Jottings By An Employer's Lawyer

Monday, December 29, 2008

Recession Juries - Good or Bad for Employers?

That was the topic of an interesting article in today's Employment Law 360, Economic Woes Could Make For Stingy Juries ($) . May is the operative words as the jury consultants quoted in the story have differing views.

One line of thought is that jurors, feeling their own economic crises are apt to be less likely to give large awards, particularly for "soft" damages like pain and suffering. The other is that economic stress is likely to make jurors more punitive toward large institutions.

Since I strongly believe that large jury awards in employment cases are almost always fueled more by anger than sympathy, it is the latter strain of thought that gives me concern.

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Thursday, December 18, 2008

Representative Hilda Solis is the Secretary of Labor

At least according to the Associated Press, Rep. Hilda Solis is Obama's labor pick. The latest in a series of names, but the first report that claims it is a done deal:

Andy Stern is impressed and:
praised Solis for her deep roots in the union movement. He recalled marching with her in Los Angeles — well before she was elected to Congress — to seek higher wages and benefits for janitors.
She was just re-elected to her 5th term in Congress representing the California 32nd Congressional district. Her House website is here.


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Secretary DeLauro? The Last Slot

If Ray Lahood, the Illinois Republican is named Transportation Secretary as has been reported, that will leave Labor as the last formal cabinet position to be named. A new name has surfaced in a Huffington Post article, Rosa DeLauro As Labor Secretary? DeLauro is a member of Congress from Connecticut and a former aide to Sen Chris Dodd.

If Obama wants to get his whole cabinet named before heading for his vacation next week, the time for waiting should be relatively short.


Nope - looks like Hilda Solis, instead.

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Thursday, December 11, 2008

EFCA - Voting "At a Time Certain"

There are plenty of individuals writing on the EFCA, so I have not devoted a lot of attention to it. My general view is that while it addresses issues for which a strong case for some change can be made, that it does so by totally revising long held principles of labor law, without a recognition that is what is being done, and without an analysis of what the consequences could be.

There is no question where the writers at Laboring Away at the Institute stand, they think it is a very flawed bill. Still that does not undercut the validity of the argument advanced in a post that nearly got lost in my post-Thanksgiving reading, Any Given Moment.

The premise is that deciding whether a union should represent you in your workplace is an important decision, which is hardly controversial. The article goes on to point out the danger of shifting from a secret ballot at a set time to allowing the decision to be made in a series of "any given moments" which may not be the most appropriate time for such an important decision.

You need to read the whole article, but to give you a feel, here's the money paragraph to me:

For me, more important than that [that so many things in America are decided by secret ballot], and perhaps lost in this legislation is the fact that we vote not in a moment in time, but at a time certain. Could any legislator survive if we could vote on April 15th? Our most important decisions must be made with careful consideration of all of the facts, and at a time and place that offers the most potential for a sober and just decision.

A pretty compelling point, without an ounce of union bashing.


This notion of voting at a time certain may have some validity.

However, the same notion would be an argument to stop early voting in general elections. I once held the position against early voting for some of the same arguments stated here.

My stand against the voting by signature cards, is framed by the venue issue. When a person is approached to sign a card there may be individual coercion at that moment, overt or implied. There are no independent observers at the "voting site" where the card is signed or not.

Also, that the opponent has no opportunity to campaign.
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Wednesday, December 10, 2008

EFCA Political Note

Marc Ambinder of Atlantic has a current note on the state of opposition to the Employee Free Choice Act, 60 Might Have Mattered. Quoting an unidentified Republican Senator:
"We will do everything we possibly can to get every Republican on board," the senator said."We're even working on Arlen," the senator said, referring to Pennsylvania's Sen. Specter, a reliable ally of labor unions. A few Democrats, the senator said, will be targeted.
It will be interesting indeed if they can get Specter on board.

The article headline is of course a reference to the 60 votes that it takes to break a filibuster in the Senate.

My current thought, some version of EFCA passes, but not the current one and probably not as soon as first feared. That and $3 will get you some sort of latte at Starbucks.


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Secretary of Labor Watch Continues

NBC's First Read, headed by every one's hero of the last political season, Chuckie "T", has their latest up to date administration/cabinet position speculation in today's post, Transition: Remember the Gore meeting? For Secretary of Labor here's their current take:
Kathleen Sebelius (asked that her name be removed from consideration from any post), Andy Stern (SEIU) (said not interested), Jennifer Granholm, Richard Gephardt, George Miller, David Bonior (said he’s not interested, suggested: American Rights at Work Executive Director Mary Beth Maxwell), Rep. Xavier Becerra, Linda Chavez-Thompson, Antonio Villaraigosa.
I had understood from other reports that Congressman Miller and Los Angeles Mayor Antonio Villaraigosa had also indicated they were not interested.


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Tuesday, December 09, 2008

Not the Way to Solve the Pay Gap

Tom Peters, who has a brilliant blog and newswire amongh his other worthwhile endeavors has a recent post, Rightside Up?, that notes a telling statistic in last week's Boston Globe:

In the last year:

Men are down 1,069,000 jobs.

Women are up 12,000 jobs.

The main reason, a loss of manufacturing jobs (primarily male) and a growth in service, particularly health care (primarily female).

Of course the pay gap problem will only satisfactorily be resolved when the number of men and women employed are both on the rise.

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Monday, December 08, 2008

The Republic Stay In - A Sign of the Times?

The refusal of workers to leave a closed Chicago plant until they are paid may turn out to be an aberrational act, or it could be a precursor of things to come.

Although anonymous comments are usually more extreme than what you would otherwise hear, that perhaps give a better picture of at least how deeply some people feel. Take a look at the comments that follow one of this mornings stories about the "As Long As It Takes", Laid-Off Illinois Factory Workers Continue Sit-In Protest For Severance Pay, and you can see how deep a divide there may well be.

I have written and talked for some time now about the sea change that seemed at least potentially on the horizon. A change that means in employment and labor law we are going to see and deal with issues different from the world we have known for the last 30 years. Recent events have done nothing to change my feeling that a change is indeed coming, the only remaining question in my mind is just how far that change will go.

The Republic story demonstrates one aspect, employee self-help. It is clear that employer's (and their lawyers) are going to be facing many challenges different not only in degree, but in kind, over what they have addressed up till now in their careers.

I was glad to hear Obama voice his support of these workers. I hope they get every bit of what they're owed and I hope the owners of this company get properly disciplined or fined. When I first heard this story I could not understand that they thought they could even get away with this - but the fact is - they would have gotten away with it if these workers hadn't stood up. Kudos to all of them.
Michael, you're right. I'm not sure we can articulate the change in precise terms, but it's coming.
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Friday, December 05, 2008

Secretary of Labor - One of the Top 5 Posts Still Open

If you follow politics, and who hasn't this year, Politico is a familiar name and one place many head daily for their political fix. When I saw the headline, The 5 best jobs Obama has yet to fill I was curious whether Secretary of Labor would make it, and somewhat surprised to find it did.

Politico has their requisite list of potential candidates:
Kansas Gov. Kathleen Sebelius; Michigan Gov. Jennifer Granholm; Mary Beth Maxwell, executive director of American Rights at Work; Ed McElroy, former president of the American Federation of Teachers; former Rep. David Bonior, D-Mich; Maria Echaveste, former Clinton White House adviser.
Sebelius and Granholm appear on almost every one's list as a potential nominee for something and the number of "somethings" is narrowing, so if conventional wisdom is correct that means they should be given pretty serious consideration. I have seen some stories that Sebelius and the unions in Kansas did not always see eye to eye, which might be an issue for her.

Bonior's name has been on most lists and although he has publicly disclaimed his desire for the position continues to be. Bonior himself supports his compatriot at the American Rights at Work organization, Mary Beth Maxwell.

Maxwell might be acceptable to both the AFL-CIO and the Change to Win unions which could be a big plus for her chances. She also would be the first openly gay Cabinet member. For more on Maxwell check out Mary Beth Maxwell for Labor Sec? from the American Prospect and Union Activist Mary Beth Maxwell on List for Labor Secretary from the Wall Street Journal's Washington Wire.

I have not seen McElroy's name mentioned and I don't know any background, but given some of Obama's views on education, doesn't seem to be the most likely fit. I don't know if Maria Echaveste has any particular labor expertise or backing or is just a well known Hispanic. Given that there has been considerable talk about the lack of Hispanic representation in post-election appointments that could be a factor.

Two names that aren't on Politico's list -- Dick Gebhardt, the former Majority Leader in the House and Representative Linda Sanchez (D-CA) who was endorsed by the Hispanic Caucus for the position. (She was also endorsed by the leading gay rights organization, the Human Rights Campaign, an endorsement she now shares with Maxwell.)

Even though Politico is a great site and is often insightful, I wouldn't bet on the accuracy of any of these projections. Until we start hearing "definitive leaks" (an oxymoron if there ever were one), we will just have to wait and see who is going to be the first new Labor Secretary in 8 years.

But certainly in the world I work in, it's a very important question.


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A Helpful Case for Basic Discrimination Principles from the Texas Supreme Court

Although it is not a case that breaks new ground, today's per curiam opinion in Autozone, Inc. v. Reyes (12/5/08) [pdf] is one of those nice cases to have when writing a brief in a Texas case, as it gathers in one place the Supreme Court's view on a couple of issues that appear frequently in discrimination lawsuits: stray remarks and comparability of circumstances for determining whether disciplinary action is discriminatory.

For the latter, the Court sticks with the "nearly identical" test. For "stray remarks" the Court re-articulates a four part test that the comments must be:
  1. related to the employee’s protected class,
  2. close in time to the employment decision,
  3. made by an individual with authority over the employment decision, and
  4. related to the employment decision at issue.

The Court adds some clarification for both issues, including emphasizing that the context of the stray comments may be important.

Today's opinion is the end of the road for what started out as a million dollar jury verdict, which had been reduced to bring it within statutory caps by the trial judge and affirmed in this decision by the 13th Court of Appeals.

The case was tried in Brownsville and is a good example of a strategic issue faced by a plaintiffs' attorney in Texas. In a large number of cases, particularly South of San Antonio, plaintiffs' counsel will work very hard to ensure that the case stays in state court, including explicit disavowals in the pleadings of any federal claim and adding individual defendants to destroy diversity. While state court procedures and juries may seem more hospitable to plaintiffs, the ultimate backdrop in Texas is review by the Texas Supreme Court which has shown it is not adverse to reversing jury verdicts. At a minimum it makes for interesting dynamics in settlement discussions.

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Wednesday, December 03, 2008

Hey Boss, I Had a Good Vacation - How Was Yours?

Having just returned from a week in a magical spot in Mexico, I suppose I still have vacation on the brain, which is my only excuse for the headline to introduce a much more serious topic, Fired Bethel Park woman awarded $1.8M. The "awarder" was a Pittsuburgh federal court jury which of course actually didn't award anything, but made findings that Carole Smith had been improperly terminated because of her sex and pregnancy.

According to various stories, including a more detailed report in the DLR ($), Carole Smith was a property manager for Normandy Properties who went on maternity leave on October 20, 2005 on the advice of her doctor. Her son was born by C-section on November 8 and remained in intensive care for 2 weeks. After Smith's four weeks of paid leave ended and she did not return to work she was terminated. Apparently there was disputed evidence as to whether she requested that her leave be extended for 30 days (unpaid) as permitted by the company's policy or if her position had been eliminated. The jury apparently accepted Smith's version of the facts.

The jury's award included $600,000 in compensatory damages and double that in punitive damages, for the $1.8 million total. Although it is not clear if this is a federal or state law claim or both, it is apparently clear that in addition to other post-verdict motions, one issue is the application of damage caps and it may be a difference between $50,000 and $100,000, which would of course under federal law would be based on number of employees. There are also issues about back pay and attorneys' fees.

One of the more interesting aspects of the case (and the basis for the snarky headline) is that during the course of the litigation, Smith was rehired at the same salary (although given the title of leasing agent), and took a week's vacation to attend the four day trial.

In the DLR story, it is clear that the return to work was an effort by the employer to cut its future damages by offering an unconditional reinstatement with no preconditions. According to the DLR story, a significant offer that would have required a resignation made 6 weeks before trial was turned down. Making a decision whether or not to offer unconditional reinstatement is one of the toughest strategic calls any employer and their lawyer have to make. Almost by definition you only consider it in the toughest of cases.

A result like this illustrates both points, all too well.


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