Jottings By An Employer's Lawyer

Tuesday, February 24, 2009

No Longer Secretary of Labor-Designate Solis

By an 80-17 vote, the Senate today confirmed Representative Hilda Solis as Secretary of Labor. See, Solis Confirmed as Labor Secretary. Although it took awhile, for some time now it has been clear that this would happen.

What is new "news" is the appointment of Seth Harris as the Deputy Secretary of Labor. According to a Chicago Sun-Times story announcing a number of sub-cabinet level appointments including Harris, here is his background:
Seth Harris, Nominee for Deputy Secretary of the Department of Labor Harris was most recently the Obama Transition Project's Agency Working Group Leader for the labor, education, and transportation agencies. He is a Professor and the Director of Labor & Employment Law Programs at New York Law School. He is also a Senior Fellow of the Life Without Limits Project of the United Cerebral Palsy Association and a member of the National Advisory Commission on Workplace Flexibility. He served as the Chair of Obama for America's Labor, Employment, and Workplace Policy Committee and a Co-Chair of its Disability Policy Committee. During the Clinton Administration, he served as Counselor to the Secretary of Labor and Acting Assistant Secretary of Labor for Policy, among other policy-advising positions. Before joining the administration, he was a law clerk to Judge William Canby of the U.S. Court of Appeals for the 9th Circuit and Judge Gene Carter of the U.S. District Court for the District of Maine. He graduated cum laude from New York University School of Law where he was Editor-in-Chief of the Review of Law & Social Change. He received his Bachelor's degree from Cornell University's School of Industrial & Labor Relations.
Although it is not 100% clear that it is newly appointed Seth Harris, there is a Seth Harris blog on the Obama campaign website. See newest post here. Given the reference to the Disability Conference Call, which seems to match his duties as Co-chair of the Disability Policy Committee of Obama's transition team, I am assuming it is his, although I would welcome confirmation or correction if I am in error.

If in fact it is the newly appointed number two person at the Department of Labor's blog, it probably will not make any employers who read through the various postings sleep any better.


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Friday, February 20, 2009

OSHA Preemption Fires a Blank in Oklahoma Gun Law Case

Yesterday the 10th Circuit reversed a district court's holding that the Oklahoma statute requiring employers to allow employees to bring guns to the employer's parking lot was preempted by the general duty clause of OSHA. Ramsey Winch, Inc. v. Bradley (10th Cir. 2/19/09) [pdf].

Although I had liked the result in the district court, I had both doubted that the rationale would hold up and also was concerned about creating too broad a use of the general duty clause. See my earlier post, Oklahoma Gun Law Case and the Law of Unintended Consequences.

The 10th Circuit also dealt with two constitutional arguments, that the statute resulted in an improper "taking" and was impermissibly vague, but they were no more successful than the OSHA preemption one.

I think the 10th Circuit has it right when it says that this is basically a political argument:

We need not decide the long-running debate as to whether allowing individuals to carry firearms enhances or diminishes the overall safety of the community.

A statute modeled on Oklahoma's is pending in the Texas legislature. See, Can't Ignore It Any Longer - The Texas Legislature Is In Session. Yesterday's decision makes the path for what it will take to avoid having such a statute clearer -- strong political action. Unfortunately, it does nothing to make it easier.


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Thursday, February 19, 2009

Measuring the Future of Employment Law Activity

I am on DOL's mailing list for their weekly unemployment claim report. Here's the one that came this morning:

In the week ending Feb. 14, the advance figure for seasonally adjusted initial claims was 627,000, unchanged from the previous week's revised figure of 627,000. The 4-week moving average was 619,000, an increase of 10,500 from the previous week's revised average of 608,500.

Losing your job is only one basis for an employment law suit, but is the most likely event that makes an employee go to a plaintiff's lawyer's office.

Of course most don't actually think about suing and most of those who do, do not have a viable claim and are probably told so. However, if you think of it just in terms of potential, just in the last two weeks, there have been approximately 1.2 million new potential plaintiffs created across the country.

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Wednesday, February 18, 2009

The EEOC, The 5th Circuit and My First Post

On July 17, 2002 not knowing what I was getting into, this was my very first post on Jottings By an Employer's Lawyer:
For lack of a green card .....

No, not the kind typically associated with immigration issues, but the kind that accompanies certified mail and is used to prove when an item is received. Some time ago, the EEOC (at least where I practice) quit sending right to sue letters by certified mail. Since the time for filing a lawsuit is tied not to the date of the right to sue letter, but the date of receipt, it is easy to see the kind of problems that were certain to arise. Rather than having government certified (or quasi-government, depending on your view of the U.S. Postal Service's status) proof that the right to sue letter was received on a date certain it is now open to speculation. The 5th Circuit Court of Appeals has added its voice to other courts to at least provide a partial answer. When the date of receipt is uncertain or disputed, the Court will use a statutory presumption that it was received between 3 to 7 days after its date. In this case the court didn't need to be more certain since the suit was untimely regardless of which standard the court applied. Taylor v. Books A Million decided 7/15/02.

The argument for the three days is the period applied in the Federal Rules of Civil Procedure for service of documents by mail. That would make sense, and hopefully will be the standard applied when the Court is forced to decide that issue.
Yesterday the 5th Circuit decided a suit was timely notwithstanding a Katrina delayed receipt of a right to sue notice from the EEOC, Duron v. Albertson's LLC (5th Cir. 2/17/09) [pdf]. Saying what I felt those many years ago, the Court concluded:
In closing, we note that if the EEOC had followed its former practice of sending right-to-sue letters by certified mail, this dispute would, in all likelihood, have never arisen.
When that happens, I will happily update this post.


The problem with certified mail is that many people refuse to accept it. The Postal Service will make three attempts, and then return it to the EEOC, which sends it out again. If the charging party unreasonably delays receipt of the right-to-sue notice, he or she does not get to take advantage of the extra time to file a complaint. Whether the charging party was reasonable is a question of law and fact to be decided by the judge.

Sending things out by certified mail can sometimes cause more problems than it resolves.
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Monday, February 16, 2009

Dukes v. Wal-Mart, Not Over Yet, Not Even in the 9th Circuit

The folks at Shaw Valenza were busy working on Valentine's Day and were good enough to post the news that the 9th Circuit had granted an en banc review in the largest sex discrimination class action case ever certified, Dukes v. Wal-Mart. The original 9th Circuit opinion is here. [pdf] The granting of re-hearing is almost two years to the day from the original decision.

Unlike all other circuits, an en banc review does not mean all judges of the 9th Circuit, but a 15 member panel. Probably good that this one gets another set of eyes before the (barring settlement) inevitable petition for writ of certioari to the Supreme Court.

For some background on the underlying lawsuit check out the wikipedia entry here, which has already been updated with Friday's action.


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Stimulating Whistleblowing

The Whistleblower Law blog, an advocate for whistleblowers has a detailed look at the McCaskill Amendment to the stimulus passed by Congress last week, Congress Enacts Robust Whistleblower Protections to Prevent Fraud in Stimulus Spending.

It analyzes protected conduct under the bill as including:
Gross mismanagement of an agency contract or grant relating to stimulus funds;

A gross waste of stimulus funds;

A substantial and specific danger to public health or safety related to the implementation or use of stimulus funds;

An abuse of authority related to the implementation or use of stimulus funds; or

A violation of a law, rule, or regulation that governs an agency contract or grant related to stimulus funds.

It is not just a public sector bill but also covers private contractors where the source for their payment are stimulus funds. It seems it is not only bank executives who will be picking up restrictions when they pick up newly allocated government monies.


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Thursday, February 12, 2009

Can't Ignore It Any Longer - The Texas Legislature Is In Session

I don't know if it has been that there is so much going on in Washington or a feeling that it is unlikely that anything too severe to employers will actually come out of the Texas legislature, but for some reason I have basically ignored our state solons. Although they joined us here in Austin in the middle of January, they are still basically in the organizational stage. The new Speaker of the House is to announce committee assignments only this week. Committee assignments taking time.

But a news item ($) in Employment Law 360 reminded me that there is at least one area where employers could be vulnerable: guns in parking lots. That's right, Senator Hegar (R-Katy) has now introduced SB 370. The key paragraph:
A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun ... who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.
One argument will likely be that a number of other states have passed similar measures. I can just hear my mother asking me: "If all your friends jumped off a cliff ..."


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5th Circuit - No Duty To Reimburse Expenses Under H-2B Visa Program

Not many Katrina related cases have been employment law cases, but yesterday the 5th Circuit dealt with an FLSA challenge arising out of a hotel's hiring of workers under the H-2B visa program in the hurricane's aftermath. The challenge was simple. The hotel did not reimburse the workers for their recruitment, transportation and visa expenses, and therefore they did not pay them the minimum wage, free and clear.

The Court said no, basically relying on a regulation by the Bush Department of Labor issued on December 19, 2008. See Fed. Reg. 78020 et seq. The bottom line, the employer is not on the hook for the expenses. Castellanos-Contreras v. Decatur Hotels (5th Cir. 2/11/09) [pdf].

Updated (7.22.09): I haven't read it, but the 5th Circuit today withdrew the above opinion and replaced it with a new decision (here) [pdf] , but with the same result.

Updated (3.24.10): The 5th Circuit has now voted to hear the case en banc, see my post here.


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Wednesday, February 11, 2009

Secretary of Labor Designate Solis - One Step Closer

Representative Hilda Solis has been approved by the Senate Committee and could be voted on by the full Senate later this week. Senate panel approves labor nominee Hilda Solis

Only two Republicans voted against her in Committee. Barring any further surprises, she will be confirmed.


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What Ledbetter Has Wrought

It hasn't taken long for the effects of The Lilly Ledbetter Fair Pay Act to be felt.
My colleague in Morristown, New Jersey, David Copus has been following the Act closely, as well as warning about its potential impact. Here's the latest:
The key section of the Act provides as follows:

For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

The reason for highlighting the phrase “other practice” is because plaintiffs are already successfully arguing that the Act reaches all types of employment decisions that affect pay beyond a simple decision on wages, including demotions and promotions.

And to further make his point, here are two cases he has found in the first week after the bill was signed:

Bush v. Orange County Corrections Dept., No. 6:07-cv-588-Orl, 2009 WL 248230 (M.D. Fla. Feb. 02, 2009) at *2. The court held that plaintiffs could timely challenge demotions, which resulted in reductions in pay, that occurred 16 years before plaintiffs filed their EEOC charges. The Court noted the irony of the timing of the Act’s passage: “Thus, while [defendant’s] untimeliness argument was valid prior to last week, with the passage of the Act Plaintiffs' Title VII claims are no longer administratively barred.”
Gilmore v. Macy’s Retail Holdings, No. 06-3020 (D.N.J. Feb. 4, 2009). The Court held that the Ledbetter Fair Pay Act applies to an allegedly discriminatory promotion decision, where the promotion would have been to a higher paying job.

Fasten your seat belts.

Update 2.12.09: I noticed the ABA Journal has picked this up, and also it is running at least for now on the front page of, so a higher number of hits today than usual. In light of that, I should make clear that some loose wording on my part has actually not made clear what actually happened in the two cited cases.

Rather than plaintiffs making the arguments, in both cases the issue was raised by the Court on its own initiative. In both cases, it ultimately didn't matter as the Court ruled on the merits in favor of the employer, still the import of the Ledbetter Act seemed clear to these two judges.

Ross Runkel, who always provides a voice of reason thinks the rationale is wrong (and my concern premature) and explains why in, Ledbetter Act apply to demotions and promotions? I hope Ross is right, but even if he is, it points out one of the dangers of any legislation. Until it is sorted out, it makes things unclear as to what the law is, which always leads to more litigation and more cost. I do not know of any way to avoid that with a new piece of legislation, but that cost is certainly one that should be factored in when considering the alleged benefit of any legislation.

2nd Update 2.12.09: Jeff Siegel of Boston's Morgan, Brown & Joy who represented Macy's in the New Jersey case was kind enough to offer more insight, as well as a gentle correction, about that case:

I represented Macy's in the Gilmore matter in which the Court, sua sponte, applied Ledbetter, and argued the Ledbetter application before Judge Simandle. Your analysis is slightly mistaken - the Court did not rely on the promotion decision (which was disposed of at summary judgment). Rather, the Court found a bonus plan that had been in place was subject to the Ledbetter amendments. Notably, one of the bigger issues concerned whether emotional distress damages would be available, and what period the jury should consider when deciding to award (or not award) such damages based on conduct outside of the 300 day filing period. After considering the issue, the Court agreed that emotional distress would only be available back to the limits of the 300 days (or, in our case, the NJLAD) and not further. The jury returned a defense verdict, finding no discrimination occurred, so these issues will not be flushed out further.

3rd Update, 2.13.09: The plaintiffs' in a case that has already been argued before the U.S. Supreme Court, AT&T v. Hulteen, have now filed a supplemental brief arguing that the case is now resolved in their favor because of the Ledbetter Fair Pay Act. See comments on this development at Workplace Prof Blog and by Ross Runkel.


The AT&T employees' brief is disconcerting. It cites a lot of legislative history suggesting your broad interpretation of the LLFPA is correct, and Prof. Runkel's narrow reading is not.
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Sunday, February 08, 2009

Professor Runkel Thinks Solis Is a Goner

Ross Runkel, a long time blogger and law professor has made his Prediction: Taxes will scuttle Solis nomination for Labor Secretary. I still think she will be confirmed, but I am much less sure of that than I was in January when I was making speeches around the state about what's going on in Washington. Then I was predicting that there was no question but that she would be confirmed.

For the record, Ross thinks it would be bad if she is dropped.


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The Current Status of the Restatement of Employment Law

A post by Richard Bales on a recent conference at Hastings College of law on the Proposed Restatement of Employment Law is not particularly encouraging about how it is going. This would be the Third Restatement of Employment Law and is being done (as are all Restatements) under the auspices of the American Law Institute. There are a large number of scholars, practitioners and a few judges (including Texas Supreme Court Justice Scott Brister) involved in the effort, see the list here.

The Restatement has had a rocky road, with the 2nd draft being opposed by 66 labor and employment law professors. See an earlier post at Workplace Prof Blog by Paul Secunda, ALI and the Pending Restatement of Employment Law. Although presented for a vote to the membership meeting at the May 2008 session, after the protest the ALI reported that "there was insufficient time to discuss the entire draft and no final vote on the draft was taken."

One of the organizers of the Conference on the 3rd draft was The Labor Law Group, a group I had never heard of. It turns out that it is a group of labor and employment law professors. The initial purpose when it was formed in 1946 was "the development of better books and materials for the instruction of law students on labor law." It's not clear from the website what the criteria for joining is, so not sure if it is oriented around a particular view of the law or some other principle.

That might be helpful in evaluating Richard's report of the view of the Restatement drafts as discussed at the conference, which certainly doesn't sound very positive:

Two themes quickly emerged. First, substantively, there are parts of the proposed Restatement -- especially in the Comments -- that slant heavily toward employers, though there are parts of the proposed Restatement as well that are on the progressive side. Second, the scholarship behind the proposed Restatement is extraordinarily sloppy -- cases are mis-cited, facts are wrong, holdings are wrong, and cases do not support the propositions for which they are cited. For this reason alone, ALI should put a hold on the proposed Restatement until it can be cleaned up. The proposed Restatement, if passed in its present form, would be an embarrassment to the American Law Institute and would call into questions generally its commitment to accurate scholarship.

To me the second point, which not having read the drafts, I have no opinion on, is the more important. As to the first, I have to chuckle somewhat seeing the two view points characterized as "employer" vs. "progressive." Not sure what that means exactly, but fairly certain that "employer oriented" is not viewed as a positive.

It doesn't appear that this is a restatement that is soon to be issued because the ALI's page on the project concludes that "This project is likely to last several more years before completion."

Thank you for letting me know the employment law and rights. It is quite helpful.
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Thursday, February 05, 2009

Because It's Where the Money Is

Although it has never been my intent for this to be a politically focused blog, if you are a relatively new reader, you might not know that. While I certainly don't intend to ignore the rest of the labor and employment world, the fact is that much of what could be most important for employers in the long term is going to be happening in Washington during this session of Congress.

I feel basically like Willie Sutton who famously responded to a question by the FBI as to why he robbed banks by saying "because that's where the money is." For the foreseeable future, if you are focusing on the world of labor and employment law, Washington D.C. is where the money is.

If you share that feeling you should check out a seminar sponsored by a number of large trade associations and my firm, Ogletree Deakins, The New Administration and New Congress: Guaranteed Changes for Labor and Employment Law which will be held in DC on February 26-27. You can check out the agenda and the impressive list of speakers, including elected officials and Congressional staffers here. The trade groups co-sponsoring the seminar are:
U.S. Chamber of Commerce
The Business Roundtable
National Association of Manufacturers
National Federation of Independent Business
Associated General Contractors of America
American Hotel and Lodging Association
American Bakers Association
National Association of Waterfront Employers
National Roofing Contractors Association
Associated Builders and Contractors
Retail Industry Leaders Association
International Franchise Association
National Retail Federation
National Council of Chain Restaurants
Utility Line Clearance Coalition
Food Marketing Institute
Printing Industries of America
I am on a panel at the end of the first day, so if you should join us be sure to come by and introduce yourself.


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EFCA Introduction "Soon", Solis Committee Vote Today

Representative George Miller did not introduce the EFCA yesterday, but promised to do so "soon." For a good history of how the bill fared last Congress and some background on the coming fight, see The Hill's story, Dems to introduce controversial card check bill 'soon'.

Secretary of Labor Designate Hilda Solis finally gets a committee vote today. Her nomination has been stalled by an unnamed Republican Senator. Although the consensus still seems to be that she will be confirmed, there has been some question about her role with American Rights at Work, a labor advocacy group which has been lobbying for the EFCA. Representative Solis has been a board member and treasurer of the group.

The problem arises because it engages in lobbying activities and it is illegal for a sitting member of Congress to lobby. Apparently the House rules allow a member to be on the board of a non-profit that lobbies, as long as they don't take part. The fact that she is Treasurer of the organization makes it a little more complicated, but maybe not enough. Mark Ambinder of the Atlantic has a fairly concise description of the issue here.

One reason this may not be enough to derail her nomination is that unlike the tax problems of potential cabinet members that have come to light, there is a lot more "transparency," to use one of the new buzzwords as her membership on the Board of the the organization has been well known.

Update, 03:41 PM: No vote today. USA Today stories about tax liens on her husband's business are the latest. See Solis Vote Postponed After Husband's Tax Liens Revealed at TPM.


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Tuesday, February 03, 2009

EFCA Petitions To Be Delivered and So Is Scholar's Critique

More than 1.5 million petitions seeking passage of the EFCA will be delivered to members of Congress tomorrow, Rally Tomorrow for Employee Free Choice. It is also expected that the bill will be formally introduced into the House of Representatives.

One interesting aspect to note, will it have fewer sponsors than it did in the last session of Congress? Last time there were 230; given the union push and more Democrats in the House you would expect there would be more this time.

The difference? The business community has now focused on the reality of the legislation and so another voice is being heard. Perhaps more importantly, it is not as free a vote as before. As long as Bush was in the White House, there was little danger that the EFCA in any form would become law. That has changed and so a vote for it is one that the Representative may have to own up to in the future.

Even so, it won't change the outcome in the House, it will pass and possibly even in the near future. The real battle is in the Senate and the same rule, no more "free" votes, will be even more applicable there.

And to add grist to the fight, Richard Epstein, a University of Chicago law professor has just issued his The Case Against the Employee Free Choice Act. (pdf) It was sponsored in part by industry sources, from the introduction:
Finally, I have received financial support from the Alliance to Save Main Street Jobs (which is comprised of the HR Policy Association (the leader of the Alliance), the Retail Industry Leaders Association, the Real Estate Roundtable, the American Hotel and Lodging Association, the U.S. Chamber of Commerce, the International Council of Shopping Centers and the Associated Builders and Contractors).
so it will no doubt be panned for that point alone. Frankly, it is going to be hard to find many who write on this topic that don't have some dog in the hunt, so it would be nice to see his points argued on the merits.


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