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: 1.8/day

Last Entry: May 21, 2013 at 15:32:00

Yes Virginia, the Supreme Court Does Matter - A Cat's Paw in the 5th Circuit

Posted on May 21, 2013
Although as an object fact we know that it is important when the Supreme Court issues a decision, see my discussion just above about the importance of a SOX case that will be decided next term, but it never hurts to be reminded.That was just what happened when I read the 5th Circuit's decision in Haire v...

Sarbanes Oxley in the Supreme Court Dock

Posted on May 21, 2013
And on the Supreme Court docket for next term after the Court's grant of certiorai of a 1st Circuit decision which applied a narrow definition to the coverage of the first major financial regulatory act. Lawson v. FMR, LLC. (1st Cir. 2.3.12) ...

Another Bad Day in the DC Circuit for the NLRB

Posted on May 07, 2013
Today, the D.C. Circuit struck down the NLRB's rule which required all employers over which it had jurisdiction to post a notice advising employees of their rights under the NLRA. National Association of Manufacturers v. NLRB (D.C. Cir. 5.7.13). The majority opinion relied primarily on Section 8(c), the so called "free speech" provision which allows employers to advise employees of their view on unions as long as it is done in a non-coercive manner...

The Next Protected Class - Ex-cons

Posted on May 02, 2013
The EEOC last year issued some updated guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. It laid out a blue print for how to plead a case under Title VII using the disparate impact theory of discrimination...

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A Ground Floor Opportunity? Litigation Finance

Posted on April 22, 2013
I really have not had much chance to give the area of third party litigation financing a lot of thought, but my initial instincts are that while it may be good for lawyers, it seems unlikely to be good for clients. Maybe there is a silver lining somewhere, there often is, but at the moment it escapes me...

Talking Money at Work

Posted on April 17, 2013
Today's Wall Street Journal discusses workers willingness to talk with their peers about what they are being paid as a generational change. Workers Share Their Salary Secrets. But as the article notes, in the past many employers prohibited such talk...

Genesis Healthcare Corp. v. Symczyk ? A Wasted Opportunity?

Posted on April 16, 2013
I had hoped, although without any real basis, that when the Supreme Court dealt with a collective action case this term, by deciding whether or not an offer that would completely resolve an individual plaintiff's claim prevented a collective action from going forward, that they might somehow wander into what seems to be an issue never subject to review, what is the standard for conditional certification of a collective action under 29 U...

Quorum, Heck a Fully Appointed NLRB?

Posted on April 09, 2013
Doubtful for awhile, but at least five nominees are now pending Senate action., with the announcement today of the appointment of two new members and the renomination of the current Chairman of the Board, Mark Pearce. President Obama Announces More Key Administration Posts...

And lawyers wonder why ...

Posted on April 03, 2013
Clients might wonder about our priorities.Mobile devices such as iPads are becoming an essential part of the job for many attorneys. "The fact that you can do so much work today on a small iPad that used to require a heavy, bulky laptop a few years ago is a tremendous leap forward in productivity," said Brett Burney of Burney Consultants...

Stipulating Your Way Out of Federal Court

Posted on March 20, 2013
In certain parts of Texas, it is not uncommon for plaintiffs to stipulate that they will not demand or accept an amount in excess of $74,999.99 in order to avoid the amount in controversy requirement when the grounds for removal is diversity.It works, and yesterday was explicitly sanctioned by the U...

Bullying and My Predictive Abilities ? New York at Risk

Posted on March 20, 2013
If there is anyone who started with me when I made my first post in July, 2002 you will know that one topic that has come up repeatedly is my watch on the movement to have some state enact an anti-bullying law. It is much easier now than in the early days, because of Professor David Yamada's Minding the Workplace Blog, which covers those developments regularly...

The March Toward a Bullying Cause of Action Continues

Posted on February 25, 2013
Since almost the beginning of this blog I have been commenting on the possibility of a bullying cause of action being adopted in the U.S. Over the last few years it has been easier to follow the progress courtesy of David Yamada's excellent blog, Minding the Workplace...

Bad Day for Whistleblowers in Texas

Posted on February 22, 2013
One of the most important things about whistleblowing or retaliation claims are that they are almost always created by statutes, so the statutory language is critical. Today the Texas Supreme Court made just that point, in ruling that unlike other states, the whistleblower statute in Texas does not cover reports to individuals who are only responsible for compliance within an agency...

A Genius Is Someone Who Thinks Like Me - An Approach to Litigation

Posted on February 21, 2013
I was pleased to see this dialogue between Darryl R. Marsch, the General Counsel of Krispy Kreme, and the Daily Reporter in today's Corporate Counsel:DR: Your background is in litigation. What is your overall philosophy on litigation?DM: Prepare to try cases...

What Now for the NLRB? Recess Appointments Invalid

Posted on January 25, 2013
Although undoubtedly not the last word, today's opinion by the D. C. Circuit Court of Appeals limiting the President to make "recess appointments" only between sessions of Congress, is a major break in precedent, not so much with prior court decisions but with prior practice by Presidents of both parties...

The "New Sheriff" Leaves Town

Posted on January 23, 2013
After arriving at the Department of Labor, Hilda Solis famously proclaimed that there was a new sheriff in town. Hilda Solis, new sheriff at the U.S. Labor Department.Today, she leaves office with a paean to public service. Beginnings and Endings: My Journey of Public Service...

Veganism Protected As a Religion? Not So Fast

Posted on January 04, 2013
Writing from Austin, where almost every menu offers at least vegan alternatives, I hate to put a damper on what is surely going to be the quick take-away from a recent court decision refusing to dismiss the religious discrimination claim of a hospital employee fired for refusing to take a flu shot because as a Vegan the ingestion of a vaccine created from eggs would violate her ethical and religious beliefs...

Goodbye to the 112th Congress, Hello the the 88th?

Posted on January 03, 2013
It does not seem that many will shed many tears for the now departed 112th Congress, although I am not sure that any one seems hopeful that the newly formed one will perform any differently.But 50 years ago today, another Congress was sworn in, one that ultimately created the field of employment law...

A Month in Absentia and Going Forward

Posted on December 13, 2012
Not that I am sure anyone cares, but for those who do come by to check, the month of November marks the first time in 10 years I believe I have gone an entire time without posting. It has been a busy month, with an extended arbitration, a vacation trip and a personal move into a closer in neighborhood...

Michigan As a Right to Work State - Random Thoughts

Posted on December 13, 2012
First, somewhat as an aside, the news coverage of this issue reminds me that any time I follow an issue that is covered by the media and falls into an area where I have my own expertise, I always come away with one thought - yikes. And then I quickly remind myself, I need to apply more skepticism to other things that the talking heads say in areas where I don't have any particular expertise...

Same Song, Umpteenth Verse - No Discrimination, Retaliation Worth $2 Million

Posted on October 23, 2012
This time it was Ithaca police officer Chris Miller who lost his claim that Ithaca discriminated against him and other non-minority officers in favor of minority policemen. That complaint did not fly with the jury, but his allegation that he was retaliated against for making it did, two million dollars worth...

End of the Road for Gross v. FBL Financial Services

Posted on October 01, 2012
Actually that's a misleading headline, what it should say is the end of the line for Jack Gross, the ill fated plaintiff whose lawsuit became the vehicle for the Supreme Court's 2009 decision, which held that the ADEA, unlike Title VII, never permits a mixed motive analysis instead requiring a "but for" test...

Important, But Not What I Was Hoping - Petition for Certiorari on FLSA Action

Posted on September 26, 2012
In my in box this morning was a press release from the Retail Litigation Center, that made my hopes soar that at long last the Supreme Court could have a vehicle for answering what I think is the one issue most in need of addressing in today's employment law world: what is required before a district court conditionally certifies a collective action under the FLSA?The headline read, RLC Urges Supreme Court to Review Class Action Standards in FLSA Suits...

Been Sued by the EEOC Lately? Keep an Eye on Your Mailbox in the Next Couple of Weeks

Posted on September 13, 2012
An article on the SHRM site, September: Rush Hour for EEOC Lawsuit Filings, Settlements ($), reminded me that we are nearing the witching hour for the filing of EEOC lawsuits. The reason is of course the end of the government's fiscal year on September 30, and its reporting period...

Readers' Requests: Nannies' Rights and Mental Illness in Academia

Posted on August 20, 2012
This may be a first in 10 years of blogging, but I have recently received two (non-spam) requests for certain stories to be posted here that I have decided to follow.Unlike the requests which are clearly shot-gunned to a number of bloggers since they have no relevance to a blog focused on employment law, these two are relevant...

A New Source of Business: TMI

Posted on August 19, 2012
Truth be told, people who do what I do, represent employers in disputes with their employees really don't need new sources of business. Still an article in today's New York Times, Sharing Too Much Information in the Workplace, relays complaints by older managers about comments made by 20 year olds in the workplace, indicates there's always some trend that ends up resulting in more lawsuits...

The Difference an Ocean Makes

Posted on August 08, 2012
I have recently started receiving email updates from The Global Legal Post, a publication that purports to cover the legal community world-wide. In March 2012, they incorporated the European Lawyer into the publication and so it definitely has a European/British flavor to its reporting...

More FLSA Common Sense from the 5th Circuit - Settlement Without Supervision OK

Posted on July 30, 2012
After lamenting for some time the direction which FLSA law has been heading, it may be too soon to say that the inevitable swing back to the middle has begun, but there are encouraging signs and last week's decision in Martin, et al v. Spring Break '83 Prodn, L...

Stirrings on Smith v. Xerox in 5th Circuit Internecine Squabble

Posted on July 20, 2012
More than two years ago, I expressed my hopes that the 5th Circuit would undertake an en banc review of the panel decision in Smith v. Xerox, a decision that answered whether a mixed motive was available in a retaliation claim after the Supreme Court's Gross decision...

A Decade in the Making - Jottings By an Employer's Lawyer

Posted on July 17, 2012
It is unlikely when I put down some thoughts about the EEOC's failure to use certified mail in sending out right to sue letters (For lack of a green card .... ), 10 years ago today that I gave any thought as to whether I would still be (at least occasionally) making such public comments a decade later...

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