Jottings By An Employer's Lawyer

Monday, June 29, 2009

Supreme Court Gives Victory to New Have Firefighters

Appropriately enough given the venue, Daniel Schwartz at the Connecticut Employment Law Blog has one of the first substantive analyses of this morning's Supreme Court decision in Ricci v. DeStefano (S.Ct. 6/29/09) [pdf].

He also gives good counsel about not rushing to conclusions about the outcome until the 93 pages of the various opinions can be more than just skimmed.

Still, some basics are clear. The 5-4 opinion with Kennedy in the majority and writing the opinion is not a shocker. The 4-4 split is along the well known divide of Scalia, Thomas, Roberts and Alito vs. Stevens, Ginsburg, Souter and Breyer. And given the headline, it is clear that it was the conservative quartet that came out on top this time.

Justice Ginsburg took her role in providing the dissent (38 pages itself).

Among the points:
  • it is based on Title VII, not constitutional principles, so it is equally important to private sector employers as well as government employers.
  • Justice Kennedy saw the role of the majority to provide guidance to lower courts and parties when an employer is faced with a possible disparate impact case on one hand and a disparate treatment on the other;
  • The test is fairly easy to describe -- an employer can not rely on the threat of a disparate impact case as a defense to a disparate treatment case unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. "
  • Applying that test is not likely to be all that easy.
  • Sure to be much discussed is what Justice Ginsburg meant when she said, "The Court's order and opinion, I anticipate will not have staying power." Another veiled suggestion for legislative override?
Probably the biggest surprise is that given that New Haven had prevailed on summary judgment, the Supreme Court could easily have sent the case back to the trial court for it to apply its newly established standard. However, rather than doing so, it seems to have jumped a step and handed victory to the firefighters:
If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
I think that's Supreme Court talk for "this one is over," although I am not sure that will actually turn out to be the case.

This decision is going to get tons of scrutiny and comment, largely because Judge Sotomayor was on the panel of the 2nd Circuit which had a different outcome. To the extent that the commentary focuses on the case itself that's good, when it goes off on how it impacts on her abilities/views etc. I am less interested.

My first instinct is that it is an important case, but applies to a situation that does not come up all that often.

However, the reason that has not come up all that often in recent years is that the OFCCP has changed its direction, with much less emphasis on affirmative action via AAP's and much more attention to discrimination. To the extent that under the Obama administration, that emphasis switches back to what employers subject to EO 11246 faced in much earlier times, the case could be even more important.

Although there's that Ginsburg tease, 'not much staying power.'


By your title to this post, do you imply there are "have" firefighters and "have not" firefighters?
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Thursday, June 25, 2009

The Price of Discrimination in England

One of the blogs I follow is from PJHLaw, a Stamford, Lincolnshire, UK law firm that refers to itself as "Exclusively Employment Law Solicitors". Today, they had an interesting summary of 2008 awards in discrimination cases, Equal Opportunities Review.

The key numbers -
Average/ Median Compensation Awards in 2008

Age Discrimination £15,080/4,503

Disability £21,339/£8,000

Race £18,200/£6,325

Sex Discrimination £13,312/£9,109

Sexual Orientation £33,724/£6,364

Combined £37,655/£26,014

It would be interesting to see a similar study of American awards.


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Tuesday, June 23, 2009

Oregon Statute Could Bar Captive Audience Speeches in Union Campaigns

Last Friday, the Oregon House passed SB 519 a bill that was passed earlier this month by the Oregon Senate. As passed, the bill would preclude an employer from mandating that an employee attend certain meetings.

The bill prohibits:
An employer or the employer's agent,representative or designee may not discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize or take any adverse employment action against an employee:
(a) Who declines to attend or participate in an employer-sponsored meeting or communication with the employer or the agent, representative or designee of the employer if the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters;
and political matters:
includes political party affiliation, campaigns for legislation or candidates for political office and the decision to join, not join, support or not support any lawful political or constituent group or activity.
And to round it out, constituent group or activity, includes:
but is not limited to, civic associations, community groups, social clubs and mutual benefit alliances, including labor organizations.
Net result, if it should ever come to pass, a major impact on union organizing campaigns as traditionally run.

Still, the "could" in the headline deserves heavy emphasis. Before this bill allows the first employee to skip a scheduled meeting, it must be signed into law by Oregon's Gov. Ted Kulongoski. According to an AFL-CIO website, at least before its final passage, the Governor had said he would sign the bill. Oregon Bill Bans Mandatory Meetings.

The second big hurdle is the anticipated litigation that this statute is pre-empted by the National Labor Relations Act and/or that it is unconstitutional. My guess is both arguments are formidable, but it will take some time for them to play out.

Although it is not generally expressed in exactly these terms, for purposes of labor and employment law in America the fundamental principle is that "jobs" have belonged to the employer. This Oregon statute may only be a "left coast" thing, or it could be a sign that we may are approaching a major shift from "jobs" belonging to the employer, to "jobs" belonging to those who hold them.

Whether you think that is a good thing or a bad thing, it should not be overlooked that such change would be of epic proportion.


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Thursday, June 18, 2009

Supreme Court Says No Mixed Motive for Age Cases

One of the more anticipated decisions of this Supreme Court was going to answer under what circumstances a mixed-motive decision would be appropriate. Since the whole procedural law of mixed-motive cases seems muddled, help from the Supremes on any aspect was eagerly anticipated.

But today in Gross v. FBL Financial Services (S.Ct 6/18/09)[pdf] the Supreme Court took a pass on that specific question, and instead answered the question it (well at least the 5 in the majority) really wanted to answer:
Can you ever have a mixed-motive instruction under the ADEA?
Since the answer was no, the question the rest of us were waiting for, under what circumstances do you get one, remains an open question, at least for Title VII cases.

The reason the 5-4 opinion went the way it did, with Justice Thomas writing it, has to do with differences between the ADEA and Title VII, in particular on the issue of the burden of persuasion.

Even worse, the majority teased us with the idea that perhaps the Supreme Court might if it had it to do over again jettison the mixed motive idea, since it has been so difficult for the courts to implement. (Unfortunately, that idea seems likely foreclosed by the Congressional amendments to Title VII discussed in Justice Thomas' opinion.)

Workplace Prof's first look, thinks it could also impact ADA cases. More detailed analysis will be forthcoming from many I am sure.

My first take -- its an important decision, for now. However, since it is based on a question of statutory interpretation, stay tuned for the Jack Gross Mixed-Motive for Old Folks Bill coming to a Congress near you soon.


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Thursday, June 11, 2009

Texas Employers Unemployment Rate Headed Up

Hardly a surprise I suppose, but Tom Pauken, Chairman of the Texas Workforce Commission which handles unemployment claims in Texas, has confirmed that employers should be prepared for a substantial rise in their unemployment tax rate.

According to a story in today's Dallas Morning News:
Pauken said that though things could still change, it's probable that the commission next year will need to raise an amount from employers comparable to the amount raised in 2003 – or 2.4 percent of all taxable wages.
See, Employers' unemployment insurance taxes likely to rise, workforce commission chairman says.

No doubt employers in other states will be in a similar, unhappy, situation.

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Monday, June 08, 2009

Arbitration Fairness Act is a Trio, Not a Duo

A reader of my post last week, Arbitration Fairness Act - A Fatal Linkage for Employers, would be forgiven for not understanding that there is a third interest group other than employment and consumer transactions in which arbitration would be banned if the bill passes.

That ban would be for pre-dispute arbitration in franchise agreements. And as you might guess, there are differences of opinion in that industry as well, see Franchisors, Franchisees at Odds Over Arbitration Fairness Act, a story at a franchising specific blog, blue maumau.

According to the author, Lionel Hutz:
The International Franchise Association opposes this bill. Franchisee groups such as the American Association of Franchisees and Dealers, the Coalition of Franchisee Associations and Dunkin’ Donuts Independent Franchise Owners supports it.

The franchise part of the bill may impact the fewest people of the three areas in which pre-dispute arbitration agreements would be banned, but it may also be the group where feelings are the deepest.

My guess is that employers who want to keep the ability to mandate agreement to arbitration for disputes as a condition of employment, ought to distance themselves from that aspect of the bill as well and should push for separate treatment. Even then, it will be an uphill fight.


That's gotta be a pseudonym -- Lionel Hutz is the name of the lawyer on "The Simpsons."
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All Politics is Local - the EFCA Ramifications

Speaking to a labor rally before an important speech to the Pennsylvania State Democratic Committee, Senator Specter said he knew that if you want to be elected in Pennsylvania, you have to come to labor.

And then there was this exchange on EFCA:

"You want our vote? We want yours," shouted retired iron worker John Heinlein. That started a bit of give-and-take with the senator.

"I understand your job is on the line and I understand my job is on the line...I think you will be satisfied with my vote on this issue," Mr. Specter responded."

Specter "proud to be a Democrat," he tells party conclave here .

Following Specter's conversion there has been little doubt where he would end up on any EFCA compromise, but the Post-Gazette article makes clear why.

Still Pennsylvania is not Arkansas, Nebraska, Colorado, Louisiana or Maine. And it might well be those states 'local politics' that ultimately determine the fate of some form of EFCA.


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Friday, June 05, 2009

5th Circuit Reverses MSJ in Chronic Fatigue Syndrome Case

In a lengthy opinion, the 5th Circuit today reversed summary judgment for the employer where the district court found plaintiff's chronic fatigue syndrome was not a disability under the ADA. EEOC v. Chevron (5th Cir. 6/5/09) [pdf].

The Court also reversed the alternative holding that plaintiff's completion of the medical questionnaire without mentioning her previous diagnosis of CFS 15 years earlier justified her termination.

Although this was not based on the new amendments to the ADA, my guess is that it is a harbinger of things to come -- fewer summary judgments in ADA cases.


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Arbitration Fairness Act - A Fatal Linkage for Employers

The Arbitration Fairness Act would eliminate pre-dispute arbitration agreements in consumer, franchise and employee matters. I have long argued that because everyone (including me) does not like them snuck into the fine print of consumer agreements that employers were going to be in trouble unless they could break the linkage between employment and consumer agreements.

I never really had a good short rationale as to why there was a major difference, although clearly there is. Fortunately, the true distinction is highlighted in an article by Richard M. Alderman of the University of Houston Law Center, Why We Really Need the Arbitration Fairness Act: It's All About Separation of Powers. Here's the abstract of Professor Alderman's article:
Congress is currently considering the Arbitration Fairness Act, which prohibits pre-dispute mandatory arbitration clauses in consumer contracts. This article reviews the use of consumer arbitration to demonstrate that in consumer cases arbitration is used to eliminate consumer disputes, not to provide an efficient alternative forum. More importantly, it is suggested that the widespread, in fact near universal, use of consumer arbitration conflicts with the core American belief in separation of powers. Through arbitration, business can effectively divorce itself from the civil justice system, eliminating the judicial branch from consumer disputes. The only way to reverse this dangerous trend is through the prohibition contained in the Arbitration Fairness Act.
I emphasized the sentence that points out the key difference between consumer agreements and employment situations. Whatever you might say about mandatory arbitration of employment disputes, it is not fair to say that they are designed to prevent claims from being heard.

I personally have handled more than twenty-five such matters which went all the way to hearing, and although the percentage of arbitration cases that go to hearing as opposed to lawsuits that goes to trial, is considerably higher, I have handled a lot more claims that were in arbitration that were resolved somewhere along the way before going to hearing.

I think that is an important distinction between the two, and a good rationale for why they should be treated differently. For those employers who have arbitration programs, it is time to act and start making this distinction and others to your legislators. My view is that is the only way employment arbitration is going to survive.


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Thursday, June 04, 2009

EFCA - The Dangers of Reporting

I, like many noticed a story that was circulating yesterday from a California radio station that Senator Feinstein D-CA had made major news in a meeting with Santa Clarita Chamber of Commerce members by announcing that she would not support EFCA in any form. For anyone following the story, that sounded suspect and it didn't take long for the "breaking news" to be squelched.

Fairly effectively in this report from Firedoglake, Feinstein Bailing on EFCA” or “Reporter Punk’d By Chamber of Commerce”?, which includes an update with the following:
Speaking on background, a confidant of the senator went a bit further. "This must be [Shaffery's] first rodeo because the story hasn't changed much. It has been the same: She is looking for a compromise. And anyone who says otherwise is engaging in some wishful thinking."
Clearly efforts to compromise are being made. That they continue to be talked about makes me believe that organized labor is at least still debating whether to accept a compromised version of EFCA or take an all or nothing approach for the current bill. Doing the latter would delay any bill until 2011 and be dependent on not only gains in the Senate in 2010 elections, but also a change of heart on the part of a number of current Democrats who are not too keen on certain provisions.

Just to reiterate there are three key components to the bill. Here's my current view on where things stand:
  • Card check as proposed in the original bill is gone. Although consensus has not been reached on exactly what will replace it, there are lots of ideas being floated. My guess is that some sort of agreement that will pass muster can be reached, probably some form of expedited election and additional access for union organizers;
  • Binding arbitration to ensure an initial contract, in my view by far the most dangerous portion of the proposed EFCA, is still up in the air and could prove to be the deal breaker;
  • Increased penalties for violations of the NLRA has not got a lot of attention yet. I think that is because most agree some change is necessary and there is an assumption that if a deal can be reached on the two other issues, this one can be resolved as well.
  • Although possible, it seems fairly unlikely that anything could be passed until Al Franken is seated, but that seems to getting closer in time.
If organized labor is willing to take less than the original bill, and it seems to me that is the case, then this summer is, or at least should be, going to be a period of heightened vigilance for the employer community, regardless of what you may read about the various 'opponents' of the bill.


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Monday, June 01, 2009

Driving and Talking - Not in Texas School Zones

For some reason I have been struck recently by just how many people have cell phones attached to their ears. Unfortunately, too many of them are behind the wheel of a moving vehicle.

The good folks at Workers Comp Insider have an excellent post, Cell Phones: Unsafe at Any Speed?, although it would have been nice to get it to the Texas legislature a little sooner.

Although there were several cell phone bills introduced in this year's session, the only one that seems it will make it through the laborious process is HB 55. It has passed both houses and if signed by the Governor, will prohibit speaking on a cell phone in a school zone (assuming that the city places an appropriate sign to let you know it is against the law). It also prohibits school bus drivers from using a phone at any time. (I think that was hopefully a no brainer.)

It's at least a start ....

Update (6/22/09): The bill was signed by Governor Perry last Friday and becomes effective September 1, 2009. The text of the bill is here [pdf] .


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