Jottings By An Employer's Lawyer

Thursday, June 28, 2012

Obamacare Decision: The Perils of Instant Analysis and Related Thoughts

I have not and will probably not read today's Supreme Court decision holding that the Affordable Care Act is (for the most part) constitutional any time soon.

But I did have a couple of thoughts on what has happened so far.

First, my first notice of the results came from a CNN email at 9:09 a.m. (CDST)
The Supreme Court has struck down the individual mandate for health care - the legislation that requires all to have health insurance.

Nine minutes later, I received the following from CNN:
Correction: The Supreme Court backs all parts of President Obama’s signature health care law, including the individual mandate that requires all to have health insurance.
And just to be fair, at 10:04, CNN seems to have finally gotten the basic result down:
Chief Justice John Roberts led the Supreme Court’s 5-4 decision upholding President Obama’s sweeping health care law.
The president is expected to speak later today on the ruling that supports the core legislative accomplishment of his administration.
The court decided that the individual mandate that requires all Americans to have health insurance will stand and is considered a tax by the court, making it constitutional.
Chief Justice John Roberts wrote about the individual mandate, citing the taxing clause: “It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without insurance. Such legislation is within Congress’ power to tax."
The court also ruled that the federal government may not remove Medicaid funding from states that refuse to take part.
Voting to uphold the Affordable Care Act were R oberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The dissenters were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
Now besides a little temporary embarrasment on the part of CNN, which I would imagine is already gone, the errors they made in their initial reporting matters not.  My guess as to what happened, is they wanted to be first, they read the opinion and saw that the Administration had lost on the Commerce Clause issue and assumed that meant the mandate had fallen. When they figured out that the Administration had prevailed under the taxing clause on the mandate, they rushed to correct that, and mis-stepped again because they had not made it to the part where the Court held Congress over-reached in its putting conditions on states for the receipt of Medicaid funding.

But this brief interplay, reminded me once again that the speed with which our world now operates often times does a great disservice to the quality of advice that is given.  When we operate at hyper speed, the time for reflection and discernment is often a casualty. It didn't really matter here, but when giving advice as lawyers do every day, operating at that speed can easily cause serious error.

Secondly, although we are all told on appeal to limit our number of arguments and focus on our strong ones, today's decision points out the importance of having a Plan B. While everyone focused on the commerce clause and the hope that Justice Kennedy would be the 5th vote to support its use, who ever insisted that the fall back position of the taxing clause be there, should be getting large pats on the back by the supporters of the bill.

Having recently won an appeal (at least so far) where there were 3 separate opinions, and the two judges who voted in the favor of our position did so for different reasons, I personally know how important that Plan B can be.

On the political note there has been and will be even more analysis of how this impacts the Presidential race. Although President Obama is no doubt happy with today's outcome (except for the Medicaid portion) I doubt that much thought had been given to how it would be to run when the healthcare law was supported only because it was a "tax." Justice Roberts may have given President Obama a substantive victory, but my guess is that he at least gave Romney and the Republicans a rhetorical boost.

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Wednesday, June 27, 2012

Two Sacred Cows - Performance Appraisals and Job Descriptions - Time for the Scrap Heap?

I don't always appreciate non-trial lawyers telling me how to try a case (although I try to listen, because often I can learn something that is helpful), and so I am also leary of getting too far into the realm of HR advice.

But I have long been a skeptic on both annual performance reviews and job descriptions. In defending employers over the last 35 years, I would say I have seen both types of documents end up as Plaintiff's Exhibits, not Defendant's exhibits more often than not.  Since the employer is in control of both, even if it were 50/50, that's a pretty poor ratio.

The problem is that for the most part they are either rushed through as after thoughts (performance reviews) or done in a vacuum and put on a shelf (job descriptions).

About job descriptions I have often said if they are accurate and up to date then they are good; unfortunately that does not describe very many job descriptions I have seen. That basic premise holds true for performance appraisals as well.

It's one thing for lawyers who see these documents through the admittedly cloudy filter of litigation to make those kind of comments, but it seems those who actually do specialize in HR advice are having some of the same thoughts.

Today's comment was sparked by the recent Harvard Business Review posting by Eric Mosley, Crowdsource Your Performance Reviews, which was inspired by a study of HR leaders where 45% said they "did not think that annual performance reviews are an accurate appraisal for employee's work." 

So to HR professionals, just a thought from the cheap seats, have an open mind about whether these rituals of HR are still worthwhile as they are, or even at all.

My sense has been that job descriptions are a necessary evil defending an ADA case, be it refusal to hire or refusal to accommodate. How can one say an individual can not perform the necessary elements of a given job without a showing it is such. (I had a hard time convincing the NY Division of Human Rights that a deaf mute was not qualified to sell high priced stereo and sound equipment for but one example because of the absence of a description.) The problem is that many of said descriptions seem to have been cobbled together in the wake of the passage of the passage of the Act in 1990, filed, and forgotten since.
On performance ratings, I defended a store with over 230 associates where the CP was rated 89 out of 100 in performance. I found that in that store she was the lowest rated associate, all of the remaining 229 were in the 90 to 99 range, In other words, they proved useless as the "g" in lasagna.
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Monday, June 25, 2012

Jury Duty, An Obligation Sure, But Also a Large Reward

I just happened on this post today by Adam Rich, talking about his 5 Lessons From Jury Duty that was posted on an American Express Forum for small businesses. I think his points are valid, although frankly, my role is more as a consumer of juries than as a participant.

So perhaps it is a little stretch for me to claim how large a reward jury service can be, but from jurors I have talked with or heard talk about their experiences, even those who thought a case was silly or a waste of time, have never the less come away with a renewed respect for the judicial process.

We are all binded by our own biases, but from my seat in trial representing employers, I am always amazed at how it is the individuals we would typically identify as those most likely to share the employer's perspective who are the least able to serve because they are too busy (an excuse that never works by the way) or because they just can't set aside their long held beliefs about the frivolousness of laws suits or whatever and listen to the evidence and be fair and impartial.

Call me cynical, but I am inclined to think that much more often they have figured the "out" than that they are any less able to be open minded jurors than all the other folks who seem to be able to put aside their past experiences and be fair.

Which if you are an employer type, you might think about when you hear that time honored phrase in reference to your particular law suit being tried by a "jury of your peers. " What that often means is a jury panel where all those who will at least understand the context in which the decisions you are defending were made, are the most likely to be gone well before the time that peremptory strikes are made.

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Friday, June 22, 2012

Texas Supreme Court Advisory on Attorneys' Fees in TCHRA Cases

A short message to plaintiff's attorneys in TCHRA cases from the Supreme Court: join your defense brethren in "measuring out your life with coffee spoons," i.e. keeping contemporaneous time records of what you do.

Actually Justice Medina's opinion did not reference T. S. Eliot's The Love Song of J. Alfred Prufrock, that was my literary spin, but the message from today's decision El Apple I, LTD. v. Olivas (TX 6.22.12) makes just that point.
Thus, when there is an expectation that the lodestar method will be used to calculate fees, attorneys should document their time much as they would for their own clients, that is, contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed.
The Court also cast a doubtful eye on the lower court's doubling of the lodestar amount. Although the majority found that because in this case there was no appropriate lodestar, it was too soon to address the validity of the doubling, it gave a general standard to be applied:
We accordingly accept the premise that [a] lodestar presumptively produces a reasonable fee,
but that exceptional circumstances may justify enhancements to the base lodestar. 
But by noting that while state courts are not bound by federal standards, that they "may appropriately consider them," it seems clear that the Court was signaling that such adjustments should be rare.

All of this came about because an award of just over $100,000 to the plaintiff had resulted in an attorneys fees award of $464,000 for the trial of the case with another $99,000 for defending post-judgement motions and appeals.


Reminds me of my non-lawyer friend's attorney joke. Client gets attorney bill with one of the time entries which says, "I thought I saw you but then I realized it wasn't you and it reminded me of your case".... 1/4 hour.
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Monday, June 18, 2012

Function Over Form: The Supreme Court's Realistic View of the FLSA

For those who think that one of the travesties of the recent history of employment law has been the explosion of FLSA collective action litigation, today's 5-4 decision by the Supreme Court holding that pharmaceutical representatives are in fact exempt employees under the outside sales exemption is a re-affirmation that common sense can in fact prevail.  Christopher v. SmithklineBeacham Corp. (6/18/12).

Although a critical decision for the pharmaceutical industry in its own right, the case has generally been viewed more importantly for its insight as to the weight the Supreme Court would give to agency views of the laws they enforce. Here the DOL had weighed in as amicus in a series of law suits arguing that the pharmaceutical sales reps were not exempt, although the DOL had given differing views as to why that was so.

The majority opinion begins with Justice Alito's description of why the DOL's position is not entitled to deference. Perhaps more significantly, the dissent written by Justice Breyer, the member of the court with the most claim to administrative law expertise, agrees. In fact, on this key point, it would be fair to say that this is a 9-0 decision. Justice Breyer writes:
In light of important, near-contemporaneous differences in the Justice Department’s views as to the meaning of relevant Labor Department regulations, I also agree that we should not give the Solicitor General’s current interpretive view any especially favorable weight.
Although casting the blame on the Department of Justice, not the Department of Labor, it is clearly a rebuke to the DOL.

Having jointly rejected the DOL's view, the two wings of the Court still reach a different outcome on their own independent review of the exemption.

The problem is that we have a 1938 statute designed for a very simple economic model which existed at the time was adopted.  The FLSA was designed for an even pre-Leave it to Beaver world, where a factory was divided between the white collar workers in the front office and the blue collar workers in the back, whose product was sold by the Willy Loman's of the world, who packed their sales bag and left on Monday through Thursday and returned to do their paper work on Friday.  Trying to use regulations written for that world, in today's workplace results in often ludicrous results.

It seems clear to me that the Supreme Court understands this historical fact, at least as relevant to the outside sales exemption, as it noted that the DOL had been authorized by the statute to issue regulations, and that those regulations were issued in 1938, 1940 and 1949, and in 2004 "following notice-and-comment procedures, the DOL reissued the regulations with minor amendments." Although they limit that historical reference to the outside sales exemption, I think a review would indicate that it is applicable for much of the remainder of the FLSA and its regulations as well.

The points relied on by the majority in rejecting the formalistic view of the minority are significant and could be utilized by other courts to rein in what has been an overly mechanistic view of the FLSA:
  • that until 2009, the pharmaceutical industry had "little reason to suspect that its longstanding practice of treating detailers as exempt outside salesmen transgressed the FLSA."
  • that the DOL had never initiated any enforcement actions or otherwise suggested that it thought the industry was acting unlawfully.
  • the realization that pharmaceutical sales reps, whose average income is $90,000 a year according to the opinion,  "typically earn salaries well above the minimum wage" and enjoyed other benefits that "set them apart from the nonexempt workers entitled to overtime pay." Hardly the kind of employees the FLSA was intended to protect.
  • That it would be "challenging, to say the least" for pharmaceutical companies to compensate reps for overtime going forward without significantly changing the nature of that position.
  • Rejecting a legalistic argument, that requires title to pass, to instead taking a more "realistic approach" of what the outside salesman exemption is meant to reflect.
Let me be clear what my argument is. At least with respect to mis-classification cases, in the last 10 years plus, the FLSA has been used to extract tremendous sums from employers, who had no intent to cheat or abuse their workers. The beneficiaries of that extraction have been employees, who generally knew what their job involved and knew what they were going to be paid for doing it. In other words, the true economics were already baked in, and an after the fact application of a formalistic approach, with its accompanying lack of "fair warning" discussed by Justice Alito, is not a good economic use of resources.

The biggest beneficiaries of course have been the repeat players, lawyers who represent the plaintiffs in those cases, who of course have taken their share of the extraction, and lawyers who represent the defendants (including me and my firm) in those cases. 

In a world where there are many issues that call out for righting, for the most part mis-classification under the FLSA has not been in my mind a worthy fight. Today's decision is by no means the end, but it is at least a bright and correct light.

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The NLRB in the Non-Union Setting: Making A Point

For years I have been a member of seminar planning committees, and inevitably the talk gets round to an NLRA topic. In Texas, that usually meets groans and comments to the effect that no one is really interested because very few practitioners actually deal with union related matters.

Inevitably, one solution was to title the program slot, something along the lines, The NLRA for the Non-union Company. And while that often at least made the program, it was still hard to generate much enthusiasm.

However, the current Board seems intent on getting out the message that indeed concerted activity, not just union activity, is what is protected, including today's launch of a web page describing Protected Concerted Activity, complete with state by state links to cases where the Board has found such activity.

For example, clicking that link and the button located prominently in Texas, pulls up 16-CA-025349:
A supervisor at a dental association was fired after she refused to divulge the names of employees who had anonymously signed a petition protesting top management. The Board found the discharge was unlawful because she had rightfully refused to violate federal labor law by punishing concerted activity. In a settlement, the supervisor and another former employee waived reinstatement in exchange for $900,000 in lost wages and benefits.
It will not take too many stories of that nature to get the word out.

That's a far cry from what life was back in the late 1970's and early 1980's. I can't remember the exact date, but I was in the San Antonio office of the NLRB waiting to see some one and the phone rang.  The secretary answered the phone, and sitting right across from her I could tell that it was an employee calling with a possible complaint. After listening a moment, she asked, "Is there a union involved?" and obviously getting a negative response, hung up the phone with a "Well, we only handle matters where there are unions."

Oh how times have changed.

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In the late 50's and early 60's, Region 21 would assign professionals as "OD" to handle all calls and visits to the office to avoid cases such as you witnessed. One that came in was against an artist's studio, Boehm, in Trenton, where it had fired a group of workers who had complained about the dirty towels in the ladies' room. It resulted in reinstatement and back pay for the workers, with no union at all, just a few employees tired of the boss ignoring complaints. I can say that, in addition to the satisfaction of righting a wrong, the case opened the eyes of the staff to the many land mines buried in Section 7 and Section 8 (a) other than union issues.
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Wednesday, June 13, 2012

Intentional Infliction of Emotional Distress, A Dangerous Cause of Action

This headline, Steelworker awarded $25 million in New York racial lawsuit might seem to come from a typical Title VII or Section 1981 case for racial discrimination.

According to the story in the Cleveland Plain Dealer, the plaintiff Elijah Turley, who is black, testified that
 "KKK" and "King Kong" graffiti were written on the walls of the plant and a stuffed monkey with a noose around its neck was found hanging from his driver's side mirror.
But it was not as if the company did nothing in response as evidence indicated that the company hired a private investigator, installed security cameras and suspended some of the employees involved in some of the incidents.

But it's my guess from another quote in the story that although based on racially based behavior, it was not a race discrimination claim, but instead a claim for intentional infliction of emotional distress. That's based on the quote from Turley's lawyer that the conduct was "atrocious and intolerable in a civilized society," which is language taken from the Restatement of Torts discussion of the tort of intentional infliction of emotional distress.

Texas struggled with this as an employment law tort, with approximately 10 cases passing the muster of that supposedly high standard at both the trial and appellate level only to be rejected by the Supreme Court. (One case did survive the Supreme Court's review.) Finally, the Supreme Court basically eliminated the tort from Texas employment law, finding that it was designed as a gap-filler, one that was to be used only if no other cause of action existed.

Unfortunately, for the defendants, they weren't in the Lone Star state.


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