After 42 Years, It's Nice to Know That I Might Be Qualified for Something
Posted
9:40 AM
by Michael Fox
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The Concept of Fallow Ground and Other Musings
An Unusual Condition of Employment - You Must Be Armed
Mandatory Arbitration and the Supreme Court - The First of Potentially Many New Days
40 Years at the Bar
I can’t honestly say what I anticipated 40 years ago today when I came to Austin to be sworn in as a member of the Texas state bar. But it is unlikely that I could have anticipated all the twists and turns, both professionally and personally, that have occurred since that October day 40 years ago. Although I am sure I did not think in these terms at the time, my legal career was beginning when employment law as a discipline was truly in its infancy. Watching how it has changed over the years has and continues to be a fascinating experience and on-going intellectual challenge. In fact a lot of things have changed since then. As an example, my starting salary, the one being paid by the largest law firms in Texas at the time was the grand sum of $15,600 a year.
Lessons from Just One Day's Daily Labor Report
Domestic Violence: A Possible Solution
Getting Rid of the Annual Review
Birthdays: Mine and Jottings
Death On the Job: Not Quite as Bad as it Sounds
Posted
10:35 AM
by Michael Fox
Posted
9:38 AM
by Michael Fox
A basic tenet of American employment law is that employment is at will, meaning that the employer can set the conditions of employment as long as it is not otherwise illegal.
A Georgia businessman who provides aviation insurance has a new one: all employees must carry weapons. Local station WSB-TV in Atlanta has an interview: Business owner requiring all employees to be armed.
And the station's non-scientific twitter poll follow up: 60% think it is a good idea.
Wow.
Posted
12:11 PM
by Michael Fox
As Justice Scalia''s body lies in state in the Great Hall of the Supreme Court this morning, my eye was caught by the first headline in today's Employment Law 360.
The headline and lead:
The case of course deals with whether a mandatory arbitration provision violates the National Relations Act. That has been the position of the NLRB for some time now, notwithstanding almost universal rejection by the courts. The first time its view was subjected to judicial review, the 5th Circuit rejected the position in a 2-1 decision, D.R. Horton, Inc. v. NLRB (5th Cir. 2013). Notwithstanding the split decision, the Board passed on seeking review by the Supreme Court.
With yesterday's issue of a judgment by the 5th Circuit in another rebuff to the NLRB, it now has a second chance. Last October the Court noting that the Board's request for an en banc review of its D.R. Horton decision having failed, the Board would not be surprised that the Court "would adhere, as we must, to our prior ruling," holding that Murphy Oil "did not commit unfair labor practices by requiring employees to sign its arbitration agreement or seeking to enforce that agreement in federal district court." Murphy Oil, Inc. v. NLRB, (5th Cir. 2015).
However, because of some other issues it was the Court's judgment issued yesterday which started the clock running for appeal to the Supreme Court. And of course between the ruling on October 15th and yesterday's judgment, the legal world has changed.
Under the Court as it existed both at the time of the D.R. Horton decision or even in October when Murphy Oil was decided, employers would not have been terribly concerned if the NLRB had appealed.
Today? At least for me, this is the first of what I am sure will be many times as the political process which will produce the next Justice of the Supreme Court grinds slowly that the question will be a much more serious one as to what the world could look like than it was this time last week.
Posted
4:04 PM
by Michael Fox
Posted
10:57 AM
by Michael Fox
One of the venerable sources of information for labor and employment lawyer's has been BNA's Daily Labor Report. I can't remember when I first started reading it regularly, but it has been a long time. Now it comes neatly to my in box, but back in the old days the paper version was circulated and so for the first few years it was certainly not new news by the time it made it to my desk.
But I was just struck by three stories in yesterday's publication that are just so telling for employment law practitioners.
The first was a story on an FMLA lawsuit:
Firing After FMLA Request Raises
Triable IssuesA
tool and die designer for a Wisconsin manufacturer who was fired one work day
after he asked for intermittent Family and Medical Leave Act leave to tend to
his son's mental health problems raised triable claims that the company
retaliated...
Recommendation Letter Saves Fired
Professor's Bias SuitA
black University of California professor who alleged that a department director
was motivated by racial bias to refuse to reappoint him under a pretext of
budget cuts and poor performance can proceed with his race discrimination
claim, the...
Commission Seeks Comment on Workplace
Murder Case
The
Occupational Safety and Health Review Commission is requesting briefs from
interested parties on a pending case that involves the murder of a health-care
worker by a potential client, the commission announced in a statement issued
Sept....
The commission seeks comments on the extent to which a health-care provider should be able to protect its employees from the potential violent acts of third parties, and whether an employer's failure to do so should be considered a violation of the general duty clause (29 U.S.C. § 654(a)(1)).
Amazing at how just one day's post can hit so many of the things I have learned over the past 40 years.
It remains to be seen how much longer I will be learning these lessons from The Daily Labor Report, but it certainly has been a major source of information for a long time.
Posted
10:39 AM
by Michael Fox
One of the humbling aspects of keeping an online journal for any period of time, particularly when you are so unwise as to make predictions is that there exists documented proof of your own errors.
I have said (actually I think on more than one occasion), that I thought domestic violence would at some point become a major issue for employers. I can't honestly say that has been true, at least not in my experience.
Although I still believe the premise which led to the prediction, that ultimately every major society ill at some point invades the workplace.
And regardless of whether it has risen to the top of employer's list of potential problems, there is no question that domestic violence remains a major social problem.
In fact in the recent North Carolina trial I mentioned a couple of days ago, our twelve person jury was reduced to eleven because one of the jurors was the subject to domestic abuse during the course of the trial and felt like she could no longer continue.
So, I am always keen to report any possible solutions, and the Institute for Policy Integrity has come up with a possibility: free legal counsel for victims. The report is Supporting Survivors: The Economic Benefits of Providing Civil Legal Assistance to Survivors of Domestic Violence.
I found it through the Huffington Post's article by Melissa Jeltsen, One Simple Idea that Could Reduce Domestic Violence.
And it might not hurt the reputation of lawyers as a group to provide such a service.
Tying it back to my original idea of how this sometimes might show up on an employer's doorstep, another idea would be to allow an employer or other third party to assist in initiating a restraining order to protect one of its employees.
Arizona is a leader in that regard having a statute that permits an "Injunction against workplace harassment," allowing an employer to take the lead in obtaining relief for one of its employees.
Having such an option would inevitably make employers more involved in the issue, but that might not be a bad thing.
Posted
10:05 AM
by Michael Fox
All too often, I have seen the annual performance evaluation show up in a trial as a Plaintiff's exhibit, rather than what you would think should be true, that it ought to be the best evidence for the employer, particularly if the subject of the lawsuit is a dismissal for poor performance.
And I have been saying this for some time now, see this 2005 post: Just a Reminder About Those Performance Appraisals - Often Known as Plaintiff's Exhibit #1.
Posted
11:17 AM
by Michael Fox
If on my 18th birthday, I had been given the following list of what I thought I would be doing on my 65th birthday, I am not sure what my answer would have been:
12 Years Ago
Posted 10:08 PM by Michael Fox
As I have spoken in the past, when I began I was the first labor and employment law blog, although there were some others that joined soon after. Now there are literally hundreds, so the immediate almost news type reporting is amply covered.
So I have contemplated giving this a decent burial.
However, as I near the end of my active practice, I thought maybe this would be a good space to reflect back on some of the things that have happened.
If that proves workable and meaningful, then maybe Jottings will stay alive for some time. If not, well we can cross that bridge when we get there.
Posted
9:31 AM
by Michael Fox
I was shocked this morning on one of the business news summaries I get to see a report that 150 Americans die from hazardous working conditions each day. To me that was a shocking figure.
The source for the article is apparently the 2015 edition of Death on the Job: The Toll of Neglect, produced by the AFL-CIO which as it turns out is still based on 2013 data. And you only get to the 150 average by combining 4,585 individuals actually killed on the job and an 'estimated' 50,000 who died from occupational diseases.
Although occupational disease is indeed a significant problem, it is certainly not the same as a worker actually being killed on the job, which is what I had first thought the 150 figure referred to.
Still the figures are fairly startling when you look at them another way. Rather than using 365 days, which is the basis for the 150 per day figure, if you use 250 working days, which is 52 weeks, 5 days a week, minus 10 days for vacation/holidays, the average number of employees killed per day at work is just over 18 a day.
By contrast, in 2013 32,719 people died in traffic accidents, about 90 a day based on a 365 day basis.
Still that every working day, 18 Americans go to work but don't come home that evening, is a sobering number.
: 2:47 AM
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