Jottings By An Employer's Lawyer

Thursday, December 13, 2012

Michigan As a Right to Work State - Random Thoughts


First, somewhat as an aside, the news coverage of this issue reminds me that any time I follow an issue that is covered by the media and falls into an area where I have my own expertise, I always come away with one thought - yikes.  And then I quickly remind myself, I need to apply more skepticism to other things that the talking heads say in areas where I don't have any particular expertise.

More relevant to the topic of this blog, it would be hard to view this as anything other than a cataclysmic event for organized labor.  Unions in the private sector have been on a well documented slide for most of the time I have been practicing law, which goes back to 1975.  But suffering a loss in a state that because of the UAW and the car industry is probably most identified as a "union" state on what has always been one of labor's most, if not the most,  important issues, right to work, is a message of pending doom of a different magnitude.

The challenge for unions to re-define their message, or maybe more importantly, their mission, which has been obvious for a long time, seems like it has a much shorter time line than ever before.

Although I tend to view this from my background as lawyer who has been involved in labor and employment matters (and clearly much more employment than labor), one of the things that seems to be true is that in many ways, rather than a fight over the merits or non-merits of union representation and whether it should be encouraged or not, the underlying bigger challenge is being made because of union's role as a major force, particularly in the "ground game" of the Democratic party.

Finally, for though those who view union's decline as a good thing, I would remind of the rule of unintended consequences. Which by definition means, one never knows what is going to happen when there are such big structural changes.

Just as an example, on Morning Joe yesterday, Joe Scarborough voiced support for a concept that would surely be anathema to employers (although a real boon to my profession), member only bargaining. When some one pointed out that the union's argument against right to work was the "free rider" argument, where in a right to work state employees in a union facility get the benefits of the union's bargaining efforts without having to pay for them, he said why not let the union negotiate for it's members and they get the pay raises, and those who don't want to be members, don't. 

Although I doubt that Joe Scarborough and Charlie Morris, the former SMU labor law professor, have much in common, there could not have been a much better endorsement for Professor Morris' concept he has been pushing for some time now. See Thinking About a Different World Under the NLRA and A "New Spring" in Labor and Employment Law?

And you know that at least some on labor's side may also beginning to think how that or other different approaches might be used to frame a new argument

It will be some time before we know how this all plays out, but for those rejoicing about this latest development and what it seems to imply about organized labor's future, I am reminded of the trite but true statement, be careful what you ask for.

Comments:
What Michigan legislators did was to eliminate - as do states like Texas - from the workplace the basic concept of democracy as we have always viewed it in the nation. That basic idea is that majority rules. On the other hand, now that free riders in Michigan can take advantage of union benefits without paying for them, the logical course is to award those benefits only to union members that pay and work for the process that generates those benefits.
 
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A Month in Absentia and Going Forward


Not that I am sure anyone cares, but for those who do come by to check, the month of November marks the first time in 10 years I believe I have gone an entire time without posting.

It has been a busy month, with an extended arbitration, a vacation trip and a personal move into a closer in neighborhood. Where, probably unfortunately for my waist-line, there are no less than 10 eating establishments within a 10 minute walk of our new house. And if I am willing to walk 20 minutes, the choices are even much greater! Hopefully the walking will offset some of the eating!


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Tuesday, October 23, 2012

Same Song, Umpteenth Verse - No Discrimination, Retaliation Worth $2 Million


This time it was Ithaca police officer Chris Miller who lost his claim that Ithaca discriminated against him and other non-minority officers in favor of minority policemen.  That complaint did not fly with the jury, but his allegation that he was retaliated against for making it did, two million dollars worth.  City to pay $2 million in discrimination case.

As always there is a lot more to this case than is covered in the brief article reporting on the jury's verdict. The Cornell Daily Sun did a four part story on the background of Miller's claim and the assertions made by him, some of which were excluded by the trial court. See part one and two here, and part three and four here.

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Monday, October 01, 2012

End of the Road for Gross v. FBL Financial Services


Actually that's a misleading headline, what it should say is the end of the line for Jack Gross, the ill fated plaintiff whose lawsuit became the vehicle for the Supreme Court's 2009 decision, which held that the ADEA, unlike Title VII, never permits a mixed motive analysis instead requiring a "but for" test.

Ironically, the well traveled case, which started with a 2003 reassignment Mr. Gross felt was to a lower position, was finally decided on the question which many had hoped the Supreme Court would address -- how do you determine when you get a mixed motive instruction?  In an unpublished opinion affirming a jury verdict in favor of Gross's former employer, the 8th Circuit held that it is a question for the Court, to be determined after all the evidence is presented. Not too surprisngly given the difficulty courts have had applying mixed motive, the Court failed to tell us on what basis it is to be determined. 

I had to smile because one of the cases relied on by the 8th Circuit was Smith v. Xerox Corp, a 2010 decision from the 5th Circuit that has been criticized not only by me, see 5th Circuit En Banc Request on Smith v. Xerox, Please! but also by four members of the 5th Circuit, see Stirrings on Smith v. Xerox in 5th Circuit Internecine Squabble.


Although as expected, the initial Gross decision did result in some legislative stirrings, fortunately none passed. Three years ago next week, I testified before the Senate Judiciary Committee in opposition to such proposed legislation. I wish I could say it was my brilliant thoughts (you can judge for yourself here ,about 51:30 into the hearing) that forestalled such legislation, but I have my doubts.   But last Friday's decision, as well as Smith v. Xerox, illustrate the point I made to the Senate Judiciary Committee. Mixed motive, created when discrimination cases were tried to the court, has not fared well in the world of jury trials. I testified then, and still believe, it is both complex and unneeded, and what should be done is to jettison it from all of employment law, not just ADEA claims, where fortunately,  it has been. 

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Comments:
I trust you don't mean that "mixed motive should be jettisoned from all employment law," but rather that the tortured analysis created by Smith and Hopkins should be abandoned, and mixed motive cases should be like any other case ---- if an improper motive plays any part in a decision, it's unlawful. (A strict "but for" test is absolutely impossible with employment discrimination claims, and I'm sure you'll concede that.)
 
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Wednesday, September 26, 2012

Important, But Not What I Was Hoping - Petition for Certiorari on FLSA Action


In my in box this morning was a press release from the Retail Litigation Center, that made my hopes soar that at long last the Supreme Court could have a vehicle for answering what I think is the one issue most in need of addressing in today's employment law world: what is required before a district court conditionally certifies a collective action under the FLSA?

The headline read, RLC Urges Supreme Court to Review Class Action Standards in FLSA Suits. But a careful reading of both the release, and even more so the excellent amicus brief filed in support of the request for certiorari, dashed my hopes. 

The current effort is to reverse the 7th Circuit's action in a Rule 23 class action based not just on the FLSA, but the Illinois wage law. The case is RBS v. Ross.  And so the fight, and as I say, still an important one, is over the correct application of Wal-Mart v. Dukes.

But still to come is the case focused on a collective (not class) actions under 29 U.S.C. 216(b).  For those of us who practice where FLSA cases are brought by themselves, not as dual cases under a state wage law, the issue of how low the bar is for conditional certification, is for employers, a terribly expensive question.

As an illustration, here is a brief procedural overview of a case I handled:
  • Plaintiffs case filed by three individuals alleging they were forced to work off the clock. (One individual subsequently dropped his claim).
  • Collective class conditionally certified under the existing standard.
  • Over 17,000 notices mailed to potential class members.
  • Approximately 1,100 written consents to join lawsuit filed.
  • Approximately 40 depositions taken.
  • Motion to decertify class granted, dismissing all but the two original plaintiffs.
  • Jury trial held on the forced to work off the clock claims of the two original plaintiffs. Complete verdict for the defense.
Clearly not all such cases end with such a definitive determination that the initial case was without merit. However, it does make clear that an artificially low standard is a burden not only to employers, but the court system, and one that needs addressing.

It is already many millions of dollars late.


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Thursday, September 13, 2012

Been Sued by the EEOC Lately? Keep an Eye on Your Mailbox in the Next Couple of Weeks


An article on the SHRM site, September: Rush Hour for EEOC Lawsuit Filings, Settlements ($), reminded me that we are nearing the witching hour for the filing of EEOC lawsuits. The reason is of course the end of the government's fiscal year on September 30,  and its reporting period.

I have always noticed the uptick in suits where the EEOC is plaintiff in the last half of September, but even I was shocked at this tidbit that SHRM reported:
In 2011, the EEOC filed 175 of its record-high 261 lawsuits during the last quarter of its fiscal year, and most of them were filed in September
Not that I am faulting the EEOC for this. They are after all just lawyers, and many of us suffer from the same result, we work backwards from a deadline, and inevitably much closer to the deadline than we probably should.


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Monday, August 20, 2012

Readers' Requests: Nannies' Rights and Mental Illness in Academia


This may be a first in 10 years of blogging, but I have recently received two (non-spam) requests for certain stories to be posted here that I have decided to follow.

Unlike the requests which are clearly shot-gunned to a number of bloggers since they have no relevance to a blog focused on employment law, these two are relevant.  One is from a for profit company and the other from a law student.

From the for profit world, is a request to link to an article on the employment law rights of nannies.  Because wage and hour law for nannies can be tricky, I would not without checking (which I have not) vouch for all the wage and hour advice, but I think it is a worthwhile post. Although nannies vary widely in age and sophistication, it is sometimes an entry into the workforce and being knowledgeable of one's rights is important. 

If interested see, Employment Rights All Nannies Need to Know.

This is also in a very small way a tribute to my mother, who paid our part-time maid in cash, but had a separate jar that she set aside to put the withholding for social security among other things that she dutifully reported. It was a way to both comply with the law and educate on how social security etc worked to someone who had probably never been paid properly before. For a small town in Texas in the 50's I have to believe that doing so, like my mother who got her doctorate at age 60, was unique.

The second request is from a law student, who self-identifies as having a mental illness and requests I post a link to a critique of the Americans with Disabilities Act in the way it deals with mental illness. The author, Gregory M. Duhl, identifies himself as a "law professor with Borderline Personality Disorder."

Here's the abstract:
This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.
Here is the link to: Over the Borderline: A Review of Margaret Price's Mad at School: Rhetoric of Mental Disability in Academic Life.

Although I have not read the essay, certainly the object of minimizing the stigma and isolation of those with mental illness is a noble one.

Thanks to my readers who made the requests.


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Sunday, August 19, 2012

A New Source of Business: TMI


Truth be told, people who do what I do, represent employers in disputes with their employees really don't need new sources of business. Still an article in today's New York Times, Sharing Too Much Information in the Workplace, relays complaints by older managers about comments made by 20 year olds in the workplace, indicates there's always some trend that ends up resulting in more lawsuits.

Some e.g. - asking a manufacturing manager how many times they can miss work before they will get fired or advising that they are seeking another job that will take 6 to 8 months to land. And those are just the not very politic ones by kids who obviously are not sensitive to the ways managers think.

Terminations are the primary driver of employment law litigation and the folks who get terminated are the ones who do stupid things or don't fit in. TMI can often put you squarely in both camps.


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Wednesday, August 08, 2012

The Difference an Ocean Makes


I have recently started receiving email updates from The Global Legal Post, a publication that purports to cover the legal community world-wide. In March 2012, they incorporated the European Lawyer into the publication and so it definitely has a European/British flavor to its reporting.

Which made me smile today when my email contained this teaser:
Row over non-lawyer ownership of legal firms The US's largest legal profession trade union is in disarray over the contentious issue of non-lawyer ownership of law firms, with its senior figures unable to agree a policy.

Not because the American Bar Association is having trouble reaching consensus on an issue, but the description of it as the "largest legal profession trade union." My emphasis.

I am quite sure that many lawyers, and not just at management side employment law boutiques, would be surprised to think of themselves as "trade unionists." But maybe a different way of thinking of ourselves would not be an entirely bad thing.


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Monday, July 30, 2012

More FLSA Common Sense from the 5th Circuit - Settlement Without Supervision OK


After lamenting for some time the direction which FLSA law has been heading, it may be too soon to say that the inevitable swing back to the middle has begun, but there are encouraging signs and last week's decision in  Martin, et al v. Spring Break '83 Prodn, L.L.C (5th Cir. 7.24.12) is yet another step.

When there was a dispute over time worked by the lighting and rigging technicians on that now famous film, Spring Break '83, the production company and the union reached an agreement, money was paid and accepted, and of course a law suit was filed.

The first argument was that the individuals who had brought the suit had not signed the settlement agreement, but the Court found the Union was their authorized representative.

More importantly, the individuals argued that the settlement was not permitted under the terms of the FLSA, because it was not approved by a court or the DOL. In a case of first impression, the Court found that this was not the type of case where that prohibition applies. This was not a challenge to substantive FLSA rights, but merely settlement of a disputed liability.

In a real compliment to District Judge Xavier Rodriguez, who sits in San Antonio, the court adopted his reasoning in his 2005 decision,  Martinez v. Bohls Bearing Equip. CoAs I noted in my post about the Bohls Bearing case at the time, Challenging Conventional Wisdom - Private Settlements of FLSA May Be OK, it was unclear how far one can go without getting approval, but clearly there is some area where court and DOL approval are not required in order to have a valid FLSA settlement agreement.

And that is not only good news, but common sense.



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Friday, July 20, 2012

Stirrings on Smith v. Xerox in 5th Circuit Internecine Squabble


More than two years ago, I expressed my hopes that the 5th Circuit would undertake an en banc review of the panel decision in Smith v. Xerox, a decision that answered whether a mixed motive was available in a retaliation claim after the Supreme Court's Gross decision. See 5th Circuit En Banc Request on Smith v. Xerox, Please!   Alas, it was not to be as the case settled before there was any further review.

But this week, in another request for en banc review, a relatively rare dissent to the denial of a petition for such review proved that there are at least some judges on the Court who feel that the case was wrongly decided and wish to have the entire court revisit it.  Although in Nassar v. University of Texas Southwestern Medical Center (5th Cir. 7.20.12), the Court by a vote of 6 to 9 voted not to hear the case en banc, it seems possible that it was because the defendant in that case may have waived the argument. Much of the discussion was about that issue and why panel did not directly address it. At least one member of the panel, Judge Elrod, specifically said that was her basis in an unusual concurring opinion to the denial.

But it is Judge Smith's dissent to the denial of the en banc review that really caught my attention. Joined by Chief Judge Jones and Judges Jolly and Clement, Judge Smith wrote:
The panel decision in Smith should be overruled. It is an erroneous interpretation of the statute and controlling caselaw and created an unnecessary circuit split. The problems wrought by the Smith panel majority are convincingly explained in Judge Jolly’s panel dissent, to which I defer. See Smith v. Xerox Corp., 602 F.3d 320, 336-40 (5th Cir. 2010) (Jolly, J., dissenting). Unfortunately, shortly after the panel issued its majority opinion and dissent, and before a petition for en banc rehearing was filed, the parties settled. That mooted the case and deprived the en banc court of the chance to correct the error in the panel’s misapplication of Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).
If nothing else, it would be good to see the en banc court have a case to consider where waiver was not an issue, so we could get a determination whether or not Smith really is good law, as opposed to just being the current controlling law in the 5th Circuit.


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Tuesday, July 17, 2012

A Decade in the Making - Jottings By an Employer's Lawyer


It is unlikely when I put down some thoughts about the EEOC's failure to use certified mail in sending out right to sue letters (For lack of a green card .... ), 10 years ago today that I gave any thought as to whether I would still be (at least occasionally) making such public comments a decade later.

But I am.

There were some other practice specific blogs when I began, but to my knowledge Jottings was the first that focused on labor and employment law. Two other pioneers,  Michael Fitzgibbons and George Lenard joined shortly after.  Now, to use some computer industry jargon, there are a large number of individuals and groups who occupy this space.

In the initial days, I must admit I enjoyed the thrill of being the first to post about a new decision or other development. Oddly enough, I even felt some sort of responsibility (for what was probably my readership of less than a dozen) to provide the information as carefully as possible.

Although the title of the blog denotes the perch from where I observe the world of work, I have tried to at least make sure that I took into account that on almost any topic I might post about, there is a different perspective, that deserved if nothing else my serious consideration and treating it (and those who hold it) with respect.

For those who might consider embarking on a similar adventure, and view it primarily as business development tool, you would be hard pressed to utilize me as an example of how well that works. On a cost benefit analysis, if I had put as much time into other forms of business development as I have spent on the blog, I would probably have developed more business.

But more importantly, I think writing the blog has contributed to keeping me abreast of the developments that have occurred over the past decade, and made me a better lawyer, one who happens to represent employers.

And in a world where the legal profession too often seems to me more about business and less about lawyering, I remain comfortable with the choice I have made.


Comments:
CONGRATULATIONS!!

I WAS BUILDING A MONUMENT....OR SO I HOPED!
 
Congrats Mike! I remember when you made that first "green card" post - doesn't seem like 10 years.
 
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Thursday, June 28, 2012

Obamacare Decision: The Perils of Instant Analysis and Related Thoughts


I have not and will probably not read today's Supreme Court decision holding that the Affordable Care Act is (for the most part) constitutional any time soon.

But I did have a couple of thoughts on what has happened so far.

First, my first notice of the results came from a CNN email at 9:09 a.m. (CDST)
The Supreme Court has struck down the individual mandate for health care - the legislation that requires all to have health insurance.

Nine minutes later, I received the following from CNN:
Correction: The Supreme Court backs all parts of President Obama’s signature health care law, including the individual mandate that requires all to have health insurance.
And just to be fair, at 10:04, CNN seems to have finally gotten the basic result down:
Chief Justice John Roberts led the Supreme Court’s 5-4 decision upholding President Obama’s sweeping health care law.
The president is expected to speak later today on the ruling that supports the core legislative accomplishment of his administration.
The court decided that the individual mandate that requires all Americans to have health insurance will stand and is considered a tax by the court, making it constitutional.
Chief Justice John Roberts wrote about the individual mandate, citing the taxing clause: “It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without insurance. Such legislation is within Congress’ power to tax."
The court also ruled that the federal government may not remove Medicaid funding from states that refuse to take part.
Voting to uphold the Affordable Care Act were R oberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The dissenters were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
Now besides a little temporary embarrasment on the part of CNN, which I would imagine is already gone, the errors they made in their initial reporting matters not.  My guess as to what happened, is they wanted to be first, they read the opinion and saw that the Administration had lost on the Commerce Clause issue and assumed that meant the mandate had fallen. When they figured out that the Administration had prevailed under the taxing clause on the mandate, they rushed to correct that, and mis-stepped again because they had not made it to the part where the Court held Congress over-reached in its putting conditions on states for the receipt of Medicaid funding.

But this brief interplay, reminded me once again that the speed with which our world now operates often times does a great disservice to the quality of advice that is given.  When we operate at hyper speed, the time for reflection and discernment is often a casualty. It didn't really matter here, but when giving advice as lawyers do every day, operating at that speed can easily cause serious error.

Secondly, although we are all told on appeal to limit our number of arguments and focus on our strong ones, today's decision points out the importance of having a Plan B. While everyone focused on the commerce clause and the hope that Justice Kennedy would be the 5th vote to support its use, who ever insisted that the fall back position of the taxing clause be there, should be getting large pats on the back by the supporters of the bill.

Having recently won an appeal (at least so far) where there were 3 separate opinions, and the two judges who voted in the favor of our position did so for different reasons, I personally know how important that Plan B can be.

On the political note there has been and will be even more analysis of how this impacts the Presidential race. Although President Obama is no doubt happy with today's outcome (except for the Medicaid portion) I doubt that much thought had been given to how it would be to run when the healthcare law was supported only because it was a "tax." Justice Roberts may have given President Obama a substantive victory, but my guess is that he at least gave Romney and the Republicans a rhetorical boost.













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Wednesday, June 27, 2012

Two Sacred Cows - Performance Appraisals and Job Descriptions - Time for the Scrap Heap?


I don't always appreciate non-trial lawyers telling me how to try a case (although I try to listen, because often I can learn something that is helpful), and so I am also leary of getting too far into the realm of HR advice.

But I have long been a skeptic on both annual performance reviews and job descriptions. In defending employers over the last 35 years, I would say I have seen both types of documents end up as Plaintiff's Exhibits, not Defendant's exhibits more often than not.  Since the employer is in control of both, even if it were 50/50, that's a pretty poor ratio.

The problem is that for the most part they are either rushed through as after thoughts (performance reviews) or done in a vacuum and put on a shelf (job descriptions).

About job descriptions I have often said if they are accurate and up to date then they are good; unfortunately that does not describe very many job descriptions I have seen. That basic premise holds true for performance appraisals as well.

It's one thing for lawyers who see these documents through the admittedly cloudy filter of litigation to make those kind of comments, but it seems those who actually do specialize in HR advice are having some of the same thoughts.

Today's comment was sparked by the recent Harvard Business Review posting by Eric Mosley, Crowdsource Your Performance Reviews, which was inspired by a study of HR leaders where 45% said they "did not think that annual performance reviews are an accurate appraisal for employee's work." 

So to HR professionals, just a thought from the cheap seats, have an open mind about whether these rituals of HR are still worthwhile as they are, or even at all.


Comments:
My sense has been that job descriptions are a necessary evil defending an ADA case, be it refusal to hire or refusal to accommodate. How can one say an individual can not perform the necessary elements of a given job without a showing it is such. (I had a hard time convincing the NY Division of Human Rights that a deaf mute was not qualified to sell high priced stereo and sound equipment for but one example because of the absence of a description.) The problem is that many of said descriptions seem to have been cobbled together in the wake of the passage of the passage of the Act in 1990, filed, and forgotten since.
On performance ratings, I defended a store with over 230 associates where the CP was rated 89 out of 100 in performance. I found that in that store she was the lowest rated associate, all of the remaining 229 were in the 90 to 99 range, In other words, they proved useless as the "g" in lasagna.
 
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Monday, June 25, 2012

Jury Duty, An Obligation Sure, But Also a Large Reward


I just happened on this post today by Adam Rich, talking about his 5 Lessons From Jury Duty that was posted on an American Express Forum for small businesses. I think his points are valid, although frankly, my role is more as a consumer of juries than as a participant.

So perhaps it is a little stretch for me to claim how large a reward jury service can be, but from jurors I have talked with or heard talk about their experiences, even those who thought a case was silly or a waste of time, have never the less come away with a renewed respect for the judicial process.

We are all binded by our own biases, but from my seat in trial representing employers, I am always amazed at how it is the individuals we would typically identify as those most likely to share the employer's perspective who are the least able to serve because they are too busy (an excuse that never works by the way) or because they just can't set aside their long held beliefs about the frivolousness of laws suits or whatever and listen to the evidence and be fair and impartial.

Call me cynical, but I am inclined to think that much more often they have figured the "out" than that they are any less able to be open minded jurors than all the other folks who seem to be able to put aside their past experiences and be fair.

Which if you are an employer type, you might think about when you hear that time honored phrase in reference to your particular law suit being tried by a "jury of your peers. " What that often means is a jury panel where all those who will at least understand the context in which the decisions you are defending were made, are the most likely to be gone well before the time that peremptory strikes are made.


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Friday, June 22, 2012

Texas Supreme Court Advisory on Attorneys' Fees in TCHRA Cases


A short message to plaintiff's attorneys in TCHRA cases from the Supreme Court: join your defense brethren in "measuring out your life with coffee spoons," i.e. keeping contemporaneous time records of what you do.

Actually Justice Medina's opinion did not reference T. S. Eliot's The Love Song of J. Alfred Prufrock, that was my literary spin, but the message from today's decision El Apple I, LTD. v. Olivas (TX 6.22.12) makes just that point.
Thus, when there is an expectation that the lodestar method will be used to calculate fees, attorneys should document their time much as they would for their own clients, that is, contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed.
The Court also cast a doubtful eye on the lower court's doubling of the lodestar amount. Although the majority found that because in this case there was no appropriate lodestar, it was too soon to address the validity of the doubling, it gave a general standard to be applied:
We accordingly accept the premise that [a] lodestar presumptively produces a reasonable fee,
but that exceptional circumstances may justify enhancements to the base lodestar. 
But by noting that while state courts are not bound by federal standards, that they "may appropriately consider them," it seems clear that the Court was signaling that such adjustments should be rare.

All of this came about because an award of just over $100,000 to the plaintiff had resulted in an attorneys fees award of $464,000 for the trial of the case with another $99,000 for defending post-judgement motions and appeals.




Comments:
Michael,

Reminds me of my non-lawyer friend's attorney joke. Client gets attorney bill with one of the time entries which says, "I thought I saw you but then I realized it wasn't you and it reminded me of your case".... 1/4 hour.
 
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Monday, June 18, 2012

Function Over Form: The Supreme Court's Realistic View of the FLSA


For those who think that one of the travesties of the recent history of employment law has been the explosion of FLSA collective action litigation, today's 5-4 decision by the Supreme Court holding that pharmaceutical representatives are in fact exempt employees under the outside sales exemption is a re-affirmation that common sense can in fact prevail.  Christopher v. SmithklineBeacham Corp. (6/18/12).

Although a critical decision for the pharmaceutical industry in its own right, the case has generally been viewed more importantly for its insight as to the weight the Supreme Court would give to agency views of the laws they enforce. Here the DOL had weighed in as amicus in a series of law suits arguing that the pharmaceutical sales reps were not exempt, although the DOL had given differing views as to why that was so.

The majority opinion begins with Justice Alito's description of why the DOL's position is not entitled to deference. Perhaps more significantly, the dissent written by Justice Breyer, the member of the court with the most claim to administrative law expertise, agrees. In fact, on this key point, it would be fair to say that this is a 9-0 decision. Justice Breyer writes:
In light of important, near-contemporaneous differences in the Justice Department’s views as to the meaning of relevant Labor Department regulations, I also agree that we should not give the Solicitor General’s current interpretive view any especially favorable weight.
Although casting the blame on the Department of Justice, not the Department of Labor, it is clearly a rebuke to the DOL.

Having jointly rejected the DOL's view, the two wings of the Court still reach a different outcome on their own independent review of the exemption.

The problem is that we have a 1938 statute designed for a very simple economic model which existed at the time was adopted.  The FLSA was designed for an even pre-Leave it to Beaver world, where a factory was divided between the white collar workers in the front office and the blue collar workers in the back, whose product was sold by the Willy Loman's of the world, who packed their sales bag and left on Monday through Thursday and returned to do their paper work on Friday.  Trying to use regulations written for that world, in today's workplace results in often ludicrous results.

It seems clear to me that the Supreme Court understands this historical fact, at least as relevant to the outside sales exemption, as it noted that the DOL had been authorized by the statute to issue regulations, and that those regulations were issued in 1938, 1940 and 1949, and in 2004 "following notice-and-comment procedures, the DOL reissued the regulations with minor amendments." Although they limit that historical reference to the outside sales exemption, I think a review would indicate that it is applicable for much of the remainder of the FLSA and its regulations as well.

The points relied on by the majority in rejecting the formalistic view of the minority are significant and could be utilized by other courts to rein in what has been an overly mechanistic view of the FLSA:
  • that until 2009, the pharmaceutical industry had "little reason to suspect that its longstanding practice of treating detailers as exempt outside salesmen transgressed the FLSA."
  • that the DOL had never initiated any enforcement actions or otherwise suggested that it thought the industry was acting unlawfully.
  • the realization that pharmaceutical sales reps, whose average income is $90,000 a year according to the opinion,  "typically earn salaries well above the minimum wage" and enjoyed other benefits that "set them apart from the nonexempt workers entitled to overtime pay." Hardly the kind of employees the FLSA was intended to protect.
  • That it would be "challenging, to say the least" for pharmaceutical companies to compensate reps for overtime going forward without significantly changing the nature of that position.
  • Rejecting a legalistic argument, that requires title to pass, to instead taking a more "realistic approach" of what the outside salesman exemption is meant to reflect.
Let me be clear what my argument is. At least with respect to mis-classification cases, in the last 10 years plus, the FLSA has been used to extract tremendous sums from employers, who had no intent to cheat or abuse their workers. The beneficiaries of that extraction have been employees, who generally knew what their job involved and knew what they were going to be paid for doing it. In other words, the true economics were already baked in, and an after the fact application of a formalistic approach, with its accompanying lack of "fair warning" discussed by Justice Alito, is not a good economic use of resources.

The biggest beneficiaries of course have been the repeat players, lawyers who represent the plaintiffs in those cases, who of course have taken their share of the extraction, and lawyers who represent the defendants (including me and my firm) in those cases. 

In a world where there are many issues that call out for righting, for the most part mis-classification under the FLSA has not been in my mind a worthy fight. Today's decision is by no means the end, but it is at least a bright and correct light.



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The NLRB in the Non-Union Setting: Making A Point


For years I have been a member of seminar planning committees, and inevitably the talk gets round to an NLRA topic. In Texas, that usually meets groans and comments to the effect that no one is really interested because very few practitioners actually deal with union related matters.

Inevitably, one solution was to title the program slot, something along the lines, The NLRA for the Non-union Company. And while that often at least made the program, it was still hard to generate much enthusiasm.

However, the current Board seems intent on getting out the message that indeed concerted activity, not just union activity, is what is protected, including today's launch of a web page describing Protected Concerted Activity, complete with state by state links to cases where the Board has found such activity.

For example, clicking that link and the button located prominently in Texas, pulls up 16-CA-025349:
A supervisor at a dental association was fired after she refused to divulge the names of employees who had anonymously signed a petition protesting top management. The Board found the discharge was unlawful because she had rightfully refused to violate federal labor law by punishing concerted activity. In a settlement, the supervisor and another former employee waived reinstatement in exchange for $900,000 in lost wages and benefits.
It will not take too many stories of that nature to get the word out.

That's a far cry from what life was back in the late 1970's and early 1980's. I can't remember the exact date, but I was in the San Antonio office of the NLRB waiting to see some one and the phone rang.  The secretary answered the phone, and sitting right across from her I could tell that it was an employee calling with a possible complaint. After listening a moment, she asked, "Is there a union involved?" and obviously getting a negative response, hung up the phone with a "Well, we only handle matters where there are unions."

Oh how times have changed.









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In the late 50's and early 60's, Region 21 would assign professionals as "OD" to handle all calls and visits to the office to avoid cases such as you witnessed. One that came in was against an artist's studio, Boehm, in Trenton, where it had fired a group of workers who had complained about the dirty towels in the ladies' room. It resulted in reinstatement and back pay for the workers, with no union at all, just a few employees tired of the boss ignoring complaints. I can say that, in addition to the satisfaction of righting a wrong, the case opened the eyes of the staff to the many land mines buried in Section 7 and Section 8 (a) other than union issues.
 
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Wednesday, June 13, 2012

Intentional Infliction of Emotional Distress, A Dangerous Cause of Action


This headline, Steelworker awarded $25 million in New York racial lawsuit might seem to come from a typical Title VII or Section 1981 case for racial discrimination.

According to the story in the Cleveland Plain Dealer, the plaintiff Elijah Turley, who is black, testified that
 "KKK" and "King Kong" graffiti were written on the walls of the plant and a stuffed monkey with a noose around its neck was found hanging from his driver's side mirror.
But it was not as if the company did nothing in response as evidence indicated that the company hired a private investigator, installed security cameras and suspended some of the employees involved in some of the incidents.

But it's my guess from another quote in the story that although based on racially based behavior, it was not a race discrimination claim, but instead a claim for intentional infliction of emotional distress. That's based on the quote from Turley's lawyer that the conduct was "atrocious and intolerable in a civilized society," which is language taken from the Restatement of Torts discussion of the tort of intentional infliction of emotional distress.

Texas struggled with this as an employment law tort, with approximately 10 cases passing the muster of that supposedly high standard at both the trial and appellate level only to be rejected by the Supreme Court. (One case did survive the Supreme Court's review.) Finally, the Supreme Court basically eliminated the tort from Texas employment law, finding that it was designed as a gap-filler, one that was to be used only if no other cause of action existed.

Unfortunately, for the defendants, they weren't in the Lone Star state.

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Monday, May 21, 2012

Somewhere in a Smoke Filled Room Your Future Is Being Determined


Well that's a little dramatic, but after staying up late to watch my Spurs complete their second sweep in a row,  the subtle part of my brain is not working as well as it should be.

Although said in jest, the comment does have some truth (except for the smoky rooms), as the American Law Institute is meeting in D.C. this week and will be taking up Chapters 3 and 7 of the Restatement of Employment Law. This according to Paul Secunda, one of the editors at the Workplace Prof Blog, who will be in attendance. American Law Institute - Restatement of Employment Law.

According to Professor Secunda, Chapter 3 on compensation and benefits is authored by Sam Estreicher of NYU, and Chapter 7 which deals with privacy and autonomy interests in the workplace is authored by Matt Bodie, from St. Louis University.

Although it will be known as the Restatement of Employment Law, Third, it is actually the first. The 3rd moniker is because this is the third general round of Restatements done by the ALI. The first round was from 1923 to 1944. The 2nd round started in 1952, and the 3rd round started in 1987, and included Employment Law for the first time.

Because it takes considerable time to reach the consensus of the various reporters and advisers, and then go through the Council itself, it may well be some time before it is finalized. A list of the project participants can be found here.

Even when final, its impact will come only as courts adopt it.

But if you think it could not have impact on your world, think of the four theories of privacy rights (only three of which have been accepted by Texas courts) and intentional infliction of emotional distress. Although the latter has been substantially restricted in Texas, both concepts have been important in my career, and both arose gained prominence (if not their existence) from the Restatement of Torts.

As I have always understood the Restatements, they are meant to be a combination of what the law is, plus some looking forward to what it should be, so whatever comes out could very well be an important force, although that force is likely to be felt long after my active days of practice are ended.

If you want a preview of where it's headed, some of the drafts are available from the ALI's website under the Restatements of the Law - Employment Law section.


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Friday, May 18, 2012

5th Circuit Dashes Class Action in Arbitration Setting


The interaction between arbitration and class/collective actions which seems to be continually evolving, took another positive step for employers in the 5th Circuit with today's decision in Reed v. Florida Metro University, Inc. (5th Cir 5.18.12).

Reed sued claiming that his on line Bachelor's degree in paralegal studies would not be recognized either by law schools, nor a police department where he sought employment. Since that was contrary to his understanding as to what the school told him, he filed suit claiming a violation of the Texas Education Code. He sought $51,000 plus attorneys fees, but also sought relief on behalf of a class of everyone who "contracted to receive distance education from Everest University Online while residing in Texas."

The defendant successfully moved to compel arbitration, but the Court deferred the decision as to whether it could be brought as a class action to the arbitrator.

Noting it was a close question, the arbitrator held that the matter could proceed as a class action. Reed sought affirmation of that ruling and the School asked that it be vacated on the ground the arbitrator exceeded his powers.  Judge Lee Yeakel in Austin denied the School's Motion to vacate award.

The 5th Circuit first addressed whether Judge Yeakel's decision to allow the arbitrator to decide whether or not the matter could proceed as a class action was correct and concluded that it was.

On the second issue, whether the arbitrator exceeded his powers in holding that it could proceed as a class action, the 5th Circuit found Judge Yeakel had erred. The Court reversed and held the arbitrator had exceeded his powers and since there was "only one possible outcome on the facts before us" held that the arbitration must proceed only between the two parties, rather than sending it back to the Arbitrator for reconsideration.

In doing so, the Court noted it was openly disagreeing with the 2nd Circuit's interpretation of the Supreme Court's decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (U.S. 2010).  In Jock v. Sterling-Jewelers, Inc. (2nd Cir. 2011), cert. denied Mar. 19, 2012, the 2nd Circuit emphasized the deference to be given to the arbitrator, ultimately concluding that "whether the arbitrator was right or wrong in her analysis, she had the authority to make the decision, and the parties to the arbitration agreement or bound by it."

The 5th Circuit chose to respectfully disagree with the 2nd Circuit, holding instead that a court had to ensure that an arbitrator has a basis for his class arbitration determination, even while applying a deferential standard of review.

Emphasizing the Supreme Court's concerns about class action arbitration as expressed not only in Stolt-Nielsen,  but its subsequent decision in AT&T Mobility v. Concepcion (U.S. 2011), the 5th Circuit chose to emphasize the Supreme Court's view that there must be a showing that the parties consented to class action determination.

Although the Supreme Court may have had enough of class actions and arbitration for awhile, the 5th Circuit has done its best to tee up another one for them. In the mean time, employers whose arbitration agreements are silent on class actions can breathe a sigh of relief, at least in three states.


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Monday, May 14, 2012

NLRB Enjoined, Again


Earlier it was the NLRB's posting regulations, see post here, which were enjoined. Today it's the regulations regarding the conduct of elections (sometimes referred to as the ambush election rule) which was the subject matter of yet another injunction.

District Judge James E. Boasberg of the District of Columbia, has enjoined the rule because of a lack of a quorum. This one does not have anything to do with the last recess appointments to the Board which are under challenge, but to the fact that Member Brian Hayes, did not participate in voting on the passage of the final rule.

In Chamber of Commerce et al v. NLRB  (D.D.C. 5/14/12) the Court noted that
At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.
This was after he had cited an even better known authority:

According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.
Undoubtedly this is not the last chapter in the litigation or the rule for that matter. Even if the Board is able to overcome the lack of quorum on its initial rule making, there will still be the substantive challenges which were not addressed.

And, if the Board should choose to re-enact the legislation, the new vote will include members whose recess appointment is being challenged and that of course will result in another hurdle, even before the challenges on the merits of the rule are addressed.
For those ready to decry this as a partisan gesture, Judge Boasberg was nominated by President Obama and at least according to Wikipedia, was recommended by Delegate Eleanor Holmes Norton, the non-voting member of the House of Representatives from the District of Columbia and the former Chair of the EEOC.


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Tuesday, May 01, 2012

May Day? A Lack of A Call?


Earlier this morning I received an email forwarded from the management company in the downtown office building where I work, advising that there could be traffic issues arising out of protest activities planned for this afternoon.

That reminded me that I had meant to post about the alternative labor day, that has been much talked about in certain circles. But as the morning slipped away, I thought surely that the topic had been well covered by other bloggers. But when I checked my google reader, where I have a large, although by no means complete collection of labor/employment type blogs, nary a word today.

I have become a fan of MSNBC's Up with Chris Hayes and this week end one of his panel's talked a lot about the the failure of the Employee Free Choice Act,  plans for May Day activities sponsored by Occupy Wall Street and the general state of the labor union movement in America.

Hayes, who regardless of what of you think of his views, is clearly a bright and deep thinker, made a comment that he was shocked to learn that the May Day movement, which like many, I have always associated with celebrations in the Soviet Union, originated in the United States and was tied to one of our most infamous moments in labor history the Haymarket Riot which occurred in Chicago on May 4, 1886. 

From the Dissident Voice, a radical newsletter in the struggle for piece and social justice (so you know the perspective it is taking) Jerry Elmer penned this article, The Haymarket Riot and the Origins of May Day. Even the overseas press new more about its origins than I did. See, A potted history of Labour Day, from the Irish Times.

I have done far more employment than labor law in my career, and what labor law I have done has been on the side of management.   I am by no means convinced that labor as we have known it in the recent past is the answer to the future.

I do think however, that we are long past due for a non-partisan look at our economic system and the world of work and just how it functions. In any such conversation, all sides must have a serious and listened to voice. 

Although any marching analogy on May Day is fraught with peril, what I fear most is that rather than moving toward such an important discussion each day we are marching more and more stridently in the opposite direction.

Ultimately, regardless of whether there is a short term winner to that approach or not, I am afraid that our society as a whole will be the loser.


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Friday, April 20, 2012

Texas Supreme Court Confirms Punitive Damages in Sabine Pilot Cases


Revisiting the only public policy exception to the employment at will rule in Texas, the Supreme Court today holds that a plaintiff who prevails can recover punitive damages in a Sabine Pilot case if he or she can establish the appropriate level of malice. Safeshred v. Martinez (Tx 4.20.12).

Unfortunately for Mr. Martinez, he did not meet that standard, thereby losing his $250,000 punitive damage award (which had already been reduced to $200,000 because of the damage cap under Section 41.008 of the Texas Civil Practice and Remedies Code). Given that he had lost his $10,000 mental anguish claim in the Court of Appeals, what once seemed so promising now appears to stand as a judgment of  approximately $7,600 in lost wages.

Beyond the impact to Martinez, the Court in an extended discussion on what would constitute malice, provided guidance for the award of exemplary damages in Sabine Pilot cases in the future.  In dicta, the Court hinted that the Sabine Pilot cause of actions extends only to termination claims; anything less would not be actionable.

For punitive damages, the Court held the proof must be something more than the normal consequence of the termination itself. It rejected Martinez argument that you could consider the consequences if he had performed the illegal act in question in establishing malice.

More generally, it listed three types of circumstances where malice might arise:
Malice in this case could only be shown by clear and convincing evidence that Safeshred, in firing Martinez, intended or ignored an extreme risk of some additional harm like
    •  interference with his future employment,
    • harassment, or
    • terminating him knowing it was unlawful to do so.
There are not a lot of Sabine Pilot cases around, the unique circumstances required and the high burden of a sole standard, re-iterated (although not dwelt upon) in today's decision, make it a hard case to establish.

But for those that do make their way to trial, Safeshred now gives definitive guidance for punitive damages.


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Wednesday, April 18, 2012

An Arbitration Sign of the Times


If you think arbitration is not a significant player in employment law dispute resolution, you would have to think twice when you see that the National Institute for Triall Advocacy (NITA), one of the best known training programs for trial lawyers is holding their first Arbitration Advocacy May 18-20, 2012.

The opening paragraph in the email I received made that point:
In looking at the below list of topics covered in this program your first inclination may be to think this is another of NITA's Trial Advocacy programs. While similar in some regards this 3 day learning-by-doing program is in fact NITA's first Arbitration Skills program.

And like all NITA programs, this one promises to be a hands on experience, culminating in conducting a full arbitration.  Here's a link to NITA's program site if you are interested.

The fact of the matter is although the battles continue over the finer points of enforcibility, and Congressional action could in one fell swoop totally eliminate it, for the foreseeable future, arbitration of employment disputes is very much a reality.

Arbitrations are not the same as trials, and while I think it will be quite some time before we hear anyone refer to themself as an "arbitration lawyer," making sure you understand the difference between the two is important.

Arbitration is much more akin to a bench trial, but one with even more liberal standards of admissibility of documents and testimony.  I think it is also a much "cooler" forum, where emotion as a general rule is much less likely to be found and to carry as much weight.

For the advocate, perhaps one of the big differences is the timing of the feedback. For better or worse, when a case is submitted to a jury, in a matter of hours, or at most days, you will know what the factfinder thought of your case.  In arbitration, as with bench trials, there is no instant gratification (or depression)

Even in relatively recent times, results were delivered in the mail, but today, when you have an arbitration case pending decision, almost any email could be the one carrying the news. 

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Comments:
I recently read that some companies are opting to have employees sign waivers of jury trials in employment disputes instead of having them agree to arbitration, as an appeal of a bench trial is much easier than
an appeal an arbitration decision. Any thoughts on arbitration v. a bench trial? Do you know if the EEOC has taken any position on waiver of jury trials?
 
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Friday, April 13, 2012

NLRB's Posting Rule Hits Another Bump in the Road


This afternoon Judge Norton in South Carolina granted summary judgment to a group seeking to block the NLRB's rule that would require a posting notifying employees of certain rights under the NLRA.

His conclusion:
After utilizing the tools of statutory interpretation, the court finds that the Board
lacks the authority to promulgate the notice-posting rule. As such, the rule is unlawful
under the APA, 5 U.S.C. § 706, and the court GRANTS summary judgment in favor of
plaintiffs.
The full opinion can be found on Pacer at this link.

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ENDA Lite Hits a (Temporary?) Dead End


While I didn't actually predict that the Obama Administration would issue an Executive Order implementing protection for lesbians, gays and transgendered individuals employed by federal contractors, reading my post from a couple of weeks ago, you might could have drawn that conclusion. See, ENDA "Lite" On the Way?

But apparently, it is not to be, or at least not now, although the story in the Washington Post reporting that the Administration has chosen to not issue such an Order details both the pressure that is going to be forthcoming and the possibility that somewhere down the road, the decision might be different. See Gay rights groups vow more pressure on Obama to sign nondiscrimination order.

Although denied by the Administration, it is hard not to view such an Order in light of the role it could play in "prresidential politics" which is pretty much the only prism that anything having to do with the Administration is, correctly or not, going to be viewed from now until November.  

Hat tip to the folks at Employment Law 360, whose reporting on this issue brought it to my attention, including today's story, Obama Won't Order Ban on Anti-Gay Bias by Contractors. ($)

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News from the West Coast, Brinker (Finally) Decided


Although I have been fortunate enough to avoid any in depth or on-going contact with California employment law, it is hard not to be aware of what is going on. So like many, I have been waiting for the Supreme Court's decision in Brinker v. The Superior Court of San Diego County (CA 4.12.12), for what seems like an extremely long time.

Now that it has been issued, I gather from the general tenor of the posts, that it was a) more than expected, especially about class actions and b) better than expected for employers.

Rather than try to invent the wheel, here are the comments from folks who have much more skin in the game than me, including lawyers from my own firm, Ogletree Deakins, which now a substantial presence in California. Their take can be found at California Supreme Court Issues Major Victory for Employers in Brinker Case.

Here's a summary from other commentators:
Brinker seems to be one of those cases that not only generated a tremendous amount of interest but may actually may live up to its hype.


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Thursday, April 12, 2012

Non-traditional Plaintiff Theme Continues


At the start of 2011, I noted that one of the stories of the year might be that more and more of what I would call non-traditional plaintiffs would be filing discrimination suits. See, 2011 ---- the Year of the Non-minority?

It seems that trend is continuing in 2012, including the following examples:
The last two courtesy of the BNA Daily Labor Report.

One common denominator between these three is that they are all governmental defendants. Public sector employers may be more susceptible to such claims, but all employers ought to be aware.


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Wednesday, April 11, 2012

How Would We (I) Function in This Employment World


A guest blog post on CNBC by Julie Clow, author of The Work Revolution: Freedom and Excellence for All, caught my eye this morning.

Since I write about the world of work, any article that starts this way would do so:
Maybe we have it exactly wrong.
Maybe we should all be wildly different from each other in every way, down to the way in which we get our work done.  
She envisions a much more decentralized world of employment, explained (briefly in the article) around these four principles:
  • It’s about individual strengths, not job slots.
  • The more diverse we are, the better the wisdom of the crowds. 
  • If we accept our diversity as a given, then schedules are anathema to progress.
  • It’s about impact, not activities.
I will take a look at her book, but while her ideas provoke, my initial reaction is what a nightmare for the HR folks.  Its hard enough to manage hr and employment law issues when we have people herded together; the more separate and independent,  the more difficult the task.

But maybe the only way to really take on the future is to blow up the way things have always been done, and of necessity that includes the HR function as well. It may actually be happening more than is readily apparent.

Anything that makes it more difficult for HR probably means more business for my types.Which, with all due consideration to my partners, is not really a good thing.

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Wednesday, April 04, 2012

Body Mass Index As a Hiring Criteria


Hat tip to (probably my favorite blog title in our corner of the world) the Evil HR Lady for catching news from my own back yard, see the original news article, Victoria Hospital Won't Hire Very Obese Workers, as Victoria is just a couple of hours down the road from me, but  also a brilliant commentary on the policy itsefl.

Hard to top anything Suzanne Lucas has to say in her post, Is it okay to discriminate against obese people?, so just check it out.

One thing that I did find interesting was the comment from the Administrator that it was based on the preference of patients. 

Although client preference alone does not automatically push one across any legal boundry, over the years it's one of those "red flag" type comments that tends to make me sit up and pay attention because there could be something troubling about to occur.

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Refusal to hire the obese is bumping up against the thin line of cases of ADA and state law violations where the employer is held in violation because the spurned applicants "are regarded as being disabled." MA is one that comes to mind; there are many more.
It's a risky policy I'd counsel against.
As to client preference, that was tested to the max in the 70's when the NYS Commission filed charges against a topless bar on behalf of a topless dancer.
 
I omitted the fact the CP was flat chested. Sorry
 
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Thursday, March 29, 2012

"Bullying" Is Becoming Part of the Zeitgeist


Early in the second year of writing this blog, I had what I think was my first recognition of bullying as an "issue" in the employment law world, Can't Wait for Bullying Cause of Action. That was now nine years ago.

I was struck by just how far the concept of bullying has come, not necessarily in the law of employment, but in society as a whole, by the first two featured blog posts in today's Huffington Post's Daily Brief:
Marlo Thomas: Bully: The Year's Most Important Film
Even if you have to drive across state lines to see Bully, your kids need to be in the audience. Whether you know it or not, they may be among the 13 million American children affected by bullying every year. For them, this is more than just a movie. It is real life.
Bob Cesca: Right-Wing Bullies Continue to Attack Children
It's difficult to assign psychological motive when it comes to political tactics, but based upon the collective behavior of far-right conservative Republicans, we can only deduce that a considerable number of them are bullies and ought to be treated as such.
While it is true that the so called anti-bullying law has yet to pass in a single legislature, it is foolish on the part of those in the world of employment law who think that it is a bad thing, to believe given the progress of this concept in our society as a whole, that it is not coming.

For those, like me, who think that the passage of this legislation would be an unmitigated disaster for employers and ultimately employees (albeit a real boon for those of us who make our living on employment litigation), the prescription is not to ignore the trend, but to make sure that conduct which can be perceived as bullying is addresssed promptly and quickly, not because it is illegal, but because it is both wrong and bad business.

My hope is that  this post will, as so many (all?) of the posts that have preceded it over the years have done, just fade into oblivion, noticed by few and remembered by none.

My fear is that 10, 20 years from  now, through the magic of google or some future research tool that we don't even know about yet, it will be dredged up and someone will say, you know he had a good point, we should have listened.

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I believe bullying is the wrong term, that happens on playgrounds. The real term should be screaming and yelling, with the intent to reduce the the object of this rampage to make them feel inferior.
we have one who is proud to have made 5 women cry, I wonder how he would sound if one of those women squeezed his dingling objects!!!
 
Circa 1985, when I was senior house labor and employment counsel at Woolworth, word reached me of an up and coming executive's proclivity for literally smacking around his subordinates. I was tasked with investigating the allegations, and after finding a high probability of truth in them, "handling" the situation (without discharge, a decision reached above my pay grade.)
I "counseled" the miscreant, one on one, in my office, and strongly impressed upon him that if word reached me of any similar conduct, he would plead for discharge as a way out of his predicament.
There were no repetitions, although his career path suffered irreparable damage.
 
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Tuesday, March 27, 2012

ENDA "Lite" On the Way?


Federal legislative action in employment law matters, actually on most things, is pretty much a non-starter these days.  But that does not mean that there is no potential for continuing developments, witness the firestorm of attention that the NLRB has received of late.

ENDA, the legislation which would extendTitle VII type protection to gays, lesbians and depending on the version of the bill, transgendered individuals, is one piece of legislation that all the pundits had predicted was most likely to pass following Obama's election in 2008. But it too has stalled.

Now a partial step could be imminent, with news that the Administration is considering an Executive Order that would extend such protections to employees of federal contractors, either with a separate Executive Order or amending the venerable Executive Order 11246.

The Advocate gets down into the political nitty-gritty on the chances of such action being taken as it appears that it been cleared at the department level, and the decision is now, or soon will be, on President Obama's desk. See, Gatekeepers of the Employment Executive Order.

According to the article, via an Executive Order 20% of the civilian workforce would be covered by such an action.

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Friday, March 23, 2012

Why You Spell Out Amounts in Agreement


Since I try to avoid legalese where ever possible and eliminate as much unnecessary verbiage from agreements I prepare, I frequently look at the spelling out of dollar amounts, followed by the numerical sum in parentheses, "ten thousand dollars, ($10,000.00), and wonder if we couldn't just eliminate one of those.

But then I see a story like,  JPMorgan Sued by Trader Over $3 Million Decimal Point, where there is a difference of opinion as to whether an investment banker was hired for a salary of 2.4 million rand as JP Morgan argues, or 24 million rand, as apparently the contract actually reads.

Since that's almost a million dollars difference ($920,000 according to the Bloomberg article) it seems likely that the banker might have known it was the lower figure, but to see who prevails we will have to wait and see how the British court rules.

One thing however, the next time I consider dropping the writing out of the amount in question, followed by a parenthetical re-stating of the amount; I will certainly give even less thought to dropping one or the other than I have in the past.

Update (3.26.12):  Some proof reader at JP Morgan is likely breathing a sigh of relief as the British Judge trying this case ruled in favor of JP Morgan today.  See Bloomberg's coverage here.  And in something that happens over the pond, but not here at home, the employee who brought the suit not only will get nothing, but in fact will have to pay 85,000 British pounds.  And no, there's no misplaced decimal there.


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Thursday, March 15, 2012

Arbitration (Is Not the Same as) Courts of Conciliation


In my first year of law school at the University of Texas, we had a class called "Introduction to the Study of Law." My section was taught by Professor Leon Lebowitz, one of the nicest profs at the law school, and a really good Business Associations, Securities Regs professor. Intro, at least I remember it, was known best for its endless discussions about the "forms of actions" which of course were purely historical relics even at the time.   (For some reason trespass de bona asportatis sticks in my mind, how scary is that?)

I felt I was transported back to the fall of 1972 as I read Stuck in Arbitration, an op-ed piece by Professor Amalia D. Kessler of Stanford University that appeared in last week's New York Times.  Professor Kessler wrote about a failed attempt in the United States in the mid-19th century to create "conciliation courts," which she described as:
widely adopted throughout Europe and its colonies during the late 18th and early 19th centuries, these were institutions composed of respected community leaders seeking to persuade disputants to accept an equitable compromise in secret, lawyer-free proceedings and without regard to the formal rule of law.
When she described this as a "nearly forgotten debate" I think she was being far too kind, as I doubt that there is almost anyone who is familiar with it. (Although I wouldn't have been surprised if Professor Lebowitz knew!)

What is a stretch though is her comparison of Courts of Conciliation to modern day arbitration and her plea for Congress to pass The Arbitration Fairness Act.  Reading between the lines, I am not sure that she thinks there is really an apt comparison, but I suspect more a clever way to affirm her support, for what even she concedes would not "be a panacea."

The Arbitration Fairness Act addresses arbitrations in both consumer and employment relationships, a combination that I have always felt was inappropriate as the two merit individual attention. 

For those who believe that a serious look at how we resolve employment disputes should include arbitration, which means that it must be mandatory, it is good news that it will not pass in this particular Congress. The bad news is that the current partisan divide makes it unlikely we will ever have a serious review and compromise on that issue.

Like so many issues, it will be an all or nothing outcome, and unfortunately, such outcomes regardless how much one side may feel vindicated depending on which view prevails at any given time, are almost never the optimal solution.

Update (3.19.12):  I was not the only one to take note of Prof. Kessler's recommendation. Three letters to the editor sounded a similar point. One of the most notable is Professor Theodore St. Antoine, who was a long time academic and very well respected, and unless I have missed something along the way, not some one who would be accused of "speaking the management line." Resolving Disputes Through Arbitration.

Professor St. Antoine I think has it right:
The solution is not the outright prohibition of all pre-dispute agreements to arbitrate, as proposed by the ill-advised Arbitration Fairness Act. It is legislation that would guarantee due process in arbitration, including neutral arbitrators, and ensure that grievants have a voice in their selection and all the remedies that could have been obtained in court.
Note the key phrase, "pre-dispute agreements." Any legislative action that bars pre-dispute agreements as a condition of employment, is for all practical purposes a ban on arbitration in the employment law setting.  And since that is what the Arbitration Fairness Act does, the title itself is quiet misleading.

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Friday, March 09, 2012

Jury Waivers Treated Same As Arbitration Agreements by Texas Supreme Court


I would have been surprised if the decision went the other way, but today the Texas Supreme Court affirmed that an at will employee who signed a jury waiver agreement rather than be terminated was not entitled to have it set aside because he was coerced. In re Frank Kent Motor Company (Tx. 3.9.12).

The Court had to look only to its decision a decade earlier, In re Halliburton Co. (Tx 2002), where "this Court held that it was not procedurally unconscionable to premise continued employment on an acceptance of an arbitration plan."

Not a big jump to hold that "all similar dispute resolution agreements" should be treated the same.

The case does make one ironic point though. Both the trial court and the court of appeals had rejected the employer's request to strike the jury demand of the employee. Now having prevailed,   the employer gets to try its case in front of the reversed trial court, with the reversed appellate court looking over its shoulder.

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Thinking About A Different World Under the NLRA


I have been quite busy lately but finally began catching up on some past reading and one of the first things was the most recent edition of the ABA Journal of Labor and Employment Law, Fall 2011, and its first article, Imagine a World Where Employers are Required To Bargain with Minority Unions by Catherine Fisk and Xenia Tashlitsky.

Professor Charlie Morris' book advocating for minority member bargaining, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, remains only partially read on my bookshelf.  So, I was quite interested to see what another academic would have to say about an intellectually challenging idea, one that would clearly turn the world of labor relations on its head from anything that I have known in the now more than 35 years I have been practicing.

It is not altogether an academic question given that there are currently requests filed with the Board for such a rule making endeavor, and a Board that has shown its willingness to engage in rule making far more than in the past.

But what was clear from the article is just how complex an issue it really is. It is clear that Professor Fisk and her student co-author, clearly are intrigued by the idea, but intellectually honest enough to realize (and point out) just how many other questions it would raise, and how incomplete the data is that we would need to resolve those questions.

Their view is that the proper approach  should not be whether or not bargaining with a minority union is legally mandated, but whether or not it makes sense from a policy viewpoint. They believe it is clear that it would be a permissible reading of the NLRA, but that by no means does that answer whether it would be the wise course.

For anyone looking for a simple solution to current problems in the world of labor relations, even a cursory review of the questions that the authors raise should be enough to make clear that mandating minority bargaining is not a panacea.

They end by concluding that  NLRB rule-making on the subject would be worthwhile, but more for the process of a full exploration of a novel idea than as a foregone conclusion that we should end up with such a rule. Their words are more eloquent than mine:
"while one part of the benefit of any legislative process, whether through legislative enactment or agency rulemaking is judged by the rules that are adopted, another part of the value is the process itself.  All the stakeholders in the labor law world would benefit if the NLRB were to conduct rigorous study of this important policy question and offer substantive reasons for its decision to issue or reject a rule."
In one more burst of candor, they admit that in today's partisan atmosphere, it is highly unlikely that the Board will undertake such a review. My two cents, in this highly partisan atmosphere, the Board should not.

That doesn't address the bigger question however. A review of serious policy issues, in the world of labor and employment law, as in other areas of the body politic, are necessary from time to time, and as long as we remain paralyzed by our increasing political divide, problems that need addressing with wisdom and compromise, remain far from our reach.

It's not good for the world of labor and employment law, or for the bigger political world in which labor and employment law is just our narrow corner.

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With 50+ years of labor law practice behind me, I firmly believe there is almost nothing the Obama NLRB would consider off base to further his agenda to pay off the unions. Note that in a recent press release the NLRB completely ignore its role under the Taft Hartley Act amendments:
“The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The Agency also acts to prevent and remedy unfair labor practices committed by private sector employers.”
At least the NLRB now admits that it doesn’t really act to prevent or remedy unfair labor practices committed by unions.


http://nlrb.gov/news/david-leach-appointed-regional-attorney-new-york
 
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Sunday, January 08, 2012

Disability Discrimination Law Is a Mess in More Than Ohio


Jon Hyman, at Ohio Employer's Law Blog who does a great job of keeping up with developments in the Buckeye state and beyond, has an interesting post about the differences of the definition of disability under the ADA and the Ohio state version. Because of that difference, it's hard not to agree with his conclusion, Disability discrimination law in Ohio is a mess.

While true, it raises the bigger problem with disability discrimination laws at all levels. Unlike race, age, gender, color and national origin which are immutable and known characteristics, whether one is disabled or not, is a legal determination.

Employers must make that determination, and make it correctly at the outset, when faced with dealing with an employee. The fact that it is not always clear cut needs no more evidence than all the cases that have been decided by different courts, often where an appellate court has reversed a district judge. If after full development and briefing, it remains a hard decision for judges, where's the fairness of requiring that employers get it right, or be in violation of the law?

Of course the default position is to treat every possible disability as a disability. While that is a potential solution, is it really effective? And even if it is, is the net gain to society worth the costs that go with it? 

The real problem is that in an effort to ensure that people with non-obvious disabilities are protected, as well as those with a condition which no one would dispute is a disability, we have created this rather odd situation, where we toss out a complex legal definition, subject to many variables and interpretations, and require that employers who have hundreds of personnel decisions a week, get it right or else.

It is ironic that we have a much clearer means of identifying who is entitled to utilize parking spaces reserved for the disabled, you either have a government or company issued permit or you don't, than we do making the potentially costly deteremination of whether an individual is disabled under the ADA or one of the state versions.

We are not going to change (the Fox rule of employment law -- Congress does not roll back rights it has given employees) -- but it would be nice if everyone at least realized this unique aspect of this area of law. Particularly as they see how much in the way of judicial and employer resources it is going to consume over the next decade and the ones that follow.

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Disability law is always difficult to understand, but your post is very clear. Thank you!
- New Jersey Attorney
 
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