Jottings By An Employer's Lawyer

Tuesday, December 17, 2013

Next Year's Headache for Employers


Not to ruin the Christmas season, but when you get through the holidays and start focusing again on looming legal issues, you might want to read this article, Lawsuit Raises FCRA Fears, by Kristen Fratsch in Human Resource Executive On Line.

The basis for the lawsuit is a class action suit against Disney, based on alleged failure to notify an applicant that he was not being hired because of a criminal conviction that showed up on a background check. According to the plaintiff's side of the story, the assault occurred when he was 19, was expunged from his record and the credit reporting agency ultimately removed it. Disney has not answered, so it may well have complied with the Fair Credit Reporting Act.

However, according to Fratsch since 2010 there have been been 368 class action lawsuits filed under the FRCA.

In employment law, most  litigation has traditionally involved termination of employment. Which makes sense because in those cases an employee at one time got the job, performed for some period of time, and the employer had to make a conscious decision and carry it out appropriately. Plus, the employee has a vested interest based on his investment in time with his ex-employer and a track record of earnings that will support a damage claim. Not to mention the emotional involvement that comes out of being terminated.

By contrast, hiring claims are not as economically viable. There are lots of applicants for most positions and courts are reluctant to second guess hiring decisions if it seems to be a reasonable choice. Plus applicants generally don't know why they weren't hired, and don't have the emotional level of investment they have when someone has terminated them, plus damages are problematic.

But when you throw in the possibility of a class recovery, with the dollar signs that inevitably follow class litigation, now you have an incentive, not so much for individual employees, but for law firms that focus on class or collective action based employment litigation.

So, for now enjoy the holidays, but in the not too distant future, remind yourself of an employer's obligations under the FCRA and make sure that you are in compliance.


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Thursday, December 05, 2013

Keyboard Filing - Being a Whistleblower Just Got a Lot Easier


It will be interesting to see what the response is to today's announcement by the Department of Labor that complaints under any of the 22 federal whistleblowing statutes that OSHA enforces may now be filed on line.

Here's the gist of the DOL press release:

Whistleblowers can now file complaints online with OSHA
Agency launches online form to provide workers a new way to file retaliation complaints

WASHINGTON – Whistleblowers covered by one of 22 statutes administered by the U.S. Department of Labor’s Occupational Safety and Health Administration will now be able to file complaints online. The online form will provide workers who have been retaliated against an additional way to reach out for OSHA assistance online. 
 ....
Currently, workers can make complaints to OSHA by filing a written complaint or by calling the agency’s 1-800-321-OSHA (6742) number or an OSHA regional or area office. Workers will now be able to electronically submit a whistleblower complaint to OSHA by visiting
www.osha.gov/whistleblower/WBComplaint.html.

The new online form prompts the worker to include basic whistleblower complaint information so they can be easily contacted for follow-up. Complaints are automatically routed to the appropriate regional whistleblower investigators. In addition, the complaint form can also be downloaded and submitted to the agency in hard-copy format by fax, mail or hand-delivery. The paper version is identical to the electronic version and requests the same information necessary to initiate a whistleblower investigation.

Unlike some other government websites that have been in the news recently, this one at least opens.

If you are now curious about the form, click here.

It will be interesting to see how quickly individuals learn of this availability and what happens with the number of complaints. The discrimination/retaliation section is unusual because the individual does not have to designate which statute the complaint is filed under, nor is there any description of what the 22 laws cover.

On the information you are suggested to read before completing the form, OSHA says what is going to happen when the complaint is submitted:

Upon receipt of a complaint, OSHA will contact the complainant to determine whether to conduct an investigation. It is very important that a complainant respond to such contact; if a complainant is unresponsive, OSHA cannot proceed with an investigation and the complaint will be dismissed. If OSHA proceeds with an investigation, the complainant will have an opportunity to offer documents and other evidence in support of the complaint, and the employer will be notified of the allegation and permitted to submit a response.
 OSHA does include this admonition:
BY LAW, A COMPLAINANT'S INFORMATION, INCLUDING HIS/HER IDENTITY, MUST BE PROVIDED TO THE EMPLOYER. A WHISTLEBLOWER COMPLAINT FILED WITH OSHA CANNOT BE FILED ANONYMOUSLY.
The announced intention is that everyone who submits a form will be contacted by OSHA.

This is going to be interesting; for employers, not necessarily in a good way.
 


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Tuesday, November 05, 2013

Two Names You May Not Know and May Never Hear Much About


But if you are at all interested in what may be coming out of new NLRB General Counsel Richard Griffin's office, and if you are an employer you should be, then you should at least know of Jennifer Abruzzo and Rachel Lennie, the new deputy general counsel and assistant general counsel respectively.  See Corporate Counsel's, New NLRB GC Begins Building Labor Legal Team.

Because the GC controls what cases are initiated the legal judgments as to what kinds of cases and the theories on which they will be brought will rest primarily in the hands of these three for the next four years.

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The Things People Say and Do


One of the many changes that have happened since I first started practicing law in 1975, is the appearance of services which monitor the filings of new lawsuits and send summaries to law firms. One such excellent service is Courthouse News Service, which actually does a lot more than just prepare summaries of new lawsuits. In the first paragraph of their "about us" they note:

Courthouse News Service is a nationwide news service for lawyers and the news media. Based in Pasadena, California, Courthouse News focuses on civil litigation, from the date of filing through the appellate level. Unlike other Internet-based publishers that simply aggregate information prepared by other content providers, Courthouse News publishes its own original news content prepared by its staff of reporters and editors based across the country.

In any event, one of their recent reports of a filing of a lawsuit by a pro se plaintiff in Harris County, Texas was the following:
Plaintiff points to  ...  an executive assistant, as the source of such office hostility that plaintiff gave her an article titled "De-clawing cattiness at work." She was fired the next day. She wants $600,000 damages.
And just in case you are wondering, it is at least theoretically possible that this did happen as a Google search reveals a 2005 article by Executive Coach Kay Cannon, De-clawing Cattiness in the Workplace.

Apparently, no matter how good the advice, it was not appreciated.





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Monday, November 04, 2013

ENDA Half-way Home?


For the first time ever the United States Senate seems poised to pass legislation that would prevent discrimination against gays, lesbians and transgendered individuals appears to have obtained the 60 votes that would allow it to pass. See, Bill on Workplace Bias Appears Set to Clear Senate Hurdle.

However, with Speaker John Boehner in opposition, it seems unlikely that the bill will be put to a vote, much less pass the House. Although this is one issue on which big business is generally neutral, so stranger things have happened.

In a speech last month, I predicted ENDA as one of the first pieces of employment legislation I expected, if the legislative gridlock ever melted.

I will stick with the prediction, but I would be surprised if this were an issue that made gridlock disappear, even temporarily.


Comments:
Back in the mid 80’s, at the height of the AIDS epidemic breakout, an employee in a Woolworth store filed a claim with the NYC Human Rights Commission alleging that he was gay and had been discriminated against on a perceived handicap as the store thought he had AIDS because of his orientation. (He was fired for refusing to obey the directives of his black supervisor, saying he "won’t work for N#%&*%s!”)
Undaunted the Commission set the matter for a hearing, and invited the local TV stations to video the hearing.
Before the hearing, I had filed an answer that, inter alia, denied having knowledge sufficient to form a belief for the allegation that the CP was gay. You’d have thought it was the day a cake of Ivory Soap sank at P & G!
When pressured as to why I would not admit the obvious, my reply was Gay discrimination was one area of the law where the plaintiff can self identify his or herself as a member of the protected class without actually being Gay, and it should be incumbent upon the CP to prove his or her orientation as a condition of proceeding further. No one had an answer to my contention, nor have they given me one since.
As to the case, discretion being the better part of valor, I settled the case for $2500.00 with a non admission and, more important, a gag order on the CP and the Commission as to publicity.
I have often wondered how the hearing would have been had it gone forward.
 
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Thursday, October 17, 2013

A Study That Won't Make You Feel Good in Half the Country


Sara Murray of the WSJ has an interesting story this week about state legislation in the now 23 states that as of January will require employers to allow employees to bring weapons into their parking lots. Guns in the Parking Lot: A Delicate Workplace Issue

What caught my attention was the mention of this statistic:
 A 2005 North Carolina-based study in the American Journal of Public Health showed that workplaces that allowed guns were about five times more likely to have a worker get killed on the job compared to workplaces that prohibited all kinds of weapons.
For guns, the linkage was actually 5 to 7 times more likely. For those who want to get into the weeds, a link to an abstract of the study is here.

Now one study alone is not enough to dictate policy, but if I am an employer responsible for assembling a large group of humans 300+ times a year, it would certainly give me sufficient pause to ask for a concrete explanation of why such a legislative action makes sense.




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Monday, October 07, 2013

Blogging Is a Habit


And like any other habit, it is much easier to fall out of than create.  I am always amazed how after working out regularly for several months, missing a couple of weeks can put me back to ground zero in terms of the work out “habit.”

That has certainly happened to me with blogging as well.  But with the first Monday of October, which of course is the opening of the current term of the U.S. Supreme Court, it seems a like a good time to try to kick the habit back in gear.

At least I have been doing some things, including sharing some of my thoughts on the practice of law with the folks at the Paralegal 411 website:  http://www.paralegal411.org/interviews/michael-w-fox/
And there’s more in store.  This Friday in Austin, Angie Marshall and I will be speaking at our firm’s seminar on:

TITLE VII AND EMPLOYMENT LAW: THE FIRST FIFTY YEARS

When Congress passed the Civil Rights Act of 1964, it marked not only a turning point in civil rights, but the beginning of the imposition of an adversary system in the workplace. Trace the history of the development of anti-discrimination law, obtain a greater understanding of current cutting edge issues, and gain an insight into the future during this informative session.

There will be lots of other great speakers and topics as well, including former NLRB member,  Brian E. Hayes.  For more information and registration information, check here:  11th Annual Labor and Employment Law Update.

And before the year ends, I will be speaking  in lovely Charleston, South Carolina with Peter Hughes and Anthony Alfano, Chief Employment, Labor & Benefits Counsel, Tyco at a program designed exclusively for Labor and Employment law in house counsel .

Our topic:

Trial Techniques for In-House Counsel: Don’t Make Juries Mad

Taking a case before a jury can be a nerve-wracking prospect for in-house counsel. The stakes are high and the results can be gratifying . . . or astonishing. This session will cover multiple trial issues and strategies, including juror insights and strategies for voir dire, challenging evidentiary issues, preparing witnesses, selecting experts, and more.

And hopefully, by then I will also be back in the blogging habit.


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Thursday, August 01, 2013

Whose Side Are You On? The Perils of HR


I have often said that being a front line supervisor is the most difficult job in today's workplace. I think that is still true for a specific position. But if there is a department that is fraught with peril, it has to be the Human Resources group.

This came to mind because of a great article by Alison Green, 5 Secrets You Should Know About HR.
The points Green makes, that HR knows things they can't tell you, that their job is to support the managers of the company not employees, to list  just two, are true, but point up one of the problems for HR in the modern world.

Too often, the constituency that they are asked to serve is not made clear, or at least not explicitly so. Is HR an employee advocate, looking out for the interests of the employees? Maybe, and clearly that has a role, but in reality, the responsibility is more often in support of management, although that support often comes in the form of being the compliance policeman.


This topic certainly deserves a lot more attention than this brief post. Until this issue is resolved at any particular company, HR will forever be sentenced to a very unhappy existence.


Comments:
Yeah this has a lot of truth to it. I've always felt HR people are shady. They smile and act as if they're on the employees side and they're there to support them, but it never seems that genuine. It always seems like they're hiding something. So I can definitely relate to this post.
 
Hi Michael Fox, good post!
 
It's upsetting that employees in companies categorize all HR professionals the same. Walk a mile in the shoes of someone int he HR professional and then judge. Not all people are alike, just like all HR professionals and departments are not all alike. Yes, this topic does deserve more attention and we need to hear from both sides.
 
I don't necessarily agree with this position ... my view is that the HR professional is in large part a compliance officer. As such, not unlike in-house legal counsel, HR's "client" is actually the employer, which is not necessarily the same thing as management. I believe that HR's legal and ethical duty is to act in the best interest of the organization, which in my experience has put me at odds with management from time to time ... I've always negotiated that role up front, so that my boss and upper management is well aware of my role ... FWIW.
 
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Monday, July 15, 2013

Pay Cards - Federal Standard Might Be Helpful


Although employers are often ambivalent, if not negative, about federal involvement in the workplace, there are time when it is beneficial. 

There is not anything that is more basic about the employment relationship than how employees get paid. I can still remember getting my 65 cents an hour pay as a delivery boy for Graves Drugstore, in cash, in a little white envelope every Saturday.  For a 15 year old netting $35 a week that was fine, but not very scalable for a larger employer.

And in a world where the number of the unbanked and underbanked is growing larger, see the Forbes article, Who Needs Banks?, it's an issue that also impacts employees.

One solution has been pay cards. But for a national employer using this means of payment means complying with a whole host of state laws, very few of which are specifically designed to address that particular issue. So, wending your way through the maze can be complicated, and that means expensive.

So the NYT article, 16 Senators Seek Inquiry of A.T.M.-Style Pay Cards, highlights one of the times where at least some segments of the employer community might be happy with a comprehensive review of the issue and a federal solution.

As the article points out, it is an area where there can be abuse. But abusing employees is not the desire nor intent of all but the most rogue of employers, and so reasonable rules and regulations that could be applied across the country no matter where the employee works would really be helpful.

The devil is in the details of course, but my guess is that this is one area where common ground could be found and Congress might could actually solve a problem that exists for  employers and make sure that employees are protected. 

Wouldn't that be a novel gift from Congress?


Comments:
Very helpful! Thanks, Mike. Always enjoy reading your blog. Do you think there's any chance of a federal standard? I agree that they certainly could - but do you think they will? Seems like lately they've had trouble coming to consensus on the color of the sky.
 
Thanks for raising this issue once again, Michael. Personally, I think it would be a lot better if employers use A.T.M.-style pay cards to pay their employees' wages because it would be safer and easier.
 
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Tuesday, July 02, 2013

Federal Government Action on Employment Discrimination Before Title VII


Congress as early as the Unemployment Relief Act of 1933 made a policy declaration "That in employing citizens for the purpose of this Act no discrimination shall be made on account of race, color, or creed."

Action to enforce the policy were much slower to develop. Nothing was passed by Congress.

 In 1941 and 1943, President Roosevelt created two Fair Employment Practice Committees whose focus was on preventing discrimination by government contractors who were involved in the war effort. The first FEPC had only 8 staff members and no powers. The 1943 version was better staffed with 120 employees, but still no powers. They did receive over 8,000 complaints and held 30 public hearings, but their powers were limited to enforcing any decision by negotiation, moral suasion, and the pressure of public opinion. The powers of the second FEPC expired in June 1946.

Under Presidents Truman and Eisenhower the federal government's efforts were focused on government contractors, but again with no real teeth.

In March of 1961, President Kennedy issued Executive Order 10925, which established the President's Commission on Equal Employment Opportunity to focus on eliminating employment discrimination on the basis of race, color or national origin in both government employment and by government contractors. It also for the first time adopted the concept of requiring affirmative action on the part of government contractors.

This Executive Order also required government contractors to file reports and gave the Commission the power to recommend suits by the Department of Justice and to debar contractors who failed to comply with its requirements. Much of the energy though was 200 "plans of progress" under which large companies set up voluntary recruitment plans designed to give minorities equal employment opportunities.

It was this Commission on Equal Employment Opportunity that seemed to be the model for what was originally included in Title VII introduced in June of 1963.


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Sunday, June 30, 2013

June 1963 - Civil Rights Act Introduced


On June 20, 1963, what became the Civil Rights Act of 1964 was introduced as H.R. 7152, in the 1st Session of the 88th Congress. It was referred to the Judiciary Committee which was chaired by  Rep. Emanual Celler (D-NY). He referred it to a sub-committee, which he also chaired.

On June 26, 1963, the first hearing was held with Attorney General Robert F. Kennedy as the sole witness.

Since for purposes of this blog, the key provision was Title VII, which is the foundation for the advent of employment law, it is interesting to note some of the provisions of the bill as originally introduced:
  • It created four protected categories, race, color, national origin and religion;
  • It was designed to prevent discrimination in voting, education and public accommodations;
  • In the introduction it made the following statement:  It is also desirable that disputes or disagreements arising in any community from the discriminatory treatment on the basis of race, color, or national origin shall be resolved on a voluntary basis, without hostility or litigation. Accordingly, it is the further purpose of this Act to promote this end by providing machinery for the voluntary settlement of such disputes and disagreements.
  • There was a Title VII, which allowed the President to establish a Commission on Equal Employment Opportunity with a mission of eliminating discrimination on the basis of race, color, national origin and religion by government contractors and sub-contractors. It would have the powers given to it by the President and would be chaired by the Vice President of the United States, with the Secretary of Labor serving as the Vice-Chair.
Obviously, a far cry from what would emerge as Title VII one year later in the bill as passed by the Congress and signed into law by President Johnson.


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Tuesday, June 25, 2013

Let's Get a Grip, Employees' Rights Did Not End Yesterday


Reporting is no easy task. But I have heard several reports concerning the two Supreme Court decisions yesterday that  convey misleading information, or at least don't put it in proper context.  An example is By 5-4, a More Hostile Workplace by New York Times editorial board member Teresa Tritch.

My comments on the two decisions, Vance v. Ball State and University of Texas Southwestern Medical Center v. Nassar with links to the decision themselves, are here and here.

There is no doubt that the employer prevailed in both cases, and that employers will benefit from the two decision in the future. But implying they will lead to a more hostile workplace or some of the other ills being proclaimed, are off the mark.

The starting point of any discussion about the efficacy of employment law should start with a basic premise -- once an employer has been sued they have lost. The only question is how little they have lost. See (albeit in another context) my explanation of that point. Bullying As a Cause of Action - One Large Step Closer.

Secondly, by definition all employees who bring cases based on their termination come from a pre-selected pool. That pool consists of individuals intentionally selected by a business manager or group of managers as not working out as an employee, or in cases of economic driven layoffs, not being the best to keep.

You don't have to accept that all employers are free of discriminatory motives, although I would argue most are, to understand that just based on the hassle and cost of terminating an employee, not to mention the concern of being sued, that is not an action that will be taken lightly. Thus you should not expect that all terminated employees would have meritorious claims or that there should be some 50/50 split. That employers "win" most cases should be the rational rule, not some surprise. (Even then see prior paragraph, how "wins" by employers are really minimized losses.)

With that small bit of context, which almost is never recognized in such articles, here are some additional comments (portions of the article in italics)
But according to a 5 to 4 decision by the Supreme Court today, the answer is no. With that ruling, the conservative majority — Chief Justice Roberts, and Justices Alito, Kennedy, Scalia and Thomas — has left many victims of workplace harassment without legal recourse.
No victims of workplace harassment are without legal recourse. The importance of whether someone was a supervisor goes back to an earlier pair of Supreme Court decisions in which the Court determined what standard would be utilized to decide harassment cases. The Court decided that in cases of co-employees the standard would be negligence, that is, did the employer know (or should have known) about the harassment and failed to take action.

In the case of  harassment by "supervisors" the court held that there were two types of harassment. In those where in addition to the harassment there was a "tangible employment action," then the standard was strict liability, the employer would have no defense. However, if there was harassment by a supervisor, but no tangible employment action, the employer would be strictly liable unless it could establish a two part affirmative defense.

In other words, the manner of proof depends on the status of the harasser and whether there was any tangible job action. There are three buckets:
  1. co-workers (or third parties);
  2. supervisors + tangible employment action; and
  3. supervisors with no tangible employment action.
Based on yesterday's decision, more people in the work force fall into bucket 1, as opposed to buckets 2 and 3. Each bucket is protected from harassment, just in different ways.

To be fair, Tritch later qualifies her earlier statement:
Under Title VII of the 1964 Civil Rights Act, employers are liable for discrimination by a “supervisor,” but not by co-workers (unless the victim has reported abuse by co-workers to a supervisor who does nothing to remedy the situation.)
The relegation of the whole first bucket to the parenthetical shows a misunderstanding of how harassment law works. It also fails to mention that the negligence standard covers not only situations where abuse was reported and the employer failed to act, but situations where the employer should have known abuse was occurring and failed to act.

What Justice Alito was doing was defining what standard would apply. Since there are different methods of proof, it is not insignificant, but it is hardly the end of the world and it is certainly not removing protection from harassment from any employee.

In the Nassar case, Tritch starts out on a wrong foot:
A second employment case, University of Texas Southwestern Medical Center versus Naiel Nassar, decided by the same 5 to 4 majority also thwarts the ability of employees to sue for discrimination under Title VII.
The whole basis of Nassar is that there are different standards, in different parts of the statute, for discrimination and retaliation under Title VII. Nassar has absolutely no impact on any employee claiming that they have been discriminated against because of their race, color, national origin, religion or sex, the five protected categories under Title VII. It only deals with retaliation.

The biggest error is this:
The university medical center appealed, saying that for Dr. Nassar to prevail, he had to show that retaliation was the sole factor leading to the job denial.

Tritch later repeats that mistake saying Justice Kennedy said that Nassar had to "show that retaliation was the sole factor in the job denial."

The trouble is he does not, even after yesterday's decision.

There are at least three different standards for finding liability in employment cases. The easiest way to show the difference is to use mathematical terms, although it is admittedly an oversimplification:
  1. motivating factor - Means that the person making the challenged decision had both legal and illegal motives in making the decision. For e.g. if 40% of the reason for firing an employee was her sex, and 60% her attendance, she could establish sex was a motivating factor.
  2. but for - Means that in the same case, the employee would not have been fired for her attendance if she were a man. Using the mathematical terminology, she would have to show that sex was 51% of the reason she was fired.
  3. sole reason - The employee would have to show that sex was 100% the reason she was fired.
If as Tritch said, the Supreme Court had held that an employee had to show retaliation was the sole reason, it would have been a really big deal. But the Court didn't. It held that you had to use test #2, but-for, not test #1, motivating factor.

Again, I am not saying it is not a victory for employers, nor insignificant. However, I would argue that in all fairness if it is not the only reading of the law as written, it is at least a fair reading of the law on which reasonable minds could differ.

It also is a repeat of what the Supreme Court decided was the standard in ADEA cases in Gross v. FBL Financial Services, and although there were similar cries that the world was ending for age cases, I haven't seen any support that has actually happened in the four years since Gross was decided.

There are also good reasons why motivating factor is not a workable standard for use when we have jury trials. In fact I testified before the Senate Judiciary Committee to that effect when they were considering legislatively reversing Gross. See link here. I would like to say my testimony persuaded them otherwise, but I am fairly certain it had more to do with legislative grid-lock than anything I had to say.

Employers definitely won yesterday. But in a system where employers lose just by being sued, to imply that these were drastic decisions demolishing the protections of the workplace, just goes too far.

I mean,
The question now is how far and how deeply the infection will spread before Congress passes legislation to establish the E.E.O.C’s reasonable definition of “supervisor” as the law of the land.

Really? Let's all get a grip.
















Comments:
For example, one lawyer writes: "Arguably, Nassar is a natural outgrowth of the 2009 Gross decision, but the law is now clear that a plaintiff must show that his or her protected activity was the singular cause of the employer’s action, not just one of the causes."

at http://www.franczek.com/frontcenter-Nassar_But-For_Causation_Title_VII_Retaliation.html
 
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Monday, June 24, 2013

"But For" Not "Motivating Factor" is Standard for Title VII Retaliation


Maybe it is because I practice in the 5th Circuit, but today's other major Supreme Court decision for the employment law world, University of Texas Southwestern Medical Center v. Nassar, (S.Ct. 6.24.13) is by far the more important case. The Court holds that retaliation under Title VII will use a "but for" not "motivating factor" standard.

Justice Kennedy writing for the majority, in language that is music to a defendant's ears, says it bluntly: "This, of course, is a lessened causation standard."

Looking beyond this victory, does today decision (coupled with Gross) establish a default standard for all federal employment law statutes? Maybe.

Justice Kennedy set out this rationale:
The approach respondent and the Government suggest is inappropriate in the context of a statute as precise,complex, and exhaustive as Title VII. As noted, the laws at issue in CBOCS, Jackson, and Gómez-Pérez were broad, general bars on discrimination. In interpreting them the Court concluded that by using capacious language Congress expressed the intent to bar retaliation in addition to status-based discrimination. See Gómez-Pérez, supra, at 486–488. In other words, when Congress’ treatment of the subject of prohibited discrimination was both broad andbrief, its omission of any specific discussion of retaliation was unremarkable.
The last part was the Court's way of explaining its prior (in my view) overly broad expansion of retaliation where Congress had not specified it. 

Going forward in reviewing other statutes, unless Congress specifically used "motivating factor" or other similar language, e.g. the language from SOX,  "protected activity was a contributing factor in the unfavorable action," "but for" is the likely test.

My guess is that this will turn out to be a chronological issue. Certainly any statute before 1991 is unlikely to have such specific language, but probably most statutes passed after the Civil Rights Act of 1991 will.




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Supreme Court Adopts Narrow Definition of Supervisor for Harassment Law


Justice Alito writing for the court succinctly sets out today's holding in Vance v. Ball State (S.Ct. 6/24/13):
We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring,firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance and substantially adopted by several courts of appeals.
For employers, at least in circuits that had not adopted the "nebulous" definition, this falls into the dodging a bullet category, and for those circuits which had adopted such a rule (Justice Alito specifically mentions the 2nd and 4th Circuits)  it is a very positive day.

Given the other opinions coming in the next few days, it is unlikely Vance v. Ball State will get much attention outside the labor and employment law bar. However, Justice Alito's opinion is one that is going to be worthy of substantial attention as it covers a number of important topics ranging from the importance of simplified jury instructions, the importance of summary judgment in certain contexts, the unique nature of the NLRA given its subject matter of regulating differences between labor and management not to mention the explication of Farragher and Ellerth which ultimately is the basis on which the case is decided.

Justice Ginsburg writes the dissent and once again looks to Congress as the way out:
The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.
That's the same song that is being sung about the Italian Colors Restaurant decision, and my view is the same. Unlikely to happen any time soon.

Comments:
I am curious how this will affect labor law and the NLRA. I see its affect on employment law, but not the connection to the NLRA.
 
My mention of the NLRA was probably not clear. This decision won't impact the NLRA. However, Justice Alito has a long foot note (7) discussing why the definition of supervisor under the NLRA is not really applicable to the decision. Hs opinion touches on quite a broad spectrum of labor and employment issues and that was just one of them.
 
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Supreme Court Will Decide Recess Board's Fate


It would have been more of a shock (and an even bigger problem) if it had not done so, but today the Supreme Court granted cert of the D.C. Circuit's Noel Canning decision. See, What Now for the NLRB? Recess Appointments Invalid  for the background.

One small step toward removing the Board from its current legal limbo.

In the long term, a potentially game changing decision on the powers of the Presidency versus the Senate.


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Thursday, June 20, 2013

Supreme Court Arbitration Jurisprudence - No Class Action If You Say So


Combining today's decision in American Express Co. v. Italian Colors Restaurant, (6.20.13) with its decision 10 days ago in Oxford Health Plans v. Sutter,  (S.Ct. 6.10.13) the Supreme Court's position now seems clear. If an employer wants to avoid class or collective actions, it can do so by having an arbitration agreement that precludes arbitration of claims on a class basis.  But to be sure that happens, you need to be explicit about it.

There is no doubt more nuance than that, and I  have no doubt that there will be new arguments why such bans will not work, and it may be that there will be some courts will go for it, but the Supreme Court position seems quite definitive.

The most logical way for it to be changed is legislative, and of course there has been legislation introduced for the past several Congresses that would ban requiring an arbitration agreement as a condition of employment. But at least for the foreseeable legislative future, that seems unlikely.

The net result of these decisions is a rather clunky way to solve a huge problem that is plaguing the employer community, the collective FLSA (and class claims under state equivalents) action.  The courts have been unwilling or unable to address that issue by establishing an appropriate standard for conditional certification.  And now, because arbitration appears it will be a solution, that means a large number of employers who have not implemented arbitration plans will be re-thinking the decision.

All of that will have impacts on the employment law world. It is unlikely that anyone can predict all of the ramifications with certainty. But that there will be a changed world now seems inevitable.

Just as a side note, what ever you may think of  the judicial view of Justice Kagan, who goes from writing for the Court in Sutter  to dissenting today, you have to enjoy her clear cut writing.
And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.
And a second side note, which surely can and will be amplified by those who really are students of the Supreme Court. particularly if I am right, some of Scalia's references to Justice Kagan's dissent, seem much more respectful than he sometimes is. When she was appointed, some of the commentary was that she might be able to build some personal bridges with members of the Court in the conservative wing and this makes me wonder if there is some, very small to be sure, signs that could be so.


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Wednesday, June 12, 2013

After JFK's National Address


Medgar Evers, a field secretary for the NAACP was shot dead as he got out of his car in his drive way in Jackson, Mississippi.  It was just one of many incidents in the summer of 1963 that kept the pressure for the passage of the Civil Rights Act of 1964 moving forward. Medgar Evers Wikipedia entry.


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Tuesday, June 11, 2013

A Doorway Stand and One Big Step Forward


On June 11, 1963, George Wallace made his famous "segregation forever" speech while standing in the door to block the integration of the University of Alabama. (Wonder what Coach Saban would think of that idea?).  After President Kennedy nationalized the Alabama National Guard, Wallace stepped aside.

Although that was certainly the iconic moment of the day, a much more important event occurred that evening when President Kennedy addressed the nation on the issue of civil rights. The NYT's editorial today talks about its significance, Kennedy’s Civil Rights Triumph.

For the first time, the President framed civil rights as a "moral issue."  More importantly for the development of employment law, President Kennedy promised that his administration would be introducing and supporting a comprehensive civil rights bill that would cover among other things employment.

Earlier in Congress, a civil rights bill had been introduced but it was fairly toothless. What was contemplated and what ultimately was introduced was a much more significant act.


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Monday, June 10, 2013

The Equal Pay Act of 1963, The First Tentative Step


The first 87 Congresses of the United States did not really give much thought to the relationship between an employer and its employees.  When Congress had acted the focus was on regulating the power between organized labor (unions) and management. While certainly a major factor in the work world, those legislative actions only incidentally involved the basic relationship between the individual employee and their employer.

In 1938, Congress had established some work place minimums, but even then it was as much a desire to help pull the country out of the depression as regulating the workplace. And with the limited exceptions that led to the 1947 Portal to Portal Act, the FLSA was a relatively minor player up until at least the 1980's.

The genesis for the Equal Pay Act arose when women entered the work force in greater numbers during the war years. As early as 1945, "The Women's Equal Pay Act of 1945," was introduced. Subsequent versions were introduced regularly but never gained traction.

In 1962, like the years before when the legislation was introduced, it was not "equal pay for equal work," but "equal pay for comparable worth," a much broader concept that would be fought again later.

The comparable worth standard was strongly backed by the Kennedy administration and actually passed out of the House Committee. But on the floor,  Representative Katharine St. George, (R-NY) offered an amendment defining equal pay act claims as those "for equal work on jobs, the performance of which requires equal skills." The Senate concurred with the St. George amendment, but the bill failed to come out of conference and so it was not finally adopted until the next Congress.

This time, the bill was introduced with the St. George amendment, dealing with the specific (and much narrower) situation where employers would hire men and women for the same position, but relying on societal and market norms, pay women less. 

The bill was signed by President Kennedy, 50 years ago today.  The current version can be found here, The Equal Pay Act of 1963 (EPA).

One procedural aspect of the EPA was that it was drafted as an amendment to the FLSA, and in its early years contained the same white collar exemptions, a limitation not removed until 1972.

The EPA was a limited piece of legislation and was quickly overshadowed by the much broader Civil Rights Act of 1964, passed one year later.

But if nothing else it marked a major shift in Congress' willingness to enter the relationship between an employer and their employees.  My personal view is that employment law as a discipline, really begins with the passage of the CRA.

But if the EPA was not the baby that started employment law, it was at least the twinkle in Congress' collective eye.


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Sunday, June 09, 2013

50 Years Ago ...


In the summer of 1963, the summer between the 7th and 8th grade for me, my main concern was playing first base for Tapp's Pony League baseball team. (It was Tapp's the furniture store, not the funeral home, although I doubt that many in the small town new, or for that matter cared.) In other parts of the country, there were much more significant matters as the civil rights movement which had been building since the mid-1950's was beginning yet another significant and violent summer.

What I would do for a living was probably the furthest thing from my mind, but if I had been asked, one thing that I could not have answered is that I would be a lawyer specializing in employment law.  That job didn't yet exist.

I am certainly not the first person who has ended up spending a lifetime doing something that did not even exist when they were born. But I don't think when I exaggerate the role employment law has had not only on me, but on our whole society.

For the last 10, now almost 11 years I have been making these notes, I have focused on current developments in the world of work. But it seems like a good time to look backwards and reflect on just how far we have come in the last 50 years.

Although the civil rights movement is focused on the struggle and treatment of black Americans, the first tentative step toward this new discipline was focused on a different group and one particular problem. More about that tomorrow.


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Wednesday, May 29, 2013

It's Not Your Father's ABA Any More


According to my membership card, I first joined the American Bar Association in 1976.  I was a first year associate at one of the large firms in Houston.  A lot has changed about the practice of law since then. And like every other facet of life, not only is more change ensured, but the pace of change seems almost certain to increase as well.

I know I would have been shocked if one of the articles in the ABA Journal of those early years, had been this one, Former SEC lawyer uses crowdfunding to bring whistleblower actions.  First, neither me, nor I daresay anyone else, would have known what either crowdfunding or whistleblower meant.

For those who have checked in on this spot over the last decade, you know that one trend I noted early in the days of this blog and have been following is the possibility of a cause of action for bullying.  I have gone from disbelief that it could ever happen, to now being resigned to the inevitability.   It is only at the inception, but another trend I have begun to notice is the one I wrote about just one month ago, A Ground Floor Opportunity? Litigation Finance.  Ted Siedle, the ex-SEC lawyer featured in the above article is taking a slight variant of the same sort of approach. In his case, seeking public financing to fund investigations that could lead to SEC awards under its whistleblower program.     In the early years, an article in The Lawyer's Magazine, on raising money to initiate more litigation would more likely have talked about barratry, or some other pejorative term, rather than innovation.   But of course that was when lawyering was a profession, not a business.
Bob Dylan nailed it:
Come writers and critics
Who prophesize with your pen
Keep your eyes wide
The chance won't come again

Don't speak too soon
For the wheel's still in spin
And there's no tellin' who
That it's namin'
For the loser now
Will be later to win
For the times they, they are a-changin'





 


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Tuesday, May 21, 2013

Yes Virginia, the Supreme Court Does Matter - A Cat's Paw in the 5th Circuit


Although as an object fact we know that it is important when the Supreme Court issues a decision, see my discussion just above about the importance of a SOX case that will be decided next term, but it never hurts to be reminded.

That was just what happened when I read the 5th Circuit's decision in Haire v. Board of Supervisors of LSU (5th Cir. 5.21.13) which reversed a grant of summary judgment. Although that is still rare enough in the 5th Circuit to warrant a second look, what prompted this post was the difference that Staub v. Proctor, decided just over 2 years ago by the Supreme Court, made. (See With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly.)

Although the result might have been the same regardless of Staub, that's not what it sounds like. The case involved two LSU police officers vying for the Chief's job.  The male not only got the interim position, but also the ear of the Chancellor. Even though the Chancellor made the decision to select him, not Ms. Haire, the actions of the interim male Chief, were what made the difference, at least according to Judge Jolly who wrote for the majority.

I





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Sarbanes Oxley in the Supreme Court Dock


And on the Supreme Court docket for next term after the Court's grant of certiorai of a 1st Circuit decision which applied a narrow definition to the coverage of the first major financial regulatory act.  Lawson v. FMR, LLC.  (1st Cir. 2.3.12) . The case's page on Scotus blog is here.   

The dispute involves the basic question of what employees are covered by SOX.  The Court highlighted the disputed language:
Whistleblower protection for employees of publicly traded companies. — No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 781), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee
The parties presented two differing arguments for the meaning: (1) FMR argued only employees of publicly held companies are covered, and the highlighted language means that they are protected against actions from any of the highlighted individuals; (2) the individuals who worked for private companies that contract to act as advisers and managers to publicly held companies, argue that coverage extends not only to employees of publicly held companies, but to the "employees those public companies' officers, employees, contractors, subcontractors, or agent." The First Circuit in a 2-1 decision chose the first, more narrow option.

The scope of the two is dramatically different.  Hopefully someone with access to a lot of data will tell us how different, but I would bet that it would if the Supreme Court adopts the broader reading at least 10 times more employees will be covered, and that guess could be off by magnitudes of tens or even hundreds.

The Administrative Review Board, the top administrative agency to rule, has taken the broader view of coverage. Spinner v. David Landau and Associates, LLC (5.31.12).

A narrow reading would normally be subject to congressional change, but given the current state of affairs in Congress, it is highly unlikely that any such change would happen any time soon. (Although I will admit strange things do happen to move legislation at times.)

But as of today, the Supreme Court's docket for next term got a lot more important for employment lawyers.


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Tuesday, May 07, 2013

Another Bad Day in the DC Circuit for the NLRB


Today, the D.C. Circuit struck down the NLRB's rule which required all employers over which it had jurisdiction to post a notice advising employees of their rights under the NLRA. National Association of Manufacturers v. NLRB (D.C. Cir. 5.7.13). The majority opinion relied primarily on Section 8(c), the so called "free speech" provision which allows employers to advise employees of their view on unions as long as it is done in a non-coercive manner.

It was a unanimous decision, with two judges concurring only to point out that in their view there was yet another independent basis to strike the rule down.

And with the majority opinion quoting opinions authored by Chief Justice  Roberts and Justice Scalia (and referring to a Justice Thomas concurrence), it is clear that the Court was writing not only for today, but for the anticipated appeal.

In the more than 35 years I have been practicing, I can not remember a time when an agency that was involved in regulating the workplace has been in such disarray. It is hard to see a path to normalcy, and sometimes hard to remember even what that is when speaking of the Board.

Whether in the long term that is a good or bad thing is not yet clear; but that it is taking us to uncharted waters is a certainty.


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Thursday, May 02, 2013

The Next Protected Class - Ex-cons


The EEOC last year issued some updated guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.  It laid out a blue print for how to plead a case under Title VII using the disparate impact theory of discrimination.  Although not as common as disparate treatment cases, disparate impact cases tend to have much broader application because one of the requirements is a business practice that is applied uniformly with a disparate impact on a protected category.

Waldon v. Cincinnati Public Schools (S.D. Ohio, 4.24.13) may not be the first case, but it is the first one I have seen where a plaintiff has followed the EEOC's invitation and at least gotten through an initial motion to dismiss.

As on all employment law issues that arise in Ohio, Jon Hyman has a good look at the case here, focusing on the dilemma where an employer has a federal mandate and state statute (in this case H.B. 190) that appear to conflict.

His prediction (or at least hope) is that following state law will meet the exculpatory requirement of business necessity. Maybe Waldon will give us the answer as it progresses, but it is clear that until that issue is definitively resolved there are going to be a number of employers facing tough choices.

But there are many employers who may find themselves having to defend similar actions without even the argument that they are protected by a need to comply with state law. Projecting hot areas of litigation is risky business, but if I had to bet, this is one area I would certainly be looking at.


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Monday, April 22, 2013

A Ground Floor Opportunity? Litigation Finance


I really have not had much chance to give the area of third party litigation financing a lot of thought, but my initial instincts are that while it may be good for lawyers, it seems unlikely to be good for clients.  Maybe there is a silver lining somewhere, there often is, but at the moment it escapes me.

However, this article describing the types of folks and money being put in litigation financing makes it clear to me that this is a phenomenon that will be with us at least until the money guys feel like they have given it a fair shot to see if it provides the returns they hope. Litigation Finance: The Next Hot Trend?

I have yet to see it in single plaintiff type employment cases, and except for the few large whistleblowing or qui tam cases, don't see it as likely. But large scale class and collective actions? That I see as a realistic likely place for the world of workplace law and third party litigation financing to intersect.


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Wednesday, April 17, 2013

Talking Money at Work


Today's Wall Street Journal discusses workers willingness to talk with their peers about what they are being paid as a generational change. Workers Share Their Salary Secrets. But as the article notes, in the past many employers prohibited such talk.

Even though such rules may have gone unchallenged, that is one practice that the NLRB has long held infringes an employee's rights under the NLRA. Given that many employers don't think about the NLRB or the NLRA because they don't have a union, my guess is quite a few Journal readers today are saying to themselves, "Wow, I didn't know we couldn't do that."

Before the latest procedural tangle that has ensnared the Board, was making a much greater effort to assert its role in the lives of non-union employers, and I don't see that effort subsiding in the future. Once (if?) we have a duly constituted Board, I am afraid that many non-union employers may be making similar statements more frequently.


Comments:
Employer rules of this sort are illegal already in California.
 
One of the more unique cases that arose in the Newark region of the NLRB in the 60's came about when a trio of unhappy female workers complained to a high strung ceramic artist about the lack of clean towels in the rest rooms. The artist had a thriving business selling his ceramic creations at high prices; enough to meet the jurisdictional standards of the Board, so he learned, to his chagrin, he couldn't fire what he viewed as a group of unappreciative employees. It was in fact a classic case of discrimination for engaging in "protected concerted activity."
 
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Tuesday, April 16, 2013

Genesis Healthcare Corp. v. Symczyk — A Wasted Opportunity?


I had hoped, although without any real basis, that when the Supreme Court dealt with a collective action case this term, by deciding whether or not an offer that would completely resolve an individual plaintiff's claim prevented a collective action from going forward,  that they might somehow wander into what seems to be an issue never subject to review, what is the standard for conditional certification of a collective action under 29 U.S.C. 216(b).

Instead, what we got, at least according to Justice Kagan's dissent, which had the odd character of being both casual and derisive of the reasoning of both the majority and the 3rd Circuit, was a decision that can be "relegated ... to the furthest reaches of your mind: The situation it addresses should never again arise."  Genesis Healthcare Corp. v. Symczyk  (U.S. 4/16/13).

That holding was assuming, as it said the employee had conceded, the offer made her by the company, did moot her claim, then she had no right to proceed with her collective action on the part of others. Justice Kagan said making that concession was a mistake made by both the plaintiff and the 3rd Circuit, and was in fact something that should never happen again.

What would have made this a precedential case was addressed by Justice Thomas this way:
While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.
Given that, I think Justice Kagan is close to correct, this is a case that is the "most one-off of one-offs." And she makes a fairly decent argument, joined by the other three members of the liberal wing of the Court, that the answer to the question left open above would be, no.

One wild guess would be that Justice Kennedy was undecided on that issue, and so this was a way for the Court to punt, until he makes up his mind.

In the 5th Circuit, it does undermine the validity of  Sandoz v. Cingular Wireless, LLC (5th Cir. 2008), which had undermined the defense strategy in this circuit. So it presents the opportunity to try it again, and see how the 5th Circuit comes out on the question left unanswered by today's decision.

But ultimately, we really are talking about a relatively small number of cases, when the big question is the standard to apply in conditional certification Is the "lenient standard" really the correct one?

It seems so wrong, that with little substance, plaintiffs can invoke the powers of the court to help them summon a group of fellow would be plaintiffs, who would never have brought a claim on their own. Then there is either a settlement or a costly course of discovery, after which if there is no settlement,  often the court decertifies the class that it conditionally certified.

There was really no basis for the Supreme Court to have addressed that today, but the question remains.


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Tuesday, April 09, 2013

Quorum, Heck a Fully Appointed NLRB?


Doubtful for awhile, but at least five nominees are now pending Senate action., with the announcement today of  the appointment of two new members and the renomination of the current Chairman of the Board, Mark Pearce.  President Obama Announces More Key Administration Posts.


Chairman Pearce is currently the only Board member who has been confirmed by the Senate. The two members of the Board serving under challenged recess appointments, Sharon Block and Richard Griffin, were earlier re-submitted to the Senate for confirmation.

It will be interesting to see how this plays out as the longer the Board continues without a confirmed quorum, the more uncertainty in labor relations is being sown.


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Wednesday, April 03, 2013

And lawyers wonder why ...


Clients might wonder about our priorities.
Mobile devices such as iPads are becoming an essential part of the job for many attorneys. "The fact that you can do so much work today on a small iPad that used to require a heavy, bulky laptop a few years ago is a tremendous leap forward in productivity," said Brett Burney of Burney Consultants. Mobile devices can help attorneys in several ways, such as by allowing them to track billable hours, work while traveling and stay in touch with clients.  (emphasis added)
Actually, this is not really something that can be blamed on lawyers, as this is the PLI Smart Brief synopsis of a story, The Mobile Lawyer, in the ABA Journal.

But, perhaps the fact that someone summarizing what they thought would be most important to lawyers who might be reading it, chose to put tracking billable hours first, tells us something as well.


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Wednesday, March 20, 2013

Bullying and My Predictive Abilities — New York at Risk


If there is anyone who started with me when I made my first post in July, 2002 you will know that one topic that has come up repeatedly is my watch on the movement to have some state enact an anti-bullying law. It is much easier now than in the early days, because of  Professor David Yamada's Minding the Workplace Blog, which covers those developments regularly.

In addition to being a tenured professor and Director of the New Workplace Institute at Suffolk University School of Law in Boston, he is also the author of the model Healthy Workplace Act, which has been the basis for most of the bills which have been introduced in various legislatures (23 states according to the Healthy Workplace Campaign website).

The first was just 10 years ago.  Already in 2013, there have been eight states where some version has been introduced. Professor Yamada has an update in this post, Healthy Workplace Bill: March 2013 update.

In that article David notes that he and I have had a cordial disagreement over the years over the need for this legislation, as he also notes my recent sigh that I was becoming resigned to some state adopting such a cause of action much quicker than I would have ever thought when I first posted on the topic in January 2003.

Hopefully, that prediction will turn out as accurate as my March Madness brackets do, the latest versions of which are less than 72 hours from demolishment.

But, if I were to go even further out on a limb and predict which state, New York would not be a bad prediction. Why? Well because on May 12, 2010, the New York Senate became the first house of any state legislative body to pass anti-bullying legislation which would create a private cause of action. Anti-Bullying Legislation Passes NY Senate. The bill did not pass the Assembly and so died at the end of the legislative session.

However, new legislative session and in the 150 member Assembly, AB 4965 was introduced on February 13th, with 74 sponsors. (Do the math, it is not pretty for opponents.) The companion bill S3863 was introduced in the Senate on February 25.

If you happen to live or do business in New York, you might check out some of the reasons why I think this legislation is so dangerous, see Bullying As a Cause of Action — One Large Step Closer.

And if you agree, please send a copy to your Senator or Assemblyman.

Quickly.

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Stipulating Your Way Out of Federal Court


In certain parts of Texas, it is not uncommon for plaintiffs to stipulate that they will not demand or accept an amount in excess of $74,999.99 in order to avoid the amount in controversy requirement when the grounds for removal is diversity.

It works, and yesterday was explicitly sanctioned by the U.S. Supreme Court in The Standard Fire Insurance Co. Knowles (3/20/13):
Knowles also points out that federal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement. That is so.  ... But the key characteristic about those stipulations is that they are legally binding on all plaintiffs.
But that was really not the point of the holding, just an explanation along the way to the real holding of the Court in Knowles: a plaintiff filing a Rule 23 class action, can not avoid federal jurisdiction by stipulating to an amount in controversy less than the $5 million threshold for removal under the Class Action Fairness Act of 2005,  CAFA for short.

In a straight forward and unaminous decision, Justice Breyer makes a simple point. In order to avoid federal court the stipulation must be binding and no one has the power to bind future members of a class at the time of filing.


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Monday, February 25, 2013

The March Toward a Bullying Cause of Action Continues


Since almost the beginning of this blog I have been commenting on the possibility of a bullying cause of action being adopted in the U.S.  Over the last few years it has been easier to follow the progress courtesy of David Yamada's excellent blog, Minding the Workplace. Professor Yamada is the author of the model Healthy Workplace Act, which has been the basis for most of the legislative actions that have been offered. As of this writing, none have yet to pass both houses of a legislature, but the progress continues.

Yet another first occurred this weekend, Temple law school conference examines bullying across the lifespan. According to David, this was the
first American conference devoted to examining the legal implications of bullying behaviors across the lifespan.
Two other law professors, Kerri Stone, Florida International University School of Law and Susan Harthill, Florida Coastal School of Law, joined him on a panel. The conference drew 140 participants.

All steps along what I am beginning to believe is the inevitable likelihood that some state will adopt a version of the Healthy Workplace Law, sooner rather than later.


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Friday, February 22, 2013

Bad Day for Whistleblowers in Texas


One of the most important things about whistleblowing or retaliation claims are that they are almost always created by statutes, so the statutory language is critical.  Today the Texas Supreme Court made just that point, in ruling that unlike other states, the whistleblower statute in Texas does not cover reports to individuals who are only responsible for compliance within an agency.

Justice Willett writing for the Court put it concisely: "Other states’ whistleblower laws accommodate internal reports to supervisors; Texas law does not."

Noting that Texas whistleblower has an "undeniable focus on law enforcement" only a report to someone who has
the power to (1) regulate under or enforce the laws purportedly violated, or (2) investigate or prosecute suspected criminal wrongdoing
is sufficient. The University of Texas Southwestern Medical Center at Dallas v. Gentilello, (TX 2.22.13).

If a whistleblower has a good faith belief that the person he or she is reporting the wrongdoing to, that is sufficient, but citing three of its former decisions, the Court makes it clear that there is an objective component to the good faith test. It is not what a potential whistleblower believes, no matter how sincerely, but what "a reasonably prudent employee in similar circumstances" would have thought.

Here the result is to find a lack of jurisdiction for a complaint made by a medical school faculty member that trauma residents were treating and operating on patients without an attending physician supervising.  The problem was that he only complained to another faculty member whose responsibility was not for "law enforcement but law compliance." A person insufficient to meet the strict statutory definition of an "appropriate law enforcement authority."

The Court goes on to knock down some creative arguments to get around its precedent, but finds that neither a standard "no retaliation" policy or the ability to mete out internal discipline is sufficient to create the needed status of "appropriate law enforcement authority."

In a second case, Texas A&M University - Kingsville v. Moreno, (TX 2.22.13)  the Court dismissed a suit by an assistant vice president and comptroller based on her complaint (and subsequent termination because of it) to the University President that her boss had allowed his daughter to receive in-state tuition in violation of law.

Quoting its Gentilello opinion:
The Act, by its text and structure, restricts “law enforcement authority” to its commonly understood meaning. That is, it protects employees who report to authorities that actually promulgate regulations or enforce the laws, or to authorities that pursue criminal violations. The specific powers listed in section 554.002(b) are outward-looking. They do not encompass internal supervisors charged with in-house compliance and who must refer suspected illegality to external entities.
The President's authority to compel compliance with state law on tuition waivers, was not the same as enforcing the law in the sense required by the statute.

Before officials at various government agencies (private sector employers are not covered by the general Texas whistleblower statute) rejoice too much, the logical outcome of today's decisions is to force potential whistleblowers to take the agency's dirty laundry outside the organization, rarely an option that agencies would prefer. But it may be the modern way, Dodd-Frank has been accused of having a similar impact.

Our old friend, the rule of unintended consequences, is never far away in employment law matters.


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Thursday, February 21, 2013

A Genius Is Someone Who Thinks Like Me - An Approach to Litigation


I was pleased to see this dialogue between Darryl R. Marsch, the General Counsel of Krispy Kreme, and the Daily Reporter in today's Corporate Counsel:
DR: Your background is in litigation. What is your overall philosophy on litigation?

DM: Prepare to try cases. You will get the best outcomes if you are prepared to litigate, appeal, and appeal again. That best outcome might be a settlement, but a settlement driven by the will to litigate is going to be a smart, well-informed settlement. ...
That's advice I learned in my early days as a lawyer, but also advice that is easy to overlook in a world where so few cases end any other way than settlement.


Comments:
I agree with you and Darryl R. Marsch that in litigation the best defense is a good offense. However, my experience, both as in house counsel and with a law firm, is that a problem arises with the principals or the client, as to be prepared to litigate requires expenditure of time and money. Money runs up pretty quickly with discovery, depositions, etc., and the pressure put upon counsel to "settle the damn thing" becomes extreme the more the preparation drags on. It is important that you convince the decision makers of the perils associated with a loss, as well as the importance of thorough preparedness in litigation. It is disheartening to have the rug pulled out from under you in settlements dictated by a "pragmatic" approach, particularly when your preparations to date point to a favorable result.
 
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Friday, January 25, 2013

What Now for the NLRB? Recess Appointments Invalid


Although undoubtedly not the last word, today's opinion by the D. C. Circuit Court of Appeals limiting the President to make "recess appointments" only between sessions of Congress, is a major break in precedent, not so much with prior court decisions but with prior practice by Presidents of both parties. Obama Labor Board Recess Appointments Are Unconstitutional, Federal Court Rules.

The political science ramifications for the balance of power between the Senate and the President, and how government operates are enormous, and will no doubt now get a lot more attention.  It makes the agreement apparently reached by the Senate Majority and Minority leaders on filibuster even more important.

Since the actual case that makes the decision involves the NLRB, and since the NLRB unlike some agencies has no provision to provide for members once terms expire (such as the current members serving until a replacement is appointed and confirmed), the logical effect of today's opinion is to shut down the Board.

At a minimum, any action that it takes is subject to a challenge. Given that the court deciding it is the jurisdiction where the Board actually sits, seems to me to pose even more problems, that might not be true if the decision were made in another jurisdiction.

While folks may disagree with the results of the decision, and already news media are pointing out that the three judges who sat on the panel are Republican appointees, they should read the opinion first.  Although the concurring judge makes a good point that having decided the initial question, that the recess appointment is limited to the inter-session Recess, at which there are two or three at most in every Congress, they should not have reached the second question, whether the President's argument  that the Senate's current procedural device for avoiding a recess was a sham, it is hard to say as a general rule that this was done by an over reaching court.

What Novell Canning v. NLRB (D.C. Cir. 1/25/13) ultimately does is serve as a good reminder of the fact that the Constitution is a governing document. As Chief Judge Sentelle noted in his majority opinion:
In any event, if some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the
Constitution commands. ...
The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.
As I say, this is not the last word, but it is a very, very significant decision far beyond just the world of labor law. However, for the beleagured NLRB, it could be very well the death knell of the agency, at least for the forseeable future.

As always with developments of this type, the thought that comes to mind is the law of unintended consequences.  What makes it such a powerful rule is that by definition, that means no one knows what comes next.

Hang on.

Update: Not too surpringly, the immediate reaction from the Board is that they disagree and will continue to issue decisions. See Statement by Chairman Pearce on recess appointment ruling.



Comments:
One correction: the concurrence did not disagree with the conclusion that the President does not get to decide when the Senate is in 'the Recess.' The concurrence disagreed that the majority should not have reached the other major issue, that the Recess Appointment clause only applies to positions that become vacant ("that may happen") during 'the Recess.' That could be a much more stringent limitation, because it would narrow substantially the openings for which recess appointments were possible.
 
One fact that can't be ignored is that Obama, through this attempt on defining when the Senate is in recess, sought to invade the prerogative of the Legislative Branch. The courts must recognize that if he gets away with that, his next move will be into the Judiciary's turf.
 
Obama has thrown down the gauntlet by his reappointing Block and Griffith last Wednesday.
 
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Wednesday, January 23, 2013

The "New Sheriff" Leaves Town


After arriving at the Department of Labor, Hilda Solis famously proclaimed that there was a new sheriff in town. Hilda Solis, new sheriff at the U.S. Labor Department.

Today, she leaves office with a paean to public service. Beginnings and Endings: My Journey of Public Service.

Too often, in the heat of partisan battles, it is easy to forget that although what we do for a living, i.e. representing employers, often puts us in an adversarial position to those who work in the areas that regulate employers, that what motivates those who do public service is the public good. As Secretary Solis says,
We don't do what we do for the money, or the glory; we do it because public service is the very best way to make your own, unique contribution to the world. Leaders may change, circumstances may change, but our service must be constant. It forms an unbreakable bond between ourselves and our communities, our country and the people we care about.
And even though we may disagree not only with how they go about achieving it, but sometimes even what they seek to achieve, we should always acknowledge the importance of those who choose public service.


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Friday, January 04, 2013

Veganism Protected As a Religion? Not So Fast


Writing from Austin, where almost every menu offers at least vegan alternatives, I hate to put a damper on what is surely going to be the quick take-away from a recent court decision refusing to dismiss the religious discrimination claim of a hospital employee fired for refusing to take a flu shot because as a Vegan the ingestion of a vaccine created from eggs would violate her ethical and religious beliefs.  Chenzira v. Cincinnati Children's Hospital Medical Center (S.D. Ohio 12/27/12). 

As an example of what I anticipate, at babycenter, there's this headline: Exciting News! Veganism qualifies for religious exemption (at least in Ohio)!! Well, we will see.

Before getting too excited, it is important to note that this ruling was based on a Motion to Dismiss on the pleadings, so the standard for survival was quite low: "The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim." A question the Court answered this way:
it is plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.... Accordingly, at this early stage of the litigation, the Court finds it inappropriate to dismiss Plaintiff's claims for religious discrimination based on her adherence to veganism.
Still, this highlights an area where courts would really not like to go. I still go back to the Cloutier v. Costco decision from the 1st Circuit, as an example of just how courts view the murky waters of discerning what will meet the standard for protection under Title VII's protection against religious discrimination.  See A Piercing Problem - 1st Cir. Ducks the Real Question.  There the Court wrote:
Determining whether a belief is religious is "more often than not a difficult and delicate task," one to which the courts are ill-suited. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Fortunately, as the district court noted, there is no need for us to delve into this thorny question in the present case. Even assuming, arguendo, that Cloutier established her prima facie case, the facts here do not support a finding of impermissible religious discrimination.

The opportunities for raising a claim of "veganism discrimination" are probably limited, but the opportunities for individuals to claim religious discrimination under the EEOC definition are not. 29 CFR §1605.1 provides that:
... the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views. ... The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.
The termination of a hospital employee for refusing to take a flu shot is a fascinating area in and of itself. I learned that, when I handled such a case a year ago. It is a classic example where an employer is put in a bind between what is required to comply with a mandate and the impact on its employees.

In order to comply with Joint Commission regulations, many hospitals feel pressured to have mandatory flu shot requirements. A position that seems to be well supported by findings of health organizations. On the other hand, forcing someone to take a vaccine, or have some unpopular accommodation, such as wearing a mask for the entirety of the flu season, is certainly likely to ire a certain set of employees.

Often the law is left to sort it out, and unfortunately the mechanism for doing so is most often a claim of discrimination of some sort with the employer in the middle, paying for it, regardless of how it is ultimately decided.


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Thursday, January 03, 2013

Goodbye to the 112th Congress, Hello the the 88th?


It does not seem that many will shed many tears for the now departed 112th Congress, although I am not sure that any one seems hopeful that the newly formed one will perform any differently.

But 50 years ago today, another Congress was sworn in, one that ultimately created the field of employment law. Given that for the last 37 years, I have been engaged primarily in the defense of employment law suits, on a personal level that's a significant development.

But its importance is obviously much broader than how I ultimately chose to make a living.

On January 3, 1963, the 88th Congress that would pass first the Equal Pay Act, and then a year later the Civil Rights Act of 1964, including its employment law provision, Title VII, convened. 

The Democratic party controlled both houses of Congress and John F. Kennedy was President.  John McCormack of Massachusetts was the Speaker of the House. Mike Mansfield, from Montana was the Senate Majority Leader and Everett Dirksen of Illinois was the Senate Minority Leader.

The two year period of this Congress is rich with historical content without even considering its impact on the employment law world. But it is that aspect that will be the subject of postings here over the coming months.


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