One Prediction That Had Some Legs
Posted
4:22 PM
by Michael Fox
Forecasting is an art not a science, and truth be known luck is probably the most single important factor if one gets it right, still I could not help but think back to one of my first posts of this year, 2011 --- the Year of the Non-minority? where I thought that we might see
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
Why Employers Don't Like Statutes Creating Causes of Action
The 9th Circuit Does Their Part On Oracle Case, Extending California Labor Laws
Labels: FLSA
The Law of Unintended Consequences: Immigration and E-Verify
Labels: immigration
Missed This New Jersey MDV the First Time Around
Labels: MDV
A Timely Follow Up -- The Importance of Action Not Words
Labels: bullying, HR general
Giving Aid to the Enemy: The Healthy Workplace Act Explained
Labels: bullying
Disparate Impact and the Non-Traditional Plaintiff
Labels: discrimination
Maybe Not So Ho Hum at the Supreme Court: FLSA and Wal-Mart v. Dukes
Labels: FLSA
First Monday in October - Ho Hum for L&E Types
Workplace Violence Gains Formal OSHA Investigation Procedures
Labels: HR general, safety
ADA Cases Are No Longer Unwelcome in Plaintiff Counsel's Offices
Suit By EEOC Not Covered Under EPLI Policy
Labels: EPLI
Federal/State Cooperation on Independent Contractor Issue
Labels: HR general
Fact Checking Me -- Congressional Rollbacks of Pro-employee Legislation
Bullying Litigation -- Not in the Workplace Yet
Labels: bullying
Coming to a Bulletin Board Near You on November 14th, Or Maybe Not ...
Labels: traditional
Labor Day, A Day After - Should We Put This To A Vote?
Labels: traditional
More Things I Have Learned Recently: Virtual Polygraphy
Blogging As a Habit, Or Not
Making Government a Little Less Bothersome - Here May Be an Opportunity
Labels: EEOC
A Reminder to Trial Lawyers -- As If We Needed It
Labels: trial
Wal-Mart Stores, Inc. v. Duke -- A Sigh of Relief
Labels: discrimination
While I Am in the Land of Aloha, the Legislature Permits Guns on Employer Parking Lots Premises
Labels: HR
Arizona Immigration Law Valid According to Divided Supreme Court
Labels: immigration, Supreme Court
DOL Help for Employer On OSHA Reporting
Labels: safety
Legislative Override of Supreme Court
Labels: arbitration
Now an iPhone App for Wage and Hour Litigation
Labels: FLSA
Arbitration As Protection Against Class Actions
Labels: arbitration, Supreme Court
Arbitration (Awards) Not Necessarily Private in Texas
Labels: arbitration
With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly
Labels: discrimination, Supreme Court
Checking Out the Judge's Family
There's That Word Again - Bully
Labels: bullying
Kansas City Verdict - Another Successful "Reverse Discrimination" Claim
Labels: MDV
MMA Body Slam of $3.2 Million
Labels: MDV
Retaliation in the Supreme Court - Danger Zone for Employers
Labels: retaliation
A Ray of Sanity in the FLSA Collective Action Morass: Half-pay in Misclassification Cases
Labels: FLSA
Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII?
Labels: discrimination
Posted
12:56 PM
by Michael Fox
One of the responses by the employer community to almost any proposed statutory cause of action is not that it supports employers who engage in whatever conduct is going to be prohibited, but that by adding yet another statutory cause of action, there is yet one more way for a lawsuit to be brought.
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
But I think what got me even more than the unusual legal aspect of the case was the account of the type of situation that anyone who has been doing this long enough has seen before. An irreconcilable difference of opinion develops between an employee feels who feels there is serious wrongdoing, an allegation that the company does take seriously, but disagrees with, and the inevitable bad outcome that occurs.
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.
Posted
5:50 PM
by Michael Fox
One of the issues that I think has the potential to cause a lot of trouble for employers is the application of one state's labor and employment laws to employee who travel to work in another state. In today's mobile world that is a lot of folks, especially employees located near state borders.
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.
: 12:35 AM
Posted
2:15 PM
by Michael Fox
A recent article in Businesweek, A Verification System for New Hires Backfires makes clear just how complex the immigration issue is.
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 ...
Posted
10:18 AM
by Michael Fox
I was in Lubbock yesterday talking to their SHRM chapter about retaliation and the dangers of those cases, along with its first cousin whistleblowing, and this headline did nothing to change my mind. Former Warren Township prosecutor awarded $1.26M for whistleblower complaint.
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.
Posted
5:44 PM
by Michael Fox
Given the topic of my previous post --- the need for employers to step up and make sure they dealt with bullying behavior rather than leaving it to legislation --- it was ironic to come across Bob Sutton's post, Adopting The No Asshole Rule: Don't Bother If The Words Are Hollow.
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.
Posted
12:04 PM
by Michael Fox
David Yamada who posts at Minding the Workplace is also the author of a model bill, The Healthy Workplace Act (HWB), designed to address bullying in the workplace. A recent post, The Healthy Workplace Bill: What’s it all about?, gives a bit of the procedural history but also links to what he calls an "excellent slideshow that explains the need for, and basic provisions of the HWB," that was prepared by Deb Falzoi, a professional web designer and computer graphics expert who doubles as communications director for Massachusetts Healthy Workplace Advocate.
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":
and please explain how a legal system that is stressed deciding whether an employment decision was based on race or gender, is going to distinguish between what is a reasonable and and unreasonable work demand, or appropriate, constructive criticism versus excessively harsh criticism, just to cite two of the categories.
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.
: 10:28 PM
Posted
3:47 PM
by Michael Fox
At the start of the year, I noted that one thing that seemed to be a "trend" was litigation by non-minority plaintiffs. See, 2011 -- the Year of the Non-Minority?
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.
Posted
10:35 AM
by Michael Fox
In addition to denying cert on the USERRA hostile environment case (see yesterday's post), the Supreme Court yesterday also reversed an FLSA case from the 9th Circuit:
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.
Posted
5:52 PM
by Michael Fox
Tomorrow marks the start of the Supreme Court's new term, and at least for private sector Labor and Employment types, there's not a lot to get excited about. (From the employer side of the docket at least the Court has not taken a retaliation case!)
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:
If you were looking for a case that might have some indirect impact, you might look at a case involving EPA procedures
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.
10-1062 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.
After last year's blockbuster session on labor and employment issues, it wouldn't be the end of the world for a year without anything of great significance.
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.
Update 10.3.11: The Court has denied cert in today's Order List.
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.
Posted
10:49 AM
by Michael Fox
On September 8, OSHA issued Directive CPL 02-01-052, which for the first time establishes procedures for investigating workplace violence complaints.
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:
This Directive is a must reading for these two industries and for all those who are on your crises management team . (You do have a crises managment plan and team, don't you?)
Posted
12:48 PM
by Michael Fox
Lynne Seabrook was working as an assistant registrar for Upper Iowa University focusing on its Malaysia campus when she was terminated in February 2009. She felt that the termination was because she had been diagnosed with depression, post-traumatic stress disorder and anxiety.
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.
Posted
11:59 AM
by Michael Fox
It probably seemed like such a simple proposition. EEOC sues employer for sexual and racial harassment, racial discrimination, retaliation and constructive discharge. Employer has an EPLI policy.
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."
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:
Life is never as simple as it seems.
A great note. Thank you. I am re-looking at coverage in all of my cases.
: 1:54 PM
Joe English
Taylor English Duma
Atlanta GA
Posted
11:26 AM
by Michael Fox
It does not seem very often that any headline that involves government can properly use cooperation these days, but yesterday's story on NPR, Labor Dept. Expands Enforcement Of Wage Violations, indicates that the Department of Labor is signing agreements with various state agencies to share information that will allow both to go after companies which "mis-classify" individuals as independent contractors.
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.
Posted
5:56 PM
by Michael Fox
Three times a year, my good friend Connie Cornell and I give a presentation called Essential Employment Law for our law school alma mater's continuing legal education program.
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?
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
Posted
5:13 PM
by Michael Fox
It's been awhile since I posted on bullying, but an article earlier this week in the Law Blog of the WSJ reminded me the topic is not going away. Back Off: Bullying Litigation on the Rise.
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.
Posted
6:06 PM
by Michael Fox
On planning committees for seminars, one topic that inevitably gets discussed is that we need to cover some traditional labor law. Almost inevitably someone will point out that in Texas, very few employers have unions and so any discussion of the NLRA or the actions of the NLRB will no doubt turn off a large part off the audience. And that of course, always gets the suggestion -- let's emphasize that the NLRA covers "concerted activity" not just union activity.
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.
Posted
1:17 PM
by Michael Fox
Any thoughts on how the following legislative finding might fare in today's Congress?
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.
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.
Posted
5:45 PM
by Michael Fox
Nothing says you are on top of things like keeping up on your jargon, so I was grateful to Chris Pentilla, otherwise known as the Workplace Diva, for her post Would You Take A Polygraph To Get A Job? and my first notice of "virtual polygraphy."
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.
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.
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.
Posted
12:41 PM
by Michael Fox
When I started this little venture more than nine years ago now, I knew nothing about blogging. Almost a decade later I now know more, but I continually learn new things.
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.
Posted
1:59 PM
by Michael Fox
In a May address to the American Enterprise Institute, Cass Sunstein of Nudge fame, and also the administrative czar of the the Obama administration, announced the result of a four month study of regulations whose costs out weighed their benefits.
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.
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.
Posted
4:19 PM
by Michael Fox
Not only to trial lawyers, but their clients, when wondering what can happen in a jury trial, to the name OJ Simpson, you can now add Casey Anthony.
Posted
9:33 AM
by Michael Fox
Analysis will come later as all I have done is read the highlight and the line up of judges. Judge Scalia's majority opinion was joined in some parts by all justices, while Justices Ginzberg, Breyer, Sotomayor and Kagan dissented from some.
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:
Posted
11:48 PM
by Michael Fox
I am vacationing on the Garden Island, but taking some time tonite to catch up on what's been going on. When I left Texas the legislature was still in session, although I thought all the economic problems would keep them from doing too much mischief potentially harmful to employers.
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.
Posted
11:49 AM
by Michael Fox
To the political bonfire of illegal immigration, the U.S. Supreme Court has just dumped several gallons of petrol, with its decision upholding the Legal Arizona Workers Act, which places penalties for hiring illegal workers on most Arizona employers and requires that employers use E-verify. U.S. Chamber of Commerce v. Whiting (5/26/11) [pdf].
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.)
As a textbook statement of what the world should be like, I would not quarrel with the logic of Justice Robert's statement.
Posted
9:25 AM
by Michael Fox
Last week I posted about DOL's new app for employees to keep records of their hours worked, so to be fair, the DOL does not limit its computerized assistance to employees. It also has on line assistance designed to help the employer community comply with their obligations under various statutes.
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.
Posted
2:47 PM
by Michael Fox
What a difference three years makes. Unlike the opening weeks of the prior Congress when it could not act fast enough to get the reversal of the Supreme Court's decision in the Lilly Ledbetter case to President Obama's desk, the offering of the Arbitration Fairness Act by Senator Franken, faces much more difficult sledding. Franken bill would block mandatory arbitration clauses in cell phone contracts.
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.
Posted
9:28 AM
by Michael Fox
This is clearly a first for this blog. A link to the apple app store.
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.
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.
Posted
2:05 PM
by Michael Fox
Today the Supreme Court gave a powerful tool for employers to avoid collective and class actions when it overturned the 9th Circuit's decision in ATT Mobility LLC v. Concepcion (4.27.11) [pdf]. Justice Scalia writing for a sharply divided court, split on the now familiar lines, rejected attempts by states (in this case California) that would prohibit arbitration agreements which prohibit class treatment of claims.
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.
Posted
10:53 AM
by Michael Fox
Thanks to Professor Ross Runkel for calling my attention to a case decided in my own backyard, McAfee, Inc. v. Weiss, (Tx. App. - Dallas 3.16.11), which held that a trial court's refusal to seal an arbitration opinion and award attached to a motion to confirm the award was not an abuse of discretion.
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.
Posted
12:25 PM
by Michael Fox
Although viewed as one of THE most conservative justices, I am not sure anyone who is very knowledgeable about employment law relishes the idea of Judge Scalia writing the majority opinion in an employment law case. If they did before this term, their view would be strongly challenged by today's decision in Staub v. Proctor (S.Ct. 3.1.11) [pdf] and coupled with his earlier opinion in Thompson v. North American Stainless, should readily disabuse them of that notion.
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.
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.
Posted
11:41 AM
by Michael Fox
Since in employment law we routinely deal with cases involving gender, this bit of social science reported on in The Volokh Conspiracy, might be worthwhile checking out: Do Daughters Influence Judges?.
Short answer as reflected from the abstract of the article. Yes.
Check out the abstract, and check out your next judge.
Posted
3:37 PM
by Michael Fox
Hat tip to the folks at the Daily Labor Report, who found a case that will fold into my presentation that I will be giving at the 2011 Gulf Coast Symposium on Human Resource Issues later this spring. My presentation is Civility in the Workplace: Now It Is a Legal Issue.
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.
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.)
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.
: 6:25 PM
: 2:31 PM
Anne McSorley
WorkBest Consulting
Posted
2:02 PM
by Michael Fox
Earlier this month I commented that one trend we might see this year was more "reverse discrimination" claims. See, 2011 -- the Year of the Non-minority? The outcome of a suit in a Kansas City courtroom yesterday does not prove me right, but it certainly does nothing to prove me wrong.
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:
All of those reasons are certainly understandable, but it is also clear how actions that seem, even in hindsight to be reasonable, can play in the tinderbox of a court room.
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.
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.
Posted
4:30 PM
by Michael Fox
$3.2 million is the total jury award to former Tapou T sales representative, Michelle Thomas, from a Los Angeles state jury. The jury first awarded $840,000 in compensatory damages, and then after finding the acts of the employer were with malice, added an additional $2.4 million. Jury Awards $2.4 Million in Punitive Damages to Ex-Employee of Apparel Firm
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.
Posted
10:56 AM
by Michael Fox
If there is one area of Supreme Court jurisprudence that employees can certainly not complain about it is the law of retaliation Today's decision in Thompson v. North American Stainless (S.Ct. 1/24/11) certainly does nothing to change that. A unaminous Court (with Justice Kagan not sitting) held that an employee who had been fired for his fiancee's protected activity was also protected by Title VII.
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.
Posted
11:11 AM
by Michael Fox
Given the overwhelming number of FLSA collective actions that continue to be filed, it is hard to find very much encouraging news, but one ray of sanity is the 4th Circuit's opinion in Desmond v. PNGI Charles Town Gaming, (4th Cir. 1/18/11) [pdf].
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 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.
Posted
2:35 PM
by Michael Fox
The headline in today's Daily Labor Report caught my attention, Court Revives Fired Gay Employee's Retaliation, Harassment Claims ($). I thought maybe it was another another step down the road for protection against sexual orientation discrimination, but still within the limits of Title VII.
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.
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.
: 5:45 PM
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