Jottings By An Employer's Lawyer

Wednesday, November 19, 2008

The Politics of the EFCA

This article from the LA Times seems to me to have the politics of the Employee Free Choice Act pretty much dead to rights, A labor-union problem looms for Obama. It's organized labor's number one agenda item, both Obama and Biden have supported it in the past, but passage of it will cause a real problem with business.

Interestingly, one of the EFCA's strongest supporters, chairman of the House Education and Labor Committee Chairman George Miller (D-Martinez), who sponsored the bill in this Congress, is quoted as saying "that he was all but certain the measure wouldn't be 'the first bill out of the chute,' but that it was 'not moving to the back of the train' either."

While it's not great consolation to hear that it won't be item number one, it's better than nothing. I also think as long as the card check provision remains in place, it may be difficult (although certainly not impossible) to get cloture in the Senate, notwithstanding that one Republican who supported invoking cloture on the bill this year, Senator Arlen Spector of Pennsylvania is likely to join the Democrats in doing so again.

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Oklahoma Gun Law Case and the Law of Unintended Consequences

Another chapter in the on-going battle between state legislatures and employers over whether guns can be barred from company parking lots unfolds in the 10th Circuit Court of Appeals this morning when the fate of the Oklahoma statute is heard. The case being argued is Ramsey Winch Inc. v. C. Henry, case number 07-5166 For some background check out Who's Packing in the Car?

The district court issued a permanent injunction against the enforcement of the Oklahoma statute holding it was preempted by the General Duty Clause of the Occupational Safety and Health Act.

For those not acquainted with OSHA, the obligations of the employer are set forth in 29 U.S.C. §654(a):

a) Each employer

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

Section (1) is known as the general duty clause and (2) the specific duty clause. The latter leads to literally thousands of pages of regulations that specify detailed rules on everything from shoring of ditches to lockout prevention.

The district court held that it was the general duty clause that preempted the Oklahoma gun statute. Although credit has to be given to the creativity of employers' counsel for the argument, my first thought when I heard the grounds for the decision was how such a ruling could increase exposure to OSHA violations for other employers. For some general views on how the general duty clause works in the real world see Workplace Safety is a Shared Responsibility from Chemical or Using the General Duty Clause from the National Council for Occupational Safety and Health.

Although I would hope the outcome of today's hearing is ultimately upholding the ban on Oklahoma's gun law, I also fear the highlighted use of the general duty clause may well lead down some paths that may not be as good for employers.

It might just emphasize one of the often overlooked aspects of the practice of law, that one of the most important laws of all is the law of unintended consequences.

Hat tip to Employment Law 360 for their story in today's edition, 10th Circ. To Hear Case On Guns At Work ($).


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Monday, November 17, 2008

Bullying in the Air?

I hadn't heard or seen much about bullying in the workplace recently, but then a week ago two of my fellow bloggers both had posts: George Lenard wrote Is Workplace Bullying Cause for Concern? and Eric Welter has this post, Are Common Law Remedies an Alternative to Anti-Bullying Laws?

Both were sparked by other articles, George by a story based on the Indiana case involving a heart surgeon, see my post on the case here, and Eric on a legal article from the Bench & Bar magazine, a publication of the Minnesota State Bar Association.

I am not sure there is really any new spirit behind the movement for bullying legislation, other than the general pro-employee boost of the election, and the draft legislation has still not made noticeable headway in any legislature. Still, it is clear that this is a subject that makes for good press and the proponents of legislation to deal with it continue to plug away.

(On a related note, the author of the proposed draft legislation, Professor David Yamada, has a new law review article urging a new philosophical approach to employment law in the U.S. , moving from what he calls a "markets and management" approach to a "dignitarian" one. See the link to the article at Yamada on Human Dignity at the Workplace Prof Blog.)

Like all things in employment law, the longer it is talked about, the more it becomes a familiar concept and at some point there comes a tipping point where it begins gaining real traction. The difficulty courts will have in controlling claims that would arguably fall within such a nebulous standard would really be unprecedented. Employers should be making that case at every opportunity.


I am ready for that tipping point! Workplace bullying is a very serious health and economic issue. Laws will prevent this violence the same way it does other violent crimes. There will still be some but imagine how many shootings and rapes there would be if they were legal. Please sign the Anti-bullying Healthy Workplace Bill petition . Making bullies pay for the damage they do is the only way to stop them. Thank you!
With no slight intended to victims/targets of workplace bullying, this topic revives itself on syndicated news sources every seven to ten months.

For a decade, the story that 12 (or 11 or 13) states are considering (and that none have passed) workplace bullying laws appears, like some reoccurring comet, each time making a nod to Drs. Namie and their institute.

At an announcement of one of Prof. Yamada's previous articles, I queried: "What do you think will happen first: a workplace bullying law, or the US out of Iraq?" -- still a valid question.

It'd be nice if nice could be legally enforced; the suggestion that the real cases would sort themselves out by having experts explain it to juries is problematic.

I don't think repetition of the topic suggests its inevitability at gaining traction as much as its zombie-like refusal to remain in the grave.
We're not trying to legally enforce nice, we're trying to illegalize torture and terrorism in the workplace.
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Immigration Battle Coming to Texas Legislature

Or at least it will if there is much action on bills to be filed by Representative Leo Berman (R-Tyler), Berman Will File 9 Bills About Illegal Immigration. The Texas legislature has not been heavily involved in the immigration fight that has been a major topic in some other state's recent legislative sessions but that could change this year.

According to the paper's story, the bills to be offered by Berman would among other things:
  • challenge automatic citizenship under the 14th Amendment of the U.S. Constitution. The bill says the state of Texas will not issue a birth certificate to children of illegal immigrants born in the state;
  • put an 8 percent surcharge on money wired from Texas to Mexico, Central and South America;
  • make English the official language of Texas;
  • require "sanctuary cities," such as Houston, Austin and Dallas, to enforce immigration laws or be held liable for nonaction;
  • pass a bill similar to one passed in Oklahoma that would provide no public state benefits for illegal immigrants and authorizes law enforcement officers to take Section 287 G training with the U.S. Department of Homeland Security allowing them to deal directly with illegal immigrants; and
  • require employers to verify citizenship of anyone they hire.

It will be interesting to see how much traction this type of legislation gets as Berman himself thinks it is possible that his proposed legislation will be blocked by the Senate or vetoed by the Governor.

It is also a reminder that we are into the second week of filing season for the 81st session of the legislature which convenes on January 9, 2009. Stay tuned for summaries of filings of bills of interest to employers.

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Rumor has it that Spurling has gotten the nod.
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Friday, November 14, 2008

One Hat Out of the Ring for Secretary of Labor

At least that is the report from, a California political blog that styles itself as "Inside Politics for Political Insiders." The headline refers to Rep. George Miller, the Democratic chairman of the House Education and Labor Committee. Miller says no thanks to idea of becoming Obama's Secretary of Labor. Miller has represented the East Bay area since 1975.

There seem to be a lot more leaks from the Obama transition team than there were from the campaign, which may be a reflection that it is a much larger number of people or that it includes many who are not "schooled" in Obama's preference for no drama. Or, and this may be my hope more than anything, it may be that the transition team is not leaking and what you are hearing is more from the pundit class, both professional and amateur, and those who are advocating for particular candidates or for themselves.


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