Jottings By An Employer's Lawyer

Wednesday, August 27, 2008

Looking for an Arbitration Award? Here's the Story

If you have ever tried to find a copy of an arbitrator's opinions, you may have felt frustrated. At Publication and Confidentiality of Labor and Employment Arbitration Awards, the Alaska Employment Law Blog has a wonderful overview of how such awards get published (and don't) and where you can look to find them. The author, Robert W. Landau, is a full time labor arbitrator.

One hint on why they may not be available -- according to the code of arbitrator ethics, all aspects of the arbitration process, including the award, must be treated confidentially absent consent of the parties.


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Monday, August 18, 2008

Washington State Attorney Gets MDV

Not in her role as attorney, but in her role as terminated prosecutor. Barbara Corey, former prosecutor for Pierce County (Tacoma, Washington) was third in command in the prosecutor's office when she was fired in 2004. The firing occurred after she initiated the transfer of another employee, an act which according to the defense, angered other employees. A part of her claim related to post-termination publicity about her firing, with Corey claiming that she had been defamed. According to the story in The News Tribune, County hit with big jury award, the jury award was just over $3 million:

• $1.5 million for the damage to her reputation
• $750,000 for non-economic damages
• $700,176 for economic damages related to the defamation and false light claims
• $124,994 for loss of wages because of her wrongful termination

Although. as always it's dangerous to read too much from a short story, a couple of danger points stick out:

  • in closing arguments both sides were accusing the other of being liars, with the County arguing that she told a "bundle of lies" before her termination. If the jury doesn't buy that argument, then it sometimes heaps fuel on the fire of their indignation.
  • the County argued it was also within its rights to fire her because she was an "at will employee." While that statement is no doubt true, it rarely works as a good jury argument. Right or wrong, the reality in an employment law trial is that the the burden is on the employer to justify their action. Rare is the employment law case that will be won by the defense if the jury believes that the employer did not have a good reason for taking the action that it did. Legally, the employee is at will, and before and after the jury verdict that is a very important point, but in front of a jury, it's rarely a winner.

The headline before the case went to the jury, After venom on both sides, jury gets Barbara Corey suit, was probably an indicator that this was a case that by the point had reached a stage where any loss was probably going to be a big one.

Adam Lynn, a reporter for the The News Tribune had a series of stories and blog posts before and during the trial that provide some more information:

Pierce County defense strikes back against claims of favoritism (8/7)

No conspiracy, top Pierce County prosecutor testifies about manager’s firing (7/30)

Case against Pierce County ratchets up

Suit Against County Prosecutor Begins With Dueling Versions of the Truth (7/25)

Jury to determine who's lying: Pierce County or former prosecutor? (7/24)

Former deputy prosecutor's lawsuit against Pierce County set to begin (7/20)


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Thursday, August 14, 2008

George McGovern - A "No" on the EFCA

Yes it is that George McGovern, the Democratic Presidential candidate of 1972, who has come out with a prescient article in the WSJ extolling the dangers of the Employee Free Choice Act, My Party Should Respect Secret Union Ballots. One telling paragraph:

I worry that there has been too little discussion about EFCA's true ramifications, and I think much of the congressional support is based on a desire to give our friends among union leaders what they want. But part of being a good steward of democracy means telling our friends 'no' when they press for a course that in the long run may weaken labor and disrupt a tried and trusted method for conducting honest elections.

And as I, and a large number of commentators have been saying, one of the other provisions of the EFCA which would dramatically change the leverage on first contract bargaining, may do even more to upset the current balance of power between labor and business. Both provisions, replacing secret elections with card check and requiring binding interest arbitration if a first contract is not reached after 90 days of bargaining, are radical changes. Even if you think that they are needed, it should be a conscious decision, not just a political favor.

One of my greatest concerns about Congressional action is that as an institution it seems far out of touch with the realities of the workplace. And since it doesn't involve a tax increase, enacting employment and labor matters could be seen as a "free" way to pass on benefits to constituents. However, once enacted, employee rights will not be removed. (The last example I can think of is the Portal to Portal Pay Act of 1947). And if ill conceived legislation, truly disrupts the workplace, the cost is one that we will all bear. The EFCA is one piece of legislation that has that potential.

Hat tip to Laboring Away at the Institute for the link to the article.

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Add Another Whistle - Consumer Product Safety Act

Before leaving town, Congress added yet another whistleblowing provision that was signed into law by President Bush today. A copy of the Whistleblower provision can be found on the DOL's website, Consumer Product Safety Improvement Act of 2008, Sec. 219. Whistleblower protections.

Here's the substance of the whistleblowing provision:
No manufacturer, private labeler, distributor, or retailer, may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee)—
‘‘(1) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts.
The Commission referred to is the Consumer Product Safety Commission. Like other federal whistleblower statutes it will be enforced by OSHA.

The statute also has protection for employees who participate in proceedings.

What regulations might an employee report under? There's a few of them.

Here's the list:


1000 Commission organization and functions
1009 General statements of policy or interpretation
1010 [Reserved]
1011 Notice of agency activities
1012 Meetings policy--Meetings between agency personnel and outside parties
1013 Government in the Sunshine Act, rules for Commission meetings
1014 Policies and procedures implementing the Privacy Act of 1974
1015 Procedures for disclosure or production of information under the Freedom of Information Act
1016 Policies and procedures for information disclosure and Commission employee testimony in private litigation
1017 [Reserved]
1018 Advisory committee management
1019 Export of noncomplying, misbranded, or banned products
1020 Small business
1021 Environmental review
1025 Rules of practice for adjudicative proceedings
1027 Salary offset
1028 Protection of human subjects
1030 Employee standards of conduct
1031 Commission participation and Commission employee involvement in voluntary standards activities
1033 Display of control numbers for collection of information requirements under the Paperwork Reduction Act
1034 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Consumer Product Safety Commission
1051 Procedure for petitioning for rulemaking
1052 Procedural regulations for informal oral presentations in proceedings before the Consumer Product Safety Commission
1061 Applications for exemption from preemption
1101 Information disclosure under section 6(b) of the Consumer Product Safety Act
1105 Contributions to costs of participants in development of consumer product safety standards
1115 Substantial product hazard reports
1116 Reports submitted pursuant to section 37 of the Consumer Product Safety Act
1117 Reporting of choking incidents involving marbles, small balls, latex balloons and other small parts
1118 Investigations, inspections and inquiries under the Consumer Product Safety Act
1145 Regulation of products subject to other acts under the Consumer Product Safety Act
1201 Safety standard for architectural glazing materials
1202 Safety standard for matchbooks
1203 Safety standard for bicycle helmets
1204 Safety standard for omnidirectional citizens band base station antennas
1205 Safety standard for walk-behind power lawn mowers
1207 Safety standard for swimming pool slides
1209 Interim safety standard for cellulose insulation
1210 Safety standard for cigarette lighters
1211 Safety standard for automatic residential garage door operators
1212 Safety standard for multi-purpose lighters
1213 Safety standard for entrapment hazards in bunk beds
1301 Ban of unstable refuse bins
1302 Ban of extremely flammable contact adhesives
1303 Ban of lead-containing paint and certain consumer products bearing lead-containing paint
1304 Ban of consumer patching compounds containing respirable free-form asbestos
1305 Ban of artificial emberizing materials (ash and embers) containing respirable free-form asbestos
1306 Ban of hazardous lawn darts
1401 Self pressurized consumer products containing chlorofluorocarbons: Requirements to provide the Commission with performance and technical data; requirements to notify consumers at point of purchase of performance and technical data
1402 CB base station antennas, TV antennas, and supporting structures
1404 Cellulose insulation
1406 Coal and wood burning appliances--notification of performance and technical data 1500
Hazardous substances and articles; administration and enforcement regulations
1501 Method for identifying toys and other articles intended for use by children under 3 years of age which present choking, aspiration, or ingestion hazards because of small parts
1502 Procedures for formal evidentiary public hearing
1505 Requirements for electrically operated toys or other electrically operated articles intended for use by children
1507 Fireworks devices
1508 Requirements for full-size baby cribs
1509 Requirements for non-full-size baby cribs
1510 Requirements for rattles
1511 Requirements for pacifiers
1512 Requirements for bicycles
1513 Requirements for bunk beds
1602 Statements of policy or interpretation
1605 Investigations, inspections and inquiries pursuant to the Flammable Fabrics Act
1608 General rules and regulations under the Flammable Fabrics Act
1609 Text of the Flammable Fabrics Act of 1953, as amended in 1954, prior to 1967 amendment and revision
1610 Standard for the flammability of clothing textiles
1611 Standard for the flammability of vinyl plastic film
1615 Standard for the flammability of children's sleepwear: Sizes 0 through 6X (FF 3-71)
1616 Standard for the flammability of children's sleepwear: Sizes 7 through 14 (FF 5-74)
1630 Standard for the surface flammability of carpets and rugs (FF 1-70)
1631 Standard for the surface flammability of small carpets and rugs (FF 2-70)
1632 Standard for the flammability of mattresses and mattress pads (FF 4-72, amended)
1700 Poison prevention packaging
1701 Statements of policy and interpretation
1702 Petitions for exemptions from Poison Prevention Packaging Act requirements; petition procedures and requirements
1750 Standard for devices to permit the opening of household refrigerator doors from the inside

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Monday, August 11, 2008

Id al-Fitr for Labor Day - A Different World

I am catching up on some past articles that came in while I have been out of the office and one that caught my eye was the NYT's article from last week, Muslim Holiday at Tyson Plant Creates Furor. At a Shelbyville, Tennessee Tyson plant, the Retail, Wholesale and Department Store Union negotiated a contract which traded the Muslim holiday that is the last day of Ramadan, Id al-Fitr for Labor Day.

Although it is quite popular with the 100's of Somali workers at the plant, it is has been less so with others who see it as un-American. It might seem a little less so when you factor in that traditionally the employer had required employees to work on Labor Day, so what they really received was premium pay rather than a day off. As one of the members of the union's negotiating team said, "We had worked 23 Labor Days in a row; it wasn’t like it was a day to spend with our family."

As the beleaguered union president Stuart Appelbaum said, “What we negotiated was the will of the workers,” and added that his was the first union to negotiate a paid day off for a Muslim holiday and that he was sure Tyson would not be the last employer to agree. Perhaps as interesting, Mr. Appelbaum is also the President of the Jewish Labor Committee.

It is a new world.

Hat tip to the folks at the Cornell University's Catherwood Library's Workplace Issues Today which provides "abstracts and links to workplace-related news stories covered in the major media."


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USERRA - Not Always in Federal Court.

USERRA cases are relatively rare still (probably not for long) so unusual to see two cases from different circuits on consecutive days. Both are on procedural grounds and in both cases, notwithstanding that USERRA would seem to be the quintessential federal question case, plaintiffs lost out on a federal court hearing

The 6th Circuit today joined the 5th Circuit (see post here) in holding that USERRA claims are subject to arbitration agreements. Landis v. Pinnacle Eye Care (6th Cir. 8/11/08) [pdf].

The 5th and 6th are the only two circuit courts to address the issue. While district courts have been mixed, the 6th Circuit specifically disagreed with district courts from Georgia and Kansas which had held otherwise.

In McIntosh v. Partridge (5th Cir. 8/8/08) [pdf] decided last Friday, the Court held that where a state is the employer, a federal court has no jurisdiction under USERRA when the claim is brought by the employee. According to the statute there are three situations that can arise with differing jurisdictional results:
(1) In the case of an action against a State (as an employer) or a private employer commenced by the United States, the district courts of the United States shall have jurisdiction over the action.
(2) In the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.
(3) In the case of an action against a private employer by a person, the district courts of the United States shall have jurisdiction of the action.
38 U.S.C. § 4323(b).
McIntosh was employed by the state of Texas. Notwithstanding that the prior version of USERRA gave federal courts jurisdiction under such circumstances and the statute uses "may" rather "shall" in the applicable section, the Court held that federal courts have no jurisdiction for USERRA claims against a state employer.

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Estoppel -- ERISA Joins the List

Actually, it is not accurate to imply that estoppel has not previously been applied to ERISA issues, see 5th Circuit Adopts ERISA Estoppel, But Employee Still Loses. But the 3rd Circuit's decision last week in Pell v. DuPont (3rd Cir. 8/8/08) makes the point of how important it is for employers to be accurate in all of their communications to employees, particularly about retirement benefits. Given the number of times estoppel has been applied in other contexts just in the past year, see my prior posts here, here and here, Pell highlights yet another area of exposure for employers that seems to be increasing.

The the issue in Pell arose because of his transfer from a wholly owned subsidiary to the parent company. Most of the communications he received about the effective date of employment to be used in his retirement had the wrong service date, but also contained the usual disclaimers that they were estimates and subject to further review. The error that was contained in the prior communications was discovered before Pell made his final decision to retire, although it was within six months or so of his contemplated retirement.

Under all the circumstances the district court held that DuPont was estopped from using the effective employment date as calculated under the plans, and must use the earlier employment date that it had communicated to him. The court used a date that had been contained in a letter to Pell from DuPont's Director of Employee Compensation and Benefits at Consol, the subsidiary where he was originally employed. That letter referred to his “Retirement Plan Credited Service Date” as being August 1, 1972.

When Pell actually retired, the correct calculation under the plan resulted in a pension service date of November 1, 1975 which is what DuPont used. The district court entered an injunction that the service date to be used was August 1, 1972 and DuPont was estopped to use the "correct date" as determined by following the terms of the plan. However, the district court also held that it was prospective only, holding it did not have the power to award the past underpayments.

The appellate court, went further than the district court, adjusting the date to February 10, 1971 and requiring that restitution be made, not just a change in prospective payments.

Key to its holding was a 1991 email (more than 10 years before Pell's actual retirement) from an employee in the benefits department:

Consol [the subsidiary] pension will be calculated on their formula and their SS offset. Your adjusted service date is 2/10/71 not 1975 and Du Pont will use this date for your years of service under their formula when calculating your pension. The‘Pension’ booklet in your green Benefits Binder explains the Du Pont formulas; however, nothing written re offsets as each would be different.”

It has to be scary for a benefits worker to think as they answer the frequent requests for clarification and information, that their one response (perhaps one of hundreds written in that week) could be "rewriting" the pension scheme at least for that one employee.

Although as the opinion makes clear, there are a number of hurdles that Pell had to overcome to establish equitable estoppel, this was a time where it happened.

No one can or should argue that it is not important to convey accurate information to employees on which they are basing major decisions. But anyone who has ever dealt with the complexity of most pension schemes, know how easily it can be to unwittingly trip up.


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