Jottings By An Employer's Lawyer: Labor & Employment Law

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Labor & Employment Law

Jottings By An Employer's Lawyer

By an experienced Texas Labor and Employment Lawyer.
By Michael W. Fox, Esq.

Post Frequency: 3.1/day

Last Entry: February 03, 2020 at 15:08:00

MMA Body Slam of $3.2 Million

Posted on January 25, 2011
$3.2 million is the total jury award to former Tapou T sales representative, Michelle Thomas, from a Los Angeles state jury. The jury first awarded $840,000 in compensatory damages, and then after finding the acts of the employer were with malice, added an additional $2...

Retaliation in the Supreme Court - Danger Zone for Employers

Posted on January 24, 2011
If there is one area of Supreme Court jurisprudence that employees can certainly not complain about it is the law of retaliation Today's decision in Thompson v. North American Stainless (S.Ct. 1/24/11) certainly does nothing to change that. A unaminous Court (with Justice Kagan not sitting) held that an employee who had been fired for his fiancee's protected activty was also protected by Title VII...

A Ray of Sanity in the FLSA Collective Action Morass: Half-pay in Misclassification Cases

Posted on January 19, 2011
Given the overwhelming number of FLSA collective actions that continue to be filed, it is hard to find very much encouraging news, but one ray of sanity is the 4th Circuit's opinion in Desmond v. PNGI Charles Town Gaming, (4th Cir. 1/18/11) [pdf].The issue was the not inconsequential question of how do you calculate damages in a misclassification case...

Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII?

Posted on January 12, 2011
The headline in today's Daily Labor Report caught my attention, Court Revives Fired Gay Employee's Retaliation, Harassment Claims ($). I thought maybe it was another another step down the road for protection against sexual orientation discrimination, but still within the limits of Title VII...

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2011 --- the Year of the Non-minority?

Posted on January 09, 2011
Predicting what a new year will bring is a time honored tradition, but much like resolutions, most predictions rarely last longer than the first flip of the calendar. So rather than a long list, let me just start with one thing that I am guessing we might see, more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race...

Polyglot for Wage and Hour Administrator

Posted on December 06, 2010
Almost two years into his term, President Obama is making a 2nd try at an Administrator for the Wage and Hour division of the Department of Labor, with his nomination of Leon Rodriguez, currently a DOJ lawyer and formerly County Attorney for Montgomery County, Maryland...

Disparate Impact Suit - Credit Checks

Posted on November 29, 2010
Three times a year for the last several years I have done a program for the UT School of Law, CLE group called Essential Employment Law. In the morning, I talk about theory and in the afternoon my good friend (and great lawyer) Connie Cornell talks about the practical application...

University of Texas School of Law and Labor Law

Posted on November 26, 2010
When I graduated from UT Law School in 1975, I had taken the only labor law course that was offered (if you didn't count the 2 hour Employee Rights course, which was solely about workers compensation claims). It was a traditional labor law course about the NLRA and was taught by Jerre Williams, who later served on the 5th Circuit...

In Defense of the EEOC? No, Just a Reminder About Pancakes

Posted on November 23, 2010
Tom Crane, at the San Antonio Employment Law Blog, had a very interesting post last week that complains about an EEOC investigator turning an employee away when it appeared she had a valid complaint, EEOC Would Not See Retaliation If It Was in Front of Its Face...

The Technology Changes -- But the Principles Stay the Same

Posted on November 22, 2010
I have seen several posts about the NLRB issuing a complaint based on an employee's facebook post about their supervisor, that led to additional comments by fellow employees. See Nolo's Employment Law Blog's post as an example, NLRB Sues Employer for Firing Employee Over Facebook Post...

Another Interesting Development from Last Tuesday - $4 MDV for FLSA Retaliation

Posted on November 08, 2010
While most eyes were turned to the election results last Tuesday night, a former Los Angeles policeman was enjoying a $4 million dollar verdict in his favor, after a jury agreed that he had been fired because of his testimony in a federal wage and hour lawsuit brought against the city by another officer...

Putting Me and Other Employer's Lawyers Out of Work

Posted on October 18, 2010
David Yamada and I have never met but have developed a friendship via the net. Even though we often have different views, usually not on the desired result, but on the ways of getting there, based on our civil conversations in an area where that is not often the case, I think it is fair to say that David would never wish me ill, in a financial sense or otherwise...

A SAD Story In So Many Very Different Ways

Posted on October 07, 2010
Commenting on lawsuits based on newspaper stories is risky business. I do it frequently and I probably should remind myself and those who read this blog of the dangers more often. It is not because newspaper reporters are incompetent or that they are not trying to do a good job, it is just that reporting a lawsuit is a very complicated piece of work that requires far more time than is available or really necessary to get some of the high points, which is about the best one can reasonably hope for...

If You Have a Choice, Would You Bifurcate Punitive Damages?

Posted on October 05, 2010
That was a question I was discussing with a colleague Friday just before we gave a seminar presentation on Things that Employers Do to Make Juries Mad, and Pay for it with Big Verdicts. Fortunately in our case it was purely hypothetical. But I was reminded of it when I saw today's report of a follow up punitive damage award of $4...

McDonnell Douglas Bites the Dust in Tennessee

Posted on September 22, 2010
Yesterday I wrote about Texas' own little corner of the workers' comp world, today it is the Volunteer State's turn to take the spotlight for its unique view of an element of employment law. In Gossett v. Tractor Supply Co. (Tenn. 9/20/10) a sharply divided Supreme Court dumped one of the long time stalwart's of employment discrimination and retaliation, the McDonnell Douglas shifting burden of proof for evaluating a plaintiff's claim...

Good News for Texas Non-subscribers, Bad News for Excess Carrier

Posted on September 21, 2010
Texas has its own little corner of the workers' compensation world, as I think it is now the only state that permits employers to opt out of the workers compensation system. It does not come without a penalty, because a non-subscriber employer loses the bar against being sued by its employees for negligence, and when it is sued, loses a number of its common law defenses to negligence such as assumption of the risk, contributory negligence etc...

Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says

Posted on September 01, 2010
Although it may no longer be true, donning and doffing cases at one time were clearly the big ticket FLSA collective action. And for those still fighting those fights who have been concerned about the thumb that the DOL put on the scale with their June 16 Administrator's Interpretation (No...

Cautionary Comments as the ADA Nears Adulthood

Posted on August 11, 2010
Turning 21 is a much bigger deal than turning 20 if you are one who is looking forward to consuming adult beverages legally. But if you are a statute, twenty years is a nice point for others to weigh in on your success. So in the the last two weeks various pundits have weighed in with their views on the Americans with Disabilities Act...

Dealing a $2 Million Dollar Verdict in the California Wine Country

Posted on August 05, 2010
Sexual comments and jokes, including a Levitra pen that apparently grows in length, followed by a complaint with no follow up and then a termination were what a Sonoma County jury apparently believed was the hand Shannen De La Cruz , a minimum wage card dealer, had been dealt...

Kudo's For Giving the Bad as Well as the Good

Posted on August 04, 2010
I am not a fan issuing press announcements following a trial victory. To quote an over used Seinfield line, "not that there's any thing wrong with it ..... ", it's just not my cup of tea.Similarly, I have never mixed (at least that I can remember) my own personal practice results and my blogging, or at least not in any way that they were identifiable...

CBA-FLSA-State Law? Is It Like Rock-Paper-Scissors?

Posted on August 03, 2010
Unfortunately for companies that operate in more than one state or are intently focused on the Fair Labor Standards Act, the answer is no. Unlike the kid's game, where the winner is variable, when deciding wage and hour compliance questions, the answer invariably seems to be -- state law tops all...

The Difference Between Cloth and Leather Gloves? Just Over a Million Dollars

Posted on July 23, 2010
At least that is the thought one might take from a jury verdict at the end of May in Maine state court. As reported by Michael Afthim's counsel, Peter Thompson and Associates in their blog, Maine Employment Lawyer, his complaints about the working conditions of the men he supervised led to his termination and subsequent suit under the Main Whistleblowers' Protection Act...

Some Facts on Breast Feeding Requirement Under Healthcare Bill

Posted on July 23, 2010
A hat tip to Employment Law 360 for their story, DOL Releases Guidelines On Breaks For Breastfeeding [pdf] ($) and inclusion of Fact Sheet #73 from the Wage and Hour Division, Break Time for Nursing Mothers under the FLSA. It's the first official word I have seen on a provision contained in the major healthcare reform bill passed earlier this year, that was scant on details...

One Stop Shopping for Whistleblowers

Posted on July 20, 2010
A hat tip to Today's Workplace, the blog of the Outten & Golden firm, for their link to OSHA's new whistleblower website, Office of the Whistleblower Protection Program.It is worth its weight in gold, if for no other reason than to find a link to all 18 statutes that OSHA currently is responsible for: Section 11(c) of the Occupational Safety and Health Act, 29 U...

As ENDA Lingers in Congress, a MDV in Maine

Posted on July 20, 2010
Just recently I was having what is a frequent conversation about what I do for a living, basically -- how interesting it is. And how although I am now 35 years into the practice I am still amazed at the new situations and the complexity of issues that I see, or as in this case read about...

When "Sabotgage" Becomes Illegal

Posted on July 19, 2010
I continue to see a number of articles about the need for anti-bullying legislation, much to my dismay. When there is an article about it in the weekly Sunday supplement that's in my local newspaper, you know the movement is gaining traction. See Workplace Bullying: Do We Need a Law?At least the article had the good sense to include this quote from Victoria Pynchon, who blogs regularly at Settle It Now Negotiation Blog: Making a federal or state case over the day-to-day management of any workforce is just plain nuts...

Has It Really Been 8 Years?

Posted on July 19, 2010
Since I posted my first jot here? For Lack of a Green CardApparently so.Thanks for all who stop by.

Financial Reform Passes - Major Whistleblowing Changes as Well

Posted on July 15, 2010
Thanks to Jacob Zuckerman at the Employment Law Group for his on the spot reporting about the new whistleblowing provisions contained in the major financial bill that was passed earlier today. See Dodd-Frank Bill Provides Robust Whistleblower Protection, including a link to a download of all the whistleblower provisions contained in the legislation...

Relational Retaliation: More Than A Mouthful, Another Step Forward?

Posted on June 29, 2010
Jon Hyman at Ohio Employer's Law Blog has been all over the reporting of the 6th Circuit decision of Thompson v. North American Stainless, whose latest iteration at that level was an en banc rejection of a retaliation claim brought by an employee fired three weeks after his fiancee' filed a charge of discrimination against the same company...

The Potential Impact of Today's Supreme Court's 5-4 Decision on Arbitrability

Posted on June 21, 2010
It is never too much a surprise when the Supreme Court reverses the 9th Circuit, nor in recent years is it a surprise when the Court hands down a decision favoring arbitration of disputes, even in employment law matters. In a narrow sense, that is the substance of today's 5-4 decision in Rent-A-Center, West, Inc...

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