Labor & Employment Law
Jottings By An Employer's Lawyer 
By an experienced Texas Labor and Employment Lawyer.
Post Frequency: 6.4/day Last Entry: November 18, 2009 at 17:48:00 Recent Entries: 211
By Michael W. Fox, Esq.
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Google and Legal Research
Posted on November 18, 2009Someone else may have caught this before him, but my hat tip on Google's entry into legal research goes to Eugene Lee at California Labor Law, Google Offers Caselaw ... for FREE. Google comes out with tons of new offerings and not all of them last, so who knows about this project, but given what they have accomplished in other areas, probably worth keeping an eye on...
Wrongful Termination North of the Border
Posted on November 17, 2009Canadian employment law is substantially different from that in the United States. David Doorey's eponymous workplace law blog is one that I follow just as a means of staying somewhat abreast. His post today,Is a ?Consensual? Relationship Between a Manager and a Subordinate Cause for Dismissal? points out a couple of ways the laws of the two countries vary...
Congratulations to Workers' Comp Insider
Posted on November 17, 2009Congratulations to Workers' Comp Insider for being named as Lexis Nexis Workers' Compensation Law Center's top workers compensation blog for 2009! A copy of the Lexis Nexis announcement is here.The folks at Lynch Ryan have been posting tremendously insightful and helpful information since September 2003...
More Government Talk: This Time to Your Employees
Posted on November 17, 2009That's what will be happening if the GAO's recommendation issued last week takes place. While studying how OSHA's Records Audit Process could be improved, one of their recommendations is that the Secretary of Labor "require inspectors to interview workers during records audits, and substitute other workers when those initially selected are unavailable...
A 5th Circuit Nugget for Assault Claims
Posted on November 14, 2009Of all the so called employment law torts, one of the most simple and sometimes most difficult to deal with on summary judgment is assault. I once had a case where we were able to get several causes of action dismissed on summary judgment, but not sexual harassment and an assault claim against an executive arising out of a conference call that was being conducted by the plaintiff and the executive over a speaker phone...
Wage & Hour: Not Just Collective Actions Anymore
Posted on November 14, 2009Wage and hour compliance issues remain one of the potentially most dangerous areas for employers. Most of the attention has been focused on collective actions brought by a new generation of plaintiffs' lawyers who frequently focus on only those types of claims...
Can the NLRB Function With 2 Members?
Posted on November 02, 2009Well obviously only in a very limited manner, and according to the DC Circuit, not at all. Three Circuits, the 1st, 2nd and 7th say it can, and now the Supremes will tell us. Justices to decide validity of two-member NLRB decisions. Currently Obama's three Board member nominees have passed committee muster, but John McCain has placed a hold on one of the nominees, SEIU attorney, Craig Becker...
5th Circuit On Continuing Violations
Posted on October 28, 2009Decisions related to the timeliness of a claim are most complicated when it involves hostile environment harassment, which almost always occurs over a period of time. Although the rule is fairly simple according to the US Supreme Court's decision in National R...
Apologies, Both Past and Future For Not Posting
Posted on October 08, 2009Posts have been exceedingly light recently as I have been both getting ready for vacation (which of course means posts will be non-existent until my return) and have spent the last several days preparing for and testifying yesterday before the Senate Judiciary Committee against overturning the Gross v...
The Employment Law Case That Just Keeps On Going
Posted on September 30, 2009Lawsuits that stretch out over the years are not all that uncommon, but the tale that started with a discrimination law suit that was settled in 1997, just had another major development, a $4.9 million dollar malpractice verdict against the attorneys who represented the initial claimant in her earlier successful malpractice claim against her original attorneys...
EEOC's Year End Rush - 2009 Version
Posted on September 28, 2009Ross Runkel comments on recent litigation activity at EEOC announces 32 suits in past seven days. Although I don't know the numbers in recent years, I do know that there is always a rush to file lawsuits by the EEOC before the government year ends on September 30th...
Bullying: The Movement that Keeps on Trying
Posted on September 25, 2009David Yamada and I have very different view points on whether or not a bullying cause of action should exist (he drafted the model act that has been offered in a number of legislatures), but he is always a good source for monitoring what is going on and I take what he says seriously...
A UK/USA Split - Protection For Those Over 65
Posted on September 25, 2009The British High Court has apparently just held that mandatory retirement at age 65 is permissible. 65 all out??.. ».That's where the U.S. statutory protection, the Age Discrimination in Employment Act, started; but two amendments later, it has no upper cap.
The Obama Board - EFCA Is By No Means the Whole Deal
Posted on September 14, 2009The Employee Free Choice Act has certainly garnered the majority of ink and/or pixels in discussions about the possible changes in the law of labor relations, but it is by no means the only change on the horizon. In fact, as has now become abundantly clear, EFCA is subject to the vagaries of the legislative process which is biased in favor of doing nothing...
Did Kennedy's Illness Prevent EFCA Passage?
Posted on September 11, 2009That seems to be what Senator Harkin was saying in yesterday's report in The Hill,Harkin: Kennedy?s illness stopped card-check vote back in July. According to the story, Harkin had an agreement supported by organized labor and with Kennedy would have had the 60 votes, but Kennedy was too ill to come to capital hill to vote...
Employees in Limbo Land - EEOC Challenges the Solution
Posted on August 31, 2009One of the great dilemma's for employers are employees who go on long term leaves of absence. Absent some sort of policy that puts a deadline on how long that leave can be, I have seen employers with untold numbers of individuals who may or may not still be employees...
The Perks of a (Lifestyle) Blogger
Posted on August 30, 2009When I started this venture more than seven years ago, maybe I should have chosen my topic more carefully. Although who could have predicted what blogging would become: Blogger Test Drives An automaker is interested in providing vehicles for bloggers to test drive for a few days and to write about the experience...
The Latest On EFCA
Posted on August 28, 2009The folks at EFCA Report who have been chronicling developments on this proposed legislation have their latest update, with some fairly definitive words from Senate Majority Leader Reid (D-NV) on EFCA: "Too Many Other Things on Our Plate". Of course, since the statement was made to the Las Vegas Chamber of Commerce, not a place where a pro-EFCA comment would likely be well received, it might be one of those statements that is subject to change...
Social Media and the Employer
Posted on August 24, 2009There is nothing startingly, or even really new, in this Q & A from the Birmingham Business Journal, What impact do you think the proliferation of online social media will have on human resource policies and employment law issues?. Although I must say it is going to be a brave employer who follows this advice, no matter how legally correct it is:Employers must have a written policy against using recreational social media at work...
A Different Form of Health Plan
Posted on August 21, 2009I am, as always it seems, behind on reading other blogs. And so probably the last thing I needed was to add another to my google reader list (a fairly recent change since Microsoft said it was no longer going to support onfolio, my all time favorite)...
Mine Safety Commissioner Moves Back to Chair
Posted on August 18, 2009Reprising a role she held in the Clinton administration, current member of the Mine Safety & Health Review Commission Mary Lucille Jordan has been designated by President Obama as the Chair, see announcement here. Before being appointed to the Commission, Jordan worked for the United Mine Workers for more than 17 years as an attorney...
Ignorance of the FMLA Is No Excuse; In Fact, It Could Be Evidence
Posted on August 18, 2009That's just one lesson to be learned from the 10th Circuit's decision in DeFreitas v. Horizon Management Corp. (10th Cir. 8/14/09) [pdf]. In reversing the lower court's grant of summary judgment on DeFreitas interference with FMLA claim, the Court noted:It would be eminently reasonable to believe that an employer who was ignorant of the FMLA?as Mr...
Senator Harkin and the Secret Ballot
Posted on August 18, 2009Although it does not look like that the card check provisions which would effectively eliminate the secret ballot for determining union representation will survive, at least in any EFCA type bill passed by this Congress, there is still some irony in the comments of Democratic Senator Tom Harkin, who is leading the push for the bill in making the following comment about his fellow Democratic Senator: ?Every two years the caucus could have a secret ballot on whether a chairman should continue, yes or no,? said Sen...
Justice Sotomayor Confirmed, To Be Sworn In Saturday
Posted on August 06, 2009On Saturday, Justice Sonia Sotomayor will become the third female and first Hispanic justice of the United States Supreme Court following today's 61-38 roll call vote in the Senate. Given that Justice Sotomayor will replace Justice Souter, a consistent member of the current Court's 'liberal' wing, it seems unlikely that her presence will make for a short term dramatic change in the court's direction or voting patterns...
Atlantic City Jackpot - Disability Claim Leads to MDV
Posted on August 05, 2009Actually that headline is a little too frivolous for what are clearly serious subjects, employers facing disability claims and depression as a disability. When the two came together before an Atlantic City jury the net result was a verdict for Scott Jones, a 55 year old salesman, Depressed worker wins $1...
Trying to Avoid Layoffs, Employers Turn to Furloughs
Posted on August 02, 2009Which is a good idea, but one that possesses some legal risks (what doesn't?). One of the primary areas of concern is compliance with wage and hour law. The Department of Labor has put out a timely FAQ, Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues...
EFCA - The Aftermath of a Compromise
Posted on July 23, 2009Although last week's NYT story announcing a compromise had been reached to drop the card check portion of EFCA has turned out to be either a trial balloon, a non-event or premature, depending on who you listen to, it has been interesting to see the reaction by advocates on both sides...
As Proud as GE Is of Jack Welch ....
Posted on July 20, 2009My guess is that lawyers there are happy that he didn't make this speech while he was still CEO, Jack Welch: Women Take Time Off for Kids at Their Peril. Or at least how his speech to the national SHRM conference in New Orleans is being reported.Among the quotes from the speech as provided by the ABA Journal on line publication, "?There's no such thing as work-life balance...
Seven Years of Jottings. Why?
Posted on July 17, 2009If on July 17, 2002 when I made my first post, I had a goal to blog until retirement, today would have marked the 1/2 way point, if not to retirement at least to the time when I reach my full social security retirement age. However, I had no goal and no real plan, just trying out a new and interesting technology...
EFCA --- Compromise a Done Deal?
Posted on July 17, 2009The New York Times, Democrats Cut Labor Provision Unions Sought, is reporting that a compromise that drops card check in return for 5 day quickie elections now has the support of 60 senators, enough to ensure passage. Although all details are not being released, the hint is that binding arbitration is still included and there may also be equal access provisions to allow unions to campaign on an employer's premises...
Not Much Posting, But Still Talking
Posted on July 15, 2009Posting has been light of late, but speaking events continue no matter what.For the rest of the month you can catch me at the Texas Association of Business and SHRM State Council 2009 Employment Relations Symposium. More political talk, The Obama Labor & Employment Agenda...
Two HR Giants Merge
Posted on July 08, 2009There are not many (if any) HR consulting firms larger than Towers Perrin and Watson Wyatt so their merger as reported at the SHRM website, Consulting Giants Watson Wyatt and Towers Perrin Merge, is pretty big news for those who use or would consider using either of these groups...
Supreme Court Gives Victory to New Have Firefighters
Posted on June 29, 2009Appropriately 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...
The Price of Discrimination in England
Posted on June 25, 2009One 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...
Oregon Statute Could Bar Captive Audience Speeches in Union Campaigns
Posted on June 23, 2009Last 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...
Supreme Court Says No Mixed Motive for Age Cases
Posted on June 18, 2009One 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...
Texas Employers Unemployment Rate Headed Up
Posted on June 11, 2009Hardly 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...
All Politics is Local - the EFCA Ramifications
Posted on June 08, 2009Speaking 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...
Arbitration Fairness Act is a Trio, Not a Duo
Posted on June 08, 2009A 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...
5th Circuit Reverses MSJ in Chronic Fatigue Syndrome Case
Posted on June 05, 2009In 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...
Arbitration Fairness Act - A Fatal Linkage for Employers
Posted on June 05, 2009The 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...
EFCA - The Dangers of Reporting
Posted on June 04, 2009I, 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...
Driving and Talking - Not in Texas School Zones
Posted on June 01, 2009For 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...
ENDA Back Into the Congressional Mix Soon
Posted on May 30, 2009Jillian Weiss' post at Trangender Workplace Diversity, Federal Bill on Employment Non-Discrimination Moving Forward has a link to the Washington Blade's interview with Congressman Barney Frank, the sponsor of ENDA who indicates he will be introducing it into this Congress soon...
Texas Legislature Takes Care of an Irritant in Texas Arbitration Law
Posted on May 29, 2009When the law of arbitration in Texas was relatively unsettled, it was common for state district judges to deny motions to compel. To ensure that you were protected on appeal, an employer had to both file an interlocutory appeal AND file a mandamus action under the Federal Arbitration Act...
First Obama Supreme Court Nominee - Sonia Sotomayor
Posted on May 26, 2009President Obama makes the first of what is expected to be multiple Supreme Court nominations by going to a jurist with a long history, Judge Sonia Sotomayor from the 2nd Circuit Court of Appeals. Although he had talked of selecting someone who had not been a judge, instead his choice has a long track record...
U.S. v. European Labor Model - Time to Reconsider?
Posted on May 22, 2009I think it will take a lot more than one article from the New York Times to set off much of a discussion on whether or not the European or U.S. labor model is better. Although it might be a more fitting subject for a Labor Day weekend, if you have a few minutes over this three day break, you might read, U...
No Early Supreme Court View on Lily Ledbetter Act
Posted on May 18, 2009What was always a long shot did not pan out as the Supreme Court today issued its decision in AT&T Corp. v. Hulteen (S.Ct. 5/18/09) [pdf] without giving any guidance on how it would view the Lily Ledbetter Act. At issue was the present effect of a seniority system which treated pregnancy adversely that was used only before the Pregnancy Discrimination Act, although it had on ongoing consequences...
NLRB Speaks on Two Member Decisions
Posted on May 18, 2009It might seem a little like inside baseball, but Jeffrey Hirsch at Workplace Prof Blog has a good explanation on the NLRB's statement that notwithstanding the DC Circuit's recent decision that it did not have the authority to issue two member decisions, it intends to continue to do so...
Sometimes Overlooked in the Hullabaloo Over EFCA
Posted on May 12, 2009This from the good folks at BNA who collect statistics and do analysis on union election success rates: Unions won 66.8 percent of representation elections conducted by the National Labor Relations Board in 2008, the highest win rate since BNA PLUS, BNA's research division, began analyzing NLRB data in 1984...
Change Coming to Human Resources
Posted on May 11, 2009Michael VanDervort who has a cleverly titled blog, Human Race Horses, makes a good point about how change can and will happen regardless of the passage of any legislation, 7 People Who Will Change Human Resources in 2009.All seven named by Michael hold positions within the Department of Labor or at the NLRB...
Congrats to Another Old Timer
Posted on May 09, 2009Mike Fitzgibbons who had the first Canadian labor and employment law blog, Thoughts from a Management Lawyer, has just had his 6th anniversary, Another Day Another Blog Anniversary.If this blog was even in part an inspiration for his, as he so nicely says, then I have assuredly made one clearly positive contribution to the blogosphere...
Legality of 2 Member NLRB Decisions -- A Split Decision
Posted on May 09, 2009The D.C. Circuit says no, the 7th Circuit says yes. For the details, see Ross Runkel's post, Is 2-Member NLRB authorized to issue orders? Opposite decisions on the same day.To make matters even more complicated, the 1st Circuit in March held the 2 member decisions were valid, see Two Member NLRB Legal, At Least in the First Circuit...
NLRB to Double with Members Becker & Pearce
Posted on April 27, 2009President Obama has indicated his intentions to nominate Craig Becker and Mark Pearce as his two Democratic nominees to the National Labor Relations Board. Both have long standing connections with the labor side of the docket. The Washington Labor & Employment Wire, a blog that I don't think I have previously linked to, has the report, Obama Looks to Fill Two NLRB Vacancies with Becker, Pearce, with biographical information on the pair...
Transgendered Workers in the Mainstream Press
Posted on April 27, 2009Transgender Workplace Diversity has a post about a Fortune Magazine article about the most vexing workplace issue for employers of transgendered individuals, neatly encapsulated in the title, When a staffer switches genders. The story is about how the change happened in one small business...
It's Not EFCA, Now It's FAN
Posted on April 24, 2009While the EFCA debate has moved underground for awhile, perhaps the next challenge for employers may be FAN. FAN actually is not the acronym for the act in question, the Arbitration Fairness Act, but rather the Fair Arbitration Now coalition, a group formed to support it...
Congratulations to Jordan Barab, Number 2 at OSHA
Posted on April 19, 2009I first learned of Jordan Barab by reading his blog, Confined Space. His blog has been dormant since January 24, 2007 when he joined the Committee on Education and Labor working on OSHA related legislation. You can see my comments on the shut down of his blog at A Tremendous Loss - Confined Space Closes Shop...
Texas Law of Covenant Not to Compete Takes Another Step Forward
Posted on April 17, 2009Anyone who has dealt with the law of non-compete agreements in Texas is aware of a tangled history that grew out of a battle between the legislature and the Supreme Court and culminated in the now infamous decision of Light v. Centel Cellular Co. of Tex...
9th Circuit Joins 6th on Transgender Cases
Posted on April 17, 2009Although normally the 9th Circuit is the trend setter on new trends in labor and employment law, in Kastl v. Maricopa County Community College Dist.(9th Cir. 4/14/09) [pdf] it found itself following the 6th Circuit's 2004 decision that transgendered employees can state a claim under Title VII on a sex stereotyping theory...
EFCA Road in This Congress Keeps Getting Tougher
Posted on April 08, 2009Yesterday, as I was posting my view that without compromise on Labor's part EFCA was dead for this Congress, Campaign Diaries was gathering the data to back me up. In their post, Updated Headcount on EFCA they have a modicum of good news for supporters of EFCA in that Senator Udall (D- CO) and Senator Warner (D - VA) have both indicated they will vote for cloture, while withholding opinions on the bill itself...
EFCA - A View From the Field By Supporters
Posted on April 07, 2009The BeyondChron, a San Francisco alternative newspaper has an interesting article by Randy Shaw, The Obama/Progressive Agenda: A Progress Report, that focuses on the fate of three progressive items -- health care, immigration reform and EFCA. It's his view on the latter that is of most interest here...
MDV - Same Story, How Many Verses?
Posted on April 06, 2009From the pages of the LA Times comes another MDV report of a public agency, sued by a still current employee for harassment and retaliation for reporting it. This time it was the LA Police Department, Jury awards $2.3 million in LAPD harassment case.Melissa Borck complained of numerous obscene gestures and comments, many of them around a pregnancy that resulted in a still born birth of her son...
Mom of Triplets and Family Responsibility Discrimination in 1st Circuit
Posted on April 02, 2009Last week the 1st Circuit reversed a summary judgment holding that a mother of triplets had made a sufficient case to go to trial on her charge that she was not selected for a promotion, given to another woman, because the employer applied a stereotype against working mothers...
Employers Win Arbitration Case In Supreme Court, But Watch Out for Congress
Posted on April 01, 2009In one of the few employment law cases on this year's docket, the Supreme Court today came close, but according to the majority, did not technically overrule one of its oldest precedents under Title VII, Alexander v. Gardner Denver (1974). (It is so old it pre-dates my passage of the bar by one year!)In 14 Penn Plaza LLC v...
EFCA - Post Specter Announcement
Posted on March 26, 2009Two days after Senator Specter took to the Senate Floor to announce his opposition to EFCA, the best post I have seen on what exactly this means is from Campaign Diaries, Specter announces opposition to EFCA.Among the possibilities, some sort of compromise with four Republicans being eyed as potential votes for cloture: Lisa Murkowski (Alaska); Olympia Snowe and Susan Collins (Maine) and George Voinovich (Ohio)...
Gearing Up for Tougher Wage & Hour Enforcement from DOL
Posted on March 26, 2009Although given all the FLSA collective actions that have been directed at employers, it would be somewhat foolish to argue that the last few years have been easy, it is clear that a new administration, means likely much tougher enforcement by the DOL...
Specter Won't Be the 60th Vote
Posted on March 24, 2009As the only Republican Senator to have supported EFCA in the prior Congress, Arlen Specter of Pennsylvania has literally been on the hot seat over the bill since a straight partisan vote would have left it one vote short.In a Senate floor speech this afternoon, Specter called it "a very emotional issue" which may be one of the very few understatements about this piece of legislation given the heated rhetoric that has been coming from all sides...
Texas Parking Lot Gun Bill Moves a Step Closer
Posted on March 24, 2009S.B. 730, has been reported out of Committee favorably and placed on the intent calendar for today, which means it can now be considered by the full Texas Senate.The Committee vote? Guns 7 - Sanity 0.
Solicitor of Labor Designee - M. Patricia Smith
Posted on March 23, 2009Also overlooked during my Las Vegas stay was the announcement late Thursday of the Obama administration pick for Solicitor of Labor, New York Labor Commissioner Is Picked for Federal Job. M. Patricia Harris, is the current New York State Labor Commissioner...
EFCA - Six Principles
Posted on March 23, 2009While I was in Las Vegas for the LEAP Conference and watching the precarious status of my brackets (thanks a lot Wake Forest!), I was monitoring EFCA developments, but not posting. Fortunately, that saved me from posting "breaking news" on a new proposal by the CSW (Costco, Starbucks and Whole Foods, sometimes known as the Seattle to Austin connection) about their 70/50/30 proposal and the reaction to that as traitorous to the cause by many business groups who are active in the fight against EFCA...
The 60th Vote for EFCA
Posted on March 18, 2009Assuming that all Democrats vote for cloture, which at this point is very far from certain, the 60th and determining vote could be from Republican Senator Specter who already has crossed party lines to vote with the Obama administration to support the stimulus package...
My Obligatory AIG Post
Posted on March 18, 2009Feeling left out of the hottest topic in not only the blogosphere, but the world, the payment of AIG bonuses, I ran across this employment law related post from TPM that is ironic: 2003 Lawsuit Suggests AIG Wasn't Always So Careful To Honor Bonus Deals.
Others Agree -- It's the Arbitration That's Important (But Can't We Get the Facts Right On the Card Check Portion?)
Posted on March 17, 2009Politico has an article by Jeanne Cummings today cautioning business about taking its initial surge in raising issues about EFCA too much to heart, Premature partying over 'card check'?The money quote:The suits seem nearly giddy over their apparent first-round public relations win against Big Labor over legislation expanding union organizing powers...
Might Want to Ask Your Judge for a "Non-Twittering" Instruction
Posted on March 16, 2009Amazing how technology changes life, including the life of a trial lawyer: Juror?s Twitter use in court may cause mistrial.An off the cuff instruction:Jurors are instructed not to blog, twitter, comment on facebook, myspace or any other social media concerning this litigation until 30 days after you are released...
Two Member NLRB Legal, At Least in the First Circuit
Posted on March 13, 2009The NLRB has been working with only two members (out of five) for over a year now. The two members (one Democrat and one Republican) have only issued decisions when they could agree, which for the most part means the outcome was not particularly controversial...
Individual Claim in Large Scale RIF Leads to MDV
Posted on March 13, 2009Many employers, and their lawyer's including this one, sometimes feel that there is less exposure to individual claims when there are large, economy driven layoffs. If nothing else it feels less "personal," at least in terms of being singled out. Still as this Newsday story from earlier in the week, Ex-Nassau worker 'delighted' with $1M verdict shows, that is not always the case...
What a Great Time to Be a Labor/Employment Lawyer!
Posted on March 13, 2009All of us who work in the labor/employment law arena know that for most of the time our niche of the world is very important to those who are focused on it, but generally pretty much an unknown to the larger public. Well that hasn't changed, it's still pretty much an unknown, but with the introduction of the Employee Free Choice Act into Congress and the ensuing media blitz, we are certainly getting our day(s) in the spotlight...
"Manifest Disregard of Law " Now History in 5th Circuit
Posted on March 09, 2009Although it is not an employment case, last week's decision in Citigroup Global v. Bacon (5th Cir. 3/5/09) [pdf] is important because it makes clear that the 5th Circuit will no longer reverse an arbitrator's decision on the basis of manifest disregard of the law...
Turning Up the Heat on the Immigration Issue in the Texas Legislature
Posted on March 09, 2009Those who follow Texas legislature know it is not really until April and May that the legislative process really kicks into high gear. Although it meets in regular session only five months every 2 years, most voting on substantive legislation occurs in that two month period...
The Future of Employment Law Activity, Part II.
Posted on March 09, 2009From MSNBC's web site, a visual depiction of things to come based on the following:Job discrimination claims rise to record levelsIn wake of recent layoffs, complaints for 2008 up 15 percent Just for the record, it was over 95,000 in the EEOC's fiscal year which ended September 30, 2008...
No Longer Secretary of Labor-Designate Solis
Posted on February 24, 2009By 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...
OSHA Preemption Fires a Blank in Oklahoma Gun Law Case
Posted on February 20, 2009Yesterday 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...
Measuring the Future of Employment Law Activity
Posted on February 19, 2009I 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 EEOC, The 5th Circuit and My First Post
Posted on February 18, 2009On 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 ..... Posted 9:55 PM by Michael Fox 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...
Dukes v. Wal-Mart, Not Over Yet, Not Even in the 9th Circuit
Posted on February 16, 2009The 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...
Stimulating Whistleblowing
Posted on February 16, 2009The 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...
Can't Ignore It Any Longer - The Texas Legislature Is In Session
Posted on February 12, 2009I 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...
5th Circuit - No Duty To Reimburse Expenses Under H-2B Visa Program
Posted on February 12, 2009Not 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...
What Ledbetter Has Wrought
Posted on February 11, 2009It 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...
Secretary of Labor Designate Solis - One Step Closer
Posted on February 11, 2009Representative 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 SolisOnly two Republicans voted against her in Committee. Barring any further surprises, she will be confirmed.
Professor Runkel Thinks Solis Is a Goner
Posted on February 08, 2009Ross 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...
The Current Status of the Restatement of Employment Law
Posted on February 08, 2009A 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...
Because It's Where the Money Is
Posted on February 05, 2009Although 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...
EFCA Introduction "Soon", Solis Committee Vote Today
Posted on February 05, 2009Representative 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'...
EFCA Petitions To Be Delivered and So Is Scholar's Critique
Posted on February 03, 2009More 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...
Supreme Court Unanimous in Retaliation Case
Posted on January 26, 2009Today's decision in Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09) was certainly not the hardest case for the Supreme Court to decide, nor was the decision unexpected. However, the unanimous holding that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in protected activity under Title VII re-enforces that this is not a court that is at all interested in reigning in the law of retaliation...
75% Have an Opinion on the EFCA
Posted on January 23, 2009Mark Ambinder of Atlantic has an interesting posting on two different polls, one of which garners 75% in favor of the Employee Free Choice Act, the other 74% against it. Poll v. Poll: How Each Side Describes "Card Check." The difference, as any student of polling knows, is how you ask the question...
Big Handslap for the EEOC From the 5th Circuit
Posted on January 16, 2009I have mentioned in the past how the last week in September often sees an influx of suits filed by the EEOC, see here, but one of those suits has now come back to bite the Commission.In EEOC v. Agro Distribution (5th Cir. 1/15/09) [pdf] the Court upheld the district court's granting of summary judgment against the Commission in a disability claim, and its award to Agro of its attorneys fees for time spent after the deposition of the plaintiff which made clear that he did not have a viable claim...
First Two Votes on Employment Law Issues for New Congress
Posted on January 09, 2009The House of Representatives has easily passed two employment law bills directed toward compensation issues. The bills and the votes in the House by party are:HR 11, the Lilly Ledbetter Fair Pay Act - Democratic Yeas 244 Democratic Noes 5 Republican Yeas 3 Republican Noes 166 Total Yeas 247 Total Noes 171 15 Members who did not vote...
A "Bully" Professor Goes Online
Posted on January 04, 2009Those who have read my prior posts or heard one of my presentations on the topic of bullying, will be familiar with the name, David Yamada. He is the law professor who drafted the uniform anti-bullying legislation that has been introduced in several different state legislatures...
A Bad Comination for 2009
Posted on January 02, 2009With the Obama administration expected to place a much higher emphasis on OSHA enforcement, news that workplace fatalities for 2007 in Texas were the highest in 6 years, is not a good combination. Texas experiences spike in workplace fatalities.The leading causes of Texas workplace death?highway crashes (132), falls to lower levels (72), homicides (70)being struck by an object (47)...
Recession Juries - Good or Bad for Employers?
Posted on December 29, 2008That was the topic of an interesting article in today's Employment Law 360, Economic Woes Could Make For Stingy Juries ($) . May is the operative words as the jury consultants quoted in the story have differing views.One line of thought is that jurors, feeling their own economic crises are apt to be less likely to give large awards, particularly for "soft" damages like pain and suffering...
Representative Hilda Solis is the Secretary of Labor
Posted on December 18, 2008At least according to the Associated Press, a href="http://www.google.com/hostednews/ap/article/ALeqM5jEtOI8ay_-XoZrKX9qFZBXsDQb7wD955A1H80"Rep. Hilda Solis is Obama's labor pick/a. The latest in a series of names, but the first report that claims it is a done deal:br /br /Andy Stern is impressed and:br /blockquotepraised Solis for her deep roots in the union movement...
Secretary DeLauro? The Last Slot
Posted on December 18, 2008pIf Ray Lahood, the Illinois Republican is named Transportation Secretary as has been reported, that will leave Labor as the last formal cabinet position to be named. A new name has surfaced in a Huffington Post article, a href="http://www.huffingtonpost...
EFCA - Voting "At a Time Certain"
Posted on December 11, 2008There are plenty of individuals writing on the EFCA, so I have not devoted a lot of attention to it. My general view is that while it addresses issues for which a strong case for some change can be made, that it does so by totally revising long held principles of labor law, without a recognition that is what is being done, and without an analysis of what the consequences could be...
EFCA Political Note
Posted on December 10, 2008Marc Ambinder of Atlantic has a current note on the state of opposition to the Employee Free Choice Act, 60 Might Have Mattered. Quoting an unidentified Republican Senator: "We will do everything we possibly can to get every Republican on board," the senator said...
Secretary of Labor Watch Continues
Posted on December 10, 2008NBC's First Read, headed by every one's hero of the last political season, Chuckie "T", has their latest up to date administration/cabinet position speculation in today's post, Transition: Remember the Gore meeting? For Secretary of Labor here's their current take: Kathleen Sebelius (asked that her name be removed from consideration from any post), Andy Stern (SEIU) (said not interested), Jennifer Granholm, Richard Gephardt, George Miller, David Bonior (said he?s not interested, suggested: American Rights at Work Executive Director Mary Beth Maxwell), Rep...
Not the Way to Solve the Pay Gap
Posted on December 09, 2008Tom Peters, who has a brilliant blog and newswire amongh his other worthwhile endeavors has a recent post, Rightside Up?, that notes a telling statistic in last week's Boston Globe: In the last year:Men are down 1,069,000 jobs.Women are up 12,000 jobs...
The Republic Stay In - A Sign of the Times?
Posted on December 08, 2008The refusal of workers to leave a closed Chicago plant until they are paid may turn out to be an aberrational act, or it could be a precursor of things to come.Although anonymous comments are usually more extreme than what you would otherwise hear, that perhaps give a better picture of at least how deeply some people feel...
Secretary of Labor - One of the Top 5 Posts Still Open
Posted on December 05, 2008If you follow politics, and who hasn't this year, Politico is a familiar name and one place many head daily for their political fix. When I saw the headline, The 5 best jobs Obama has yet to fill I was curious whether Secretary of Labor would make it, and somewhat surprised to find it did...
A Helpful Case for Basic Discrimination Principles from the Texas Supreme Court
Posted on December 05, 2008Although it is not a case that breaks new ground, today's per curiam opinion in Autozone, Inc. v. Reyes (12/5/08) [pdf] is one of those nice cases to have when writing a brief in a Texas case, as it gathers in one place the Supreme Court's view on a couple of issues that appear frequently in discrimination lawsuits: stray remarks and comparability of circumstances for determining whether disciplinary action is discriminatory...
Hey Boss, I Had a Good Vacation - How Was Yours?
Posted on December 03, 2008Having just returned from a week in a magical spot in Mexico, I suppose I still have vacation on the brain, which is my only excuse for the headline to introduce a much more serious topic, Fired Bethel Park woman awarded $1.8M. The "awarder" was a Pittsuburgh federal court jury which of course actually didn't award anything, but made findings that Carole Smith had been improperly terminated because of her sex and pregnancy...
The Politics of the EFCA
Posted on November 19, 2008This article from the LA Times seems to me to have the politics of the Employee Free Choice Act pretty much dead to rights, A labor-union problem looms for Obama. It's organized labor's number one agenda item, both Obama and Biden have supported it in the past, but passage of it will cause a real problem with business...
Oklahoma Gun Law Case and the Law of Unintended Consequences
Posted on November 19, 2008Another chapter in the on-going battle between state legislatures and employers over whether guns can be barred from company parking lots unfolds in the 10th Circuit Court of Appeals this morning when the fate of the Oklahoma statute is heard. The case being argued is Ramsey Winch Inc...
Bullying in the Air?
Posted on November 17, 2008I hadn't heard or seen much about bullying in the workplace recently, but then a week ago two of my fellow bloggers both had posts: George Lenard wrote Is Workplace Bullying Cause for Concern? and Eric Welter has this post, Are Common Law Remedies an Alternative to Anti-Bullying Laws?Both were sparked by other articles, George by a story based on the Indiana case involving a heart surgeon, see my post on the case here, and Eric on a legal article from the Bench & Bar magazine, a publication of the Minnesota State Bar Association...
Immigration Battle Coming to Texas Legislature
Posted on November 17, 2008Or at least it will if there is much action on bills to be filed by Representative Leo Berman (R-Tyler), Berman Will File 9 Bills About Illegal Immigration. The Texas legislature has not been heavily involved in the immigration fight that has been a major topic in some other state's recent legislative sessions but that could change this year...
One Hat Out of the Ring for Secretary of Labor
Posted on November 14, 2008At least that is the report from PolitickerCA.com, a California political blog that styles itself as "Inside Politics for Political Insiders." The headline refers to Rep. George Miller, the Democratic chairman of the House Education and Labor Committee...
More Political Predictions
Posted on October 31, 2008John Phillips over at the The Word on Employment Law, has stuck his neck out to give his predictions on the top 6 legislative acts affecting employers that he thinks may be passed in the next Congress, Impact of Presidential Politics on Employment Law Issues ? One Final Look...
MDV's Rare According to Justice Report
Posted on October 30, 2008The headline from a story in today's Law 360, 2005 Civil Damages Awards Rarely Broke $1M ($) caught my eye because of my interest in MDV's in employment law cases. (My reporting on such cases has been sadly neglected recently, which should certainly not convey that they have not been occurring...
Well, Thank Goodness for Consensus
Posted on October 29, 2008I couldn't help but chuckle at the lead paragraph in today's Daily Labor Report ($) article concerning proposed alcohol and drug testing rules in mines: Although there is an apparent consensus that drug and alcohol use has no place in mines, many miners dislike the proposed rule recently issued by the Labor Department's Mine Safety and Health Administration, which would set standards for drug and alcohol testing of mine employees...
Performance Appraisals: Out Damn Spot!
Posted on October 21, 2008That's a little overboard and Chris McKinney's post, Getting Rid of Performance Reviews at HR Lawyer's Blog, actually has some helpful ideas for making them better.Performance appraisals has always been one of my hot buttons, second only to job descriptions...
5th Circuit Declines to Be Forum Shopped Under NLRA
Posted on October 20, 2008Honoring one thing that stuck with me from Bernie Ward's federal court class, "federal courts are courts of limited jurisdiction," the 5th Circuit rejected an attempt to have it decide an appeal from a ruling by the NLRB in Bally's Park Place v. NLRB (5th Cir...
The Lily Ledbetter Act on the Campaign Trail and a Broader Concern
Posted on October 17, 2008It seems like everything is political these days. It may be because I am preparing for three presentations in the next three weeks on how the change in administration and a new Congress will impact the labor and employment law world, that it seems that way...
EFCA On the Fastest Track?
Posted on October 17, 2008Well obviously, the first pre-requisite is an Obama win, but according to Mickey Kaus at Slate, inside sources are predicting fast action on organized labor's top priority. According to Kaus: Dems are getting set to pass "card check" legislation fast next year, right out of the box, assuming Obama wins and the Democrats get their expected big Senate majority...
Colorado Truce - Management & Labor Compromise on Ballot Initiatives
Posted on October 06, 2008Iit's always good to see management and labor work out their differences, although this is an unusual issue. The WSJ in its story, Executives Pledge Funds as Unions Drop Colorado Initiatives, details a compromise where the business community has agreed to help raise up to $75 million to defeat three anti-union proposals that will be on the November 4th ballot in Colorado, including one designed to make Colorado a right-to-work state...
It's Too Early, But Always Fun - Who Will be the Next Secretary of Labor?
Posted on October 06, 2008The Congressional Quarterly gets a jump with Saturday's review of candidates for all the Cabinet posts in both a McCain and Obama Administration, including Labor Secretary. Although it's way too early to be making any predictions, to the extent they are accurate it does provide some helpful information in how each candidate might view the position...
Domestic VIolence - a Lurking Issue
Posted on October 06, 2008Articles, like Domestic violence often bleeds over into workplace from the Birmingham Business Journal, crop up ever so often. Almost every time I see one, it makes me think this continues to be one of those hidden issues that some day is going to come to the forefront on employers' radar screens...
It's the Last Week in September, So Be Ready for EEOC vs. ...
Posted on September 24, 2008In looking at recent cases filed, I noticed the first EEOC suit in Texas in what is traditionally a very busy week for EEOC filings. U.S. Concepts which was sued yesterday in the Western District of Texas gets that small prize.It is fairly clear that what makes this the week in which a large number of EEOC suits are filed is that September 30 is the end of the government's fiscal year, which also means the end of the period for such metrics as the "numbers of cases filed...
Wal-Mart vs. Wage and Hour Litigation
Posted on September 24, 2008Wal-Mart has been under a siege of litigation over its payment practices both under the FLSA and various state laws. One of its relatively few victories, the decertification of a 10 year class in Massachusetts has now been taken away by the Supreme Court of the Commonwealth...
Florida's Gun Law - Mostly OK Legally, But Good Policy?
Posted on September 07, 2008The challenge to one of the most recent laws prohibiting employers from banning firearms from their parking lots is summed up well in a post on the Florida Employment Law Blog, Florida Judge Upholds Most of "Bring Gun to Work" Law; Rejects Customer Section as Unconstitutional...
A Belated Welcome to the Blogosphere to a Fellow Texan
Posted on September 07, 2008Posting has been very light of late, which is the only excuse for my tardy welcome to Work Matters, a new blog in the labor and employment law world. The author, my good friend Mike Maslanka is not new to that world as he is well known as a prolific author and speaker...
Looking for an Arbitration Award? Here's the Story
Posted on August 27, 2008If you have ever tried to find a copy of an arbitrator's opinions, you may have felt frustrated. At Publication and Confidentiality of Labor and Employment Arbitration Awards, the Alaska Employment Law Blog has a wonderful overview of how such awards get published (and don't) and where you can look to find them...
Washington State Attorney Gets MDV
Posted on August 18, 2008Not in her role as attorney, but in her role as terminated prosecutor. Barbara Corey, former prosecutor for Pierce County (Tacoma, Washington) was third in command in the prosecutor's office when she was fired in 2004. The firing occurred after she initiated the transfer of another employee, an act which according to the defense, angered other employees...
George McGovern - A "No" on the EFCA
Posted on August 14, 2008Yes it is that George McGovern, the Democratic Presidential candidate of 1972, who has come out with a prescient article in the WSJ extolling the dangers of the Employee Free Choice Act, My Party Should Respect Secret Union Ballots. One telling paragraph: I worry that there has been too little discussion about EFCA's true ramifications, and I think much of the congressional support is based on a desire to give our friends among union leaders what they want...
Add Another Whistle - Consumer Product Safety Act
Posted on August 14, 2008Before leaving town, Congress added yet another whistleblowing provision that was signed into law by President Bush today. A copy of the Whistleblower provision can be found on the DOL's website, Consumer Product Safety Improvement Act of 2008, Sec. 219...
Id al-Fitr for Labor Day - A Different World
Posted on August 11, 2008I am catching up on some past articles that came in while I have been out of the office and one that caught my eye was the NYT's article from last week, Muslim Holiday at Tyson Plant Creates Furor. At a Shelbyville, Tennessee Tyson plant, the Retail, Wholesale and Department Store Union negotiated a contract which traded the Muslim holiday that is the last day of Ramadan, Id al-Fitr for Labor Day...
USERRA - Not Always in Federal Court.
Posted on August 11, 2008USERRA cases are relatively rare still (probably not for long) so unusual to see two cases from different circuits on consecutive days. Both are on procedural grounds and in both cases, notwithstanding that USERRA would seem to be the quintessential federal question case, plaintiffs lost out on a federal court hearingThe 6th Circuit today joined the 5th Circuit (see post here) in holding that USERRA claims are subject to arbitration agreements...
Estoppel -- ERISA Joins the List
Posted on August 11, 2008Actually, it is not accurate to imply that estoppel has not previously been applied to ERISA issues, see 5th Circuit Adopts ERISA Estoppel, But Employee Still Loses. But the 3rd Circuit's decision last week in Pell v. DuPont (3rd Cir. 8/8/08) makes the point of how important it is for employers to be accurate in all of their communications to employees, particularly about retirement benefits...
MDV's Not on Vacation - Connecticut Newspaper Organization Takes a Hit
Posted on July 25, 2008Maybe it's the dog days of summer, but something certainly got under a Connecticut federal jury's skin as reported by the Connecticut Post, Journal Register loses $4m lawsuit .It was a manager at the call center for the parent company of the New Haven paper who was the plaintiff...
Free Government Advice from the EEOC, NLRB and the DOL
Posted on July 24, 2008You can agree or disagree with it, but it is always helpful to know what the regulators think.Tuesday, the EEOC published its updated Compliance Manual section on Religious Discrimination. Just as a reminder as to how broad religious discrimination can be, the definition of religion used by the EEOC is: Religion is very broadly defined under Title VII...
FMLA Coverage by Estoppel - Via State Law Claims
Posted on July 16, 2008I have posted before about the dangers of creating coverage by estoppel relying in part on the Supreme Court decision in Arbaugh v. Y & H Corp. See The Progeny of Arbaugh and Danger for the Small Employer.Without mentioning Arbaugh, the 7th Circuit points out that there are state court theories that could result in coverage under the FMLA...
6 Years, 1800 Posts and How the World Has Changed
Posted on July 16, 2008Not a lot has changed with Jottings By An Employer's Lawyer since my first post 6 years ago today. 1,800 posts later, I still post on blogspot, I still use the free version of blogger, and I still use an outmoded and limited version of blogroll. But one thing that has definitely changed are the people who have joined me in this small, but hopefully interesting part of the blogosphere...
Retaliation, Whistleblowing and Preemption - The Texas Supreme Court Chooses
Posted on July 11, 2008Although the specific result is that the employee loses, today's Texas Supreme Court's opinion in City of Waco v. Lopez (Tx 7.11.08) (pdf) has something for both sides of the docket. The factual pattern is straight forward. Lopez, a city employee filed an internal grievance complaining a transfer was because of his age and race...
The (Not Very Well) Hidden Cost of Litigation
Posted on July 11, 2008There is nothing so confirming as seeing someone else quoted in print making a point that you yourself have made. Even better when that person is well known. So I was pleased to find this quote from Stanley Chesley in a Law Practice Management article, Ohio Law Firm Switches to Success-Fee Billing...
What's the Real Story on E-Verify?
Posted on July 10, 2008Given that we seem to be heading towards greater use, both by executive order that all government contractors use it, and various state statutes mandating it, it is an important question. I was curious to see this post at the NAM's blog challenging some of the promotion of E-Verify by Secretary Chertoff, see E-Verify, E-gads...
Denver MDV Award - a "Termination Plus" Plaintiff
Posted on July 08, 2008I nicked the phrase "termination plus" from Jeff Londa, one of my fellow shareholders, to refer to a plaintiff that presents more than the usual amount of danger because of additional circumstances. The lead to the story in The Rocky Mountain News, Jury awards $1...
A Declaration of Independence but the World Grows Smaller
Posted on July 04, 2008I think Daniel Schwartz at The Connecticut Employment Law Blog has the right approach in his post, Happy July 4th.But even though this is not one of those holidays that has any particular employment law tie or angle, I couldn't help think about the full circle type connection between the independence from European influences that we celebrate today and the announcement earlier this week of The First Global Union, as reported by Jeffrey Hirsch at Workplace Prof Blog...
Keeping Data Submitted to EEOC Confidential - Easier Now?
Posted on July 02, 2008One of the worries about submitting information to agencies investigating workplace issues is the risk that it will be released to an employer's detriment. While the worry is real, the ability to get much judicial guidance is limited as it takes a unique set of circumstances for it to happen...
Compromise on Capitol Hill -- Coming Soon
Posted on June 18, 2008When you see these names listed together, what do you think?American Association of People with DisabilitiesAmerican Diabetes AssociationBazelon Center for Mental Health LawEpilepsy FoundationHR Policy AssociationInternational Franchise AssociationLeadership Conference on Civil RightsNational Association of ManufacturersNational Disability Rights NetworkNational Council on Independent LivingNational Restaurant AssociationSociety for Human Resource ManagementU...
5th Circuit Limits "Associational Rights" Under the FMLA
Posted on June 09, 2008There has been a recent spate of activity about associational rights under various statutes, with most of them taking a relatively broad view of expanding protection for those who have been discriminated/retaliated against because of their association with an employee who had a substantive claim...
Ads, News Stories -- the Employee Free Choice Act is Serious Business
Posted on June 08, 2008Although it made a short lived run in this Congress, the improperly named Employee Free Choice Act, will quite likely be in the headlines on a regular basis next January and February. Although clearly it depends on the outcome of the election, my guess is that there will be an attempt to get it to the new President's desk as quickly as the Family Medical Leave Act made it to President Clinton's...
This Can't Be Good for the Workplace
Posted on June 08, 2008This lead from a CNN story, Why some folks get a loan workout and others don't caught my attention:More than 3,000 times daily, struggling homeowners call the foreclosure Help Hotline for advice on how to save their homes.There is no question that pressures at home often carry over into work...
5th Circuit View on Retaliation Under the FLSA
Posted on June 05, 2008No question that FLSA is the hot topic labor and employment circles these days, although most of that attention is focused on collective actions. Last week, the 5th Circuit took up another area, one of those rare cases of "first impression" -- what constitutes retaliation under the "complaint" portion of the anti-retaliation statute in the FLSA...
Make That Retaliation Three, Employers Zero - Another MDV
Posted on May 28, 2008Although chronologically the verdict came before the two Supreme Court decisions I mentioned yesterday, I just read this Boston Globe headline this morning, Ex-Cambridge city worker is awarded $4.5m in suit. A good reminder on the heels of the Supreme Court decisions, as if we needed one, that retaliation cases carry great weight with juries...
Supreme Court Scoreboard: Retaliation 2, Employers 0
Posted on May 27, 2008Today the Supreme Court issued two employment related decisions -- holding that there is a cause of action for retaliation under 42 USC § 1981, CBOCS West, Inc. v. Humphrey (S.Ct. 5/27/08) and that federal employees who claim age discrimination are also protected against retaliation for doing so, Gomez v...
Hello GINA: Our Newest Friend
Posted on May 22, 2008As an employment law blog, it seems almost mandatory that I post about the newest labor and employment law, which would be the Genetic Information Nondisclosure Act, signed into law by President Bush yesterday. For some reason I can't get excited about it...
A Belated Happy Blog Anniversary
Posted on May 20, 2008I am late, but five years of doing this is a remarkable accomplishment. Hat's off to Michael Fitzgibbon at Thoughts from a Management Lawyer.
If It's Wednesday, Watch Your Eyes
Posted on May 20, 2008I am finally catching up on some of the stories I wasn't reading while on vacation, and here's another one, very timely if you're reading this on Wednesday, even though it was posted two weeks ago. It's from the good folks at Lynch Ryan their blog, Workers' Comp Insider: Eye safety and eye health on the job...
There is FMLA Expansion and Then There Is FMLA Expansion
Posted on May 20, 2008As I mentioned in an earlier post, I am doing a speech at the SHRM national convention on the potential impact of the 2008 elections. One of the areas I will be covering is possible expansion of the FMLA. But those bills are pikers compared to what was offered in the Connecticut legislature...
Bush Era Ending Sooner Than You Think
Posted on May 19, 2008At least from an administrative standpoint. Although one of the Bush countdown timers shows 246 days as of this writing, a memorandum from his Chief of Staff Josh Bolton sent to the heads of federal agencies sets an earlier end point for administrative regulations...
Heat A Few Steps Closer in Georgia
Posted on May 19, 2008That's heat, as in "packing heat" as Georgia becomes the latest state to allow licensed gunholders to bring their guns with them to an employer's parking lot. The Business Security and Employee Privacy Act which passed both Houses of the Georgia legislature was signed on May 16 by Governor Perdue.
City of Brotherly Love? Not Always, At Least Not in the Police Department
Posted on May 19, 2008When former Philadelphia Mayor, now Pennsylvania Governor, Ed Rendell was quoted as saying that some voters might not be ready to vote for a black candidate before the Keystone state's Democratic primary, some just thought it a bit of a political gaffe, but it may have been he just had some extraordinary insight based on his past experiences...
So Many MDV's; So Few Posts
Posted on May 13, 2008Although posting has been skimpy in general recently, I have been particularly lax on reporting on million dollar verdicts. Unfortunately, it is not that they have gone away, I just have not been a good reporter.Perhaps I will catch up with them in the coming weeks as well as do updates on some that I have written about earlier...
Unintended Consequences; Maybe Not
Posted on May 13, 2008Last Wednesday, the Michigan Supreme Court agreed with a lower appellate court that a 2004 amendment to the Michigan Constitution barred governments and state colleges from providing benefits to same sex partners of its employees. National Pride at Work Inc...
Posting Holiday
Posted on April 17, 2008Getting ready for vacation is time consuming and impacts negatively on posting as my recent (lack of) efforts have shown. However, now that I am actually on holiday, unless there is a rare combination of inspiration, energy and internet (highly unlikely), it will be May 4th when I return before there is likely to be any posts...
Two Good Reminders: OFCCP and Testing
Posted on April 14, 2008In the list of things to worry about, sometimes it's easy for certain acts or agencies to slip one's mind. If you are a government contractor and thus have duties under Executive Order 11246, one agency that should not slip too far away is the Office of Federal Contract Compliance Programs...
Bullying Indiana Style Makes a (Limited) Comeback
Posted on April 08, 2008Readers will know that in my ongoing campaign about the dangers of adoption of a "bullying" cause of action, one case that attracted considerable attention was that of a cardiac surgeon who was accused of being a workplace bully when he charged and yelled at a perfusionist (the fellow who operates the heart/lung machine during open heart surgery)...
New Web Site for HR Lawyer's Blog
Posted on March 21, 2008Congratulations to Chris McKinney at HR Lawyer's Blog, who is still physically located 80 miles down the road in San Antonio, but now relocated in the blogosphere at his recently re-designed website.
EPLI Coverage is Governed by Definition
Posted on March 20, 2008Although it's probably only a matter of time, there are still not many EPLI coverage questions that have been decided. In fact, I can only remember writing about one prior case that I have commented on at Check Your EPLI Policy - When Coverage For Discrimination Doesn't Mean The Most Common Type of Discrimination Claim...
A Judicial Rarity - Circuit Court Decision on Collective Action
Posted on March 18, 2008Since FLSA collective actions have been taking an inordinate share of my time recently, I am keenly aware that there is a scarcity of appellate decisions dealing with many of the interesting issues that can arise in these cases. Part of the problem is the nature of the cases...
But I Didn't Stay a Word -- Case Still Dismissed
Posted on March 17, 2008Now that major filings in two FLSA collective actions were made on successive Fridays, and SXSW has finally rolled out of town, maybe posting can return on a semi-regular basis.And what better place to start with a reminder of why this job is never dull...
Supreme Court in a Deferential Mood in Employment Law Decisions
Posted on February 27, 2008Yesterday, the Supreme Court gave deference to a trial judge's decision on an evidentiary ruling, see "Me Too Evidence" - A Do Over"; today it's the EEOC's turn as the Court finds that the Commission's decision to treat an unsworn intake questionnaire combined with an affidavit as a "charge" is within their discretion...
"Me Too Evidence" - A Do Over
Posted on February 26, 2008What could have been one of the more important cases actually impacting employment law trials in this Supreme Court term was just handed down with what may appear to be a disappointing thud. The issue was one that comes up frequently -- so called "me too" evidence about discrimination occurring to employees other than the particular plaintiff...
A New Use of the Internet -- "My EEOC Charge"
Posted on February 24, 2008Behind this website is a dispute between an employee and a Salvation Army facility in Alaska.Here's the intention according to the first page of the website: This website is being used to present evidence in an EEOC complaint. The complaint was filed in December 2007, and should be resolved by September 2008...
Supreme Court Employment Law Docket -- Decide Two, Add Three
Posted on February 20, 2008If he wasn't the first with the latest news from the Supreme Court's latest employment and labor law action, Ross Runkel at the LawMemo Employment Law Blog was the first that I saw.Check here for his summary of Preston v Ferrer (S.Ct. 2/20/08). Short hand version, the Supreme Court found a California statute pre-empted by the Federal Arbitration Act...
Initial Reactions to the New (Proposed) FMLA Regs
Posted on February 11, 2008Apparently some folks did some reading over the weekend, as the first reactions to the Bush proposed FMLA regulations are beginning to trickle in. In early comments, two business trade organizations were tentatively pleased --The National Retail Federation: The proposed changes to the current FMLA regulations provide additional clarity to a law that has helped millions of workers and their families," NRF Vice President for Government and Political Affairs Rob Green said...
Empirical Research and Arbitration
Posted on February 11, 2008Turn the academics loose and the next thing you know they want to do something crazy -- like rely on research! I hope they realize how disconcerting that can be in the non-academic legal world.First, from the ADR Prof Blog comes Empirical Arbitration Analysis Reveals Companies Prefer Litigation...
Waiting with Bated Breath - the Proposed New FMLA Regulations Coming Monday
Posted on February 08, 2008It probably won't quite stack up with the drama of the Patriots v. Giants classic of a week ago, but the suspense this week end waiting for the release of the proposed FMLA regulations may be intense. U.S. Department of Labor proposal will clarify FMLA rules for workers, employers and military families...
Campaign Financial Crunch = Wage and Hour Violations?
Posted on February 07, 2008The big news in today's political world (at least until Mitt Romney dropped out) was that the Hillary Clinton' campaign was having some financial struggles which resulted not only in her having to loan her campaign $5 million, but according to the article in the Chicago Tribune: Clinton's campaign also disclosed that several senior staff members, including her campaign manager, were voluntarily working without pay...
Hurting by Helping? The Law of Unintended Consequences
Posted on January 30, 2008If the Democratic party gains control of the federal government -- the White House, the House and a veto proof Senate (60 votes), many in the employment and labor law community anticipate a bevy of new laws. For a preview as reported by the good professors at the Workplace Prof Blog, check out House Discusses ADA Restoration Act and the Civil Rights Act of 2008...
NLRB Back to Full Strength? By No Means a Sure Thing
Posted on January 27, 2008President Bush has indicated his intention to submit nominees to fill the three vacancies on the five member National Labor Relations Board. Two are members whose terms recently expired, former Chairman Robert Battista (R) and former member Dennis Walsh (D)...
MDV in the Aloha State
Posted on January 26, 2008An unusually long newspaper story outlines the facts behind an MDV from a whistleblower case. Honolulu jury awards $3M to city ex-official.Among the challenges for the defendant city were a witness who took the 5th Amendment and another witness, who appeared to be the main decision maker that led to the case, who had pled guilty to an unrelated misdemeanor charge of misusing city funds...
5th Cir. Upholds SOX Decision of No Protected Activity
Posted on January 23, 2008There are two ways a claimant's Sarbanes Oxley whistleblowing case can make it to the 5th Circuit. One is an appeal from a district court if a claimant had foregone the administrative route and chosen to file directly in federal court (permitted if the administrative proceedings are not concluded within 180 days)...
A Spanking On Appeal as $1.5 MDV Goes Down
Posted on January 17, 2008One of the more novel MDV's that I have reported on took a course that happens not infrequently to large verdicts as, Appeals court overturns $1.5M verdict to woman spanked at work. See my initial report here. It marks a second bleak turn of events for the spankee as she had originally settled for $1...
'Maternal Profiling' Enters the Lexicon
Posted on January 04, 2008I used to get a feel for developments in labor and employment law by the seminar brochures I regularly receive, but of course in the world of the Internet that is now passe and it is my fellow bloggers who are most likely to tip me off. Family responsibility discrimination is certainly a much written about topic and so I am becoming increasingly sensitized to its mention as a new variant of discrimination claim...
Wage and Hour - The Story of the Year for 2007
Posted on January 02, 2008And my guess for 2008 as well.Although clearly the biggest aspect of wage and hour law has been the explosion of collective action cases brought by private plaintiffs' counsel, even the DOL's enforcement activities and recoveries are at an all time level...
Happy New Year
Posted on December 31, 2007Thanks to all who have stopped by this space in 2007. As you may have noticed, posting has been sporadic, particularly the last half of the year although still averaging 10 a month.In the New Year my hope is to do better, but I am also going to be busy keeping New Year's resolutions tolose weight, exercise regularly, procrastinate less (maybe I need to think about that one some more) ,and at least half a dozen other worthwhile things that should keep me thoroughly occupied till, oh, at least next weekend!So rather than a promise of more regular posting perhaps I should just "borrow" and extend the Merry Christmas wish from the good folks at Wage Law, and offer this statement at this year's end: "I may or may not post anything of substance between now and the New Year ...
FMLA Expansion - Maybe Not So Quick
Posted on December 28, 2007Dan Schwartz's Connecticut Employment Law Blog has been one of 2007's leading entries into the employment law blog arena. An example why is that even while vacationing he was keen enough to pass along a caution that the FMLA expansion that has been mentioned in several blogs recently (including this one), seems to have hit a Presidential snag...
Staffing Firm Controller Scores Manhattan MDV
Posted on December 22, 2007A company whose business is helping other companies find employees, also has its own, and with them the risk of employment litigation. One staffing company is keenly aware of that this morning as the N.Y. Daily News story, Exec wins 1.2M race, sex harass suit, makes abundantly clear...
Court Won't Enjoin Arizona Legal Workers Act
Posted on December 22, 2007Absent some other last minute judicial intervention it appears that Arizona's law that imposes strict sanctions for hiring illegal workers is set to go into effect on January 1, 2008 as U.S. District Judge Neil Wake late yesterday denied a temporary injunction that would have delayed its implementation...
'Tis the Season
Posted on December 22, 2007Well not everywhere I guess. At least that was the thought that struck me when I read this description of a lawsuit filed this week in state district court in Dallas: Defamation, malicious prosecution, negligence and IIED actions where the defendant coworker planted merchandise in the plaintiff employee's bags to frame her for shoplifting...
MDV for Casino Whistleblower
Posted on December 18, 2007A whistleblower who alleged she was terminated for reporting illegal activities to the Missouri Gaming Commission won a $1,000,000 verdict in Kansas City state court yesterday. The Kansas City Star reported it this way, Jury awards $1 million to woman who lost job at Harrah?s...
8 Days of Christmas? No, 8 Parts of Executive Employment Agreement
Posted on December 17, 2007Probably the lawyer in me that likes things that are organized in a way that enhances understanding, but a story in the Portland Business Journal about the 8 parts of an executive employment agreement struck me as a nice way to cover one of those topics that is perpetually on my "learn more about" list...
FMLA Expanded with Passage of Department of Defense Funding Bill
Posted on December 14, 2007More action on the legislative front as Congress today adopted the first expansion of the Family and Medical Leave Act since its original passage. Although for a limited (and good) cause, the expansion is a big one.It encompasses two kinds of leave --12 weeks where "the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation and there is a "qualifying exigency" which is to be defined by the Secretary of Labor by regulation; and 26 weeks where an eligible employee who is the spouse, son, daughter, parent, or next of kin of an injured servicemember needs to take care of them...
More Gray Hair in the Cockpit - Commercial Pilots Can Now Fly to 65
Posted on December 14, 2007One of the few age limitations* that has been enshrined in legislation bites the dust, as Congress unanimously passes legislation allowing pilots flying for commercial airlines to fly until age 65, rather than the current 60. See Southwest pilots union praises new 65 rule...
A (Very) Belated Thanks To the Folks at Wage Law
Posted on December 12, 2007I have learned that much like exercise it is quite easy to fall out of the habit of blogging. As anyone who has checked here regularly of late, it is apparent that I have fallen out of the habit. (And as others who know me personally can attest, I have fallen off the exercise wagon as well...
Sound Advice on Handling Lawsuits
Posted on December 12, 2007Although not directly related to labor and employment law, the thoughts of Stewart Weltman in a column in law.com's In House Counsel forum, Think Like a Plaintiffs Attorney to Lower Litigation Costs, are spot on.Almost every point he makes is one I have come to understand over 30 plus years of handling employment law suits of various sizes, from small to big...
Two 5th Circuit Approved Jury Instructions in Discrimination Case
Posted on December 10, 2007In the age of the vanishing jury trial it is rare to get decisions on the validity of jury charges, so it is always nice to have 5th Circuit endorsed language. In Price v. Rosiek Construction Co. (5th Cir. 12/10/07) [pdf] the Court upheld a jury determination of no discrimination in the face of a challenge to two instructions...
Payday Claim Divides Texas Supreme Court
Posted on December 07, 2007Those who view the Texas Supreme Court as a monolithic force against employees in employment cases might be surprised by the closeness of today's 5-4 decision holding that an untimely Payday Act claim pursued to conclusion through the administrative process bars a timely common law action for breach of contract for the unpaid wages on the ground of res judicata...
Eight Years in the Making - Employer Pay for PPE
Posted on November 20, 2007I really haven't digested the details of the new OSHA regulation on personal protective equipment, but here's a link to the final rule: Employer Payment for Personal Protective Equipment; Final Rule.What I was struck by was the commentary I read elsewhere summarized in this opening paragraph about the history of this regulation (emphasis and bracketed material added by me):In 1999 [March 31], OSHA issued a proposal to require employers to pay for all protective equipment, including personal protective equipment (PPE), with explicit exceptions for certain safety shoes, prescription safety eyewear, and logging boots (64 FR 15402)...
ADA Standard in 5th Cir is "Motivating" Not "Sole" Factor
Posted on November 18, 2007Deciding a question, that probably few thought was in real doubt, a panel of the 5th Circuit last week joined seven other circuits in setting the proper causation standard for Americans with Disabilities cases. Pinkerton v. Paige (5th Cir. 11/13/07).According to the Court: Under a plain reading of the statute, and in accord with the position of other circuits, we conclude that the ?sole causation? standard is not the appropriate standard for ADA claims...
The Unloyal Employee - May End Up Owing a Tidy Sum
Posted on November 18, 2007That's the lesson to be learned from the 5th Circuit's affirmation of a $3 million dollar jury verdict in a case where two employees were found guilty of breaching their fiduciary duty when they negotiated behind their employer's back to sell the portion of the business in which they were engaged...
One of the Better Headlines: Shirking Working: The War on Hooky
Posted on November 07, 2007Congrats to Business Week for their story and what struck me as one of the more clever headlines in awhile, Shirking Working: The War on Hooky. Among other things the article points out how businesses are going to software analysis to determine when and more importantly why, people aren't showing up for work when they are supposed to...
Not Quite Halloween, But Still A Scary (MDV) Story
Posted on October 30, 2007California is obviously not the only place where large verdicts in employment law cases occur, but it certainly has its share. The latest -- an MDV returned yesterday by a San Francisco federal jury following a three week trial over the claims of a PhD level petroleum engineer, Chevron ordered to pay $5...
Speechless by Bruce Barry - A Mini-review
Posted on October 24, 2007Two relatively recent posts, one by Chris McKinney at HR Lawyer's Blog, Limits of Free Speech in the Workplace and Freedom of Speech in the Workplace: Think Again by Michael Moore at the Pennsylvania Employment Law Blog, reminded me how I had been meaning to mention an interesting book by Vanderbilt Professor Bruce Barry, Speechless: The Erosion of Free Expression in the American Workplace...
5th Circuit's Newest Judge - Leslie Southwick Confirmed
Posted on October 24, 2007In an act of good sense, the Senate today confirmed Leslie Southwick from Mississippi to the 5th Circuit Court of Appeals. This was nearly caught up in partisan politics, but somehow survived.Having served as a Teaching Quizmaster at UT Law School with Leslie more than 30 years ago, I am fairly confident that the individual portrayed by those trying to defeat the nomination is not who will be sworn in and serve admirably for however long he ends up sitting on the bench...
Interesting Thought About Electronic Discovery and Arbitration
Posted on October 18, 2007Stephen Rosenberg, who has a tremendous site, Boston Insurance and ERISA Litigation Blog, has an interesting post on the relationship between the developing law of electronic discovery and how it might actually make arbitration a better forum. Electronic Discovery and the Calculus of Arbitration...
MDV for the Still Employed
Posted on October 18, 2007Most employment law cases are brought by workers who were terminated, but occasionally a current worker brings a claim that makes its way to trial. And, amazingly enough, sometimes juries are convinced that an employer, who is still good enough to work for, has acted badly enough that the employee should be compensated with a large award...
American Employment Law More Liberal Than Europe
Posted on October 17, 2007At least in one small area ? mandatory retirement. Unlike the ADEA which has no upper limit and bars mandatory retirement, the European Union's top court has held that country laws establishing a retirement age could be "justified to promote social policies like improving employment...
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Can driving accident be cause for termination?
If your state is an at-will state, the company can fire you for any reason or fo...
Must I refinance my house aftering taking full ownership after a divorce via a quit claim?
When financing there are at least two documents...the mortgage and the note. The...
What rights does a father have when a woman waits 13 years to tell a man he is a father & he missed out on the growing up of that child?
Actually, he has as much right as she to request a paternity test, plus he can f...
I signed myself out of a hospital because I thought the care was negligent. I am a nurse and know a great deal about medical care. I was in the hospital a year ago for less then 12 hours and they sent me a bill for over
If you can prove tha the care was negligen you need to get a lawyer and try to n...
Do I have a case against my former employer?
Yes you have a case against them. Walmart just lost a case for several million d...
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