Jottings By An Employer's Lawyer

Friday, June 30, 2006

NLRB Region 16 Has New Regional Director

Congratulations to Martha Kinard, a fellow UT Law school grad, for her appointment as Regional Director for the NLRB's Region 16. The Board press release announcing her appointment can be found here.

Region 16 located in Fort Worth covers most of Texas, and has 2 resident offices in Houston and San Antonio.

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Texas Supreme Court - Employer Not Liable For Employee's Off Work Conduct

Although there are a few caveats, Texas employers can breathe a sigh of relief today as the Texas Supreme Court reversed an appeals court holding that an employer was liable for the shooting of a policeman by one of its employees. Loram Maintenance of Way, Inc. v. Ianni (Tx 6/30/06)[pdf].

The facts of the case are fairly damning:
Roger Tingle worked for Loram and traveled with his wife. Tingle was also an enthusiastic participant in an illegal drug culture that was allowed to flourish among the employees at Loram. He had been using methamphetamine on and off the job for ten months before the incident that led to this lawsuit. He testified that he only took the drug for recreational purposes, or to stay awake during work after partying,but there was also evidence that Tingle’s supervisor and co?workers used the drug, and that Tingle’s supervisor had given Tingle time off to purchase more.
Because of his heavy methamphetamine use, Tingle became moody and mentally unstable. In the weeks and days leading up to the incident, Tingle was seen using the drug at work, and he threatened one of his wife’s friends with a knife. Those incidents were reported to Loram management.
On the day of the incident, while at work, Tingle reportedly spoke of attacking his wife. After their shift ended, he and his co-workers were driven back to the motel where they were housed with their families. Later that day, Tingle got into an argument with his wife, forced her into their car, and began to drive out of the motel parking lot. When he threatened his wife with a gun, she jumped out of the car screaming for help. David Ianni, an El Paso police officer, was leaving a nearby restaurant when he witnessed the altercation and went to her aid. When Tingle got out of his car to pursue his wife, Ianni tried to intervene. Tingle then shot Ianni, seriously injuring him.

The case turned on the employer's duty to the injured police officer. The Supreme Court began by re-affirming the basic rule of long-standing in Texas -- "in the absence of a relationship between the parties giving rise to the right of control, one person is under no legal duty to control the conduct of another, even if there exists the practical ability to do so." While noting that the employer/employee relationship can give rise to this duty, the Court noted generally it was limited to responsibility only for off-duty torts committed either on the employer's premises or with its property.

Since neither of those were applicable, the last hope for the plaintiff was the Court's 1983 holding of an employer liable for a wreck involving an intoxicated employee sent home from work. Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309, 311 (Tex. 1983). The difference here -- there was no evidence that the employer tried to exercise control over the employee in any way. As the Court had said in Otis, "simply knowing that an employee is intoxicated or incapacitated is not enough for a duty to arise."

This is one of those awkward cases where the Court encourages conduct -- doing nothing in the face of a potentially dangerous employee as he is leaving your premises -- that on first blush seems to be counterproductive. But rather than opening the Pandora's box of liability for employers, a better way to get the desired result would be to reconsider Otis, either by the Court or by the legislature, to give some sort of Good Samaritan protection to an employer who tries to exert control in those circumstances.

Today's holding seems to preclude a replay in Texas of the recent decision of a New Jersey court holding an employer liable for the sexual molestation of an employee's step-daughter because it failed to monitor his work computer and discover that he was visiting pornographic sites. See, Mr. Employer - You Should Have Protected Me.

This is one of those cases where bad facts, and justifiable sympathy for the officer, could have made for bad law -- fortunately, this time it didn't.

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Thursday, June 29, 2006

MDV (With Comments) From Northern Iowa

The Mason City (Iowa) Globe Gazette headline gives the bottom line, Former Graham employee gets $1 million, detailing a recent workers compensation retaliation MDV. As is frequently the case, by far the biggest portion of the verdict was the punitive damage award, $775,000.

What is most interesting about this case are the comments from readers. They range from the anti-litigation crowd:
Have you ever been on the other side of the argument? The people who knowingly fake injuries are the ones who cause the problems for those who are really hurt. You know if your co-workers are really hurt or if they are just looking for easy street. Companies have little recourse for those who lie and cheat. Face it some people are just lazy and look for the easy buck....or million bucks.
But more were from the anti-company position as reflected by these two comments:
congrats wrote on June 27, 2006 8:19 AM:"way to go! Finally a company paying for their mistakes CONGRATULATIONS! "
rjm wrote on June 27, 2006 2:29 AM:"I think alot of other companies are guilty of treating employees the same way after an injury."
The comments certainly are in line with what I told those in Washington D.C. yesterday in my session at the SHRM Annual Conference -- The Fear of Losing Big: Managing in the Age of the Million Dollar Verdict. And are probably worth a read by anyone headed to trial on a workers compensation, or any other, retaliation case.


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Friday, June 23, 2006

Burlington Northern v. White -- The Day After

It will be more important to see how the courts react than the lawyers and the press, but it hasn't taken long for the latter to start predicting dire results for employers as a result of yesterday's Supreme Court ruling. A sampling of headlines and quotes:

  • From the Houston Chronicle quoting plaintiff's lawyer Andrew Golub: "Golub said employers now face the potential of having to go to trial over the 'little things' like moving complaining employees from a corner office to a cubicle, putting them on the graveyard shift or even taking away their coffee breaks." Ruling widens ability to sue. [Not quite what the Court said when it emphasized the importance of distinguishing the trivial from the significant.]
  • "The high court chose the most employee-friendly standard, lawyers on both sides agreed." High Court Widens Protection for Workers Against retaliation. Chicago Tribune. [Not correct, the Court rejected a more liberal standard advocated by EEOC and utilized by the 9th Circuit.]
  • "Employees who have discrimination complaints often cry retaliation," said Mimi Moore, a management lawyer in Chicago. "And now they will have a much better chance of getting their cases before a jury." Ruling protects workers from retaliation Firms can't punish employees who file bias complaints, San Francisco Chronicle. [Interesting because arguably the law is now tougher for employees in the 9th Circuit, where the San Francisco Chronicle is published, than it was before yesterday's ruling.]
  • However Ms. Moore was also quoted as saying the ruling might not be such bad news for employers, ""Employers now know that there is an objective standard that has to be met for someone to succeed in a retaliation claim," she said, noting that workers could not now claim that "trivial" actions constituted retaliation. US workers win more power in job discrimination lawsuits, MSNBC.
  • "Now, many retaliation cases that had previously been dismissed are likely to go to trial. That will encourage lawyers for alleged victims to take on more cases, and, accordingly, raise companies' costs for lawyers and defensive management practices." Court makes it easier for workers to sue. Seattle Times [Undoubtedly a true statement, that will be made even more so by reports overstating the wording of the decision.]
  • "This is an exceptionally important decision that changes the law in most of the country," Eric Schnapper, a law professor at the University of Washington who helped represent the plaintiff in the case, said in an interview. Supreme Court Gives Employees Broader Protection Against Retaliation in Workplace. New York Times.
  • And from the even when they win, they still have to get in their shots department - "How rightwing is the Bush administration when it argues to screw workers on behalf of corporate American-- and even Scalia and his rightwing brethren reject its position? In a sea of worsening legal doctrine on discrimination, the Supreme Court just handed down a decision, by a 9-0 vote, that clearly protects employees who demand that their employers end discrimination in the workplace from any kind of retaliation. ....

    "I should say that while the decision is officially 9-0, on some parts of the decision, it was 8-1 with Alito taking a more rightwing position of limiting what would count as retaliation, limiting it to economic losses by plaintiffs and giving employers a free ride to punish employees in all sorts of non-economic ways. So Alito may be making his bid to become the wingnut holding up the right pole of the Court. "BIG Win for Employees at Supreme Court, by blogger Nathan Newman.

From this employer's lawyer's perspective -- Burlington Northern v. White is clearly a substantial development that any employer must take into account -- but let's wait for the courts, the only group who's opinion really matters, to weigh in before hitting the panic button.

It's also a reminder to be careful what you ask for -- for all contemplating how bad this is for employers, remember who asked the Supreme Court to consider the question.


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Thursday, June 22, 2006

Supreme Court Answers the Question: What Is An Adverse Employment Action?

Deciding the most awaited employment decision of the term, the Supreme Court today clarified one of the prima facie elements for a retaliation claim. The shorthand prima facie case has always been

  • protected activity,
  • adverse employment action, and
  • causal link between the two.

Justice Breyer's majority opinion answered the question-- what is an adverse employment action? -- by spending the first half eliminating "employment" from the element.

The only thing really surprising about that aspect is that the Court took half of the opinion to say it. Referrring to the D.C. Circuit opinion involving an FBI agent who claimed that he was not warned when the FBI learned about threats to his life from an inmate, the Court makes clear that retaliatory action is not limited to workplace activities, but is any action which meets the standard it adopted today.

And that standard is:

In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.' "
The Court basically adopts the standard currently used by the 7th and D.C. Circuits.

The Court made three important explanatory points:

  • It is important to distinguish "significant from trivial" harms;
  • It used the phrase "reasonable employee" to make clear that the standard is an objective, rather than subjective one; and
  • It defined the standard in general terms because the decision as to whether it is an adverse action must be decided in context.

Applying its new standard, the Court unaminously finds that both a 37 day unpaid suspension, even though later converted to paid, and assignment to a more physically arduous position were adverse actions and thus serve the basis for a retaliation action.

The decision was 8-1 to on the standard -- Justice Alito concurred only in the result.

Burlington Northern Railway v. White (S.Ct. 6/22/06) [pdf].

My first thoughts -- a not terribly unexpected result. It will be talked about as a pro-employee decision -- which it is -- but employers can take heart in the explanatory comments, particularly that the test is objective. Similar to determining whether conduct meets the severe and pervasive standard for sexual harassment, whether an action is sufficiently adverse for retaliation may often be decided by the Court.

What it certainly means however is a period of time until the Courts, at least in 10 circuits, sort through their new standard.


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Wednesday, June 21, 2006

Been Talking To Your Buddy About Pay Rates?

Then you might want to focus on this quote from today's New York Times story, Suit Claims Hospitals Fixed Nurses' Pay, detailing lawsuits filed in four cities (Chicago, Memphis, Albany and San Antonio) alleging that hospitals had conspired to keep the wages of nurses low:
Mr. Small [lead plaintiffs' counsel] said his firm had conducted an investigation in which human resources officials, recruiters and others provided evidence of a wage-fixing conspiracy. He said human resources officials at hospitals in different cities had talked with each other by phone or at industry meetings to share salary information and to agree not to raise salaries to steal nurses from each other. [emphasis added]
Probably good to brush up on what you can and can't say about wage rates to make sure that you don't stray too close to the line of an antitrust violation.

It should not be a surprise that the Service Employees International Union appears to be prominently involved in the actions.

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Tuesday, June 20, 2006

Increase In Minimum Wage for Abolishing Estate Tax?

Although I am usually cautious about linking to articles that mention a "secret cabal of 18 of the richest families," Jonathan Tasini at Working Life has picked up what could be an important rumor from the WSJ. It seems that Senate Republicans might be willing to trade an increase in the minimum wage for votes to permanently abolish the estate tax. If so, it wouldn't be the first time a deal like this was worked out. He has the following quote from the WSJ:
The last federal increase, signed into law months before the 1996 presidential elections, followed bargaining over tax- and health-insurance-related issues important to Republican conservatives. The same could happen now because the minimum-wage debate is coming to a head even as Republican leaders, already offering concessions to timber interests, are looking for the final Senate votes needed for a compromise on estate-tax relief. While far too early to predict, the party could solve two problems at once by linking the wage and estate-tax issues in an election-year deal.
His view is pretty clear - Will The Democrats Cave?. If he's right about the possible deal, I am not sure it would only be those with union activist backgrounds that would be upset .

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NLRB Holds Mandatory Arbitration Provision Can Violate NLRA

For those with mandatory arbitration agreements for employment issues, the Board's opinion last week in U-Haul Company of California (NLRB. Case 32-CA-20665-1 6/8/06) [pdf] deserves a close reading. In a 2-1 decision it held an employer was in violation of § 8(a)(1) and (4) of the National Labor Relations Act by requiring that employees as a condition of employment agree to binding arbitration for all employment related disputes.

The problem -- it did not make clear that employees were not prohibited from filing charges of NLRA violations with the Board:

We recognize that the language in the arbitration policy does not explicitly restrict employees from resorting to the Board’s remedial procedures. However, the breadth of the policy language, referencing the policy’s applicability to causes of action recognized by “federal law or regulations,” would reasonably be read by employees to prohibit the filing of unfair labor practice charges with the Board. Plainly, the employees would reasonably construe the remedies for violations of the National Labor Relations Act as included among the legal claims recognized by Federal law that are covered by the policy. Thus, we find that the language of the policy is reasonably read to require employees to resort to the Respondent’s arbitration procedures instead of filing charges with the Board.
A hat tip to Ross Runkel at Ross Employment Law Blog for his post, NLRB takes aim at arbitration clause. As he points out the case is important:

because the Board held the arbitration policy on its face was an unfair labor practice, even though there was no proof that anybody had ever been deterred from utilizing the NLRB's processes.

A wise time to check your policy to make sure that it has some exclusionary language that would prevent it from falling in the same trap. The employer and the dissent argued that U-Haul's policy did have language that would have prevented the confusion, but the majority disagreed.


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Friday, June 16, 2006

Art Teacher's (Not Lover's) Spat Started Controversy

The saga of Tamara Hoover began with a dispute between two teachers over a pottery kiln according to a story in today's Austin American Statesman, Art teachers' spat brought photos to light. Based on records obtained under the Texas Open Records Act, the AAS story says that fellow teacher Gayle Andrews was told by students that if she wanted to get Hoover in trouble she should look at a certain website. Although desisting for a few days, she later asked to be shown the sight and then reported it to school officials.

The issue has certainly generated a lot of attention. AAS columist John Kelso made one of the less serious points in today's paper arguing tongue in cheek in Hoover's defense:

And, perhaps most important of all, she has helped hone the computer skills of teenage boys all over town, who have been clicking furiously on their PCs ever since the story broke.
Alas for them, many of the "offending" pictures have now been removed. But there's no question that they have been trying. People have found their way to my initial post, What Happens When the Art Teacher Is the Model? by various ways, including the merely curious:

  • tamara hoover
  • ms. hoover austin high art teacher
  • austin art teacher fired

to those apparently more interested in the visual arts

  • tamara hoover photos web site
  • tamara hoover topless
  • topless art teacher
  • topless Austin teacher photos

For those not following the blogosphere forums on this issue, sentiment is heavily weighted in Ms. Hoover's favor; it will be interesting to see how important that viewpoint is to the political process as this plays out. One guess, I bet the AISD Board wishes it could make this go away by purchasing a second kiln.

Let's get the facts out: teacher's picture taken nude, other teacher asks student to take her to website later notifying administrators. My opinion nudity is not illegal. Speeding is illegal. Do we fire every teacher that has had a speeding ticket? Also did the teacher use a "school computer" to look at "objectional material"? Is it not improper to ask a student to show you that material? Fire that teacher!! She has two strikes against her using a school computer and having a student show her the website.
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MDV in Delaware for Whistleblowing Troopers

Whistleblowers were back on top late last month as a Delaware federal court jury returned a verdict in favor of three officers who complained they were retaliated against for reporting environmental concerns at the state police firing range. See Delaware Troopers Awarded $2 Million In Lawsuit, at the website. According to the story:
For more than two weeks, jurors heard testimony from the troopers, as well as current and retired state police officers, on how [Retired Col. L. Aaron] Chaffinch [former head of the state police] mocked the troopers in front of other high-ranking officers and used profanity when referring to Foraker.
Although a nice notch in their belt, it's not over yet as both parties are looking at how the case will be impacted by the recent Supreme Court ruling in Garcetti v. Ceballos which held whistleblowers merely carrying out their job duties are not protected. See The Private Sector Implications of Garcetti v. Ceballos. One of plaintiff's counsel, Stephen Neuberger was not concerned, "We have a lot of cases that will be affected by Ceballos. This is not one of them."

Shortly after this verdict was returned on May 31, Chaffinch and the agency he headed were back before a second jury, this time in a sexual harassment case brought by the same attorneys who represented the three whistleblowers. The out come was different this time, as the jury took less than one hour to dismiss the plaintiff's claim. See, State police cleared of sex discrimination on the Delaware NewsJournal website.

Hat tip to the Daily Labor Report for the mention of the whistleblower verdict.

Update: On August 15, 2006, the district court took the jury verdict away based on the Supreme Court's decision in Garcetti v. Ceballos, decided the day before the jury returned its verdict. See Judge tosses verdict in trooper case.


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Thursday, June 15, 2006

Proposed Safe Harbor Rule For No Match Letters

As advertised, the Department of Homeland Security has published its proposed "safe harbor" rule for employers who receive "no-match letters" from the Social Security Administration, FR Doc E6-9303. For more information see my prior post here.

Public comments are to be accepted through August 14.

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Wednesday, June 14, 2006

Memo to Self: Be Sure and Send This to the Comp Committee At the End of the Year

After all, who can resist a plug like this:
These recent moves should be wake up calls to law firms with high profile lawyer bloggers. Many of your high paid marketing and PR people have not a clue about the power of blogging and the marketing value of these blogging lawyers.

Not only are such lawyers a source for new work, but they can also bring the firm into this century when it comes to effective Internet marketing by being a mentor to other lawyers learning to blog. Don't appreciate what these bloggers are bringing to the firm and you are going to lose them, their rainmaking and much more.
From Kevin O'Keefe's post, How does a law firm value a blogger?.

Or maybe on 2nd thought, I am better sticking with the approach outlined in my initial (and come to think of it, only) press interview on blogging:
"I've been careful not to do anything very far out," concedes Fox. It shows. Only one visitor to Fox's site has posted a comment. Fox says he is "still trying it out," and hasn't formally alerted anyone to the site.
From's November 7, 2002 article by Matt Fleischer-Black, A Discreet Bullhorn.

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It's Not Just Financial Shenanigans That Can Mean Jailtime for Execs

Failing to make sure that workers are safe is becoming more and more a criminal as well as civil and administrative matter. Although perhaps not frequent enough to be a "trend," headlines such as Ex-water company head convicted in workers deaths, in the Yuma Sun, will undoubtedly make ripples in corner offices across the country.

The conviction on two counts of negligent homicide and two counts of endangerement followed the death of two workers and injury of a third in a sewer accident that occurred in October 2001. The company had already been found guilty, fined $1.7 million and ordered to pay $150,000 in restitution to the families of the two deceased workers.

The conviction of the former president was based on lack of safety equipment and lack of safety training for employees. According to the stepfather of one of the dead workers:
Maybe this will make sure the people with the big paychecks, fancy titles and perks will realize they can be held responsible. It’s really shameful when the bottom line is more important than people who work for the company.
Sentencing is scheduled for June 29th.

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Tuesday, June 13, 2006

Latest Step in First SOX Reinstatement Case

If you have been following the saga of David Welch, who was one of the first whistleblowers to be the "beneficiary" of a reinstatement order, you know that it has been a long and arduous path. Here briefly is the timeline before last Friday's latest ruling:

  • October, 2002 -- Welch is terminated
  • February 4, 2003 -- OSHA denies his complaint
  • April 29, 2003 -- Welch files an appeal with the Office of Administrative Law Judges
  • August 25-26, 2003 -- Hearing before an Administrative Law Judge
  • January 28, 2004 -- ALJ issues Recommended Decision and Order, ordering reinstatement with damages to be decided by supplemental order
  • February 3, 2004 -- ALJ issues an Erratum, making it clear that January 28, 2004 is not appealable
  • February 5, 200 -- Cardinal appeals to the Administrative Review Board
  • May 13, 2004 -- Appeal dismissed as premature by ARB
  • June 30, 2004 -- Cardinal files appeal with Fourth Circuit Court of Appeals
  • September 3, 2004 -- Fourth Circuit dismisses appeal, no jurisdiction
  • February 15, 2005 -- ALJ issues Supplemental Recommended Decision and Order, ordering reinstatement and damages
  • August 5, 2005 -- Welch files Motion for Sanctions with ALJ
  • August 9, 2005 -- ALJ denies Motion, enforcement of reinstatement lies with United States District Court
  • August 30, 2005 -- Welch files Motion to Enforce in District Court for Virginia
  • January 4, 2006 -- Virginia District Court denies the Order saying too much confusion over what has been ordered
  • January 26, 2006 -- Virginia District Court clarifies its Order, saying it has no clear Order from ARB
  • March 31, 2006 -- ARB enters order that ALJ's Order was clear on reinstatement, that it is in effect, but given the confusion has given Cardinal 10 days to seek a stay of the order of reinstatement

Friday, the Administrative Review Board held that there was no basis for a stay and that Welch should be reinstated. They did offer some concessions to the bank holding company which was objecting to having a CFO who did not have the trust of the Board thrust on them. Among the options were using his skills productively by a "variety of other means," or as it suggested more than once "economic reinstatement" where he receives his pay and benefits, but does not work. Welch v. Cardinal Bankshares, Inc. (ARB Case No. 06-062, 6/9/06) [pdf].

All of the above and still no ruling on the merits. Maybe it is because it is the first case, but clearly it has not been as smooth as the drafters of the legislation and implementing regulations would have hoped. Given what has happened before, it would not be shocking if this stage of the litigation was not over yet. Certainly, there will be much more to come on the merits.

Update (7/4/06): Not too surprisingly, Cardinal Bankshares has declined to reinstate Welch and will instead wait for him or the DOL to file some sort of enforcement action. I would expect that soon. For more details on the costly fight over the first reinstatement ($400,000 in attorneys fees so far for the relatively small bank holding company) see Cardinal Refuses to Reinstate CFO from the website.

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From the "Who's Surprised?" Category

According to a report from the SP3 Consulting group:

Unemployed individuals who are collecting unemployment insurance (UI) benefits stay out of work more than twice as long as the unemployed who don’t collect benefits. That’s the finding in the study recently given to the U.S. Congress by the Government Accountability Office (GAO).

The whole report, Unemployment Benefits: Factors Associated with Benefit Receipt, has some other interesting facts you might want to check out if you think your unemployment tax rate is getting a little high.

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What Happens When the Art Teacher Is the Model?

You have a tremendous headache if you are the Austin Independent School District, which is mulling over what to do with 29 year old art teacher Tamara Hoover after topless photos appeared on the internet. According to today's Austin American Statesman, District looks to fire Austin High art teacher, the School Board has started the termination process by a vote last night. Ms. Hoover is not going down easy as her site on MySpace has her story -- currently in limited version at the request of her lawyer -- and an appeal for funds to support her fight.

The photo's, artistic photography according to Hoover, are on her photographer friend, Celesta Danger's MySpace site.

Several years ago, there would be no question how this one would turn out. Today, the world is changing. My guess -- not soon enough for Ms. Hoover's AISD career, but in the age where being fired for internet activities is often a stepping stone to success, see the NYT's story, Interns? No Bloggers Need Apply, who knows where she may show up next.

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Dispatching Firefighters Still Within § 207 (k) Exemption

If you represent firefighters, fire departments or are an FLSA geek, the following from the 5th Circuit will be meaningful and important:
In sum, we conclude that § 553.212 is no longer in effect.* The new statute, § 203(y), provides a definition previously provided by § 553.210 and its subsidiary regulation § 553.212. Both of these regulations are therefore now obsolete and without effect. The 20% rule no longer applies to the Plaintiffs, and it therefore does not remove them from the statutory definition of "employees engaged in fire protection activities." Thus, they fall within the § 207(k) exemption.
* Section 553.212's 20% rule remains in effect as it applies to employees engaged in law enforcement activities covered by 29 C.F.R. § 553.211. See 29 C.F.R. § 553.212.

McGavock v. City of Water Valley (5th Cir. 6/12/06) [pdf].

For the rest of us, back to scanning World Cup scores.


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Monday, June 12, 2006

David Safon (1962 - 2006)

I probably saw David Safon fewer than a dozen times, certainly less than two dozen, but news of his untimely death of a heart attack reminds me again how the impact a person makes is related far more to their qualities than to the frequency with which you see them.

David was a fellow member of a group of 60 or so labor and employment professionals from around the country known as the Management Labor and Employment Roundtable which meets twice a year to discuss matters of professional interest. Although those meetings are great from a professional standpoint, the friendships that come out of not only the more formal meetings (which are not very formal), but the dinners, drinks, golf games and talks are much more meaningful.

In that setting, the impact of David is hard to overstate. Always with a laugh -- and a quip -- he is exactly what one would hope for as a friend and a colleague. Although he never took himself seriously, it was evident that he took what he did seriously and was an excellent lawyer.

Less than six weeks ago in our meeting in Charleston, at the end of a long winded discussion amongst the rest of us (we are lawyers after all) he summed up with perfect clarity the heart of what we had been saying. When someone commented on his ability to do just that, there was a pregnant pause, a big grin and then in that Brooklyn accent which will be forever missed whenever we gather -- he said with tongue firmly planted in cheek -- "Because that's what I do."

He did that ---- and many other things exceedingly well. He will be sorely missed by those of us who really did not know him nearly as well as we would have wished. We can only begin to guess how much a loss there will be for those who were lucky enough to have known him longer.

Here is the announcement from the managing partner of David's law firm, Ford & Harrison.

I am sad to announce the death of our partner, David Safon. David stayed over after our meeting in Atlanta on Saturday to play golf with a number of our lawyers. He had what appears to have been a massive heart attack during the game and was gone before aid could arrive.

David was a wonderful representative of our firm and an outstanding lawyer who was deeply devoted to his wife and children. He will be missed by all who knew him.

The funeral will be held on Monday , June 12 at 10:00 AM at Congregation Ohav Shalmon , 145 South Merrick Ave , Merrick , NY 11566.

In lieu of flowers the family has requested that donations be made to David's favorite charities :

Chai-Life Line 151 West 30th Street New York , NY 10001


Congregation Ohav Shalom 145 South Merrick Ave. Merrick NY 11566

In remembrance of David , the New York office will be closed on Monday.


I am an old college friend of David's and I just now heard of his death.

I have not been in touch with Dave since 1984 when he was my dorm room neighbor.

Dave made quite an impression on me that first Sep week in 1983. Very sharp, very quick witted, a miscevious smile, and able to best most of us in an arguement.

I don't remember many people who were casual friends from 20 years ago. But Dave I remember and always thought he would do good things. He was a special guy.
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The Demise of the Billable Hour?

For more than 30 years my professional life has been marked not in J. Alfred Prufrock's coffee spoons, but the more plentiful tenths of an hour I have dutifully recorded as billable hours. For almost as long, I have been predicting that a system founded on a basic disalignment between the client and lawyer's interests was doomed. Like many of my predictions, I have been spectacularly wrong.

Although there are occasional bursts of attention to the topic in professional journals, that has not translated to change. However, when it begins to get written about in the more general press, even if it is the business press, maybe the tide is beginning to turn. If so, the recent article, Battle of the bills from the Austin Business Journal, might just mark a turning point. I can hope, but I am not holding my breath.

For the record, I certainly don't think that the only alternative is to turn to traditional contingency fee lawyers (usually but not always those in the personal injury field) as at least one person quoted in the article has done; there are those of us on the defense side who are more than willing to explore options that would more closely align the interests. Hopefully there will be more opportunities to have that exploration in the coming days, months and years.

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No-Match Letter Safe Harbor Coming

Although it may make employers feel caught in the cross-hair between being sued for discrimination and criminal prosecution, news media are reporting that a proposed regulation that will give employers a "safe harbor" for dealing with "no match" letters should be out within a few days. The HR.BLR website has one of those reports in Homeland Security Proposes Rule for 'No Match' Letters.

The Daily Labor Report is reporting the new regulation will read like this:
If the discrepancy referred to in the no-match letter is not resolved, and if the employee's identity and work authorization cannot be verified using a reasonable verification procedure, such as that described in the proposed rule,... then the employer must choose between taking action to terminate the employee or facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, violated [federal immigration law]. [emphasis added]
DHS to Release Proposed Rules On Proper Response to No-Match Letters (DLR 6/12/06) ($).

For information about no-match letters from the viewpoint of a worker advocacy group, check out Overview of SSA No-Match Issues on the Equal Justice Center website. The organization views one of its missions as keeping employers from "over-reacting" to the receipt of such letters, a job that may get a lot harder with the new regulation.

Update: For link to proposed rule see, Proposed Safe Harbor Rule For No Match Letters.

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Sunday, June 11, 2006

M.D. Not An Employee for ADA Purposes

A bi-polar physician who retained his hospital privileges only after agreeing to the following restrictions:
meet periodically with a monitoring physician; meet with [certain medical officers] upon demand....take mandatory vacations; limit the time he was on call; participate in therapy; take prescribed medications and refrain from taking unprescribed medications; consume no more than three glasses of wine per week; submit to random biological fluid collection; submit to . . . mental, physical or medical competency examinations demanded of him; limit traveling; release all medical or other personal information relevant to his impairment; submit to review of 100% of his surgical cases for a period of six months from the date of reinstatement; and submit a formal proctorship of his clinic and hospital practice.
was still not an employee for purposes of his ADA and Rehabilitation Act claims. Wojewski v. Rapid City Regional Hospital, Inc. (8th Cir. 6/9/06) [pdf].


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Less Salt In the Wound

I am not sure that the labor movement would appreciate Judge Posner's to the point description of the purpose of the construction union practice known as "salting":
That is, they were union organizers whose motive in applying for jobs with Starcon was, by advertising their intention to organize the employer’s workforce, to precipitate an unfair labor practice by the employer (refusing to hire them because of their revealed, indeed flaunted, intentions).
Starcon International, Inc. v. International Brotherhood of Boilermakers (7th Cir. 6/7/06) [pdf].

Nor are they probably happy with the outcome, which was upholding the NLRB's ruling that only 2 of the more than 100 salts who had applied would receive backpay. Those 2 were the only ones who testified that they would have taken a job if it had been offered.

Because of the procedural status of the case, the 7th Circuit made clear it was not saying that the Board would have been required to rule that way, but also went on to say why it seemed clear to that it was a correct ruling. Noting that the NLRA was not a penal statute, the Court could see no reason that the normal rule that a person seeking relief has the burden of proving entitlement should be altered for this case.

Although unlikely to make construction employers look any more favorably on this practice, it at least made it hurt a little less this time.

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Wednesday, June 07, 2006

Catholic School Teacher's Support for Roe v. Wade, Not Protected Activity

The question of religious doctrine and employment practices are not an easy mixture for the courts, but the 3rd Circuit has handed down its second decision exploring those murky waters in the last month. The last opinion was unique in that it was authored by Judge Becker, but not published until after his death. See Ministerial Exemption Covers Organist, But Not Chaplain? Today's opinion, Curray-Cramer v. The Ursuline Academy (3rd Cir. 6/7/06) [pdf] is also unusual.

First, Judge Becker was on the panel that heard this case. Following his death, the decision was made by a quorum of the panel, meaning the other two judges were in agreement. What is surprising, particularly given the in depth opinion authored just two weeks earlier by Judge Becker on precisely the same subject, is that is not mentioned, not even once.

The facts were straight forward. Curray-Cramer a teacher of both English and religious classes at the Catholic institution was one of 600 individuals who signed their name in support of a women's right to choose published in a local newspaper on the 30th anniversary of Roe v. Wade. When told by the President of the Academy that it was "deeply troubled by her public support of a position inimical to accepted Catholic doctrine," Curray-Cramer, refused to recant and was ultimately fired.

The district court dismissed her claim of retaliation and also gender discrimination (she claimed that males had been treated less harshly for substantially similar conduct) on the grounds that determining these claims would "would raise serious constitutional questions and that Congress did not manifest a clear legislative intent that Title VII be applied in a case like Curay-Cramer's."

The appeals court agreed insofar as the gender discrimination claim was concerned, quoting the district court's analysis: Absent an allegation that a male employee publicly attacked the Church's position on abortion, evaluating the comparators would require
an analysis of Catholic doctrine to determine whether the decision to employ a teacher of a different religious background constitutes an affront to the Catholic faith and, if so, whether it is an affront of at least the same seriousness as the Plaintiff's repudiation of
Catholic doctrine on when life begins and the responsibility to preserve life in utero.

But it disagreed that such analysis was the appropriate rationale for dismissing her retaliation claim. There the Court found a more basic reason -- her signing the advertisement did not constitute protected activity. Finding that the ad failed to even mention "employment, employers, pregnancy discrimination, or even gender discrimination," the Court held that it failed to meet the test for opposition to an illegal employment practice which "must identify the employer and the practice "if not specifically, at least by context."

Although this opinion seems much more favorable to religious institutions as employers than Judge Becker's opinion in Petruska v. Gannon University, the Court cautioned not to be too joyful:
We caution religious employers against over-reading the impact of our holding. It is by no means the case that all claims of gender discrimination against religious employers are impermissible.
An interesting time for a narrow, but important corner, of the Title VII world.

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Tuesday, June 06, 2006

Drivers Turn for MDV's

Trouble for package companies was bi-coastal in the month of May as juries in Florida and California rendered large verdicts.

  • John Thigpen, a 40 year old former driver for UPS won $669,000 in economic and $5.3 million in non-compensatory damages by a Fort Lauderdale jury in a workers compensation retaliation claim. According to a story now posted on a Teamsters website, two things seem to bother the jury -- an email directing that managers "target" employees with repeated workplace injuries for termination. Thigpen had 7 during his career at UPS. The ground given by the company for his termination was dishonesty, an issued played up by his attorney, "terminating Thigpen for dishonesty, UPS branded him with a 'Scarlet Letter' that made him unable to find a new job with a similar salary. See Jury Awards $6 Million to UPS Driver Who Alleged Retaliation for Filing Claim.

    Update: The trial court has granted a new trial, finding the jury's decision influenced by "passion or prejudice." See report here.

  • The headlines was even worse from the Bay area, California Jury Awards $50 Million In Punitive Damages, Above $11 Million In Compensatory Damages, to Arab-American FedEx Drivers. The suit filed by two independent contractors was one of the first suits tried under a California statute extending civil rights protection to independent contractors as well as employees. The drivers alleged that they had been harassed because of their Arabic background before 9/11.

    Update: The trial court substantially reduced the verdict, but did enter a judgment for $12 million. See the update.

As alternatives to U.S. Mail have grown, maybe the affection for the local mailman has been transferred to the new breed of delivery drivers. You could make a pretty good case for that proposition from these two results.


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