead a class action over the purchase of a phone, were undoubtedly better off in arbitration than as members of a class action that would last several years and likely result in a nominal payment to class members. Still to be fair, it is also hard to argue with the point made by Justice Breyer in dissent that it is unlikely that many lawyers would have been interested in taking such a case on an individual basis.
On first blush, given the rage of FLSA collective actions and the desire for larger systemic class actions reflected by the Dukes v. Walmart case, every company that does not have in place a requirement that all disputes be settled by arbitration, and in that arbitration agreement, a provision that prohibits class treatment, will now be considering it again.
This is not to say that arbitration is a panacea ---the cost advantage is being lost as more and more arbitrations are proceeding just like a lawsuit that is being litigated in court, and the lack of any ability to effectively appeal the decisions is a serious danger, both of which have to be weighed against the risk of large collective or class actions. What today's decision permits is a re-calculating those odds with more certainty that you can accomplish the aim of defusing collective/class action liability if you are willing to pay the price of accepting the downsides or arbitration in individual cases.
Everyone has and continues to wait with concern the Court's decision in Dukes v. Walmart, which offers the Court an opportunity to put parameters on broad scale class litigation if it wishes. It might be argued that today's decision augurs well for the employer community on how that case may turn out. Many employers may well wait until July when that shoe drops to do the recalculation between barring class/collective actions via arbitration or continuing to take their chances in the court system. Assuming the Court decides that case fully, it should at a minimum give even more certainty when making that calculation.
Besides companies engaging in that rebalancing, the other thing that is likely to happen is renewed talk about passage of the Arbitration Fairness Act, which would ban pre-dispute arbitration agreements between employers and employees (and also with consumers and in franchise agreements.) It seems unlikely that bill will pass during this Congress, but the there will surely be more discussion.
If the American Arbitration Association were a traded stock today, its price would be soaring.
Labels: arbitration, Supreme Court
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Monday, March 28, 2011
Arbitration (Awards) Not Necessarily Private in Texas
Posted
10:53 AM
by Michael Fox
If you are not aware of the several excellent publications Ross has, you should be. This one was in his Arbitration Law Memo March 2011.
The case turned on an application of Rule 76a of the TRCP which deals with the sealing of records. Since one of the benefits of arbitration is privacy, this is an interesting twist.
The case was only decided a couple of weeks ago, so it is possible that this is not the last word as the full Dallas Court of Appeals might be asked to reconsider, or even the Texas Supreme Court.
Since the Texas Rules of Civil Procedure, including the sealing of documents, are promulgated by the Supreme Court and that Court, through its decisions has been a strong proponent for arbitration , it poses an interesting policy issue for them.
It could be addressed through a case like this one, or addressed through the rule making process. However, it is addressed it does seem worthy of serious focused review between two worthy goals, alternative dispute resolution and the open court proceedings.
Labels: arbitration
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Tuesday, March 01, 2011
With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly
Posted
12:25 PM
by Michael Fox
Nothing is rarely as bad as it appears on first blush, and perhaps a closer reading will lessen my angst over today's opinion. But at least I am not the only one feeling the same way. Jon Hyman at Ohio Employer's Law Blog, calls it a "huge victory" for employees.
One immediate concern is that the Court takes what is a relatively narrow range of cases, where a decision maker is deemed to have been "used" by another to carry out his or her discriminatory intent, and by focusing on the underlying disciplinary actions and the motives of those who carried them out, seems to invite numerous fights over each and every warning or other disciplinary activity that were given to an employee in the past and that might could arguably have been a factor in the termination decision. It is almost certain that there will be many more "Staub cat's paw cases" after today's decision than we have dealt with before.
Proponents will argue that this is not so, that it is only those that rise to the high level of proximate cause that are at issue. But those who do, probably do not deal with day to day employment litigation where every opportunity to raise a fact issue is yet another arrow in the plaintiff's quiver. Today, I am afraid, at least until courts below fill in the gaps, the Court has created more complexity and less certainty.
And in a time when there is confusion enough over what is the standard for determining the basic question "what is discrimination," the addition of the negligence tort doctrine of proximate cause into the mix seems to me less than a beneficial step.
Although as Paul Secunda of Workplace Prof Blog points out in his approving comment on the decision, there is an argument that it does not apply to ADEA cases, it appears likely that the Court intended it for Title VII and other statutes that use similar language:
If there is any good news, it is that the Court remanded the case to the 7th Circuit for application of its newly articulated rule in determining whether the jury verdict for Staub should be re-instated or a new trial granted. The basis is that the trial court's instruction did not conform to the "rule we adopt today". Perhaps that learned bench can shed some early guidance.The statute is very similar to Title VII, which prohibitsemployment discrimination "because of . . . race, color,religion, sex, or national origin" and states that suchdiscrimination is established when one of those factors "was a motivating factor for any employment practice,even though other factors also motivated the practice."
Goodness knows we will all need some.
This is another case where not only bad facts, but a bad procedural background made it an unfavorable case for employers. The Court was faced with a case where the appellate court had reversed a jury verdict, which meant that all facts had to be construed in the most favorable of light to the employee. Also the fact that it was a USERRA case, here a military reservist, is not the best context in today's world with two wars and numerous military personnel being asked for extraordinary measures, for any case focusing on the whether or not an employee was treated badly.
Although I have long felt this, I think today's decision makes it more clear that the Supreme Court although still adhering to the broad notion that courts should not function as super-human resources departments, second-guessing the decisions of an employer, have and continue to create a set of rules that at least encourages, if not requires, the lower courts to be just that.
Labels: discrimination, Supreme Court
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Friday, February 18, 2011
Checking Out the Judge's Family
Posted
11:41 AM
by Michael Fox
Short answer as reflected from the abstract of the article. Yes.
Check out the abstract, and check out your next judge.
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Wednesday, February 02, 2011
There's That Word Again - Bully
Posted
3:37 PM
by Michael Fox
And the case is Street v. U.S.Corrugated, Inc. (W.D. Ky 1.25.11) [pdf], in which the district court granted the employer's summary judgment in a case brought by four employees (one man, three women). The employer had hired a turn around specialist who was accused by the employees, both men and women, of abusive behavior.
Unfortunately, for the plaintiffs' Title VII gender discrimination claim, the employer was able to establish the "equal opportunity harasser" defense. Noting that there was no allegation that the conduct was motivated by sexual desire, the burden on the plaintiffs' was to show that "the critical issue ... is whether members of one sex [were] exposed to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed." The short answer from the Court:
For retaliation under Title VII, the employees alleged that following their complaints about Greathouse's management style, including a five page "Formal Harassment Complaint" by one of the plaintiff employees, they were terminated. There was no question that they had complained and had alleged a causal connection between the complaints and adverse employment actions, but the Court still granted summary judgment.The record here indicates that both men and women fell victim to Greathouse's abusive management tactics. .... Greathouse's actions were certainly inappropriate, but this does not establish a Title VII claim absent the intent to target a specific gender.
What was missing? protected activity. According to the Court:
This is the type of case where advocates for anti-bullying legislation will argue this shows the need for such a legislative solution. (The Court threw out another handful of claims including intentional infliction of emotional distress and terroristic threat.)Plaintiffs obviously believed that Greathouse’s conduct made their work environment a hostile one and they opposed his presence at the factory and his intolerable management style. However, Title VII only protects employees from retaliation for having opposed an employer’s unlawful actions, such as discrimination based on gender, age or race. There is no protection under the act for employees who simply complain about the boss being a bully. (emphasis added)
But maybe not. Although the timing is not clear, this is not a case where the employer turned a deaf ear. The abusive manager was hired near the end of August, 2007 and after the employees made the formal complaint, investigated and relieved him of his duties by the first of June, 2008. To me, employers who listen to their empoyers and truly don't tolerate jerk like behavior are the most appropriate solution. Far better than the ills of legislation that no matter how carefully tailored, is in my view almost certain to spin out of control.
Employers, to me the lesson is clear: if you don't want a legislative fix, it's time to make sure that you solve problems of this type of behavior yourself. And now.
Labels: bullying
Comments:
From the facts of your post, it would seem Plaintiffs would have fared better if they had filed ULP charges alleging a violation of Section 8(a)(1) of the NLRA. Of course their lawyer wouldn't be eligible for attorney fees, which may be a clue to his choice of venue.
# posted by : 6:25 PM
: 6:25 PM
Plaintiffs should have tried their luck at the NLRB, since acting in concert to protest working conditions is protected under Section 8(a)(1) of the NLRA. Of course the Act does not provide their counsel with attorney's fees, which may explain it.
# posted by : 2:31 PM
: 2:31 PM
The solution is a proactive, well executed behavioral risk management plan similar to the diversity assessments established before policy came into effect. As an expert in workplace conflict, I am often hired after the fact--an expensive and often litigious event. "Bullying" is usually a systems issue. Workplace leaders should strive to conduct a careful and deliberate inquiry, one that allows for exploration and analysis, scrutiny and reflection. That's the "Now".
Anne McSorley
WorkBest Consulting
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Anne McSorley
WorkBest Consulting
Thursday, January 27, 2011
Kansas City Verdict - Another Successful "Reverse Discrimination" Claim
Posted
2:02 PM
by Michael Fox
Like many local governmental units, Kansas City faced with declining revenues dealt with the issue as is often the case by eliminating employees. In the 75 laid off were two, long service, white, female budget analysts, Jordan Griffin and Colleen Low. one in her early 50's, one in her early 60's.
After they were laid off they sued complaining that "younger employees or minorities with less experience and lower performance evaluations were kept on." Agreeing with their claims, the Jackson County state court jury awarded each $900,000 in punitive damages and compensatory damages of nearly $350,000 and $500,000 respectively. See, Two former workers win $2.6 million from KC.
Two things that can be drawn from the newspaper account of the story that will be all too familiar to those who try employment lawsuits.
First, the two plaintiffs both had "always received exemplary performance evaluations." And their boss had considered them "spectacular, fantastic employees." In this case those performance reviews may have been deserved, as were the comments, but anyone who has any significant experience in this area knows all too well of cases where such comments and reviews decidedly did NOT represent the true opinion of management that went into the decision making process.
Secondly, one of the things that likely offended the jury was the assertion that their manager had lied to them by telling them that they were not on the list. According to their lawyer:
He repeatedly and affirmatively lied to Jordan and Colleen. He wanted to lull Jordan Griffin and Colleen Low into a false sense of security.While that could be true, my guess is that the manager had other more noble motivations. He testified that while he did tell them that they were not on the lay off list it was because:
- the list hadn’t been finalized,
- he was hoping they wouldn’t have to be on the list,
- that they could find jobs elsewhere in city government, and
- he was trying to protect the confidentiality of the list.
And potentially underlying both of the lessons is the difficulty managers have in delivering bad news. That's one of the biggest reasons for erroneously inflated performance appraisals and why managers tell "white" lies in situations where there is at least a chance that the bad news won't have to be delivered.
I hasten to add I am by no means faulting these or any particular managers, delivering bad news is hard for most people. That and a thousand other reasons are why being a manager of people is one of the hardest jobs in America.
We should not be surprised that it sometimes leads to results such as this one. What is perhaps more amazing is how rarely it does.
Update: A Kansas City Business Journal article adds some additional information and does make it clear that this is the type of case I thought we might see more of this year. According to the article:
See, Kansas City faces $2.66M discrimination verdict.Jordan Griffin claimed that she applied to become Kansas City’s commissioner of revenue, a position that was vacant in 2006. Griffin alleged that the city would not consider her application or grant an interview because it hired an outside recruiter that specialized in diversity recruitment and that former City Manager Wayne Cauthen had a contract that provided financial incentives for minority hires.
Trying to increase diversity, certainly a notable aspiration, and not discriminate on the basis of a protected category, both a noble aspiration and the law, is easy to talk about, but fraught with potential peril. No one ever said being an employer was easy.
Labels: MDV
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Tuesday, January 25, 2011
MMA Body Slam of $3.2 Million
Posted
4:30 PM
by Michael Fox
Although the newspaper article calls it a wrongful termination claim, the facts emphasized in the article were that Thomas was not paid the commissions she was promised, had to work 70 to 80 hours a week without overtime compensation, had to pay out of pocket for cable subscriptions that would allow her to watch the Tapou T show which airs on the Versus network, and one that particularly seemed to be galling that
she was roundly criticized by a supervisor for not watching one required program on her birthday.I must admit that I had never heard of Tapou T and don't know a whole lot more about Mixed Martial Arts fighting, much less that there was a reality tv show about developing new fighters. And so my headline reference to body slam is probably an inappropriate reference that goes back fifty years ago when I watched professional wrestling from the Dallas Sportatorium with my grandfather.
At least back then, body slams were a big thing. Regardless of whether its an MMA term or not, it's likely that Tapou T is feeling pretty slammed today.
Labels: MDV
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Monday, January 24, 2011
Retaliation in the Supreme Court - Danger Zone for Employers
Posted
10:56 AM
by Michael Fox
If I had any hope for an employer favorable decision, I had thought it would come from the strict constructionists, who could read the language of Title VII:
because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.to mean that Congress had said it was the individual who actually engaged in the protected activity that was protected, since it did not read because "he, or someone he is close to" had done certain acts. Which is what the en banc 6th Circuit had done.
I thought that they might have also noted that Congress knows how to expand the zone when it wishes, e.g. the Americans with Disabilities Act which contains a specific provision for association type discrimination where of course Title VII does not.
But when I saw today's opinion was authored by Justice Scalia, I knew it was not to be.
As of now, employers have an unclear line (conceded by Justice Scalia) about what relationship will be considered sufficient to extend one employee's concerted activity to another:
Applying the Burlington standard to third-party reprisals, NAS argues will place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC.
Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s anti-retaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.The easy way to look at today's decision is that the zone of protected activity is now expanded beyond the protection of the one who engages in the activity. Just how far and under what circumstances that zone will reach will be fought out in the courts. A battle that no doubt starts today.
The guidelines, to the extent we have them are this:
We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, “the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutorytext and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] theuncertainties and unfair discrepancies that can plague ajudicial effort to determine a plaintiff’s unusual subjective feelings.”I am afraid those 'guidelines' leave a lot of "filling in" for the lower courts to do.
So I was right -- the "strict constructionist view" controlled, just not the way I had hoped. Which may just show that even when one is "strictly construing" legislative wording, it is possible for judges to "make" not just "interpret" the law. Imagine that.
Labels: retaliation
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Wednesday, January 19, 2011
A Ray of Sanity in the FLSA Collective Action Morass: Half-pay in Misclassification Cases
Posted
11:11 AM
by Michael Fox
The issue was the not inconsequential question of how do you calculate damages in a misclassification case. Here, the employees were thought to be exempt under the administrative exemption, but the court held otherwise.
Plaintiffs of course seek a 150% premium (time and one-half) of the newly computed hourly rate, while defendants argue that overtime has already been calculated in. and so the premium should only be 50% or half-pay. The counter by the plaintiffs is that it gives the defendants the benefits of a fluctuating work week calculation, without having to comply with the regulations.
Noting that it was joining four other circuits and the DOL itself, the Court found the correct way of calculating damages in such cases to be set out by the Supreme Court in Overnight Motor Transportation Co. v. Missel (1942), one of the Court's early FLSA decisions.
According to the court
Although there may be examples of where individuals were badly served by misclassification, in most cases, it is a case of individuals paid higher than most employees,who clearly understood that they were not receiving any pay for overtime, and were willing to work under those terms. Thus in many respects, any recovery under the FLSA really is a windfall for them.The First, Fifth, Seventh, and Tenth Circuits all have determined that a 50% overtime premium was appropriate in calculating unpaid overtime compensation under 29 U.S.C. § 216(b) in mistaken exemption classification cases, so long as the employer and employee had a mutual understanding that the fixed weekly salary was compensation for all hours worked each workweek and the salary provided compensation at a rate not less than the minimum wage for every hour worked.
The 4th Circuit decision does not eliminate the penalty for misclassification, but it does at least rein it in, so that it is more appropriate.
One other lesson to be learned from this case is how it started. It has been a highly contested (and no doubt expensive) case. Yesterday's decision is the second time it has been in the 4th Circuit and the second time it has been sent back to the district court for additional action.
Its genesis was when three racing officals were discharged because they unaminously declared the wrong horse to have won a race. It certainly was not the first, nor will it be the last, case where an employee unhappy with his discharge, which may be perfectly legal makes it to counsel who can not help with the "presenting problem," but can help in other ways.
Labels: FLSA
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Wednesday, January 12, 2011
Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII?
Posted
2:35 PM
by Michael Fox
But when I looked at the decision, Dawson v. Entek International (9th Cir. 1.10.11) [pdf] what I found was even more confusing.
The Court had in fact discussed the line of cases I was thinking about -- where a number of courts have found Title VII protection for sexual orientation based on gender stereotyping. However, the Court specifically found that there was no evidence of gender stereotyping in this case, and so dismissed what it called claims for sexual discrimination under both Title VII and Oregon state discrimination law.
The Court held that it was error to dismiss Dawson's sexual orientation discrimination claim under Oregon state law. (There was a question about the effective date of the statute versus the conduct. The 9th Circuit side stepped that question by noting that even before the effective date Oregon had recognized a common law claim for sexual orientation discrimination.)
The part that obviously prompted the DLR headline, and caught my attention after reading the opinion, was the Court's holding that the trial court erred in dismissing his retaliation claim under both Title VII and Oregon state law. There was no question Dawson had complained, but there was also no question that he had complained only about taunts based on his homosexuality, i.e. his sexual orientation, not anything based on gender stereotyping.
I think the problem in the court's analysis is here:
After making clear that sexual orientation is not protected under Title VII, the Court seems to have made a logical error in calling sexual orientation discrimination an unlawful employment practice.Title VII prohibits an employer from discriminating against an employee for opposing an unlawful employment practice, such as filing a complaint alleging sexual orientation harassment and hostile work environment.
In this case, depending on the remedies under Oregon state law, it may not matter, but as the decision is currently written it would certainly impact Title VII retaliation law.
It would be quite a step forward, not to mention ironic, if you could be fired for your sexual orientation, but could not be fired for complaining that you were being discriminated against because of your sexual orientation.
Surely we are not that much in the Alice in Wonderland world, at least not yet.
Labels: discrimination
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Can it not be argued that under the law persons who file or allege meritless charges or complaints are protected? To hold otherwise would serve as deterrent to individuals seeking the protection of the Act.
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# posted by : 5:45 PM
: 5:45 PM
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