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

Post-Vacation, On the Road Again, Posting

Posted on June 15, 2010
Back when there were only two or three of us bending your ear on employment and labor law related matters, I felt a weird compunction to announce when I was going to be on an extended trip with no posting. Now that employment law related blogs are both numerous and more importantly of extremely high quality, it seems much less important, and in fact somewhat grandiose...

When "inside" Witnesses Support the Other Side -- Recipe for an MDV

Posted on June 01, 2010
In a speech I have given about trying employment law suits, one of the first points is that not all lawsuits should be tried. And one of the things that would make me look twice is if there were a key witness, who appeared to have really good inside knowlege, who is not supporting my story...

Bullying As a Cause of Action - One Large Step Closer

Posted on May 31, 2010
As long time readers may remember, I have for a long time been concerned about a proposed cause of action for bullying. My first post about bullying goes all the way back to January 12, 2003, Newest Workplace Problem? Bullying? But later that year, my first mention of it as a cause of action was a post about a case decided in England, Can't Wait For "Bullying" Cause of Action to Cross the Atlantic...

ARB Needs Your Help on SOX Coverage of Subsidiaries

Posted on May 26, 2010
Well, that may be a bit of an overstatement, but the Administrative Review Board, which gets the final appellate say at the administrative level of Sarbanes Oxley claims has asked the Assistant Secretary of OSHA and the SEC, and it appears other amici, to submit briefs addressing four specific questions:Is a subsidiary categorically covered under §806 (e...

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Opening the Door to Facebook: Severe Emotional Distress May be the Key

Posted on May 25, 2010
A well reasoned opinion by Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana dealing with a request for information from what she dubs Social Networking Sites (SNS) should be a starting point for anyone who is seeking (or opposing) information from an employment law plaintiff's facebook or myspace profile...

463 to 1 Vote in House on Mine Safety Investigation

Posted on May 24, 2010
A story in the Daily Labor Report that the House of Representatives voted 463-1 to give authority to House Education and Labor Committee staff members to take depositions as part of the investigation into the Massey Energy Company mine accident of April 5th raised my curiosity about the one no vote...

It's Not EFCA, But for Some Cities It Might Be Worse

Posted on May 24, 2010
Because today, Senate Majority Leader offered the Public Safety Employer-Employee Cooperation Act as an amendment to the Supplemental Appropriations Act that is being considered by the Senate. The amendment (number 4147) could be voted on as early as tomorrow...

Another Texas View from the Other Side of the Docket: Texas Employee Rights Blog

Posted on May 18, 2010
A long time friend, and sometimes adversary, Danny Wash of Waco, has entered the world of employment law blogging with Texas Employee Rights. He joins at least two others that I follow that also write from the employee's perspective, both oddly enough from the city where I practiced law for more than 20 years, San Antonio -- Chris Mckinney's HR Lawyers Blog and and Tom Crane's San Antonio Employment Law Blog...

The Note From the Jury That You Didn't Want

Posted on May 17, 2010
At least if you are on the defense side: Novartis Jury Asks About 'Range' of Damages . The note comes in a sex discrimination case brought by twelve named plaintiffs againt Novartis.Although it does indicate that the jury is beyond liability, any one who has been waiting (im)patiently in a court room while a jury deliberates, knows that it is quite difficult to tell what is going on based on just a single request...

The Employment Law Decisions of Supreme Court Nominee Elena Kegan

Posted on May 10, 2010
President Obama's nomination of Elena Kegan to the Supreme Court is the fourth since Jottings was started in the summer of 2002.In the past I have published links to the employment and labor law decisions of the nominees. See,First Obama Supreme Court Nominee - Sonia Sotomayor Now on First - Samuel Alito -- Let the Feeding Frenzy Begin A More Complete List of Judge John Roberts' Labor and Employment Related DecisionsAnd now for soon to be Justice Kegan:Yep, that's it, zero -- nada -- nothing...

Compliance Plans -- Showing How You Are Not Breaking the Law

Posted on April 30, 2010
Seth Harris, the number two person in the Department of Labor, has announced the intention of the DOL to require employers to adopt compliance plans "aimed at ensuring they do not violate wage, job safety and equal employment laws," according to Steve Greenhouse's report in yesterday's New York Times, U...

No Class Arbitration Under the FAA Unless Specifically Agreed, At Least for Now

Posted on April 27, 2010
Today the Supreme Court decided a case important in the employment law field although the underlying case was a commercial dispute. The question in Stolt-Nielsen v. AnimalFeeds International (S.Ct. 4.27.10) [pdf] was whether under the Federal Arbitration Act, arbitrators could decide that class action was appropriate if the arbitration agreement was silent on that issue...

Round 2 in Dukes v. Wal-Mart to Plaintiffs

Posted on April 26, 2010
Today, in a 6-5 decision the 9th Circuit has affirmed the lower court's certification of a 1.5 million person class in a Title VII sex discrimination claim again Wal-Mart. See the article at Yahoo Finance, Court: Wal-Mart to face massive class action suit...

POWER To The People and Unintended Consequences

Posted on April 22, 2010
Immigration is a political hot button, which may be one of the greatest understatements of the year. It is certainly an issue on which people disagree, unfortunately, often disagreeably.I certainly don't want to add to that unhelpful dialogue, but I have to admit my first reaction on reading the substance of the POWER Act (Protect Our Workers from Exploitation and Retaliation Act) was to quickly jump to what I forsee as unintended consequences...

The Future of Unions: A Key Question

Posted on April 22, 2010
BNA's Daily Labor Report ($) has an article based on its in depth interview with the soon to be former head of the SEIU, Andy Stern, that is well worth the read. See, As Retirement Nears, SEIU's Stern Says Shift in Work Processes Top Issue Facing Unions...

First Employment Law Test for Justice Steven's Replacement: Figuring Out the Cat's Paw

Posted on April 19, 2010
Assuming that notwithstanding the current posturing, come the first October in 2010 there is a replacement for Justice Stevens, one of their first tests may be helping to define the parameters of the Cat's Paw theory in discrimination cases. An issue that has been lurking around the Supreme Court agenda for awhile...

Medical Marijuana: Accomodation Required? Which Way Do You Think Oregon Went?

Posted on April 16, 2010
Probably depends on how liberal you view Oregon. Since I have spent little time there (which will hopefully be somewhat ameliorated by a vacation week there in a couple of months) my guess is based more on perception than actual knowledge. If pushed, I would have guessed for a pro-employee outcome...

The Supporter Side Politics of EFCA

Posted on April 13, 2010
At least for now, conventional wisdom has consigned EFCA to a post-mortem phase, which from the union perspective means, what went wrong? For some interesting background on Majority Leader Harry Reid's interest in obtaining its passage and what actually kept the bill from being voted on in the Senate, see Jane Hamsher's insightful views at What Happened to the Employee Free Choice Act? posted at the progressive blog, FDL...

MDV with a Twist: Union v. Union

Posted on April 09, 2010
A San Francisco jury has just returned a verdict in a lawsuit brought by the SEIU against a rival union, the National Union of Healthcare Workers. This is the next step in what has been a long battle between the SEIU and the faction that that broke away from it to form a new union...

iPad and the Global Workplace

Posted on April 08, 2010
Two topics that I don't write about a lot, globalism and workplace safety, are merged in a Technomix Fast Company post written by Kit Eaton, Is Pressure at iPad Maker Foxconn Behind Four Recent Suicide Tries?Because China based Foxconn is the maker of some of the principal parts of the newly released Apple iPad, the quick and easy conclusion is that there must be a link between the build up related to its highly anticipated release and the four attempted suicides...

The Flavor of the Season: Disparate Impact?

Posted on April 06, 2010
In times past, one could go a fairly long time without much discussion of disparate impact, but two posts in other blogs today caught my attention. First, Paul Secunda has a post about new scholarship Seiner and Gutman on the New Disparate Impact...

Hidden Healthcare Gems

Posted on March 30, 2010
I have not (and probably will not) taken the time to read the two pieces of legislation that passed Congress last week and which are generically being called Healthcare Reform, but fortunately others who have an interest in employment law are doing so...

It's Here: The Obama Board

Posted on March 28, 2010
Although it took longer than expected, and required using the recess appointment mechanism, Saturday's expected announcement that Craig Becker and Mark Pearce would be appointed to the Board marks the transition to an Obama majority on the NLRB. President Obama Announces Recess Appointments to Key Administration Positions...

Four Pillars for Immigration Reform

Posted on March 26, 2010
Having just finished with one hot potato, at least two Senators are ready to tackle yet another. And surprisingly enough, it is a bi-partisan effort. In a Washington Post opinion piece, Charles E. Schumer and Lindsey O. Graham - The right way to mend immigration offer four premises on which any new legislation should be based:Our plan has four pillars: requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here...

Tired of Card Check, Rapid Elections? Harv Prof Offers a Different Approach

Posted on March 25, 2010
Benjamin I. Sachs, an Assistant Professor of Law at Harvard has a recent Harvard Law Review article evaluating card check and rapid elections, and suggesting that neither is the optimal approach. Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing...

5th Circuit En Banc Request on Smith v. Xerox, Please!

Posted on March 25, 2010
A three judge panel of the 5th Circuit yesterday divided sharply on a case that poses a number of interesting legal issues of great importance for discrimination and retaliation cases in the 5th Circuit. It cries out for an en banc review. Smith v...

5th Circuit to Hear Katrina Related FLSA Labor Case En Banc

Posted on March 24, 2010
Yesterday the 5th Circuit announced it would hear Castellanos-Contrera v. Decatur Hotels en banc.The case turns on whether an employer who brought foreign workers in post-Katrina under the H-2B visa program was required to reimburse them for recruitment, transportation and visa expenses in order to meet requirement that wages be paid "free and clear" under the FLSA...

Name, Rank and Serial Number: A Good Policy, But You Have to Follow It

Posted on March 23, 2010
That's the message I would take from the latest MDV report. Credit Agricole was sued by a former employee, William Raedle, who alleged that his former supervisor cost him a job as a financial analyst when he told Raedle's potential employer that he had "mental issues" and what the BusinessWeekarticle refers to as "other disparaging remarks," including difficulty working with others...

Another Retaliation Case in the Supreme Court: Deja Vu All Over Again?

Posted on March 22, 2010
According to Paul Secunda at Workplace Prof Blog, a number of bloggers have already commented on today's granting of certiorari Supreme Court Grants Cert in Saint Gobain FLSA Case.Paul says he has no idea how the case will come out. The issue is whether as the 7th Circuit says, only written complaints, not oral ones, qualify as protected activity under the FLSA...

Social Media and Hiring -- Interesting Data, But So What?

Posted on March 18, 2010
Jon Hyman at Ohio Employer's Law Blog has a great post on a recent survey conducted for Microsoft on how employers world wide are using internet research in making hiring decisions, 70% of hiring managers report rejecting candidates following internet searches...

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