Jottings By An Employer's Lawyer

Google and Legal Research

2009-11-18T15:48:00.002-06:00

Someone else may have caught this before him, but my hat tip on Google's entry into legal research goes to Eugene Lee at California Labor Law, Google Offers Caselaw ... for FREE. Google comes out with tons of new offerings and not all of them last, so who knows about this project, but given what they have accomplished in other areas, probably worth keeping an eye on.

I went over to check it out and since I have been interested in the "mixed motive" issue as a follow up to my testimony before the Senate Judiciary Committee on the bill to overturn Gross v. FBL Services, thought I would try out "mixed motive." Here are the first five entries with that search on the Google scholar page, with the radio button for "Legal opinions and journals" checked:

Price Waterhouse v. Hopkins

Desert Palace, Inc. v. Costa

Mt. Healthy City School District Board of Education v. Doyle

NLRB v. Transportation Management Corp. and

Rachid v. Jack in the Box, Inc.

Although that's not a very sophisticated search term, the first four cases are the key Supreme Cases in determining the history of "mixed motive." I would have thought Gross would have shown up high but it doesn't appear until the 8th page. Interestingly, the Rachid case is a 5th Circuit case which extended mixed motive to the ADEA without a lot of discussion, and has been sub silentio overruled on that point by Gross.

I doubt that many are canceling their Westlaw or Lexis accounts today, but it is an interesting development.

Wrongful Termination North of the Border

2009-11-17T15:26:00.001-06:00

Canadian employment law is substantially different from that in the United States. David Doorey's eponymous workplace law blog is one that I follow just as a means of staying somewhat abreast. His post today,Is a “Consensual” Relationship Between a Manager and a Subordinate Cause for Dismissal? points out a couple of ways the laws of the two countries vary.

The case in question involved a manager who was discharged after he had engaged in not one, but two "consensual" sexual relationships with subordinates. The second one occurring shortly after he had been warned about the first relationship. Besides having what Professor Doorey calls one of the "great lines in recent Canadian legal jurisprudence":

"The relationship was on its face consensual. Her interest in the affair was based in lust; the basis of his interest may have been the same or otherwise."

the case also points out a different liability standard and a different way of handling attorneys fees.

For liability there is a concept of "notice," which must be given if there is no cause. Fortunately for the employer, the court held that there was cause in light of a managerial employee's obligation to help ensure a workplace free of sexual harassment and, interestingly, protect the employer from claims of sexual harassment. It was a good thing, because the court went on to hold that if notice had been required it would have been 18 months worth of pay.

One of the differences that may be the most appealing to employers in the US is the way attorneys fees are handled. Here, since he lost the employee was liable for attorneys fees of the employer.

Not too surprisingly however, the court did not stick the employee with the full amount claimed by employer's counsel, which was almost $200,000. (Apparently Canadian management side lawyers are just as expensive as their American counterparts.) Instead, the manager was assessed $37,000. Still a hefty sum and one that would certainly discourage much litigation.

Congratulations to Workers' Comp Insider

2009-11-17T14:48:00.001-06:00

Congratulations to Workers' Comp Insider for being named as Lexis Nexis Workers' Compensation Law Center's top workers compensation blog for 2009! A copy of the Lexis Nexis announcement is here.

The folks at Lynch Ryan have been posting tremendously insightful and helpful information since September 2003. In a time when many blogs come and go, it is good to see them appropriately acknowledged for their efforts.

More Government Talk: This Time to Your Employees

2009-11-17T10:46:00.003-06:00

That's what will be happening if the GAO's recommendation issued last week takes place. While studying how OSHA's Records Audit Process could be improved, one of their recommendations is that the Secretary of Labor "require inspectors to interview workers during records audits, and substitute other workers when those initially selected are unavailable."

According to the report, there are substantial disincentives for the reporting of injuries which can in some cases lead to pressure on health care practitioners to provide insufficient medical treatment.

The full report, Enhancing OSHA's Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data, was issued on October 15, 2009.

Will OSHA go along? According to the report, OSHA agreed with the recommendations.

A 5th Circuit Nugget for Assault Claims

2009-11-14T13:26:00.002-06:00

Of all the so called employment law torts, one of the most simple and sometimes most difficult to deal with on summary judgment is assault. I once had a case where we were able to get several causes of action dismissed on summary judgment, but not sexual harassment and an assault claim against an executive arising out of a conference call that was being conducted by the plaintiff and the executive over a speaker phone. Fortunately at trial we were able to prevail on all claims.

But if I had that case again today, I would have at least some good support for why the assault claim should never have gone to trial.

At the end of a First Amendment case brought by a professor who has been suspended from teaching duties (but was still being paid), the 5th Circuit affirmed summary judgment on his assault claim in the following paragraph:

This leaves only DePree’s assault claim against Appellee Niroomand. Under Mississippi law, assault occurs where a person “(a) . . . acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” [cite omitted] According to DePree, Niroomand “aggressively walk[ed] toward [DePree], yelling at [him], repeatedly referring to [him] as a ‘son-of-abitch,’ and shaking papers in his face creat[ing] an apprehension in [DePree] of an imminent harmful or offensive contact.” Appellee Niroomand contends that DePree’s apprehension was not reasonable. We agree. Taken in context, these statements and actions could not create a reasonable apprehension of imminent, harmful contact. DePree and Niroomand had squared off in similar past confrontations without offensive contact. Nothing in the current claim suggests DePree could have reasonably feared Niroomand just because he cursed and rattled papers in DePree’s face. No triable fact issue of an assault arose here.

DePree v. Saunders (5th Cir. 11/13/09). [pdf]

At some point, that is going to be a handy reference.

Wage & Hour: Not Just Collective Actions Anymore

2009-11-14T13:15:00.002-06:00

Wage and hour compliance issues remain one of the potentially most dangerous areas for employers. Most of the attention has been focused on collective actions brought by a new generation of plaintiffs' lawyers who frequently focus on only those types of claims.

However, this press release last week from the Department of Labor, Grandville, Mich., restaurant operators ordered to pay more than $2 million in back wages and damages is a sobering reminder that there is a newly invigorated government agency that is conducting investigations and seeking back wages and penalties on behalf of employees.

The restaurants in question were 5 Chinese restaurants operated by a husband and wife team. It will take a lot of kung pao chicken to cover that fine.

Earlier this fall, the ABA Journal reported that the DOL had hired 250 new investigators for the Wage and Hour Division. Feds to Ramp Up Enforcement of ‘Rampant’ Wage-and-Hour Violations. And all of this activity is occurring without a permanent head of the group as President Obama's nominee for Administrator of the Wage and Hour Division, Lorelei Boylan withdrew her nomination last month. Lorelei Boylan Withdraws her Nomination for Wage and Hour Administrator.

While this may sound like a broken record (for those of you who still understand that reference), there's no likelihood that this problem is going away any time soon.

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.