Jottings By An Employer's Lawyer

Somewhere in a Smoke Filled Room Your Future Is Being Determined

2012-05-21T13:33:00.001-05:00

Well that's a little dramatic, but after staying up late to watch my Spurs complete their second sweep in a row, the subtle part of my brain is not working as well as it should be.

Although said in jest, the comment does have some truth (except for the smoky rooms), as the American Law Institute is meeting in D.C. this week and will be taking up Chapters 3 and 7 of the Restatement of Employment Law. This according to Paul Secunda, one of the editors at the Workplace Prof Blog, who will be in attendance. American Law Institute - Restatement of Employment Law.

According to Professor Secunda, Chapter 3 on compensation and benefits is authored by Sam Estreicher of NYU, and Chapter 7 which deals with privacy and autonomy interests in the workplace is authored by Matt Bodie, from St. Louis University.

Although it will be known as the Restatement of Employment Law, Third, it is actually the first. The 3rd moniker is because this is the third general round of Restatements done by the ALI. The first round was from 1923 to 1944. The 2nd round started in 1952, and the 3rd round started in 1987, and included Employment Law for the first time.

Because it takes considerable time to reach the consensus of the various reporters and advisers, and then go through the Council itself, it may well be some time before it is finalized. A list of the project participants can be found here.

Even when final, its impact will come only as courts adopt it.

But if you think it could not have impact on your world, think of the four theories of privacy rights (only three of which have been accepted by Texas courts) and intentional infliction of emotional distress. Although the latter has been substantially restricted in Texas, both concepts have been important in my career, and both arose gained prominence (if not their existence) from the Restatement of Torts.

As I have always understood the Restatements, they are meant to be a combination of what the law is, plus some looking forward to what it should be, so whatever comes out could very well be an important force, although that force is likely to be felt long after my active days of practice are ended.

If you want a preview of where it's headed, some of the drafts are available from the ALI's website under the Restatements of the Law - Employment Law section.

5th Circuit Dashes Class Action in Arbitration Setting

2012-05-18T17:17:00.000-05:00

The interaction between arbitration and class/collective actions which seems to be continually evolving, took another positive step for employers in the 5th Circuit with today's decision in Reed v. Florida Metro University, Inc. (5th Cir 5.18.12).

Reed sued claiming that his on line Bachelor's degree in paralegal studies would not be recognized either by law schools, nor a police department where he sought employment. Since that was contrary to his understanding as to what the school told him, he filed suit claiming a violation of the Texas Education Code. He sought $51,000 plus attorneys fees, but also sought relief on behalf of a class of everyone who "contracted to receive distance education from Everest University Online while residing in Texas."

The defendant successfully moved to compel arbitration, but the Court deferred the decision as to whether it could be brought as a class action to the arbitrator.

Noting it was a close question, the arbitrator held that the matter could proceed as a class action. Reed sought affirmation of that ruling and the School asked that it be vacated on the ground the arbitrator exceeded his powers. Judge Lee Yeakel in Austin denied the School's Motion to vacate award.

The 5th Circuit first addressed whether Judge Yeakel's decision to allow the arbitrator to decide whether or not the matter could proceed as a class action was correct and concluded that it was.

On the second issue, whether the arbitrator exceeded his powers in holding that it could proceed as a class action, the 5th Circuit found Judge Yeakel had erred. The Court reversed and held the arbitrator had exceeded his powers and since there was "only one possible outcome on the facts before us" held that the arbitration must proceed only between the two parties, rather than sending it back to the Arbitrator for reconsideration.

In doing so, the Court noted it was openly disagreeing with the 2nd Circuit's interpretation of the Supreme Court's decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (U.S. 2010). In Jock v. Sterling-Jewelers, Inc. (2nd Cir. 2011), cert. denied Mar. 19, 2012, the 2nd Circuit emphasized the deference to be given to the arbitrator, ultimately concluding that "whether the arbitrator was right or wrong in her analysis, she had the authority to make the decision, and the parties to the arbitration agreement or bound by it."

The 5th Circuit chose to respectfully disagree with the 2nd Circuit, holding instead that a court had to ensure that an arbitrator has a basis for his class arbitration determination, even while applying a deferential standard of review.

Emphasizing the Supreme Court's concerns about class action arbitration as expressed not only in Stolt-Nielsen, but its subsequent decision in AT&T Mobility v. Concepcion (U.S. 2011), the 5th Circuit chose to emphasize the Supreme Court's view that there must be a showing that the parties consented to class action determination.

Although the Supreme Court may have had enough of class actions and arbitration for awhile, the 5th Circuit has done its best to tee up another one for them. In the mean time, employers whose arbitration agreements are silent on class actions can breathe a sigh of relief, at least in three states.

NLRB Enjoined, Again

2012-05-14T16:40:00.000-05:00

Earlier it was the NLRB's posting regulations, see post here, which were enjoined. Today it's the regulations regarding the conduct of elections (sometimes referred to as the ambush election rule) which was the subject matter of yet another injunction.

District Judge James E. Boasberg of the District of Columbia, has enjoined the rule because of a lack of a quorum. This one does not have anything to do with the last recess appointments to the Board which are under challenge, but to the fact that Member Brian Hayes, did not participate in voting on the passage of the final rule.

In Chamber of Commerce et al v. NLRB (D.D.C. 5/14/12) the Court noted that

At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.

This was after he had cited an even better known authority:

According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.

Undoubtedly this is not the last chapter in the litigation or the rule for that matter. Even if the Board is able to overcome the lack of quorum on its initial rule making, there will still be the substantive challenges which were not addressed.

And, if the Board should choose to re-enact the legislation, the new vote will include members whose recess appointment is being challenged and that of course will result in another hurdle, even before the challenges on the merits of the rule are addressed.
For those ready to decry this as a partisan gesture, Judge Boasberg was nominated by President Obama and at least according to Wikipedia, was recommended by Delegate Eleanor Holmes Norton, the non-voting member of the House of Representatives from the District of Columbia and the former Chair of the EEOC.

May Day? A Lack of A Call?

2012-05-01T12:54:00.001-05:00

Earlier this morning I received an email forwarded from the management company in the downtown office building where I work, advising that there could be traffic issues arising out of protest activities planned for this afternoon.

That reminded me that I had meant to post about the alternative labor day, that has been much talked about in certain circles. But as the morning slipped away, I thought surely that the topic had been well covered by other bloggers. But when I checked my google reader, where I have a large, although by no means complete collection of labor/employment type blogs, nary a word today.

I have become a fan of MSNBC's Up with Chris Hayes and this week end one of his panel's talked a lot about the the failure of the Employee Free Choice Act, plans for May Day activities sponsored by Occupy Wall Street and the general state of the labor union movement in America.

Hayes, who regardless of what of you think of his views, is clearly a bright and deep thinker, made a comment that he was shocked to learn that the May Day movement, which like many, I have always associated with celebrations in the Soviet Union, originated in the United States and was tied to one of our most infamous moments in labor history the Haymarket Riot which occurred in Chicago on May 4, 1886.

From the Dissident Voice, a radical newsletter in the struggle for piece and social justice (so you know the perspective it is taking) Jerry Elmer penned this article, The Haymarket Riot and the Origins of May Day. Even the overseas press new more about its origins than I did. See, A potted history of Labour Day, from the Irish Times.

I have done far more employment than labor law in my career, and what labor law I have done has been on the side of management. I am by no means convinced that labor as we have known it in the recent past is the answer to the future.

I do think however, that we are long past due for a non-partisan look at our economic system and the world of work and just how it functions. In any such conversation, all sides must have a serious and listened to voice.

Although any marching analogy on May Day is fraught with peril, what I fear most is that rather than moving toward such an important discussion each day we are marching more and more stridently in the opposite direction.

Ultimately, regardless of whether there is a short term winner to that approach or not, I am afraid that our society as a whole will be the loser.

Texas Supreme Court Confirms Punitive Damages in Sabine Pilot Cases

2012-04-20T11:43:00.001-05:00

Revisiting the only public policy exception to the employment at will rule in Texas, the Supreme Court today holds that a plaintiff who prevails can recover punitive damages in a Sabine Pilot case if he or she can establish the appropriate level of malice. Safeshred v. Martinez (Tx 4.20.12).

Unfortunately for Mr. Martinez, he did not meet that standard, thereby losing his $250,000 punitive damage award (which had already been reduced to $200,000 because of the damage cap under Section 41.008 of the Texas Civil Practice and Remedies Code). Given that he had lost his $10,000 mental anguish claim in the Court of Appeals, what once seemed so promising now appears to stand as a judgment of approximately $7,600 in lost wages.

Beyond the impact to Martinez, the Court in an extended discussion on what would constitute malice, provided guidance for the award of exemplary damages in Sabine Pilot cases in the future. In dicta, the Court hinted that the Sabine Pilot cause of actions extends only to termination claims; anything less would not be actionable.

For punitive damages, the Court held the proof must be something more than the normal consequence of the termination itself. It rejected Martinez argument that you could consider the consequences if he had performed the illegal act in question in establishing malice.

More generally, it listed three types of circumstances where malice might arise:

Malice in this case could only be shown by clear and convincing evidence that Safeshred, in firing Martinez, intended or ignored an extreme risk of some additional harm like

interference with his future employment,
harassment, or
terminating him knowing it was unlawful to do so.

There are not a lot of Sabine Pilot cases around, the unique circumstances required and the high burden of a sole standard, re-iterated (although not dwelt upon) in today's decision, make it a hard case to establish.

But for those that do make their way to trial, Safeshred now gives definitive guidance for punitive damages.

An Arbitration Sign of the Times

2012-04-18T12:12:00.000-05:00

If you think arbitration is not a significant player in employment law dispute resolution, you would have to think twice when you see that the National Institute for Triall Advocacy (NITA), one of the best known training programs for trial lawyers is holding their first Arbitration Advocacy May 18-20, 2012.

The opening paragraph in the email I received made that point:

In looking at the below list of topics covered in this program your first inclination may be to think this is another of NITA's Trial Advocacy programs. While similar in some regards this 3 day learning-by-doing program is in fact NITA's first Arbitration Skills program.

And like all NITA programs, this one promises to be a hands on experience, culminating in conducting a full arbitration. Here's a link to NITA's program site if you are interested.

The fact of the matter is although the battles continue over the finer points of enforcibility, and Congressional action could in one fell swoop totally eliminate it, for the foreseeable future, arbitration of employment disputes is very much a reality.

Arbitrations are not the same as trials, and while I think it will be quite some time before we hear anyone refer to themself as an "arbitration lawyer," making sure you understand the difference between the two is important.

Arbitration is much more akin to a bench trial, but one with even more liberal standards of admissibility of documents and testimony. I think it is also a much "cooler" forum, where emotion as a general rule is much less likely to be found and to carry as much weight.

For the advocate, perhaps one of the big differences is the timing of the feedback. For better or worse, when a case is submitted to a jury, in a matter of hours, or at most days, you will know what the factfinder thought of your case. In arbitration, as with bench trials, there is no instant gratification (or depression)

Even in relatively recent times, results were delivered in the mail, but today, when you have an arbitration case pending decision, almost any email could be the one carrying the news.

NLRB's Posting Rule Hits Another Bump in the Road

2012-04-13T16:34:00.000-05:00

This afternoon Judge Norton in South Carolina granted summary judgment to a group seeking to block the NLRB's rule that would require a posting notifying employees of certain rights under the NLRA.

His conclusion:

After utilizing the tools of statutory interpretation, the court finds that the Board
lacks the authority to promulgate the notice-posting rule. As such, the rule is unlawful
under the APA, 5 U.S.C. § 706, and the court GRANTS summary judgment in favor of
plaintiffs.

The full opinion can be found on Pacer at this link.

ENDA Lite Hits a (Temporary?) Dead End

2012-04-13T11:20:00.000-05:00

While I didn't actually predict that the Obama Administration would issue an Executive Order implementing protection for lesbians, gays and transgendered individuals employed by federal contractors, reading my post from a couple of weeks ago, you might could have drawn that conclusion. See, ENDA "Lite" On the Way?

But apparently, it is not to be, or at least not now, although the story in the Washington Post reporting that the Administration has chosen to not issue such an Order details both the pressure that is going to be forthcoming and the possibility that somewhere down the road, the decision might be different. See Gay rights groups vow more pressure on Obama to sign nondiscrimination order.

Although denied by the Administration, it is hard not to view such an Order in light of the role it could play in "prresidential politics" which is pretty much the only prism that anything having to do with the Administration is, correctly or not, going to be viewed from now until November.

Hat tip to the folks at Employment Law 360, whose reporting on this issue brought it to my attention, including today's story, Obama Won't Order Ban on Anti-Gay Bias by Contractors. ($)

News from the West Coast, Brinker (Finally) Decided

2012-04-13T11:06:00.001-05:00

Although I have been fortunate enough to avoid any in depth or on-going contact with California employment law, it is hard not to be aware of what is going on. So like many, I have been waiting for the Supreme Court's decision in Brinker v. The Superior Court of San Diego County (CA 4.12.12), for what seems like an extremely long time.

Now that it has been issued, I gather from the general tenor of the posts, that it was a) more than expected, especially about class actions and b) better than expected for employers.

Rather than try to invent the wheel, here are the comments from folks who have much more skin in the game than me, including lawyers from my own firm, Ogletree Deakins, which now a substantial presence in California. Their take can be found at California Supreme Court Issues Major Victory for Employers in Brinker Case.

Here's a summary from other commentators:

Greg Valenza at What's New in Employment Law has his immediate thoughts, Brinker: Employers Need Not Force Meal Periods, and a follow up, Random Post-Brinker Thoughts

Brinker Clarifies California Law on Meal and Rest Periods in a Pro-Employer Direction, from SheppardMullin's Labor and Employment Law Blog
Brinker: California Supreme Court Clarifies Standards for Meal Periods - Steps Employers Should Take Now at JD Supra.
Steven G. Pearl has (appropriately enough from his perspective as a mediator) a more middle of the road view, California Supreme Court Issues Mixed Decision in Brinker.
California employers must "provide" meal breaks, but need not "ensure" employees take them, from Ross Runkel's Law Memo. Ross is not really in California, but is from Oregon (close enough) and gets an "academic" exemption as well.

Brinker seems to be one of those cases that not only generated a tremendous amount of interest but may actually may live up to its hype.

Non-traditional Plaintiff Theme Continues

2012-04-12T09:53:00.000-05:00

At the start of 2011, I noted that one of the stories of the year might be that more and more of what I would call non-traditional plaintiffs would be filing discrimination suits. See, 2011 ---- the Year of the Non-minority?

It seems that trend is continuing in 2012, including the following examples:

Male FBI special agent 'wanna be', claims sex discrimination, Lawsuit: He failed FBI agent test by 1 pushup
After the City's governing board in West Point, Missippi changed racial composition, the result was, Court Determines White Utility Employees Have Some Worth Claimy Claims Against City, ($)
A white Illinois Police sergeant who sent an email to 16 co-workers describing 11 fictious Barbie Dolls caricaturing stereotypical women was suspended and unsuccessfully argued he would have been more leniently disciplined if he had been black, White Police Officer Disciplined for Email Fails to Raise Race Bias Claim, Court Affirms, ($)

The last two courtesy of the BNA Daily Labor Report.

One common denominator between these three is that they are all governmental defendants. Public sector employers may be more susceptible to such claims, but all employers ought to be aware.

How Would We (I) Function in This Employment World

2012-04-11T10:04:00.002-05:00

A guest blog post on CNBC by Julie Clow, author of The Work Revolution: Freedom and Excellence for All, caught my eye this morning.

Since I write about the world of work, any article that starts this way would do so:

Maybe we have it exactly wrong.

Maybe we should all be wildly different from each other in every way, down to the way in which we get our work done.

She envisions a much more decentralized world of employment, explained (briefly in the article) around these four principles:

It’s about individual strengths, not job slots.
The more diverse we are, the better the wisdom of the crowds.
If we accept our diversity as a given, then schedules are anathema to progress.
It’s about impact, not activities.

I will take a look at her book, but while her ideas provoke, my initial reaction is what a nightmare for the HR folks. Its hard enough to manage hr and employment law issues when we have people herded together; the more separate and independent, the more difficult the task.

But maybe the only way to really take on the future is to blow up the way things have always been done, and of necessity that includes the HR function as well. It may actually be happening more than is readily apparent.

Anything that makes it more difficult for HR probably means more business for my types.Which, with all due consideration to my partners, is not really a good thing.

Body Mass Index As a Hiring Criteria

2012-04-04T13:11:00.000-05:00

Hat tip to (probably my favorite blog title in our corner of the world) the Evil HR Lady for catching news from my own back yard, see the original news article, Victoria Hospital Won't Hire Very Obese Workers, as Victoria is just a couple of hours down the road from me, but also a brilliant commentary on the policy itsefl.

Hard to top anything Suzanne Lucas has to say in her post, Is it okay to discriminate against obese people?, so just check it out.

One thing that I did find interesting was the comment from the Administrator that it was based on the preference of patients.

Although client preference alone does not automatically push one across any legal boundry, over the years it's one of those "red flag" type comments that tends to make me sit up and pay attention because there could be something troubling about to occur.

"Bullying" Is Becoming Part of the Zeitgeist

2012-03-29T10:56:00.001-05:00

Early in the second year of writing this blog, I had what I think was my first recognition of bullying as an "issue" in the employment law world, Can't Wait for Bullying Cause of Action. That was now nine years ago.

I was struck by just how far the concept of bullying has come, not necessarily in the law of employment, but in society as a whole, by the first two featured blog posts in today's Huffington Post's Daily Brief:

Marlo Thomas: Bully: The Year's Most Important Film
Even if you have to drive across state lines to see Bully, your kids need to be in the audience. Whether you know it or not, they may be among the 13 million American children affected by bullying every year. For them, this is more than just a movie. It is real life.
Bob Cesca: Right-Wing Bullies Continue to Attack Children
It's difficult to assign psychological motive when it comes to political tactics, but based upon the collective behavior of far-right conservative Republicans, we can only deduce that a considerable number of them are bullies and ought to be treated as such.

While it is true that the so called anti-bullying law has yet to pass in a single legislature, it is foolish on the part of those in the world of employment law who think that it is a bad thing, to believe given the progress of this concept in our society as a whole, that it is not coming.

For those, like me, who think that the passage of this legislation would be an unmitigated disaster for employers and ultimately employees (albeit a real boon for those of us who make our living on employment litigation), the prescription is not to ignore the trend, but to make sure that conduct which can be perceived as bullying is addresssed promptly and quickly, not because it is illegal, but because it is both wrong and bad business.

My hope is that this post will, as so many (all?) of the posts that have preceded it over the years have done, just fade into oblivion, noticed by few and remembered by none.

My fear is that 10, 20 years from now, through the magic of google or some future research tool that we don't even know about yet, it will be dredged up and someone will say, you know he had a good point, we should have listened.

ENDA "Lite" On the Way?

2012-03-27T10:24:00.000-05:00

Federal legislative action in employment law matters, actually on most things, is pretty much a non-starter these days. But that does not mean that there is no potential for continuing developments, witness the firestorm of attention that the NLRB has received of late.

ENDA, the legislation which would extendTitle VII type protection to gays, lesbians and depending on the version of the bill, transgendered individuals, is one piece of legislation that all the pundits had predicted was most likely to pass following Obama's election in 2008. But it too has stalled.

Now a partial step could be imminent, with news that the Administration is considering an Executive Order that would extend such protections to employees of federal contractors, either with a separate Executive Order or amending the venerable Executive Order 11246.

The Advocate gets down into the political nitty-gritty on the chances of such action being taken as it appears that it been cleared at the department level, and the decision is now, or soon will be, on President Obama's desk. See, Gatekeepers of the Employment Executive Order.

According to the article, via an Executive Order 20% of the civilian workforce would be covered by such an action.

Why You Spell Out Amounts in Agreement

2012-03-23T14:20:00.002-05:00

Since I try to avoid legalese where ever possible and eliminate as much unnecessary verbiage from agreements I prepare, I frequently look at the spelling out of dollar amounts, followed by the numerical sum in parentheses, "ten thousand dollars, ($10,000.00), and wonder if we couldn't just eliminate one of those.

But then I see a story like, JPMorgan Sued by Trader Over $3 Million Decimal Point, where there is a difference of opinion as to whether an investment banker was hired for a salary of 2.4 million rand as JP Morgan argues, or 24 million rand, as apparently the contract actually reads.

Since that's almost a million dollars difference ($920,000 according to the Bloomberg article) it seems likely that the banker might have known it was the lower figure, but to see who prevails we will have to wait and see how the British court rules.

One thing however, the next time I consider dropping the writing out of the amount in question, followed by a parenthetical re-stating of the amount; I will certainly give even less thought to dropping one or the other than I have in the past.

Update (3.26.12): Some proof reader at JP Morgan is likely breathing a sigh of relief as the British Judge trying this case ruled in favor of JP Morgan today. See Bloomberg's coverage here. And in something that happens over the pond, but not here at home, the employee who brought the suit not only will get nothing, but in fact will have to pay 85,000 British pounds. And no, there's no misplaced decimal there.

Arbitration (Is Not the Same as) Courts of Conciliation

2012-03-15T12:21:00.001-05:00

In my first year of law school at the University of Texas, we had a class called "Introduction to the Study of Law." My section was taught by Professor Leon Lebowitz, one of the nicest profs at the law school, and a really good Business Associations, Securities Regs professor. Intro, at least I remember it, was known best for its endless discussions about the "forms of actions" which of course were purely historical relics even at the time. (For some reason trespass de bona asportatis sticks in my mind, how scary is that?)

I felt I was transported back to the fall of 1972 as I read Stuck in Arbitration, an op-ed piece by Professor Amalia D. Kessler of Stanford University that appeared in last week's New York Times. Professor Kessler wrote about a failed attempt in the United States in the mid-19th century to create "conciliation courts," which she described as:

widely adopted throughout Europe and its colonies during the late 18th and early 19th centuries, these were institutions composed of respected community leaders seeking to persuade disputants to accept an equitable compromise in secret, lawyer-free proceedings and without regard to the formal rule of law.

When she described this as a "nearly forgotten debate" I think she was being far too kind, as I doubt that there is almost anyone who is familiar with it. (Although I wouldn't have been surprised if Professor Lebowitz knew!)

What is a stretch though is her comparison of Courts of Conciliation to modern day arbitration and her plea for Congress to pass The Arbitration Fairness Act. Reading between the lines, I am not sure that she thinks there is really an apt comparison, but I suspect more a clever way to affirm her support, for what even she concedes would not "be a panacea."

The Arbitration Fairness Act addresses arbitrations in both consumer and employment relationships, a combination that I have always felt was inappropriate as the two merit individual attention.

For those who believe that a serious look at how we resolve employment disputes should include arbitration, which means that it must be mandatory, it is good news that it will not pass in this particular Congress. The bad news is that the current partisan divide makes it unlikely we will ever have a serious review and compromise on that issue.

Like so many issues, it will be an all or nothing outcome, and unfortunately, such outcomes regardless how much one side may feel vindicated depending on which view prevails at any given time, are almost never the optimal solution.

Update (3.19.12): I was not the only one to take note of Prof. Kessler's recommendation. Three letters to the editor sounded a similar point. One of the most notable is Professor Theodore St. Antoine, who was a long time academic and very well respected, and unless I have missed something along the way, not some one who would be accused of "speaking the management line." Resolving Disputes Through Arbitration.

Professor St. Antoine I think has it right:

The solution is not the outright prohibition of all pre-dispute agreements to arbitrate, as proposed by the ill-advised Arbitration Fairness Act. It is legislation that would guarantee due process in arbitration, including neutral arbitrators, and ensure that grievants have a voice in their selection and all the remedies that could have been obtained in court.

Note the key phrase, "pre-dispute agreements." Any legislative action that bars pre-dispute agreements as a condition of employment, is for all practical purposes a ban on arbitration in the employment law setting. And since that is what the Arbitration Fairness Act does, the title itself is quiet misleading.

Jury Waivers Treated Same As Arbitration Agreements by Texas Supreme Court

2012-03-09T14:06:00.000-06:00

I would have been surprised if the decision went the other way, but today the Texas Supreme Court affirmed that an at will employee who signed a jury waiver agreement rather than be terminated was not entitled to have it set aside because he was coerced. In re Frank Kent Motor Company (Tx. 3.9.12).

The Court had to look only to its decision a decade earlier, In re Halliburton Co. (Tx 2002), where "this Court held that it was not procedurally unconscionable to premise continued employment on an acceptance of an arbitration plan."

Not a big jump to hold that "all similar dispute resolution agreements" should be treated the same.

The case does make one ironic point though. Both the trial court and the court of appeals had rejected the employer's request to strike the jury demand of the employee. Now having prevailed, the employer gets to try its case in front of the reversed trial court, with the reversed appellate court looking over its shoulder.

Thinking About A Different World Under the NLRA

2012-03-09T12:05:00.002-06:00

I have been quite busy lately but finally began catching up on some past reading and one of the first things was the most recent edition of the ABA Journal of Labor and Employment Law, Fall 2011, and its first article, Imagine a World Where Employers are Required To Bargain with Minority Unions by Catherine Fisk and Xenia Tashlitsky.

Professor Charlie Morris' book advocating for minority member bargaining, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, remains only partially read on my bookshelf. So, I was quite interested to see what another academic would have to say about an intellectually challenging idea, one that would clearly turn the world of labor relations on its head from anything that I have known in the now more than 35 years I have been practicing.

It is not altogether an academic question given that there are currently requests filed with the Board for such a rule making endeavor, and a Board that has shown its willingness to engage in rule making far more than in the past.

But what was clear from the article is just how complex an issue it really is. It is clear that Professor Fisk and her student co-author, clearly are intrigued by the idea, but intellectually honest enough to realize (and point out) just how many other questions it would raise, and how incomplete the data is that we would need to resolve those questions.

Their view is that the proper approach should not be whether or not bargaining with a minority union is legally mandated, but whether or not it makes sense from a policy viewpoint. They believe it is clear that it would be a permissible reading of the NLRA, but that by no means does that answer whether it would be the wise course.

For anyone looking for a simple solution to current problems in the world of labor relations, even a cursory review of the questions that the authors raise should be enough to make clear that mandating minority bargaining is not a panacea.

They end by concluding that NLRB rule-making on the subject would be worthwhile, but more for the process of a full exploration of a novel idea than as a foregone conclusion that we should end up with such a rule. Their words are more eloquent than mine:

"while one part of the benefit of any legislative process, whether through legislative enactment or agency rulemaking is judged by the rules that are adopted, another part of the value is the process itself. All the stakeholders in the labor law world would benefit if the NLRB were to conduct rigorous study of this important policy question and offer substantive reasons for its decision to issue or reject a rule."

In one more burst of candor, they admit that in today's partisan atmosphere, it is highly unlikely that the Board will undertake such a review. My two cents, in this highly partisan atmosphere, the Board should not.

That doesn't address the bigger question however. A review of serious policy issues, in the world of labor and employment law, as in other areas of the body politic, are necessary from time to time, and as long as we remain paralyzed by our increasing political divide, problems that need addressing with wisdom and compromise, remain far from our reach.

It's not good for the world of labor and employment law, or for the bigger political world in which labor and employment law is just our narrow corner.

Disability Discrimination Law Is a Mess in More Than Ohio

2012-01-08T20:23:00.001-06:00

Jon Hyman, at Ohio Employer's Law Blog who does a great job of keeping up with developments in the Buckeye state and beyond, has an interesting post about the differences of the definition of disability under the ADA and the Ohio state version. Because of that difference, it's hard not to agree with his conclusion, Disability discrimination law in Ohio is a mess.

While true, it raises the bigger problem with disability discrimination laws at all levels. Unlike race, age, gender, color and national origin which are immutable and known characteristics, whether one is disabled or not, is a legal determination.

Employers must make that determination, and make it correctly at the outset, when faced with dealing with an employee. The fact that it is not always clear cut needs no more evidence than all the cases that have been decided by different courts, often where an appellate court has reversed a district judge. If after full development and briefing, it remains a hard decision for judges, where's the fairness of requiring that employers get it right, or be in violation of the law?

Of course the default position is to treat every possible disability as a disability. While that is a potential solution, is it really effective? And even if it is, is the net gain to society worth the costs that go with it?

The real problem is that in an effort to ensure that people with non-obvious disabilities are protected, as well as those with a condition which no one would dispute is a disability, we have created this rather odd situation, where we toss out a complex legal definition, subject to many variables and interpretations, and require that employers who have hundreds of personnel decisions a week, get it right or else.

It is ironic that we have a much clearer means of identifying who is entitled to utilize parking spaces reserved for the disabled, you either have a government or company issued permit or you don't, than we do making the potentially costly deteremination of whether an individual is disabled under the ADA or one of the state versions.

We are not going to change (the Fox rule of employment law -- Congress does not roll back rights it has given employees) -- but it would be nice if everyone at least realized this unique aspect of this area of law. Particularly as they see how much in the way of judicial and employer resources it is going to consume over the next decade and the ones that follow.

One Prediction That Had Some Legs

2011-12-22T16:22:00.000-06:00

Forecasting is an art not a science, and truth be known luck is probably the most single important factor if one gets it right, still I could not help but think back to one of my first posts of this year, 2011 --- the Year of the Non-minority? where I thought that 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.

Now a few days before year's end the 5th Circuit decides Vaughan v. Woodforest Bank (5th Cir. 12/21/11). Ms. Vaughan, a white bank manager who managed a work force that was almost all black was terminated for what was described as "inappropriate comments in the presence of employees and customers that created a perception of racial discrimination and uncomfortable environment due to lack confidentiality."

The Court reversing a summary judgment in favor of the employer discussed the three comments that were said to underlie this conclusion. Without really saying so, the Court seemed to be saying that the comments did not seem to them to set a racial tone. Although its unclear how much it influenced the decision, it did note that the manager who made the decision to terminate Vaughan had a view that any discussions of race were problematic: "we cannot talk about race in the workplace" and "if you talk about race in the workplace it's racial discrimination."

Probably pushing my luck, but I sense that this particular type of case may have more than a one year run.

Why Employers Don't Like Statutes Creating Causes of Action

2011-12-20T12:56:00.000-06:00

One of the responses by the employer community to almost any proposed statutory cause of action is not that it supports employers who engage in whatever conduct is going to be prohibited, but that by adding yet another statutory cause of action, there is yet one more way for a lawsuit to be brought.

If you accept my basic premise, when a a lawsuit has been filed, the employer has lost, and from that point on, the only question is how much, then that argument makes sense. The issue is finding the balance, and I would argue that we have plenty of such legislation and could have a "holiday" to use a phrase currently in the political discussion from any additional new statutory causes of action. Particularly since causes of action never go away.

What brought about this particular post was a decision last week by the 7th Circuit which is a true head scratcher, DeGuelle v. Camilli (7th Cir. 12/15/11) [pdf].

Among other things you had a

A Sarbanes Oxley complaint filed against a privately held company, so there was no coverage;
A RICO action predicated on the actions related to tax accounting that the terminated employee had been raising for years, and where
the Court relied on the provision in SOX that prohibits termination of a whistleblowing employee, because it is a listed statute for a predicate act for RICO purposes.

But I think what got me even more than the unusual legal aspect of the case was the account of the type of situation that anyone who has been doing this long enough has seen before. An irreconcilable difference of opinion develops between an employee feels who feels there is serious wrongdoing, an allegation that the company does take seriously, but disagrees with, and the inevitable bad outcome that occurs.

Because it is a review of summary judgment in favor of the employer, which was reversed, the Court had to accept all the allegations as true, and by doing so you have to assume egregious conduct including intentional tax violations and cover up.

But what is also true is that the employer had already sued the employee in state court for disclosing confidential information and obtained a judgement of $50,000 against him. To be fair, that is on appeal.

I obviously have no knowledge of who is right and who is wrong, but I do know that we have created in a relatively short period of time a very complex web of legal arguments for employees who are fired to say their termination was illegal. This decision points out how such statutes interact to create even more ways.

Whether that is good or bad is a legitimate question, but we really are reaching the point where a weighing of the good and bad is in order. Not just an automatic more is better.

The 9th Circuit Does Their Part On Oracle Case, Extending California Labor Laws

2011-12-16T17:50:00.000-06:00

One of the issues that I think has the potential to cause a lot of trouble for employers is the application of one state's labor and employment laws to employee who travel to work in another state. In today's mobile world that is a lot of folks, especially employees located near state borders.

Basically, what happened is that Colorado based trainers who work for California based Oracle, brought a suit claiming that they should be paid in accordance with California wage and hour laws for the days they did training in California. The District Court rejected the claim. A 9th Circuit panel reversed. After a request for en banc hearing, the question was certified to the California Supreme Court. The Supreme Court basically gave the same answer the 9th Circuit had -- California law is applicable for the days the instructors worked more than a full day in California. See, Sullivan v. Oracle Corp. (Cal. S.Ct 6/30/11).

This week, the 9th Circuit completed the round trip (and engaged in a little mutual back patting), allowing as how, just like they did in their original opinion, the California Supreme Court got it right. They threw out some constitutional arguments on the part of Oracle and remanded the case for further proceedings. Sullivan v. Oracle Corp. (12/13/11).

How much training did they do? Not all that much. One plaintiff did 150 days in Colorado, 32 in California and 52 days in other states. The next year, 150 in Colorado, 12 days in California and 20 days in other states and the third year of the period, 150 in Colorado, 30 days in California and at least 19 days in other states. The other two plaintiffs had even less time in California.

The only thing that prevents this decison from being a total disaster is the following paragraph:

The contacts creating California interests are clearly sufficient to permit the application of California’s Labor Code in this case. The employer, Oracle, has its headquarters and principal place of business in California; the decision to classify Plaintiffs as teachers and to deny them overtime pay was made in California; and the work in question was performed in California.

Which keeps alive an argument that the case is only applicable to California based employers, although I am sure that cases are already in the works to challenge that aspect of the case.

Ultimately, I think this is an issue that the Supreme Court has to take up. From my prior experience there is precious little law on how we deal with state laws on "traveling" employees.

Talk about an impact on commerce.

Hopefully I am wrong, but I would not be surprised if this were one of the hot new things in 2012. And after enough are filed, maybe we will start to get some answers. Hopefully better ones than this weeks ruling.

The Law of Unintended Consequences: Immigration and E-Verify

2011-10-31T14:15:00.000-05:00

A recent article in Businesweek, A Verification System for New Hires Backfires makes clear just how complex the immigration issue is.

The story of one flower grower's attempt to utilize E-Verify, the national registration system that allows an employer to check on worker's eligibility (after they are hired) has made it very difficult to staff his green houses, particularly during the spring growing season. Even accounting for some hyperbole his quote is fairly chilling: "Those who want to work fail to pass E-Verify, and those that pass fail to work."

The system, now utilized by about 5% of America's employers according to the article, would be mandatory if a bill, H.R. 2885 introduced by Representative Lamar Smith (actually my congressman) were to become law. If you want to check out the E-Verify website for yourself, go here.

The bill has been passed by the House Judiciary Committee, and is still pending in the House Education and the Workforce and Ways and Means. See here for Congressional action.

The stop in Ways and Means is not just an idle one, since according to a 2008 Congressional Budget report, a national mandate would cut federal tax revenue by more than 17 billion dollars (that's billion with a B).

Everyone knows that immigration is a major problem that actually needs a solution. And it seems to me to be area where the law of unintended consequences could be particularly relevant.

A hat tip to Kriss Dunn at [the hr capitalist] for his post, 99 Problems: E-Verify Ain't One ...

Missed This New Jersey MDV the First Time Around

2011-10-21T10:18:00.000-05:00

I was in Lubbock yesterday talking to their SHRM chapter about retaliation and the dangers of those cases, along with its first cousin whistleblowing, and this headline did nothing to change my mind. Former Warren Township prosecutor awarded $1.26M for whistleblower complaint.

A city prosecutor, Michele D'Onofrio won a verdict of $1.38 earlier this year when a New Jersey jury determined she had been terminated for reporting that a municipal judge had been drunk on the bench. Today's headline was about an additional $1.26 million awarded by the court for attorneys fees and costs.

Another powerful reminder that when you lose an employment law trial, at times the attorneys fees can be just as big a hit as the underlying award.

A 2007 post at the Victim of (Judicial) Greed blog, Heating Up has much more detail about the underlying suit which appears to have been against a law firm headed by a former New Jersey governor and was for sexual harassment as well as the whistleblowing complaint.

Which underscores another point, there is often much, much more to any story than appears on the initial reading, and that is particularly true in most cases of legal reporting.

A Timely Follow Up -- The Importance of Action Not Words

2011-10-07T17:44:00.000-05:00

Given the topic of my previous post --- the need for employers to step up and make sure they dealt with bullying behavior rather than leaving it to legislation --- it was ironic to come across Bob Sutton's post, Adopting The No Asshole Rule: Don't Bother If The Words Are Hollow.

The first part of that title is a big step for employer's solving the bullying problem; but it only works, it you follow through.

	Marlo Thomas: Bully: The Year's Most Important Film Even if you have to drive across state lines to see Bully, your kids need to be in the audience. Whether you know it or not, they may be among the 13 million American children affected by bullying every year. For them, this is more than just a movie. It is real life.
	Bob Cesca: Right-Wing Bullies Continue to Attack Children It's difficult to assign psychological motive when it comes to political tactics, but based upon the collective behavior of far-right conservative Republicans, we can only deduce that a considerable number of them are bullies and ought to be treated as such.