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

EPLI Coverage is Governed by Definition

Posted on March 20, 2008
Although 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, 2008
Since 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, 2008
Now 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, 2008
Yesterday, 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...

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"Me Too Evidence" - A Do Over

Posted on February 26, 2008
What 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, 2008
Behind 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, 2008
If 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, 2008
Apparently 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, 2008
Turn 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, 2008
It 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, 2008
The 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, 2008
If 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, 2008
President 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, 2008
An 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, 2008
There 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, 2008
One 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, 2008
I 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, 2008
And 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, 2007
Thanks 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, 2007
Dan 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, 2007
A 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, 2007
Absent 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, 2007
Well 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, 2007
A 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, 2007
Probably 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, 2007
More 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, 2007
One 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, 2007
I 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, 2007
Although 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, 2007
In 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...

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