Jottings By An Employer's Lawyer

Friday, April 20, 2012

Texas Supreme Court Confirms Punitive Damages in Sabine Pilot Cases

Revisiting the only public policy exception to the employment at will rule in Texas, the Supreme Court today holds that a plaintiff who prevails can recover punitive damages in a Sabine Pilot case if he or she can establish the appropriate level of malice. Safeshred v. Martinez (Tx 4.20.12).

Unfortunately for Mr. Martinez, he did not meet that standard, thereby losing his $250,000 punitive damage award (which had already been reduced to $200,000 because of the damage cap under Section 41.008 of the Texas Civil Practice and Remedies Code). Given that he had lost his $10,000 mental anguish claim in the Court of Appeals, what once seemed so promising now appears to stand as a judgment of  approximately $7,600 in lost wages.

Beyond the impact to Martinez, the Court in an extended discussion on what would constitute malice, provided guidance for the award of exemplary damages in Sabine Pilot cases in the future.  In dicta, the Court hinted that the Sabine Pilot cause of actions extends only to termination claims; anything less would not be actionable.

For punitive damages, the Court held the proof must be something more than the normal consequence of the termination itself. It rejected Martinez argument that you could consider the consequences if he had performed the illegal act in question in establishing malice.

More generally, it listed three types of circumstances where malice might arise:
Malice in this case could only be shown by clear and convincing evidence that Safeshred, in firing Martinez, intended or ignored an extreme risk of some additional harm like
    •  interference with his future employment,
    • harassment, or
    • terminating him knowing it was unlawful to do so.
There are not a lot of Sabine Pilot cases around, the unique circumstances required and the high burden of a sole standard, re-iterated (although not dwelt upon) in today's decision, make it a hard case to establish.

But for those that do make their way to trial, Safeshred now gives definitive guidance for punitive damages.

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Wednesday, April 18, 2012

An Arbitration Sign of the Times

If you think arbitration is not a significant player in employment law dispute resolution, you would have to think twice when you see that the National Institute for Triall Advocacy (NITA), one of the best known training programs for trial lawyers is holding their first Arbitration Advocacy May 18-20, 2012.

The opening paragraph in the email I received made that point:
In looking at the below list of topics covered in this program your first inclination may be to think this is another of NITA's Trial Advocacy programs. While similar in some regards this 3 day learning-by-doing program is in fact NITA's first Arbitration Skills program.

And like all NITA programs, this one promises to be a hands on experience, culminating in conducting a full arbitration.  Here's a link to NITA's program site if you are interested.

The fact of the matter is although the battles continue over the finer points of enforcibility, and Congressional action could in one fell swoop totally eliminate it, for the foreseeable future, arbitration of employment disputes is very much a reality.

Arbitrations are not the same as trials, and while I think it will be quite some time before we hear anyone refer to themself as an "arbitration lawyer," making sure you understand the difference between the two is important.

Arbitration is much more akin to a bench trial, but one with even more liberal standards of admissibility of documents and testimony.  I think it is also a much "cooler" forum, where emotion as a general rule is much less likely to be found and to carry as much weight.

For the advocate, perhaps one of the big differences is the timing of the feedback. For better or worse, when a case is submitted to a jury, in a matter of hours, or at most days, you will know what the factfinder thought of your case.  In arbitration, as with bench trials, there is no instant gratification (or depression)

Even in relatively recent times, results were delivered in the mail, but today, when you have an arbitration case pending decision, almost any email could be the one carrying the news. 


I recently read that some companies are opting to have employees sign waivers of jury trials in employment disputes instead of having them agree to arbitration, as an appeal of a bench trial is much easier than
an appeal an arbitration decision. Any thoughts on arbitration v. a bench trial? Do you know if the EEOC has taken any position on waiver of jury trials?
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Friday, April 13, 2012

NLRB's Posting Rule Hits Another Bump in the Road

This afternoon Judge Norton in South Carolina granted summary judgment to a group seeking to block the NLRB's rule that would require a posting notifying employees of certain rights under the NLRA.

His conclusion:
After utilizing the tools of statutory interpretation, the court finds that the Board
lacks the authority to promulgate the notice-posting rule. As such, the rule is unlawful
under the APA, 5 U.S.C. § 706, and the court GRANTS summary judgment in favor of
The full opinion can be found on Pacer at this link.


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ENDA Lite Hits a (Temporary?) Dead End

While I didn't actually predict that the Obama Administration would issue an Executive Order implementing protection for lesbians, gays and transgendered individuals employed by federal contractors, reading my post from a couple of weeks ago, you might could have drawn that conclusion. See, ENDA "Lite" On the Way?

But apparently, it is not to be, or at least not now, although the story in the Washington Post reporting that the Administration has chosen to not issue such an Order details both the pressure that is going to be forthcoming and the possibility that somewhere down the road, the decision might be different. See Gay rights groups vow more pressure on Obama to sign nondiscrimination order.

Although denied by the Administration, it is hard not to view such an Order in light of the role it could play in "prresidential politics" which is pretty much the only prism that anything having to do with the Administration is, correctly or not, going to be viewed from now until November.  

Hat tip to the folks at Employment Law 360, whose reporting on this issue brought it to my attention, including today's story, Obama Won't Order Ban on Anti-Gay Bias by Contractors. ($)


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News from the West Coast, Brinker (Finally) Decided

Although I have been fortunate enough to avoid any in depth or on-going contact with California employment law, it is hard not to be aware of what is going on. So like many, I have been waiting for the Supreme Court's decision in Brinker v. The Superior Court of San Diego County (CA 4.12.12), for what seems like an extremely long time.

Now that it has been issued, I gather from the general tenor of the posts, that it was a) more than expected, especially about class actions and b) better than expected for employers.

Rather than try to invent the wheel, here are the comments from folks who have much more skin in the game than me, including lawyers from my own firm, Ogletree Deakins, which now a substantial presence in California. Their take can be found at California Supreme Court Issues Major Victory for Employers in Brinker Case.

Here's a summary from other commentators:
Brinker seems to be one of those cases that not only generated a tremendous amount of interest but may actually may live up to its hype.

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Thursday, April 12, 2012

Non-traditional Plaintiff Theme Continues

At the start of 2011, I noted that one of the stories of the year might be that more and more of what I would call non-traditional plaintiffs would be filing discrimination suits. See, 2011 ---- the Year of the Non-minority?

It seems that trend is continuing in 2012, including the following examples:
The last two courtesy of the BNA Daily Labor Report.

One common denominator between these three is that they are all governmental defendants. Public sector employers may be more susceptible to such claims, but all employers ought to be aware.


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Wednesday, April 11, 2012

How Would We (I) Function in This Employment World

A guest blog post on CNBC by Julie Clow, author of The Work Revolution: Freedom and Excellence for All, caught my eye this morning.

Since I write about the world of work, any article that starts this way would do so:
Maybe we have it exactly wrong.
Maybe we should all be wildly different from each other in every way, down to the way in which we get our work done.  
She envisions a much more decentralized world of employment, explained (briefly in the article) around these four principles:
  • It’s about individual strengths, not job slots.
  • The more diverse we are, the better the wisdom of the crowds. 
  • If we accept our diversity as a given, then schedules are anathema to progress.
  • It’s about impact, not activities.
I will take a look at her book, but while her ideas provoke, my initial reaction is what a nightmare for the HR folks.  Its hard enough to manage hr and employment law issues when we have people herded together; the more separate and independent,  the more difficult the task.

But maybe the only way to really take on the future is to blow up the way things have always been done, and of necessity that includes the HR function as well. It may actually be happening more than is readily apparent.

Anything that makes it more difficult for HR probably means more business for my types.Which, with all due consideration to my partners, is not really a good thing.


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Wednesday, April 04, 2012

Body Mass Index As a Hiring Criteria

Hat tip to (probably my favorite blog title in our corner of the world) the Evil HR Lady for catching news from my own back yard, see the original news article, Victoria Hospital Won't Hire Very Obese Workers, as Victoria is just a couple of hours down the road from me, but  also a brilliant commentary on the policy itsefl.

Hard to top anything Suzanne Lucas has to say in her post, Is it okay to discriminate against obese people?, so just check it out.

One thing that I did find interesting was the comment from the Administrator that it was based on the preference of patients. 

Although client preference alone does not automatically push one across any legal boundry, over the years it's one of those "red flag" type comments that tends to make me sit up and pay attention because there could be something troubling about to occur.

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Refusal to hire the obese is bumping up against the thin line of cases of ADA and state law violations where the employer is held in violation because the spurned applicants "are regarded as being disabled." MA is one that comes to mind; there are many more.
It's a risky policy I'd counsel against.
As to client preference, that was tested to the max in the 70's when the NYS Commission filed charges against a topless bar on behalf of a topless dancer.
I omitted the fact the CP was flat chested. Sorry
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