Jottings By An Employer's Lawyer

Thursday, December 29, 2005

Thanks - You Know Who You Are

Unfortunately, I don't.

What do you do when you receive a lovely (not to mention tasty) gift, this time one of Harry and David's Chocolate Towers, but the card identifying the giver is missing? Well you think back to anyone who has offered a hint that it was coming, but when that turns up nothing -- you feel badly. But in yet another (maybe only?) advantage of having a blog --- you can at least put the thanks out there -- in the faint hope that anyone kind enough to have sent such a wonderful gift might occasionally wander by Jottings, just to see what is going on.

If so, my sincerest thanks (and let me know!!).

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Wednesday, December 28, 2005

EPLI Insurance for Sexual Harassment Challenged on Public Policy Grounds

What is now viewed as no longer a novelty in America - an insurance policy that protects a company from lawsuits based on employment practices - has been challenged by a member of the Israeli Parliament. According to the Jerusalem Post story, Gal-on Petitions JCJ on harassment:
Meretz Chair MK Zehava Gal-On petitioned the High Court of Justice on Sunday to prevent the AIG insurance company from selling an insurance policy that includes coverage for high-ranking corporate employees accused of sexual harassment.
According to the Knesset Member and Chair of the Meretz political party:

legitimizing such a policy reduces the danger associated with committing sexual harassment, neutralizes [the law's] preventative force, and neutralizes the law in terms of preventing sexual harassment.

The Christmas day filing was probably not the sort of gift AIG was hoping for, although given the year the company has had it may not seem like that big a deal.

Although I would be surprised if the motion was successful, for possible purchasers of such policies, if they are not going to be valid, much better to find out before paying the premiums than after the fact - as happened to the policyholder in a 5th Circuit decision earlier this year. See Check Your EPLI Policy - When Coverage For Discrimination Doesn't Mean The Most Common Type of Discrimination Claim.


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Tuesday, December 27, 2005

A Perpetual Pain - In More Ways Than One - Performance Appraisals

As an employment lawyer who makes his living defending employers in adversary proceedings, performance appraisals are my worst nightmares. All too often there is a noticeable lack of correlation between what a manager tells you about a recently terminated employee and the employee you would expect to see based on their file of performance appraisals. At a minimum you are likely to be forced to deal with a long history of "meets requirements", which of course begs the question, at least in a jury's mind, of why it became necessary to terminate some one for performance who, after all, was meeting requirements.

As a supervisor of younger lawyers and staff people, and thus someone who is on occasion required to do performance appraisals, I can identify with all the reasons that performance appraisals turn out wishy-washy and not as good as they should be. So I am always keen for a better way to do them, or even just insights on how they might be made better. That was my frame of mind when I stumbled over an article on MindSolve's website talking about their patented Visual Profiler. While knowing nothing more about it other than what I read on the referenced link, it did seem intriguing. If nothing else, their comments on the benefits of comparative rankings are food for thought.

Monday, December 26, 2005

More "New" Organizing Developments

Use of government influence as an organizing tool promises to be a continuing story in 2006 and, Case tests city's power to back union labor, from the Philadelphia Business Journal, reports on the latest battleground. For how one court has treated such attempts see 7th Circuit Overturns Local Government Mandated Labor Peace Agreements and Government Aid to Organized Labor, Chapter 2 in 7th Circuit .

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Wednesday, December 14, 2005

Feliz Navidad

Blogging will be light or more likely non-existent for the next 10 days, as I go on holiday to the colonial city of Puebla, Mexico.

For those of you who stumble on this sight intentionally or by accident, I wish you and your family the best of the holiday season.

Safe travels and good cheer where ever you may be.

Michael Fox

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Even By California Standards -- $63.8 MDV Is a High Flyer

Which must be the way Doyle Baker, a 64 year old pilot must feel after completing the punitive damage phase of his successful wrongful termination and age discrimination suit against PrivatAir. Pilot awarded millions. The case had some star power as PrivatAir as Baker used to fly Demi Moore and Bruce Willis.

According to Baker's attorney he was the victim of a "conspiracy concocted by Baker's fellow workers to put him out of a job and replace him with a younger pilot." Almost half of the jury verdict was against two fellow pilots and a stewardess who were allegedly involved in the conspiracy.

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5th Circuit Makes it Clear - It is Severe OR Pervasive

Clearing up a question that existed primarily in the hopes of management side employment lawyers practicing in the 5th Circuit, the Court yesterday acknowledges that it has sent mixed messages about the correct standard to judge whether sexual harassment is actionable-- is it "severe and pervasive" or is it "severe or pervasive." Noting that Supreme Court decisions are controlling, the Circuit aligns itself squarely with the "severe OR pervasive" standard:
Contrary to being an irrelevant distinction, as [employer's] counsel asserts, the requirement that a plaintiff establish that reported abusive conduct be both severe and pervasive in order to be actionable imposes a more stringent burden on the plaintiff than required by law.
Harvill v. Westward Communications,LLC (5th Cir. 12/13/05) [pdf].

Winning that point was not sufficient to win the case however, as summary judgment was affirmed on other points.

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Tuesday, December 13, 2005

Employer's RICO Liability for Hiring of Illegal Workers

Will be the subject of Supreme Court review as yesterday it granted certiorari in Mohawk Industries v. Williams. Although I don't follow the pace of a Supreme Court practice, this one appears to be fast tracked as the case was decided at the circuit court level in June, the certiorari response was due on November 14th and less than a month later it is granted.

The 11th Circuit summarized what this case is about in its decision that will now be reviewed:
The plaintiffs filed this class-action complaint alleging that Mohawk’s widespread and knowing employment and harboring of illegal workers allowed Mohawk to reduce labor costs by depressing wages for its legal hourly employees and discourage worker’s-compensation claims, in violation of federal and state RICO statutes. The plaintiffs also alleged that Mohawk was unjustly enriched by the lower wages it paid, as well as the reduced number of worker’scompensation claims it paid.
Williams v. Mohawk Industries, Inc. (11th Cir. 6/9/05) [pdf]. The Court allowed the action to proceed.

Although not a party, you can be sure that Wal-Mart will be watching as they have been the defendant in similar cases. See Have Wal-Mart's Lawyers Found a Smoking Gun?

It also means Carter Phillips, one of the small bar of Supreme Court practitioners that Chief Justice Roberts came from, is going to be busy. This is the 2nd week in a row that Phillips has obtained a grant of certiorari for his client in a major employment law case. See Supreme Court to Decide Major Issue - What is an Adverse Employment Action?

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Monday, December 12, 2005

Religious Discrimination: The Story That Still Isn't

Notwithstanding that numerous commentators (including me) have been saying for some time now that discrimination on the basis of religion is the "next big deal", statistically it sill isn't. The story, Professions of faith, from the Boston Business Journal is more evidence: "the number of cases of religious discrimination filed so far this year in Massachusetts is 45, an eight-year low."

The potential fly in the ointment -- the Workplace Religious Freedom Act (S.667) which according to the story "seems to have more momentum" this year. We'll see.

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Sunday, December 11, 2005

Government Aid to Organized Labor, Chapter 2 in 7th Circuit

Twice this month the 7th Circuit has considered challenges to legislative enactments designed to aid organized labor. It's a split decision as this time it ends much more to labor's liking. The 7th Circuit upholds an Illinois state law requiring a project labor agreement for state subsidized renewable fuel plants. Northern Illinois Chapter of ABC v. Lavin (7th Cir. 12/9/05) [pdf]. The difference between this and the case 2 days earlier? [see 7th Circuit Overturns Local Government Mandated Labor Peace Agreements ] In Milwaukee County a purchasing rule prescribing how employers must handle labor relations in all aspects of their business was pre-empted, but here - a conditioned subsidy was not.

Along the way, Judge Easterbrook makes a few common sense points -- the kind everyone knows, but not always said:
about project agreements -- As a practical matter such agreements can
be achieved only by employers that recognize and bargain with labor unions.
conditional funding as a regulation --The question “is a condition on the receipt of a grant a form of regulation?” comes up frequently, and the answer almost always is negative.
effects of a subsidy -- The lure of a subsidy may lead firms at the margin to reach labor agreements.
reason for the subsidy -- If (as seems likely) Illinois has taken the approach in this law because state officials want to assist organized labor as well as the farmers who supply the grain to be made into ethanol and the owners of ethanol plants, that is neither a surprise nor a reason for invalidity...
why government projects cost so much - - Many a public project is bigger or more expensive than it need be, in order to enlist the support of multiple interest groups.
Refreshing to hear common sense. It would be even better to hear it from members of the other two branches of government.

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Thursday, December 08, 2005

MDV Against "Safety Conscious" Employer

Turning an employer's safety program into a negative resulted in a $5 million plus dollar verdict against a South Dakota employer according to a recent story in the Seattle Legal-Ledger, Plaintiffs use little known theory to win bad faith insurance case.

The theory involved going after the employer which had taken a hard line position advocating that its workers compensation carrier not pay a claim. (According to the story the claim in dispute was slightly under $6,000.) In the subsequent suit for bad faith denial of the claim, the insurance carrier settled early and the claim against the employer proceeded on the theory that it had aided and abetted the commission of a tort. Given that it arose out of a workers compensation claim, which usually bars most tort claims against the employer, it will be interesting to see how this ultimatelyone plays out.

Regardless of the final resolution, how plaintiff's counsel was able to turn a company's safety program into a negative is an important lesson. According to the article the employer had "goals in place of less than one day of lost time due to injury for every 100 employees." In two years running the company paid out more than $400,000 in bonuses under the program.

The argument, apparently bought by the jury, was that the incentives led to improper actions on part of the company. Part of the evidence was that the company:
Failed to report employees' injuries to the South Dakota Department of Labor or to the federal OSHA and actively encouraged workers to not take days off from work because of injuries. ... One former employee testified that in order to reduce the number of days lost to injury, a supervisor came and picked him up the day after a surgical procedure and had him sit in the office all day.
Not the first time that allegation has been made and one that employers with safety incentive programs should be aware might be coming.


Hi Michael,

I appreciated reading your comments about the article "Plaintiffs Use Little Known Theory to Win Bad Faith Case", and how the plaintiff's counsel took the employer's safety program and turned it into a negative.

I was the plaintiff's lawyer in that particular case. I appreciate your interest in the subject, and I hope you will allow me to explain what to some must seem like an artful gimmick on my part.

Many "safety programs", such as the one involved in this case, don't really reward safety, they just reward not reporting injuries or lost work days.

For instance, under the program involved in this case, if one employee drops a brick on the head of another employee, but neither one reports the incident, then both employees are rewarded with "safety bonuses", and both will participate in a raffle drawing where the prize is a trip to Hawaii. This raffle program is called "Hawaii is No Accident".

However, if the employee who got hit on the head with a brick reports an injury, then the injured employee (who did nothing to cause an accident except perhaps fail to duck) loses his "safety" bonus and also loses the right to participate in the raffle.

The employee who dropped the brick, on the other hand, still gets to participate in the raffle because he did not report any work related injuries.

So, the employee who causes an accident is rewarded, while the employee who did nothing to cause an accident but was instead the victim of another's carelessness, is penalized.

The deciding factor between whether you are rewarded or penalized? It all comes down to one thing: whether you report having suffered an injury. Does this sound like an honest program?

In this case, the evidence showed dozens of injuries that were never reported. It showed supervisors forcing employees to report to work the day after surgery, even if they only slept in a chair while recovering from narcotic pain medications. That way the supervisors could avoid reporting a lost day of work, which would jeopardize bonuses for supervisors.

This is not an honest safety program. When injuries are covered up, the cause of those injuries go undetected and worse yet, uncorrected. Do your clients really want people driving heavy machinery who are on narcotic painkillers, just so no lost days are reported and the company "looks" safe?

Please tell the employers that you advise and represent that these are not really safety programs, they are dangerous programs.

You have a wonderful web-site and do a great service to employers who read it. Keep up the good work.

I hope the explanation contained in this note will be of some help to you, and to those well intentioned readers who are really trying to protect employees.

Mike Abourezk
Rapid City, SD
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S.F. Police Officers - Christmas Party Video - Uh Oh

Courtesy of Rick Klau's tins :::, a video news story from ABC News about the SF police officer video tape made apparently for an upcoming Christmas party, which includes some of the video clips as well as a fairly painful interview with the officer who made the tape.

Christmas parties just seem to be chock full of opportunities to cause workplace problems, often for employees. The disclaimer that the video was "offensive and in poor taste" wasn't nearly enough to save the day. The scorecard -- 20 officers suspended.

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Gallup Poll on Discrimination vs. EEOC Filings

EEOC has posted preliminary data on charges filed in FY 2005, along with results of a recently conducted Gallup Poll on discrimination in the workplace, New Gallup Poll on Employment Discrimination Shows Progress, Problems 40 Years after Founding of EEOC. One sharp difference in the data noted by Chair Cari M. Dominguez:
When you compare our most recent EEOC charge statistics with the Gallup data, we find that a far greater percentage of Hispanics and Asians perceive themselves to be discriminated against than actually file charges. Through the continuation of strong enforcement and targeted outreach and education, the EEOC is striving to ensure that the promise of the Civil Rights Act of 40 years ago will continue to be fulfilled for succeeding generations of American workers.
According to the EEOC there were just over 75,000 charges filed in the year which ended September 30th - 61% under Title VII, 20% under the ADA and 18% under the ADEA.

Race discrimination was about 36% of all charges, sex discrimination 31%, retaliation about 29% and national origin about 11%. No figures were released on religious discrimination charges, which based on anecdotal evidence one would have thought might have shown a substantial increase.


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Wednesday, December 07, 2005

"Ride them Hard and Put Them Up Wet"

What does that phrase mean? It's a half-million dollar question apparently. Check out the details of the settlement of a sexual harassment case based on a school official's use of that phrase in the presence of some female employees. It is reported, $450K settlement after "ride them hard" remark, at one of the best legal sites around,

According to the quote from the newspaper article the phrase is:
A rural idiom that means someone is tired or worked hard. The phrase is taken from the need to cool down a horse after strenuous exercise. Only a mistreated horse is stabled while it is still sweating.
Which is certainly what I thought, and meant, on the times I myself have slipped into "rural idiom talk." (Easy to do for someone from Sulphur Springs.)

Thinking to confirm the meaning and have a witty link for this post, I was amazed when the first entry in my Google search was from Amazon for its 233,168th best selling book: Rode Hard, Put Away Wet: Lesbian Cowboy Erotica.

Lesbian Cowboy Erotica? What a world!

But I agree with the school board member quoted in the article -- it still sounds like nuts!

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Summary of Texas Workers Compensation Reforms

I haven't linked to the Workers Comp Insider in a while, certainly not because they don't continue to post great information on a regular basis -- which they do -- more my general posting sloth. Maybe the link to today's summary Texas Workers Compensation Reform will help get me back in the groove.

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Judge Janice Rogers Brown - Predictions/Results

Before Judge Brown's confirmation to the Court of Appeals for the D.C. Circuit:

"Janice Rogers Brown has a record of hostility to fundamental civil and constitutional rights principles, and she is committed to using her power as a judge to twist the law in ways that undermine those principles." Joint Press Release of People for the American Way and the NAACP, posted at The Black Commentator.
"Discrimination: Brown has written a truly stunning array of opinions ruling against people filing lawsuits for discrimination." The Truth about Janice Rogers Brown, posted at the National Organization for Women.
Judge Brown's first two authored opinions in employment cases.

Jones v. District of Columbia Dept. of Corrections (11/15/05) [pdf]:

"Appellant Angela R. Jones brought this action against her employer, the District of Columbia Department of Corrections (“Department”), and various individuals, alleging sexual harassment, retaliation, and several common law claims. The district court granted summary judgment against Jones as to all causes of action and denied Jones’s motion for leave to amend her complaint. We reverse the judgment of the district court as to Jones’s sexual harassment cause of action. We also reverse the order of the district court denying Jones leave to amend her complaint."
Reversed because Defendant failed to plead Farragher/Ellerth defense as an affirmative defense.
Smith v. District of Columbia (D.C. Cir. 12/6/05) [pdf]:
"Gwendolyn Smith, a former employee of the District of Columbia’s Department of Mental Health (DMH), filed suit against the District, claiming she was the victim of discrimination and retaliation under the Americans with Disabilities Act (ADA). The district court granted summary judgment to the District on both claims; Smith now appeals. We find the district court properly granted summary judgment on Smith’s retaliation claim but abused its discretion by granting the District’s late motion for summary judgment on the discrimination claim. We therefore remand the case for trial on the discrimination claim."
Reversed because the Defendant filed motion for summary judgment after the deadline.
In fairness, these early decisions were both on procedural issues. But most would agree the results are harsh and the one on the short end in both cases was the employer. Hardly what one would expect if you listened only to the People for the American Way, the NAACP and NOW. Maybe something to remember for the confirmation hearing of Judge Alito.

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OSHA's New Advanced Search

Thanks to Professor Rick Bales at Workplace Prof Blog for the tip about OSHA's new Advanced Search Page. It's pretty slick -- a search for "Sarbanes Oxley" gets the following results by category:

Regulations 20
Federal Register 9
Directives 1
Publications 5
Testimonies 1
Unified Agenda 4
News Releases 6
Enforcement 2
Other 3
QuickTakes 3

Headlines for each category are displayed like these three Top Links:

2003 - 05/28/2003 - Procedures for the Handling of Discrimination Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002 - 68:31859-31868
2004 - 08/24/2004 - Procedures for the Handling of Discrimination Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002; Final Rule - 69:52103-52117

2003 - 05/27/2003 - OSHA Publishes Interim Final Rule on Whistleblower Procedures under the Sarbanes-Oxley Act of 2002

A good starting place for OSHA research.

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Tuesday, December 06, 2005

9th Cir. KO's FLSA/FMLA Claims on Res Judicata

The first time around plaintiff filed a race discrimination claim. Two years later, "after discovery was complete, expert witness disclosures had passed and summary judgment motions were fully briefed, Mpoyo sought leave to amend his complaint to include FMLA and FLSA claims." That leave was denied and the grant of summary judgment on the race claim and the failure for leave to amend were affirmed by the 9th Circuit in an earlier appeal.

Nothing if not persistent, plaintiff refiled the FLSA and FMLA claims as a separate lawsuit. Although granting that not all elements that are considered for res judicata necessarily favored dismissal, the Court found that certainly the matters arose out of the same nucleus of operative fact:
Because both sets of Mpoyo’s claims arise from Litton’s conduct while Mpoyo was an employee and specifically from the events leading to his termination, his claims relate to the same set of facts. Furthermore, the Title VII, FLSA and FMLA claims form a convenient trial unit that discloses a cohesive narrative of an employee-employer relationship and a controversial termination. This subsequent action “arises from the same transaction, or series of transactions as the original action” and therefore satisfies the first criterion.
With that, the court felt comfortable in joining the "First, Second, Third, Fifth and Eighth Circuits" which "bar under res judicata the subsequent filing of claims denied leave to amend." Mpoyo v. Litton Electro-Optical Systems (9th Cir. 12/5/05) [pdf].


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7th Circuit Overturns Local Government Mandated Labor Peace Agreements

The new union tactics that I referred to recently, A New Page in Organizing, which include pressuring local governments, don't always work. Not always because the city, county or state won't go along; sometimes they go too far. At least that is what happened in Milwaukee County, where the 7th Circuit struck down Chapter 31 of the county's general ordinances. The 2000 legislation requires certain county contractors to enter into "labor peace" agreements with any unions that request them. Metropolitan Milwaukee Association of Commerce v. Milwauke County (7th Cir. 12/5/05) [pdf].

The County sought to rely on its spending power to validate its ordinance. Unfortunately, they ran into the Judge Posner buzz-saw. First, he looked behind the holding in Wisconsin Dept. of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 290-91 (1986), for this key principle: the spending power may not be used as a pretext for regulating labor relations. Having established this principle, Judge Posner then systematically dismantles the one argument offered by the County in defense of its ordinance -- the need to protect the county against work stoppages.

In the end he has no problem reaching this conclusion:
On the contrary, we have seen that labor-peace agreements might well increase the frequency of service interruptions. The claim that the County is requiring labor peace agreements in order to further its interest as a buyer of services cannot withstand scrutiny. On this record, it is a pretext to regulate the labor relations of companies that happen, perhaps quite incidentally, to do some County work.
The pre-emption argument was supported by an amicus brief filed by the NLRB, authorized by a 3-2 vote of the Board.

And a huge thank you to Mike Cernovich at Crime and Federalism for his instructions on properly linking to 7th Circuit opinions. Hopefully for the benefit of future readers, I got it right.

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Monday, December 05, 2005

Supreme Court to Decide Major Issue - What is an Adverse Employment Action?

One of an employer's primary defenses to a retaliation claim is -- no adverse employment action. But the strength of the defense often depended on where you were. A definitive (and more uniform) answer got a step closer today as the Supreme Court granted certiorari in the 4th Circuit en banc decision White v. Burlington Northern, at the request of the employer and two of its amicus, the Equal Employment Advisory Council and the Association of American Railroads.

For why the Supreme Court might need to sort things out, you need look no further than the listing of the opinions of the various judges of the 6th Circuit in the underlying case:

GIBBONS, J., announced the judgment and majority opinion of the en banc court on all issues. The entire en banc court joined Parts I (Background) and III (Attorney's Fees) of the majority opinion. Part II (Adverse Employment Action) of the majority opinion was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, GILMAN, ROGERS, SUTTON, and COOK, JJ., and Part IV (Punitive Damages) was joined by MARTIN, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, and COOK, JJ. CLAY, J. (pp. 36-51), filed a separate concurring opinion joining Parts I, III, and IV of the majority opinion and writing separately as to Parts II and V, in which he was joined by MARTIN, DAUGHTREY, MOORE, and COLE, JJ. SUTTON, J. (pp. 52-85), filed an opinion concurring in Parts I - III and dissenting from Parts IV and V, in which he was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, and ROGERS, JJ.
In what was shaping up as a lack luster term for Supreme Court action on employment law matters, this ups the ante, particularly for those in the 5th Circuit which has long used the "ultimate employment action" test -- by far the most employer favorable. See Mattern v. Eastman Kodak, 104 F.3d 702 (5th Cir. 1997).

Although this is the type of case where employers might think whether it is Judge or Justice Alito could make a favorable difference, before assuming so they should probably read Judge Alito's opinion, reversing summary judgment for the employer, in Mondzelewski v. Pathmark Stores, Inc,162 F.3D 778 (3rd Cir. 1998)[pdf]:
We readily agree with the District Court's observation that assignment to a 9:00 a.m. to 5:00 p.m. shift "cannot be considered an extreme hardship given most of this country's workers are governed by that shift." Mondzelewski, 976 F. Supp. at 284. But the critical question for present purposes is not whether Mondzelewski suffered an "extreme hardship," but whether his terms, conditions, or privileges of employment were altered. Nothing in the ADA suggests that employers are prohibited from taking only those retaliatory actions that impose an "extreme hardship." To be sure, the relatively mild nature of Pathmark's allegedly retaliatory conduct may not be without legal or practical significance, but it is not dispositive with respect to the narrow legal question now before us regarding 42 U.S.C. § 12203(a).
Ross Runkel at Ross' Employment Law Memo was my first alert to this important issue; SCOTUS as always has a concise summary.


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Houston Janitor Story - A Labor Side Summary

As he often does, Jordan Barab of Confined Space, provides a comprehensive summary of developments from the organized labor perspective, this time about the recent organization of janitors in Space City, Organizing Victory in Houston (Texas?).

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Sunday, December 04, 2005

Mitigation - A Look at the Defense North of the Border

Michael Fitzgibbon of the always thoughtful, Thoughts from a Management Lawyer, looks at the affirmative defense of mitigation -- a reduction in a plaintiff's damages because of their failure to take appropriate steps to prevent the damage from occurring. In employment cases that usually means the fired employee's back pay award should be reduced because he or she made insufficient efforts to obtain comparable work. In his post, Mitigation in Employment Law, Michael notes a recent case reducing back pay by 20% in part because:
She did not request a letter of reference from her former employers, in circumstances where there is no indication that they would not have willingly done so. Such a request, even if perfunctory, seems, in my view, a reasonable first step for anyone who is seriously entering the job market. ....
Michael points out that mitigation is an affirmative defense, which puts the burden on the employer to show the plaintiff could have done more. In America, it's usually a jury question, although it not clear from the opinion that is true in Canada. Given that you only get to the question of mitigation if there is a finding of liability, which means the jury has already opted for the plaintiff's version not your's, easy to see why it often can be a high hurdle.

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Friday, December 02, 2005

The Profit Motive and Discrimination

Businesses don't discriminate -- not because they are good -- but because they want to make money. That at least is the point economist Thomas Sowell makes in his reflections on the death of civil rights hero Rosa Parks, Rosa Parks and history. Two paragraphs go to the heart of the history lesson on why it was not business, but politics that led to Jim Crow seating on public transportation:
These owners may have been racists themselves but they were in business to make a profit -- and you don't make a profit by alienating a lot of your customers. There was not enough market demand for Jim Crow seating on municipal transit to bring it about.
It was politics that segregated the races because the incentives of the political process are different from the incentives of the economic process. Both blacks and whites spent money to ride the buses but, after the disenfranchisement of black voters in the late 19th and early 20th century, only whites counted in the political process.
The money quote -- here literally:
Black people's money was just as good as white people's money, even though that was not the case when it came to votes.
I certainly don't think the profit motive is the only reason employer's don't discriminate, don't tolerate harassment etc. But before assuming employers are inclined to "do wrong" vis-a-vis their employees, it might be good to remember that often would mean working against their own financial best interest, not something that many are inclined to do.

Thanks to A Constrained Vision for the link, which was posted there in a much more timely manner.

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An Honest Blogger - Happy Blogiversary to Disability Law

As a small amount of controversy swirls the small world of legal related blogs concerning the publication I mentioned yesterday, Blawgworld 2006, see Even Schaeffer's post and the on-going commentary, I found the author of Disability Law's post concerning its founding one year ago particularly pertinent:
I don't do lots of navel-gazing, but yesterday was the one year anniversary of this blog. I started the blog while hopped up on painkillers from wisdom-tooth removal, and I've always thought that maybe it was just a lapse in judgment. But I've really enjoyed it, and I hope folks have found it useful. I look forward to keeping this up for yet another year.
While I can certainly identify with the idea that starting down the path of blogging is perhaps irrefutable evidence of a "lapse of judgment", obviously both from my own reading and those who are commenting about Disability Law, it has been a beneficial lapse.

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I May Have to Change the Name of This Blog

If I keep saying complimentary things about the SEIU, but here's another. Check out the SEIU sponsored contest described in today's LA Times story, Union's Latest Idea: Organize a Contest. The basic idea - a $100,000 top prize contest for the best "'common sense' solutions to the nation's most pressing problems." You can check out the contest, and the already submitted ideas at the cleverly named Since Sliced

Although the deadline for submission is next Monday, your ability to participate in selecting the best ideas will continue:
Since Sliced Bread is so serious about finding and rewarding good ideas a panel of respected thinkers and community leaders will choose 21 finalists and public voting will determine the top three ideas. The winner receives a grand prize of $100,000 and our commitment to work to make the idea a reality. The two runners-up take home $50,000. All 21 ideas will be featured in a book to be published in 2006.
As the LA Times story points out some of the 16,399 (as of this posting) ideas submitted are "wacky," but the simple act of asking is a good example of common sense itself. Clearly the outpouring of response says something about the pent up demand for real solutions to problems -- as opposed to partisan rhetoric designed to inflame and secure support within one's own base, (regardless of whether that base sits on the right or left of the political map) offered under the guise of being a solution.

If the contest happens to promote the SEIU as smart thinking and creative, they have earned it, at least for this project.

A hat tip to Workplace Issues Today, from the good folks at Cornell who every day keep me informed of things, like this, that I have missed elsewhere.

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Thursday, December 01, 2005

The Importance of Paralegals - An Interesting Look at Employee Absenteeism

Although prepared for a different purpose (to show the value of investing in programs for employee health) a recent Wharton study, Multiplier Effect: The Financial Consequences of Worker Absences, ranks paralegals as the #1 most costly person to have absent out of 35 job types considered. The reason -- the multiplier effect:
Many paralegals, for example, serve as the "memory and legs" of lawyers in a law firm by helping to keep tabs on deadlines and making sure filings are delivered in a timely fashion, says Wharton professor of health care systems Mark V. Pauly. So, when a paralegal is sick, the loss in productivity can be large as replacements struggle to learn about the absent worker's cases. That's not as true, however, with fast food cooks, waiters and hotel maids. Because employees in those fields tend to perform discrete, measurable tasks and work individually, managers don't struggle as much to replace sick workers.
The concept -- the multiplier reflects the cost to the firm as a proportion of the absent worker's daily wage. The multiplier for a paralegal -- 1.93. If you're intrigued about the concept, check out the full research paper, How to Present the Business Case for Healthcare Quality to Employers[pdf].

Not a bad thing to have when impressing on employees, or perhaps even a jury, how costly workers absences are.

Thanks to the TP Wire Service for the link.

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Ever Wonder What Your Employees Think of Your On Line Sexual Harassment Training?

At least Boise State doesn't have to worry what one of its employees, Professor Peter Wollheim, thinks. Dr. Wollheim from the school's department of communication has an unusual research area -- patterns of family disinheritance, based on interviews with people who have been written out of wills -- and also has a tongue in cheek review of the school's anti- harassment training.

You get the general idea from the lead for his article in the Boise Weekly, When Bureaucrats Rule Sex:
Lock the door. Bring out the candles. Dim the lights. Cue up the Luther Vandross. If we're doing this at home, we can pour ourselves some slightly chilled Chardonnay. Oh baby, it's time. Let's do this sitting up. I promise, it'll rock your world. And if we do it in Cascade, we might just feel the Earth move.
My guess is that Dr. Wolleheim's colleagues and students will think it a lot more humorous than the H.R. department, given quotes like this:
But from the employee perspective, Holly Borden, the comely director of Boise State's Office of Affirmative Action, has all the FAQs to get us in the mood--including the popular non-question: "The quality of the training is poor and insults my intelligence.
Sounds to me like a fellow with tenure -- and someone that it would be fun to have a drink with.

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BIG Truckdrivers - One Wins, Another Sues

I am not quite sure what Interstate Distributor Co. transports but one thing is clear -- it has some big guys behind the wheel. According to a story in The Oregonian, Second obese trucker files suit, two of them have taken offense at being suspended and sued their employer.

John McDuffy,6 foot, 550 pounds, has already gone to trial and got a verdict for $9,000 in back wages and $100,000 in damages. Now David Mankey, 5 foot 6, 450 pounds, is suing for his suspension which occurred three weeks before the first trial. Although the story doesn't make it clear what the actual cause of action is, McDuffy's lawyers say they have been told by two legal information services that "the verdict appears to be among the first in the nation awarded for obesity discrimination."

The story caught my eye as I am gathering cases and other material for an early February speech for the Advanced Employment Law Seminar for the Texas State Bar:
The Changing Face of Discrimination: Piercings, makeup and mannerisms are now more than just a matter of personal taste as courts begin to grapple with issues that differ greatlyfrom those in the early days of discrimination law.
Obesity may or may not fit, but successful claims would certainly be a change to the legal scene.

If you have other thoughts or ideas about what might fit in such a presentation, please pass them on.

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