Jottings By An Employer's Lawyer

Friday, October 31, 2008

More Political Predictions

John Phillips over at the The Word on Employment Law, has stuck his neck out to give his predictions on the top 6 legislative acts affecting employers that he thinks may be passed in the next Congress, Impact of Presidential Politics on Employment Law Issues — One Final Look.

His list in order, with my comments:
  1. Employment Non-Discrimination Act - Given that this bill almost passed this Congressional term, I think its passage is almost certain. See my post on September 17, 2007 here. Perhaps the only suspense is whether it will include only sexual orientation or also the more controversial, sexual identity. It was that divide that caused the delay the last time. My guess, we get both.
  2. Fair Pay Restoration Act - also known as the Lilly Ledbetter Fair Pay Restoration Act. I agree this will pass, but I think it actually might be the first. Even the current Congress nearly passed it as six Republicans joined with the Democrats to invoke cloture. Hard to see how it doesn't make it, and make it quickly. The Republicans actually offered an alternative that could be better, taking up the Supreme Court's suggestion in a footnote which indicated that it had not yet decided on the applicability of the discovery rule to Title VII claims. The Title VII Fairness Act would do just that. One difference to be noted is that the Lilly Ledbetter Act only applies to compensation claims, the Title VII Fairness Act all discrimination claims, so some might argue whether it is a better deal or not.
  3. Healthy Families Act - I also agree with John that picking order is difficult and that some form of expansion of the FMLA will pass. This version gives 7 paid sick days, Senator Dodd has a version that would use the unemployment insurance system (probably not as likely) and there are several versions that would either lower the number of employees for coverage and/or expand the reasons that would trigger an automatic leave. Two likely possibilities: victims of domestic violence (averted once before only because of faulty drafting, see here) and school involvement.
  4. Employee Free Choice Act - Clearly this is organized labor's number one item, and if the Democrats have a filibuster proof senate (which while not likely, is certainly possible), it is almost a certainty, and probably is in some form regardless of how the Senate votes turn out. My guess is that the likely "compromise" is to drop the card check provision, since it is the one that catches the most heat for doing away with "secret ballot elections" and instead require "quicky" elections, within a week to ten days after a petition is filed, but retaining the binding interest provision for initial contracts and the enhanced penalties. To me the binding interest arbitration should be the real poison pill for employers, but business better get organized quickly if it wants to make that point.
  5. Civil Rights Act of 2008 - I actually think this bill has more likelihood of passage than John does. Currently because of a quirk in the law, race and most national origin discrimination and retaliation claims are not subject to damage caps, while sex, religion and disability claims are. The current limit is $300,000 in compensatory and punitive damages for the largest companies, and scaled down depending on the number of employees. (Age claims are treated differently.) That's a hard position for members of Congress to argue to their female, disabled and other constituents concerned about possible religious discrimination once it is pointed out. My argument would be to put caps on all claims rather than remove them all, but I don't think that will get much support.
  6. FOREWARN Act– This would amend the WARN act to extend the time that has to be taken into account from 60 to 90 days, which would be a real problem as calculating coverage under the rolling time table is already difficult and this would make it even harder. This actually might get more attention given the recession and all the job lay-offs we are seeing, so it might get bumped up ahead of some of the others.

Two other acts that are high on my radar screen are the Arbitration Fairness Act which would ban requiring an employee to agree to resolve employment related claims by arbitration as a condition of employment, in effect eliminating binding arbitration as a means of avoiding jury trials in employment cases.

The second is the Protecting America's Workers Act which would toughen OSHA's whistleblower provisions, increase the penalties both civil and criminal and expand the coverage to the public sector. The financial crises and its impact on federal, state and local governments might actually hold the expansion to the public sector off for awhile as they could make a powerful argument about the extra cost that might get a sympathetic ear.

Whatever happens Tuesday, the next Congress will be far different for employers than those in the more than recent past. When you are watching the election results, obviously the most important decision will be the Presidency, but a close second will be the number of Senate seats claimed by the Democratic party. The closer to 60, the more likely that any of the above legislation will be passed. The final size of the Democratic control of the Senate might not even be known until December 2nd, if a run-off election is required in Georgia because neither major party candidate received more than 50% of the vote.

The tough decision for the employer community during the next Congress will be whether to go all out to prevent legislation it views as potentially harmful from passing (which will mean fighting over cloture in the Senate), which worked for the Labor Law Reform Act of 1977, or negotiate and get the best deal possible. That's what happened on the recently passed American with Disabilities Restoration Act.

And of course, business should always remember to urge Congress to consider incremental steps, given that employment and labor laws once passed do not get rolled back.

It's going to be an exciting ride. If it's not buckle your seat belt time, it's past time to make sure that you have one.


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Thursday, October 30, 2008

MDV's Rare According to Justice Report

The headline from a story in today's Law 360, 2005 Civil Damages Awards Rarely Broke $1M ($) caught my eye because of my interest in MDV's in employment law cases. (My reporting on such cases has been sadly neglected recently, which should certainly not convey that they have not been occurring.) The report mentioned in the article is a Department of Justice survey, Civil Bench and Jury Trials in State Courts, 2005 . Unfortunately, it does not have a lot of breakdown specifically related to employment cases. (Also important to note that a large number of employment cases are filed in the federal court system and thus are not included in this report.)

The three categories used by the report are torts, contracts and real property cases, with employment discrimination (319) and other employment disputes (558) considered under contracts. It is not clear from the report if retaliation claims are categorized as discrimination or other employment claims, or perhaps even somewhere else. There is a separate listing for defamation cases under tort claims, which likely includes some claims arising out of an employment setting.

According to the report 91.2% of the employment discrimination claims were disposed of by jury as opposed to bench trials, although in other employment disputes the figure was only 62.9% resolved by jury trial. (That could indicate that a number of administrative claims, like unemployment appeals, might be included.) The median award in employment discriminatory claims was $175,000 compared to an overall median of $28,000 in all types of cases, and plaintiffs won 60.9% of the trials. In the other employment disputes category, plaintiffs won 50.9% and the median award was $45,000.

Overall about 3% of all civil cases filed were resolved by a trial on the merits.


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Wednesday, October 29, 2008

Well, Thank Goodness for Consensus

I couldn't help but chuckle at the lead paragraph in today's Daily Labor Report ($) article concerning proposed alcohol and drug testing rules in mines:
Although there is an apparent consensus that drug and alcohol use has no place in mines, many miners dislike the proposed rule recently issued by the Labor Department's Mine Safety and Health Administration, which would set standards for drug and alcohol testing of mine employees.
Actually, the discussion over the proposed rule, Alcohol and Drug-Free Mines: Policy, Prohibitions, Testing, Training, and Assistance, which was proposed on September 8th, deserves more than my tongue-in-cheek response accords it.

Instead it illustrates that even on things that are clearly just good common sense, any policy adopted to achieve such a goal is quite likely to be more involved and nuanced than it might seem on first blush. As one of my former law partners used to say, "every pancake, no matter how thin, has two sides."

With a new administration coming, regardless of Tuesday's election results, there are going to be a number of opportunities to review many issues related to the workplace. Although it will no doubt soon begin to sound like a broken record, I can not overstate enough the importance that these are both important and complex questions, and solutions should be thoughtful and incremental. Congress should remember, and be reminded constantly by their constituents, of one of the principles of employment laws -- whatever is passed will never be rolled back.


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Tuesday, October 21, 2008

Performance Appraisals: Out Damn Spot!

That's a little overboard and Chris McKinney's post, Getting Rid of Performance Reviews at HR Lawyer's Blog, actually has some helpful ideas for making them better.

Performance appraisals has always been one of my hot buttons, second only to job descriptions. About the latter my standard comment is -- if they are up to date and complete, they are excellent -- however, that does not describe any job descriptions I have ever seen.

Performance appraisals are probably more often done better, but there are way too many that are done at the last minute and do little if anything to really improve performance, and quite often are more likely as nothing more than candidates to be Exhibit 1 in the Plaintiff's case against the employer.


That is an interesting response. I can see where you are coming from, good input.
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Monday, October 20, 2008

5th Circuit Declines to Be Forum Shopped Under NLRA

Honoring one thing that stuck with me from Bernie Ward's federal court class, "federal courts are courts of limited jurisdiction," the 5th Circuit rejected an attempt to have it decide an appeal from a ruling by the NLRB in Bally's Park Place v. NLRB (5th Cir. 10/17/08).

The 5th Circuit noted the honesty of Bally's Park reason for wanting to be in the 5th Circuit, they thought it had a favorable precedent that might help them in trying to overturn their challenge to a union certification by refusing to bargain. Unfortunately, this subsidiary of Harrah's has no physical presence in Texas, Louisiana or Mississippi and their attempt to "borrow" their parent company's presence did not work, nor did the fact it did internet advertising, had an on line reservation system or that 5th Circuit residents traveled to New Jersey to visit their casinos.

The panel decision also honored something else I learned from Professor Ward, that courts should not decide unnecessary questions. Here the Court noted that Bally's had no physical presence in the 5th Circuit, but also noted that it was not necessary to decide whether that was an absolute requirement.

Judge Southwick was on the panel that issued the memorandum opinion and though he was in law school with me I can't remember if he was in my federal courts class or not. If he was, he did Bernie Ward proud.


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Friday, October 17, 2008

The Lily Ledbetter Act on the Campaign Trail and a Broader Concern

It seems like everything is political these days. It may be because I am preparing for three presentations in the next three weeks on how the change in administration and a new Congress will impact the labor and employment law world, that it seems that way.

Lisa Takeuchi Cullen commented on the mention of the Lilly Ledbetter bill in the 3rd Presidential debate in her Work in Progress Column, Fair pay comes up in last night's debate . She mainly used that to pivot (I definitely have been watching/reading too much political commentary) to yet another portion of the Governor Palin interview with Katie Couric about this topic. Painful reading.

It is unusual for labor and employment matters to get aired in political debate, and while the Lilly Ledbetter Act and the EFCA are exceptions, neither is really at the top of anyone's campaign talking points.

As with the EFCA (and many other issues) political sound bites should be no substitute for careful and thoughtful study. Many, like Cullen, point out the likeability of Lilly Ledbetter and the fact that what happened to her, discriminatory pay over many years as found by a jury, taken away because she didn't file soon enough, doesn't seem "fair" or "right."

What gets mentioned much less often is that there is another way to remedy her precise situation than the proposed legislation. The Ledbetter Act really will result in litigation over decisions that were made many years ago. For those who have experienced the difficulty of accurately recreating the events in lawsuits over events that occurred three or four years ago, you can only begin to imagine how difficult it will be to defend a decision made 10 to 20 years ago.

The Ledbetter court itself pointed out an alternative that would have potentially protected Ms. Ledbetter and others like her, without opening wide the door to all the problems of a contrary ruling (which is what the Ledbetter Act would do). In a footnote, Justice Alito noted:
We have previously declined to address whether Title VII suits are amenable to a discovery rule. National Railroad Passenger Corporation v. Morgan, 536 U. S. 101 , n. 7 (2002). Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.
If a discovery rule were applicable, then Ledbetter could have argued that the statute of limitations did not begin to run until she discovered or should have discovered the discrimination occurred. If she had been successful, that would have protected her claim without opening the door as wide as the proposed statutory change will.

And there has actually been a legislative proposal, The Title VII Fairness Act that would do just that. If Senator McCain had chosen another female Republican, Kay Bailey Hutchison of Texas as his running mate rather than Governor Palin, Cullen's column might have referenced a much more coherent discussion of this issue since Hutchison is the author of the Fairness Act.

Hopefully, when it actually comes to acting on much of the potential legislation that is likely to appear in the next Congress, there will actually be a deliberative process that results in compromise legislation rather than one side running rough shod over the other. I know that those who advocate for the Lilly Ledbetter and EFCA bills will argue that turn about is fair play and for far too long it is their view point that has been the recipient of rough shod treatment.

Without trying to debate the merits of that argument, I would only hope that Congress and the new Administration realize that once employment laws are passed it is highly unlikely that they will ever be rolled back. The last example I can think of is the 1947 Portal to Portal Act, that limited some aspects of the Fair Labor Standards Act passed nine years earlier. (If anyone can think of any others, I would welcome hearing from you.)

It is also critical that Congress understand the tremendous impact labor and employments laws can have on productivity, costs and profitability, all of which inevitably impact employees.

Even if you do not agree on the wisdom or the degree, you can't help but agree that the difference between labor and employment laws in the US and Europe have likely had a significant impact on the relative success of the two economies. (An argument which of course sounded a lot better a month ago than it does today.)

I think it is quite likely that there are major changes in the labor and employment laws coming. The potential consequences and the fact that later correction by rolling them back is highly unlikely, argue strongly for incremental changes. Some might say it calls for the use of a scalpel, not a hatchet. We can only hope.


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EFCA On the Fastest Track?

Well obviously, the first pre-requisite is an Obama win, but according to Mickey Kaus at Slate, inside sources are predicting fast action on organized labor's top priority. According to Kaus:

Dems are getting set to pass "card check" legislation fast next year, right out of the box, assuming Obama wins and the Democrats get their expected big Senate majority.
The EFCA passed the House this Congressional term but did not make it to the Senate floor because of a near party-line cloture vote.

One exception to the party line vote that does not bode well for the bill's opponents was Arlen Spector (R. Pa) who will be back, along with a crop of newly elected Democratic senators. The big question is how many of the latter. If none of the Democrats strayed and the two independents, including Lieberman voted the same as they did this year, eight would be the magic number needed.

If there are not enough votes for cloture without a compromise, one possibility is dropping the card check proposal and substituting quicky elections, while leaving the interest arbitration provision for first contracts. Since most of those arguing against the EFCA have focused on the most easily explained objection, doing away with the secret ballot, that compromise could easily move an otherwise stuck bill and still give organized labor an enormous boost. In fact, many think it is the interest arbitration provision which is the most dangerous part of the act.

Hat tip to Greg Kittinger at Laboring Away at the Institute for catching the Kaus article.

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You might as well just start preparing for this now. We can blame it on potential President Obama, but it will be Bush's fault.
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Monday, October 06, 2008

Colorado Truce - Management & Labor Compromise on Ballot Initiatives

Iit's always good to see management and labor work out their differences, although this is an unusual issue. The WSJ in its story, Executives Pledge Funds as Unions Drop Colorado Initiatives, details a compromise where the business community has agreed to help raise up to $75 million to defeat three anti-union proposals that will be on the November 4th ballot in Colorado, including one designed to make Colorado a right-to-work state.

In return, organized labor dropped four potential anti-business initiatives, including one that would have allowed employees to sue for injuries outside the workers compensation system.

What this confirms for me is the danger of making ballot initiatives too easy. Hard to believe that is the best way to come up with public policy.

Hat tip to the folks at Workplace Issues Today from the M.P. Catherwood Library, Cornell University.


Ballot initiatives could be better:

Voters on ballot initiatives need what legislators get: public hearings, expert testimony, amendments, reports, etc. The best project for such deliberative process is the National Initiative for Democracy, led by former Sen. Mike Gravel: Also and

In Switzerland, petitions are left at government offices and stores for people to read and sign at leisure, so there are less aggressive petitioners more informed signers, and less $ required. The Swiss vote on initiatives 4-6 times a year so there's never too many on one ballot. Because they have real power, the Swiss read more newspapers/capita than anyone else.

Legislators have never tried to improve the ballot initiative process, but often try to make it even harder. They'd rather have absolute power!

In Switzerland, representatives are humbler, after centuries of local and cantonal (state) ballot initiatives, and national initiatives since 1891. They call their system "co-determination." This works well for couples, too!
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It's Too Early, But Always Fun - Who Will be the Next Secretary of Labor?

The Congressional Quarterly gets a jump with Saturday's review of candidates for all the Cabinet posts in both a McCain and Obama Administration, including Labor Secretary. Although it's way too early to be making any predictions, to the extent they are accurate it does provide some helpful information in how each candidate might view the position. Although it may be intelligent speculation, I would be very much surprised if it was based on any "inside" information. My guess is that the campaigns have plenty on their plate without spending any time on filling "cabinets" that may never come to pass.

CQ's picks for McCain are two trade association representatives and a pol: Randel Johnson from the U.S. Chamber; former Governor of Michigan and now President of the National Association of Manufacturers, John Engler; and former Missouri Senator and Congressman, Jim Talent.

The three picks for Obama, are two pols and a leader from organized labor: Dick Gephardt, former House Majority Leader; Jennifer Granholm, the current Michigan Governor; and Linda Chavez-Thompson, before her retirement the number two person at the AFL-CIO.

If anyone has any links to other mentioned candidates for this or other labor and employment related slots in the next administration, or your own picks, please be sure and pass them on.


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Domestic VIolence - a Lurking Issue

Articles, like Domestic violence often bleeds over into workplace from the Birmingham Business Journal, crop up ever so often. Almost every time I see one, it makes me think this continues to be one of those hidden issues that some day is going to come to the forefront on employers' radar screens.

Violence in the workplace is the most horrific aspect, but I can't help think that productivity issues are more prevalent. Many of the potential amendments to the FMLA include domestic violence as a trigger. When legislation starts recognizing it as an employment issue, may be the time it starts being more visible. If you haven't given it any thought, it might be a good idea.

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You are absolutely correct -- while it is certainly a workplace safety issue, DV as a workplace issue should concern employers from a productivity, absenteeism, presenteeism, turnover, and healthcare perspective. It is in an employer's enlightened self-interest to address this issue to guard its greatest workplace asset -- its employees. The Corporate Alliance to End Partner Violence ( has great resources and articles available to employers to help with this.
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