Jottings By An Employer's Lawyer

Can the NLRB Function With 2 Members?

2009-11-02T16:48:00.002-06:00

Well obviously only in a very limited manner, and according to the DC Circuit, not at all. Three Circuits, the 1st, 2nd and 7th say it can, and now the Supremes will tell us. Justices to decide validity of two-member NLRB decisions.

Currently Obama's three Board member nominees have passed committee muster, but John McCain has placed a hold on one of the nominees, SEIU attorney, Craig Becker. NLRB Nominee Gets Mixed News From Senators My understanding is that Senator Harkin will not submit the other two candidates for a full Senate vote until a resolution is reached over Becker.

I assume that there is some way that this will all get worked out under the curious protocols of the Senate. It does seem to me though that an outsider looking at the whole way we deal with the NLRB membership, including long periods of time with less than a full Board, and the way that precedent is an almost non-existent concept even when we have a functioning Board, would have to say that it's not much way to run a railroad.

For some insight into just how the Senate nomination process works (or doesn't) check out, Fractured Nomination Process Leaves Regulatory Posts Vacant.

5th Circuit On Continuing Violations

2009-10-28T13:26:00.005-05:00

Decisions related to the timeliness of a claim are most complicated when it involves hostile environment harassment, which almost always occurs over a period of time. Although the rule is fairly simple according to the US Supreme Court's decision in National R.R. Passenger Corp. v. Morgan, “so long as any act contributing to that hostile environment takes place within the statutory time period," it can get sticky in the application.

In Stewart v. Mississippi Transport Commission (5th Cir. 10/21/09) [pdf] the Court dealt with such a claim. The plaintiff had been harassed by her supervisor. After an investigation they had been separated, but 16 months later when her new boss retired, the old boss replaces him. He begins offensive conduct again. When she complains they are again separated. The question for the Court was whether or not the sexual harassment claim should include the events before the first separation. Ultimately, two members of the Court held that they should not be.

In reaching that conclusion, they referred to 3 limitations on the continuing violation rule also found in Morgan:

the plaintiff must demonstrate that the “separate acts” are related, or else there is
no single violation that encompasses the earlier acts;

the violation must be continuing; intervening action by the employer, among
other things, will sever the acts that preceded it from those subsequent to it,
precluding liability for preceding acts outside the filing window; or

the continuing violation doctrine is tempered by the court’s equitable
powers, which must be exercised to “honor Title VII's remedial purpose ‘without
negating the particular purpose of the filing requirement.

Here, it was the second exception that was fatal to plaintiff's claim -- the Court considered the employer intervention of separating the two, which did cause the earlier harassment to stop, an intervening action. When it viewed the events of the last incident of harassment (absent the circumstances of the first harassment), the majority found that they were not sufficiently severe or pervasive.

Interestingly, the newest member of the 5th Circuit, and the last Bush appointment, Judge Haynes dissented on this point from Chief Judge Edith Jones' opinion.

Apologies, Both Past and Future For Not Posting

2009-10-08T11:45:00.003-05:00

Posts have been exceedingly light recently as I have been both getting ready for vacation (which of course means posts will be non-existent until my return) and have spent the last several days preparing for and testifying yesterday before the Senate Judiciary Committee against overturning the Gross v. FBL Services decision of the Supreme Court this summer which nixed the mixed motive instruction for ADEA cases.

The future of mandatory arbitration was also a subject and frankly got a lot more attention than Gross. Senator Franken, one of the members of the Committee has taken that on as a major issue and that took up a lot of the hearing. For any who have an interest in seeing the hearing, there is a link to the webcast on the Committee's website.

More normal posting will hopefull arise following when I return and dig out from 2 weeks plus of accumulated email!

The Employment Law Case That Just Keeps On Going

2009-09-30T12:20:00.001-05:00

Lawsuits that stretch out over the years are not all that uncommon, but the tale that started with a discrimination law suit that was settled in 1997, just had another major development, a $4.9 million dollar malpractice verdict against the attorneys who represented the initial claimant in her earlier successful malpractice claim against her original attorneys. 12 Years of Persistence Rewarded With $4.9 Million Verdict in Malpractice Case.

If I understood it all, here's a little bit more about the sequence:

Jackie Young, is part of a group that sued BellSouth for racial discrimination. Plaintiff's counsel was the firm of Ruden McClosky.
In that case each plaintiff, including Young, received about $5,000 each.
Those plaintiffs later learned that their attorneys had received $120,000 a year for 4 years, entered into a consulting agreement with BellSouth and agreed not to file any more employment cases against the company for one year.
The original plaintiffs hired Becker & Poliakoff to sue the Ruden McClosky firm for malpractice.
That case was settled for $8 million in 2002 with the proceeds split between 54 plaintiffs.
During the settlement negotiations of that case, Becker & Poliakoff sued BellSouth on behalf of Young alleging continuing discrimination. That suit was dismissed when Becker & Poliakoff failed to respond to BellSouth's motion to dismiss.
Young did not find about the dismissal for a year, she claimed because Becker & Poliakoff did not want to jeopardize the settlement of the first malpractice claim and their $2.6 million dollar fee.
Now a verdict has been returned in the 2nd malpractice case, this one by Young against Becker & Poliakoff for the way her individual case was handled. The verdict $4.9 million.

It of course will be appealed.

Amazing.

EEOC's Year End Rush - 2009 Version

2009-09-28T21:01:00.001-05:00

Ross Runkel comments on recent litigation activity at EEOC announces 32 suits in past seven days. Although I don't know the numbers in recent years, I do know that there is always a rush to file lawsuits by the EEOC before the government year ends on September 30th. See my post of a year ago, It's the Last Week in September, So Be Ready for EEOC vs. ...

Bullying: The Movement that Keeps on Trying

2009-09-25T12:56:00.002-05:00

David Yamada and I have very different view points on whether or not a bullying cause of action should exist (he drafted the model act that has been offered in a number of legislatures), but he is always a good source for monitoring what is going on and I take what he says seriously.

In a recent post, November’s Work, Stress, and Health Conference: A tipping point for workplace bullying research? commenting on the biennial meeting sponsored by the American Psychological Association, National Institute for Occupational Safety and Health, and Society for Occupational Health Psychology, he points to five specific sessions that specifically refer to bullying and a number of others that use terms such as 'workplace incivility, aggression, harassment, violence and mistreatment."

His thoughts:

It’s enough to make me wonder if we’re reaching a saturation level! But for now I’ll gratefully accept the abundance as sign that we’re reaching a good tipping point in terms of the mainstreaming of workplace bullying as an employment relations concern.

My position is not pro-bullying, just anti-legislation. My concern is that no matter how well drafted, it is too nuanced an issue for the courts to successfully handle. I am sure Professor Yamada will have more posts after the conference (early November) and that they will be well worth following, no matter where you are on this issue.

A UK/USA Split - Protection For Those Over 65

2009-09-25T12:40:00.001-05:00

The British High Court has apparently just held that mandatory retirement at age 65 is permissible. 65 all out…….. ».

That's where the U.S. statutory protection, the Age Discrimination in Employment Act, started; but two amendments later, it has no upper cap.

The Obama Board - EFCA Is By No Means the Whole Deal

2009-09-14T16:31:00.001-05:00

The Employee Free Choice Act has certainly garnered the majority of ink and/or pixels in discussions about the possible changes in the law of labor relations, but it is by no means the only change on the horizon. In fact, as has now become abundantly clear, EFCA is subject to the vagaries of the legislative process which is biased in favor of doing nothing. What form of legislation, if any, can pass remains a very open question.

One other question however was decided on the night of November 4, 2008. When President Obama was elected it was certain that within some period of time there would be an Obama National Labor Relations Board. Currently the Board is operating with two members, but three others have been nominated and when they are confirmed, there will be a 3-2 Democratic majority.

For a look into what that may mean, two of my Ogletree Deakins colleagues, the father/son duo of Hal and Chris Coxson, have prepared a monograph for the U.S. Chamber of Commerce, The National Labor Relations Board in The Obama Administration: What Changes to Expect.

According to the Chamber's press release announcing the report:

The purpose of this publication is to provide an overview of how the law administered by the NLRB is likely to change during the Obama Administration. The vast majority of this analysis is focused on cases decided by the Board in recent years that Democratic Members of the Board dissented to and that organized labor has criticized. While some of these cases are high profile, such as the Board’s decision in Dana/Metaldyne that effectively gives employees notice before a union and an employer can circumvent the law’s secret ballot process for union recognition, others are much less well known. However, reversal of these technical rules, such as whether permanent strike replacement workers may be hired on an at-will basis, as discussed in Jones Plastics and Engineering Co., collectively will increase union leverage in every aspect of labor-management relations.

In addition to the changes to existing precedent, it is also possible that for the first time since the 1974 rules relating to health care institutions, the Board may engage in substantive rule making.

You can download the full report from Chamber's website [pdf]. Happy reading.

Did Kennedy's Illness Prevent EFCA Passage?

2009-09-11T11:02:00.001-05:00

That seems to be what Senator Harkin was saying in yesterday's report in The Hill,Harkin: Kennedy’s illness stopped card-check vote back in July. According to the story, Harkin had an agreement supported by organized labor and with Kennedy would have had the 60 votes, but Kennedy was too ill to come to capital hill to vote.

The details of that agreement according to Harkin: "I will not say because it was closely held, it never leaked out and it still hasn’t." No kidding.

That EFCA was ever that close to actual passage would be a shocker. While I obviously don't know, something about it just does not ring true. And I am not the only one who wonders, Card Check: Harkin Then, Harkin Now.

Employees in Limbo Land - EEOC Challenges the Solution

2009-08-31T11:18:00.002-05:00

One of the great dilemma's for employers are employees who go on long term leaves of absence. Absent some sort of policy that puts a deadline on how long that leave can be, I have seen employers with untold numbers of individuals who may or may not still be employees. My term for them: "lost in limbo land."

In Texas, where workers compensation retaliation has always been a major cause of action, the law has evolved so that a leave policy which results in termination after a fixed period of time, applied uniformly without regard to whether the leave of absence was based on a work related or non-work related injury, is a valid defense to those claims. For a long time, we have cautioned that the EEOC took the position, at least theoretically, that such policies could be a violation of the ADA. However, during the Bush administration, as far as I know, they did not pursue litigation to that effect.

But as we all know it's now a new day and Employment Law 360 ($) has the story of a recent lawsuit filed in the the Northern District of Illinois, that raises that specific issue, UPS Medical Leave Policy Violates ADA .

The key paragraph from the Complaint:

Since at least 2002, UPS has maintained an inflexible 12-month leave policy which does not provide for reasonable accommodation of employees with disabilities and which instead provides for termination of their employment, in violation of Sections 102(a)and 102(b)(3)(A) and (b)(5)(A) of Title I of the ADA, 42 U.S.C. §§ 12112(a) and 12112(b)(3)(A)and (b)(5)(A).

Accompanied by this message from Stuart J. Ishimaru, the acting Chairman of the EEOC:

This case should send a wake-up call to corporate America that violating the Americans with Disabilities Act will result in vigorous enforcement by the EEOC. The ADA has been the law of the land for nearly two decades now, and employers simply have no excuse for failing to abide by its provisions.

With all due respect to acting Chairman Ishimaru, its not all that clear. And in fact, in the story, UPS denies that it has an automatic policy, instead saying it has granted exceptions to its policy for employees who seek accommodation under the ADA, and the 12 month deadline is "not automatic or absolute."

Although there is a long way from a complaint to an appellate decision that would provide a definitive answer, this one at least initially appears to be set up to do so.

Hopefully, as this case wends it way through the judicial process, the courts will understand that this is an issue that has significant practical impact and one in which a ruling that does not take into account the need for employers to have control over who and who is not an employee in situations involving long term absences, could wreak considerable havoc.

Update 9.14.09: This is obviously not a one time idea by the EEOC, or at least the Chicago Region, as Employment Law 360 ($) is reporting a second employer has been sued for having a one year leave policy. See, EEOC Targets Supervalu In New ADA Class Action.This suit is also filed in the Northern District of Illinois but it also merited its own press release from the Commission.

The Perks of a (Lifestyle) Blogger

2009-08-30T17:25:00.004-05:00

When I started this venture more than seven years ago, maybe I should have chosen my topic more carefully. Although who could have predicted what blogging would become:

Blogger Test Drives An automaker is interested in providing vehicles for bloggers to test drive for a few days and to write about the experience. They’re not looking for auto bloggers, they’re looking for lifestyle bloggers who cover topics like travel, fine dining, and culture. They will arrange the drop-off and pick up of the vehicle. If you’re interested, please contact ......... with your blog name, content overview, URL, Technorati authority, and contact information. (From form email I received today.]

The first reader with a convincing argument connecting labor and employment law to, let's say luxury convertibles, get's the first ride!

The Latest On EFCA

2009-08-28T13:17:00.002-05:00

The folks at EFCA Report who have been chronicling developments on this proposed legislation have their latest update, with some fairly definitive words from Senate Majority Leader Reid (D-NV) on EFCA: "Too Many Other Things on Our Plate". Of course, since the statement was made to the Las Vegas Chamber of Commerce, not a place where a pro-EFCA comment would likely be well received, it might be one of those statements that is subject to change.

Still, the other developments mentioned in their post, including the death of Senator Kennedy and the current state of Massachusetts law which, unless changed, means the earliest his replacement could be seated is the end of January, 2010, seems to me to make it more and more unlikely that EFCA will happen this year.

That of course does not mean that the battle for EFCA is over. One interesting question is whether other employment related legislation, ENDA or the Arbitration Fairness Act just to pick a couple, which most have felt were bottled up till EFCA was resolved stay there, or perhaps move closer to the front burner.

The big question of course is what happens in the longer term, the 2nd session of this Congress, or after the 2010 elections. I think more in organized labor may be resigning themselves that given how things have developed, they may need to keep their powder dry and see what the 2010 Senate looks like.

Depending on how that turns out, it is not impossible that EFCA proponents may someday count their blessings that this year's more effective than they had anticipated political opposition, the pitched battle over health care, the lack of a hard push by the Obama administration for their cherished goal and even the death of one of the bills' true champions, Senator Kennedy, might result in ultimately obtaining a bill that is closer to their desires than anything they could have obtained now.

Certainly not impossible, but likely?

Social Media and the Employer

2009-08-24T13:42:00.001-05:00

There is nothing startingly, or even really new, in this Q & A from the Birmingham Business Journal, What impact do you think the proliferation of online social media will have on human resource policies and employment law issues?. Although I must say it is going to be a brave employer who follows this advice, no matter how legally correct it is:

Employers must have a written policy against using recreational social media at work. It is a distraction, and the employee’s comments could incur liability for the employer based on defamation or laws prohibiting discrimination.

Just as a practical matter, if you are not going to follow it, it is probably better not to have a policy; and I doubt many companies can enforce such a policy these days.

But what really got my attention is just how much ink (well pixels really) this whole issue is attracting these days. I am a contributor, having given a couple of speeches, including national on-line programs for the ABA and other entities, and am scheduled for some more, but what this really makes me think is how much of a herd mentality we all have.

Probably the best comment came from a member of the audience at one of my speeches. He questioned why this was a continual topic, when there was never any law!

That may change, but as of now, there's lots more talk about the impact of social media on employment law, than there is either actual impact OR law.

A Different Form of Health Plan

2009-08-21T13:15:00.001-05:00

I am, as always it seems, behind on reading other blogs. And so probably the last thing I needed was to add another to my google reader list (a fairly recent change since Microsoft said it was no longer going to support onfolio, my all time favorite). But, just a couple of posts from Labor Law Guy an anonymous 'journalist' who says "labor law is just a current obsession in an otherwise undistinguished career" (which I heartily doubt), made me add another any way.

And amid all the ballyhoo about health care his report on a Japanese tax on obesity, Time to Tax Fatsoes Like They Do in Japan?, while no substitute for other ideas, might be something to think about.

Of course, I probably feel more favorably inclined since my new 'running' program seems to be causing a few of the accumulated pounds to fall away. Once that trend is gone, I will of course see the error of my ways in thinking that it could be an appropriate solution.

Senator Harkin and the Secret Ballot

2009-08-18T15:15:00.001-05:00

Although it does not look like that the card check provisions which would effectively eliminate the secret ballot for determining union representation will survive, at least in any EFCA type bill passed by this Congress, there is still some irony in the comments of Democratic Senator Tom Harkin, who is leading the push for the bill in making the following comment about his fellow Democratic Senator:

“Every two years the caucus could have a secret ballot on whether a chairman should continue, yes or no,” said Sen. Tom Harkin (D-Iowa), the chairman of the Senate Agriculture Committee. “If the ‘no’s win, [the chairman’s] out. “I’ve heard it talked about before,” he added."

The chairman who might be ousted by such a secret ballot election is Max Baucus, D-Montana who is cross-wise with Harkin on the details of the healthcare plan, according to the article in The Hill, Dems warn Baucus with gavel threat.

Apparently what's good for the goose is not necessarily good for the gander.

Mine Safety Commissioner Moves Back to Chair

2009-08-18T12:27:00.002-05:00

Reprising a role she held in the Clinton administration, current member of the Mine Safety & Health Review Commission Mary Lucille Jordan has been designated by President Obama as the Chair, see announcement here. Before being appointed to the Commission, Jordan worked for the United Mine Workers for more than 17 years as an attorney.

Although it gets less publicity than its cousin, OSHA, MSHA is the counterpart for the mining industry and obviously in recent years has been in the headlines with some well publicized mine tragedies. The Mine Safety & Health Review Commission is the judicial body which reviews determinations made by ALJ's.

Although it is not an area I have had much experience with my firm is fortunate to have a large collection of MSHA lawyers in our Washington office including Michael Heenan, who has been "toiling in the mines" (well not literally!) for more than 40 years. It is one of those sometimes hidden specialties, but critical if you are covered by MSHA.

Ignorance of the FMLA Is No Excuse; In Fact, It Could Be Evidence

2009-08-18T09:26:00.004-05:00

That's just one lesson to be learned from the 10th Circuit's decision in DeFreitas v. Horizon Management Corp. (10th Cir. 8/14/09) [pdf]. In reversing the lower court's grant of summary judgment on DeFreitas interference with FMLA claim, the Court noted:

It would be eminently reasonable to believe that an employer who was ignorant of the FMLA—as Mr. Terry admitted he was before Ms. DeFreitas complained of her firing—would engage in the very practice that the FMLA was enacted to prevent [firing employees who missed too much work for medical care].

The opinion is also a good example of how employers can easily get trapped by their own policies and words. Here, although the claimed reason for termination was conduct uncovered while she was out on medical leave for 6 weeks, the Court found that:

she had progressed rapidly from entry level to Vice President within two years;
there were no written warnings for performance issues;
there were numerous written positive comments from various members of management about her performance;
although the company had a progressive discipline system that emphasized no employee would be terminated without receiving a written warning and being given a chance to improve, that did not occur;
the employer's handbook said that every terminated employee would be given an exit interview including putting in writing the reasons for the termination and the policies that have been broken, but this was not done in her case.

Vince Lombardi said football is two things: blocking and tackling. The absence of written documentation of poor performance and not following your own procedures, might just be the HR equivalent.

Justice Sotomayor Confirmed, To Be Sworn In Saturday

2009-08-06T17:59:00.001-05:00

On Saturday, Justice Sonia Sotomayor will become the third female and first Hispanic justice of the United States Supreme Court following today's 61-38 roll call vote in the Senate.

Given that Justice Sotomayor will replace Justice Souter, a consistent member of the current Court's 'liberal' wing, it seems unlikely that her presence will make for a short term dramatic change in the court's direction or voting patterns.

Listening to the speeches for and against Judge Sotomayor, one of the things that struck me is that it is perhaps time for us to put to rest Judge Roberts famous metaphor that he would serve just as an umpire, calling balls and strikes with complete impartiality. Putting it aside is not to impugn Justice Roberts' integrity when he made those comments, but rather to recognize that even umpires set their own strike zone.

Bruce Weber had a similar thought in his article last month in the NYT, Umpires v. Judges.

But if you really want to look at it just from a baseball perspective, check out A Zone of Their Own or this quote from an amateur umpire's guide:

On warm summer night I watched a pitcher working his stuff against a senior umpire I have worked with and respect. It was men's league and particularly humid that night. After watching three of "his best" go for naught he said to the umpire, "Blue, where's your strike zone?" My friend replied, "You've got nine innings to find it!" The umpire's strike zone is the umpire's strike zone. I can assure that pitcher that if my friend was calling "ball" it wasn't even near the plate, for he taught me to "go in expecting a strike every time!"
Floating out over that plate is almost a perfect cube, about 15 inches up in the air, nearly 22 inches wide, 24 inches high and yes, 22 inches deep. "I call a big zone." Why? Because I think strikes. Working with younger ball players you have to think that way. Sure, as the quality of the player increases some think an umpire might boil an inch or two, maybe more, off the top but then he remembers that the quality of the batter has also increased so they feel he adds an inch or two at the sides. Its all relative. Truth is, call the same "strike-able" zone at all levels unless the rules specifically dictate a change. No umpire can give an inch to this level, take off two in the next age group, call at the shoulders in another, and claim a consistent strike zone.
Your league and its traditions will define the strike zone as much as any rule book will. By some books every pitch that crosses the batter shoulders would potentially be a strike.. Does any umpire really call them up that high? Some associations call at the belt buckle as the top of the zone, others call half-way down the calf as the lower part. In some areas "painting the black" is the norm while in others the ball has to have the full plate. Regardless of your definitions, restrictions or instructions THINK STRIKES ON EVERY PITCH! A pitch has to convince you it is a ball before you will not call it a strike. This positive mental approach will increase your consistency and move the game along more than any other mechanic you can learn.

It may be awhile before we do this again, but now would be a good time to realize that while deciding Supreme Court cases may be both more complex and with higher stakes than merely calling balls and strikes, neither is an exact science.

Just as the umpire who calls them as we see them, is viewed as right, and the one who calls them any other way is a bum; the Justice who calls them the way we view the law is interpreting the law (good), while the one who calls it in a way that we wouldn't, is making law (bad).

It's an oversimplification, but no more so than most of the rationales we hear for votes on Supreme Court nominations, including the one just concluded today. Surely, Senators you can do better.

Atlantic City Jackpot - Disability Claim Leads to MDV

2009-08-05T19:39:00.001-05:00

Actually that headline is a little too frivolous for what are clearly serious subjects, employers facing disability claims and depression as a disability. When the two came together before an Atlantic City jury the net result was a verdict for Scott Jones, a 55 year old salesman, Depressed worker wins $1.8 million over firing from gas company.

One of the killer lines that is sure to strike terror in any employer's lawyer's heart: "Jones' annual reviews showed he performed satisfactorily." Just yesterday in a training session, I was pointing out that performance appraisals are always key exhibits in an employment trial, and the real question is whose exhibit will they be. Here, it sounds as if they were Plaintiff's Exhibits, which always spells trouble for the defense.

Problematic performance appraisals and the fact that Jones was nearing his 20th anniversary with the company, with nothing more, would be enough to make it clear that this could be a problematic trial if things went south.

Based on the result, they did.

Trying to Avoid Layoffs, Employers Turn to Furloughs

2009-08-02T15:28:00.003-05:00

Which is a good idea, but one that possesses some legal risks (what doesn't?). One of the primary areas of concern is compliance with wage and hour law. The Department of Labor has put out a timely FAQ, Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues.

If you are considering some form of furlough or related way of reducing costs without eliminating employees, this is a good place to start on the various issues that might arise.

Hat tip to Richard Tuschman at the Florida Employment Law Blog for catching this one.

EFCA - The Aftermath of a Compromise

2009-07-23T18:14:00.001-05:00

Although last week's NYT story announcing a compromise had been reached to drop the card check portion of EFCA has turned out to be either a trial balloon, a non-event or premature, depending on who you listen to, it has been interesting to see the reaction by advocates on both sides.

The business community has been quick to point out that a killer provision, binding arbitration, remains, which means there can be no compromise. Many union activists are seeing the loss of card check as the end of the line.

Adam Turl, writing in the Dissident Voice is in that camp, but has a somewhat more nuanced view. He acknowledges that EFCA, even without card check could be a significant victory for labor, but doesn't see it in the cards:

However, since Democrats already gave away card check without a fight, there is little reason to believe they will mount a vigorous defense of the compromised EFCA when the Republicans move in to destroy what remains.

Who killed EFCA?

From my perspective it is far too early for anyone to be performing autopsies on the failed EFCA, but Mr. Turl has some very insights into what has been going on behind the scenes by those who would like to see it passed.

As Proud as GE Is of Jack Welch ....

2009-07-20T08:55:00.001-05:00

My guess is that lawyers there are happy that he didn't make this speech while he was still CEO, Jack Welch: Women Take Time Off for Kids at Their Peril. Or at least how his speech to the national SHRM conference in New Orleans is being reported.

Among the quotes from the speech as provided by the ABA Journal on line publication, "“There's no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences." Also that women who take "take time off for family could be passed over for promotions if they are 'not there in the clutch.'"

And just in case the point was not made:

Welch said women who take time off can still "have a nice career," but their chances of reaching the top are smaller, according to the Wall Street Journal account. "We'd love to have more women moving up faster," he said. "But they've got to make the tough choices and know the consequences of each one."

It may be that some of his comments were pulled out of context that would have made them seem a little less damning, and it also may be that he is speaking the mind of what many in the workplace (women and men) actually think. In other words saying what is real, not what would be ideal.

But if you were having to defend a discriminatory failure to promote because of gender case brought by a female executive who has taken one or more parental leaves, you would not feel grand about having these words standing as fairly large hurdles to overcome.

EFCA --- Compromise a Done Deal?

2009-07-17T09:37:00.002-05:00

The New York Times, Democrats Cut Labor Provision Unions Sought, is reporting that a compromise that drops card check in return for 5 day quickie elections now has the support of 60 senators, enough to ensure passage. Although all details are not being released, the hint is that binding arbitration is still included and there may also be equal access provisions to allow unions to campaign on an employer's premises.

If this pans out, it will be by far the most dramatic change in labor law since I took Professor Jerre Williams labor law course at the University of Texas Law School in the fall of 1973. And if it does include binding arbitration for first contracts, it will be a total revamping of the underlying principles of American labor law. Unfortunately, the last part has received relatively little attention.

One of the most interesting aspects is the immediate reaction of some from organized labor. Jonathan Tasini, who is a passionate advocate for employees at his Working Life blog is disgusted:

"Card check" was the the thing that the bill was about--or so we heard for lo these many months. Now, it's left to the labor movement to explain why what will be left is good enough. That will be an interesting exercise.

We could also admit two things. One, when it comes right down to it, the kind of people labor supports in the Democratic Party are not reliable when it comes down to a fight-or-die moment for workers. Second, the strategy to pass the bill was an insiders game that never engaged the public, partly because we left the campaign in the hands of some people who are entirely clueless about talking to anyone but themselves.

Another option is for some people in the labor movement to decide that maybe it's worth saying, "to hell with you all" and come up with a better organizing and political strategy that does not rest on relying on people who will sell us out in a heart beat.

So Much for the 'Card Check Bill.'

More interesting to me was a 'tweet' from SEIU President Andy Stern, "we expect a vote in the bill or by amendment on majority sign-up in both houses of Congress." EFCA Compromise? at TPM, which follows that "clearly this compromise won't go down without several spoons full of sugar. "

The fact that Stern, who clearly knows the political reality, is making such a comment brings out the cynical fear that what is happening is what many in the business community feared all along. Card check was a stalking horse all along. The rejection of card check is going to be pitched as standing up to organized labor, and to aid in that perception many in organized labor (who secretly are ecstatic with what now seems within their grasp) berate the Democrats for selling them out.

Feeling victory based on the outcry of their opponents, many in the business community whose opposition was focused primarily on the card check provision will think that their mission has been accomplished and turn to other matters.

And almost under the radar, American labor law will be fundamentally changed.

The other thing that adds fuel to that thought is organized labor's desire to have a vote this month. Senate leaders are apparently of the opinion that it can't be done until September. (I am not quite sure why the Senate would want to undergo two more months of battering on this issue, because if they think its been hot up till now, they have not seen anything yet.) If no vote is scheduled until September then it might all come unraveled even if on this particular day in July the votes are there.

Because this is literally about how the American workplace functions, all with an interest, should stay very much engaged.

Seven Years of Jottings. Why?

2009-07-16T23:54:00.001-05:00

If on July 17, 2002 when I made my first post, I had a goal to blog until retirement, today would have marked the 1/2 way point, if not to retirement at least to the time when I reach my full social security retirement age. However, I had no goal and no real plan, just trying out a new and interesting technology. I chose to write about a topic I that I knew something about.

The "why" question is one I have asked on numerous occasions, and one I am sure my law partners over the years have asked as well, although I must say never directly of me.

In good blogging fashion, I will refer you to an excellent article by Cliff Tuttle at Pittsburgh Legal Back-Talk, Why Blog? 10.5 Good Reasons, which is what I would have hoped to have been wise enough to write, if I answered the question in full.

Two points, I would particularly emphasize, self-education and reinforcement of learning. A third that is implied if not explicit, is having my own research repository, which has proved to be helpful both to me and to my colleagues over the years.

I would also agree with Cliff that marketing by itself is not a sufficient reason.

As I noted in last year's posting on the 6th anniversary, the number of blogs focusing on labor and employment law is far more than the three I can think of that existed at the end of my first year. (The two others - George Lenard and Michael Fitzgibbon continue as well.) After my list of 49, by April of this year, the folks at Delaware Employment Law Blog, were able to come up with their Top 100 Employment Law Blogs, and I would guess that there have been new ones since that post.

For the future, I intend to continue blogging, maybe writing more about traditional labor law as I think that is going to be more relevant in the near future and returning to stories of MDV's which for some reason seems to have lagged of late. (My posting, not the verdicts themselves.)

For those who have stopped in at some point during the last seven years, thanks.

Not Much Posting, But Still Talking

2009-07-15T20:00:00.002-05:00

Posting has been light of late, but speaking events continue no matter what.

For the rest of the month you can catch me at the Texas Association of Business and SHRM State Council 2009 Employment Relations Symposium. More political talk, The Obama Labor & Employment Agenda. Biggest news, so far labor & employment issues have not really been very high on President Obama's agenda. Not to say that there isn't a lot to talk about though.

And next week, I move to internet as a participant on an ABA panel, Understanding the Legal Issues Surrounding the Social Networking Websites that Teenagers and Employees Love.