Jottings By An Employer's Lawyer

Wednesday, April 26, 2017

After 42 Years, It's Nice to Know That I Might Be Qualified for Something

In this morning's mail box ...


BCG Attorney Search noticed that the following job might suit your qualifications and experience. We are pleased to provide you with the latest jobs from your preferred geographic location and practice area as and when they become available.

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Title: Entry-level Employment Law Attorney with labor experience
Location:Texas - Houston
Practice Area:Employment

Houston office of our client seeks entry-level employment law attorney with 1 year of experience. The candidate must have excellent legal research and writing skills. Should be presently licensed to practice law in Texas. Knowledge of general princip...Click here

If we are currently working with you as one of our candidates and you are interested in any of these new positions, please contact your recruiter immediately so that we can discuss these openings with you. 

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Tuesday, March 07, 2017

The Concept of Fallow Ground and Other Musings

More than one year has passed since my last post, and the two or three years before were little more productive. Still for some reason, hopefully more noble than ego, I have chosen not to kill off this spot on the internet.

Like the biblical admonition and agricultural practice of letting farm land rest for a period of time so it might be more fertile, the hope is this prolonged period away from posting will allow me to return to it with an even more helpful perspective on the world of work, from my vantage point as one who has represented employers for an extended period of time.

It also marks a time of change in my professional life. After 42 years as a labor and employment lawyer, I am transitioning to a more reduced role in the active practice of law. While still an equity shareholder in Ogletree Deakins, I am spending less time this year and looking forward to an even more reduced role in a different capacity in following years.

Regarding this space, my goal is to share, at least in some small way, some of the things I have learned or at least think I have.  I have been fortunate to have a ring side seat to the development of employment law almost from its inception. Only the happenstance of the timing of my birth and education made that possible, so it seems a shame to not at least attempt in some small way to share, even pay back, for the luck of the draw that has been my good fortune.

But as with all things, as reflected by the ancient adage which became popular in my formative years of the '50's, the proof will be in the pudding.

Michael, I was an ardent follower when you posted regularly. For some strange reason I chose today to see if you were still around. Would love to see some of your thoughts as you move into the next chapter.
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Wednesday, February 24, 2016

An Unusual Condition of Employment - You Must Be Armed

A basic tenet of American employment law is that employment is at will, meaning that the employer can set the conditions of employment as long as it is not otherwise illegal.

A Georgia businessman who provides aviation insurance has a new one: all employees must carry weapons.  Local station WSB-TV in Atlanta has an interview: Business owner requiring all employees to be armed.

And the station's non-scientific twitter poll follow up: 60% think it is a good idea.


Interesting take. Laws can not be written and implemented in void.
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Friday, February 19, 2016

Mandatory Arbitration and the Supreme Court - The First of Potentially Many New Days

As Justice Scalia''s body lies in state in the Great Hall of the Supreme Court this morning, my eye was caught by the first headline in today's Employment Law 360.

The headline and lead:
The Fifth Circuit on Thursday issued its judgment based on its October opinion that mostly reversed a National Labor Relations Board ruling that had found Murphy Oil arbitration agreements barring workers from pursuing class or collective actions as unlawful, setting the stage for a potential NLRB appeal.
The case of course deals with whether a mandatory arbitration provision violates the National Relations Act.  That has been the position of the NLRB for some time now, notwithstanding almost universal rejection by the courts.  The first time its view was subjected to judicial review, the 5th Circuit rejected the position in a 2-1 decision, D.R. Horton, Inc. v. NLRB (5th Cir. 2013). Notwithstanding the split decision, the Board passed on seeking review by the Supreme Court.

With yesterday's issue of a judgment by the 5th Circuit in another rebuff to the NLRB, it now has a second chance.  Last October the Court noting that the Board's request for an en banc review of its D.R. Horton decision having failed, the Board would not be surprised that the Court "would adhere, as we must, to our prior ruling," holding that Murphy Oil "did not commit unfair labor practices by requiring employees to sign its arbitration agreement or seeking to enforce that agreement in federal district court."  Murphy Oil, Inc. v. NLRB, (5th Cir. 2015).

However, because of some other issues it was the Court's judgment issued yesterday which started the clock running for appeal to the Supreme Court.  And of course between the ruling on October 15th and yesterday's judgment, the legal world has changed.

Under the Court as it existed both at the time of the D.R. Horton decision or even in October when Murphy Oil  was decided, employers would not have been terribly concerned if the NLRB had appealed.

Today? At least for me, this is the first of what I am sure will be many times as the political process which will produce the next Justice of the Supreme Court grinds slowly that the question will be a much more serious one as to what the world could look like than it was this time last week.

Should I become a lawyer?
prawnik gorzów
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Wednesday, October 21, 2015

40 Years at the Bar

I can’t honestly say what I anticipated 40 years ago today when I came to Austin to be sworn in as a member of the Texas state bar. But it is unlikely that I could have anticipated all the twists and turns, both professionally and personally, that have occurred since that October day 40 years ago.

Although I am sure I did not think in these terms at the time, my legal career was beginning when employment law as a discipline was truly in its infancy. Watching how it has changed over the years has and continues to be a fascinating experience and on-going intellectual challenge.

In fact a lot of things have changed since then. As an example, my starting salary, the one being paid by the largest law firms in Texas at the time was the grand sum of $15,600 a year.

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Friday, September 25, 2015

Lessons from Just One Day's Daily Labor Report

One of the venerable sources of information for labor and employment lawyer's has been BNA's Daily Labor Report. I can't remember when I first started reading it regularly, but it has been a long time. Now it comes neatly to my in box, but back in the old days the paper version was circulated and so for the first few years it was certainly not new news by the time it made it to my desk.

But I was just struck by three stories in yesterday's publication that are just so telling for employment law practitioners.

The first was a story on an FMLA lawsuit:

Firing After FMLA Request Raises Triable IssuesA tool and die designer for a Wisconsin manufacturer who was fired one work day after he asked for intermittent Family and Medical Leave Act leave to tend to his son's mental health problems raised triable claims that the company retaliated...

How many times do we see these cases, where suspicious timing is the key. A few years back, I can remember trying a case in New Orleans where an employee had been terminated on his first day back after returning from FMLA leave for a heart condition.

The employer was acting on things that it had uncovered while the manager had been out on leave. That of course didn't keep opposing counsel from harping on the fact that the timing alone was enough to show it was FMLA retaliation. I expected that from opposing counsel, a little more unnerving was the comment by the Judge that he didn't understand why big companies, with all their resources, do what they do when they knew that it would get them sued.

Fortunately, the jury understood the employer's dilemma. If, when we had discovered the issues that ultimately led to the termination while he was out on leave, the company had called him in then, the suit would have been about interfering with his actual leave. And woe to the company if that had exacerbated his heart condition!

Still, timing is always a real danger in these cases.

The second story is just yet another example of the proof of the old adage in our business that no good deed goes unpunished.

Recommendation Letter Saves Fired Professor's Bias SuitA black University of California professor who alleged that a department director was motivated by racial bias to refuse to reappoint him under a pretext of budget cuts and poor performance can proceed with his race discrimination claim, the...

A professor bringing a race claim escapes summary judgment because the department head wrote him a positive letter of reference after telling him he would not be re-appointed because of a budget deficit. The deficit was avoided, others who had also been told they would be let go were not, and Exhibit A is the gracious reference letter.

Finally, a note showing how aggressive governmental agencies have become in at least considering pushing the limits of employer responsibility.

Commission Seeks Comment on Workplace Murder Case
The Occupational Safety and Health Review Commission is requesting briefs from interested parties on a pending case that involves the murder of a health-care worker by a potential client, the commission announced in a statement issued Sept....

Obviously a tragic event where a health care worker is murdered by a psychiatric patient that she had visited at his home on several occasions. The ALJ found the employer was responsible for a general duty violation. The Commission is now seeking briefing from interested parties:

The commission seeks comments on the extent to which a health-care provider should be able to protect its employees from the potential violent acts of third parties, and whether an employer's failure to do so should be considered a violation of the general duty clause (29 U.S.C. § 654(a)(1)).

Amazing at how just one day's post can hit so many of the things I have learned over the past 40 years.

It remains to be seen how much longer I will be learning these lessons from The Daily Labor Report, but it certainly has been a major source of information for a long time.

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Friday, July 24, 2015

Domestic Violence: A Possible Solution

One of the humbling aspects of keeping an online journal for any period of time, particularly when you are so unwise as to make predictions is that there exists documented proof of your own errors.

I have said (actually I think on more than one occasion), that I thought domestic violence would at some point become a major issue for employers. I can't honestly say that has been true, at least not in my experience.

Although I still believe the premise which led to the prediction, that ultimately every major society ill at some point invades the workplace. And regardless of whether it has risen to the top of employer's list of potential problems, there is no question that domestic violence remains a major social problem.

In fact in the recent North Carolina trial I mentioned a couple of days ago, our twelve person jury was reduced to eleven because one of the jurors was the subject to domestic abuse during the course of the trial and felt like she could no longer continue.

So, I am always keen to report any possible solutions, and the Institute for Policy Integrity has come up with a possibility: free legal counsel for victims. The report is Supporting Survivors: The Economic Benefits of Providing Civil Legal Assistance to Survivors of Domestic Violence.

 I found it through the Huffington Post's article by Melissa Jeltsen, One Simple Idea that Could Reduce Domestic Violence.

And it might not hurt the reputation of lawyers as a group to provide such a service.

Tying it back to my original idea of how this sometimes might show up on an employer's doorstep, another idea would be to allow an employer or other third party to assist in initiating a restraining order to protect one of its employees.

 Arizona is a leader in that regard having a statute that permits an "Injunction against workplace harassment," allowing an employer to take the lead in obtaining relief for one of its employees.

Having such an option would inevitably make employers more involved in the issue, but that might not be a bad thing.

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Thursday, July 23, 2015

Getting Rid of the Annual Review

All too often, I have seen the annual performance evaluation show up in a trial as a Plaintiff's exhibit, rather than what you would think should be true, that it ought to be the best evidence for the employer, particularly if the subject of the lawsuit is a dismissal for poor performance.

And I have been saying this for some time now, see this 2005 post:  Just a Reminder About Those Performance Appraisals - Often Known as Plaintiff's  Exhibit #1.

So I am never upset when I see that a major employer has chosen a different path. See Accenture To Nix Performance Reviews and Rankings For All 330,000 Employees.  I particularly liked the explanation by the CEO, that the alternative is a more fluid on-going feedback after each significant interaction. 

Makes sense to me. 

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Wednesday, July 22, 2015

Birthdays: Mine and Jottings

If on my 18th birthday, I had been given the following list of what I thought I would be doing on my 65th birthday, I am not sure what my answer would have been:
  • Broadcasting yet another game as the voice of the Houston Astros;
  • Preparing for another year of teaching history at a small liberal arts college;
  • Resting besides my parents in Restlawn Memorial Cemetery;
  • Trying a race discrimination and retaliation case in state court in North Carolina; or
  • Covering politics for the Dallas Morning News
My first choice would probably have been being the voice of the Houston Astros, although in thinking about it, that's unlikely, both that I would have ever had the chance or that it would be on the list since I didn't become an Astros fan until I lived in Houston after graduating from law school.

But trying a lawsuit in North Carolina, which is what I was actually doing on my 65th birthday earlier this summer, would probably have not been a choice either. 

But as it turns out, trying lawsuits, or more accurately handling lawsuits that occasionally get tried, is how I have spent the last 40 years of my life. And, for good or bad, mostly good I think, at the tail end of that 40 years, it has often meant coming in to help try cases which I have not been involved in preparing. And that's how I ended up in the Forsyth, North Carolina County Hall of Justice for the month of June, 2015.

The other birthday that also passed unmentioned in these pages occurred last Friday, the 13th anniversary of my first post on Jottings By an Employer's Lawyer.  Instead of posting, I was in Clovis, New Mexico preparing for a case that was to start trial on Monday, July 20th.  Although one always hear of cases settling on the court house steps, this one actually went beyond that, as it didn't settle until just before we started jury selection this Monday morning.

Last year's birthday post contemplated giving it up:

12 Years Ago

I posted the initial post on this blog. A dozen years is a long time to keep anything going, although you could seriously question whether or not this last year it was really going as the posts were few and far between.

As I have spoken in the past, when I began I was the first labor and employment law blog, although there were some others that joined soon after. Now there are literally hundreds, so the immediate almost news type reporting is amply covered.

So I have contemplated giving this a decent burial.

However, as I near the end of my active practice, I thought maybe this would be a good space to reflect back on some of the things that have happened.

If that proves workable and meaningful, then maybe Jottings will stay alive for some time. If not, well we can cross that bridge when we get there.

Given the paucity of posting last year, many would argue that much like Tom Watson waving farewell  to the British Open on the Swilcan bridge on the 13th anniversary of this blog, the time has come that I should do the same.

But the sentiment that moved me last year, that there are reflections that I have that might be worth sharing, are still present. I am not sure that this space is much more than my own personal page for reflection at this point, but on the oft chance that anyone is still listening, I am holding off on the farewell wave yet a little longer. 

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Monday, May 04, 2015

Death On the Job: Not Quite as Bad as it Sounds

I was shocked this morning on one of the business news summaries I get to see a report that 150 Americans die from hazardous working conditions each day. To me that was a shocking figure.

The source for the article is apparently the 2015 edition of Death on the Job: The Toll of Neglect, produced by the AFL-CIO which as it turns out is still based on 2013 data. And you only get to the 150 average by combining 4,585 individuals actually killed on the job and an 'estimated' 50,000 who died from occupational diseases.

Although occupational disease is indeed a significant problem, it is certainly not the same as a worker actually being killed on the job, which is what I had first thought the 150 figure referred to.

Still the figures are fairly startling when you look at them another  way. Rather than using 365 days, which is the basis for the 150 per day figure, if you use 250 working days, which is 52 weeks, 5 days a week, minus 10 days for vacation/holidays, the average number of employees killed per day at work is just over 18 a day.

By contrast, in 2013 32,719 people died in traffic accidents, about 90 a day based on a 365 day basis.

Still that every working day, 18 Americans  go to work but don't come home that evening, is a sobering number.

Our government must make a move on this issue. Our government can save the lives of our employees by implementing some rules in our labor code.
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