It's as good a way to close the decade as any. When Brocon Petroleum failed to pay an agreed judgment that had been entered in a 2008 lawsuit against the firm by the Department of Labor, federal marshall's seized a 1992 black corvette at the home of Richard Kohler, president of the company. The suit had alleged that Brocon had terminated an OSHA whistleblower. See Howell firm ignored judgment; boss's car seized. The full press release from OSHA is here.
According to a report about the lawsuit when it was filed, Scott Shevlin was fired the same day that OSHA investigated an anonymous complaint about safety practices at the work site. Feds allege worker fired for complaint about firm .
Thanks to all who have been readers this year, and this decade for that matter. It has been an interesting time to be a labor and employment lawyer.
And for 2010 forward? My prediction, if I am still writing this blog 10 years from today, I will be accurate in making the same statement.
Happy New Year.
Guess Who Is Crossing the 50% Line?
Although it is the holiday bowl season, I didn't mean 50 yard line. The 50% refers to an article in this week's Economist that within the next few months women will become a majority of the American workforce. See, We Did It!
When it actually happens it will only be the continuation of incremental change, but it is as good occasion as any to take note, and consciously reflect, on what it means.
Hat tip to JD Hull at What About Clients? for his post, Working U.S. Women Officially Rule.
When it actually happens it will only be the continuation of incremental change, but it is as good occasion as any to take note, and consciously reflect, on what it means.
Hat tip to JD Hull at What About Clients? for his post, Working U.S. Women Officially Rule.
Latest on NLRB Nominees
Jeffrey Hirsch at Workplace Prof Blog has the latest development on the nomination that is holding up the confirmation that would bring the NLRB to full strength (5 members) and make it officially an "Obama Board." The nomination of Craig Becker, a lawyer for the SEIU, has been "returned to the White House," according to some post-Christmas reporting, Becker's Nomination "Referred Back" to White House.
Hirsch doesn't know exactly what this means, nor do I, but it can't be a happy thing for organized labor, or Obama. As he also notes, it could turn what would have been an academic question, whether a 2 member Board can operate in the absence of a three member quorum, into something much more important. That case is currently pending before the Supreme Court.
Even if the 2 member power is upheld, at this particular time it really won't matter, since the two current members, who were nominated by Presidents of different parties, only act when they are in agreement, which means nothing too controversial is likely to occur until something gives on the appointment to the three vacancies.
Update: NAM's Shopwatch story from yesterday has even more details about the action. See, Senate to President: Reconsider NLRB Nominee.
Hirsch doesn't know exactly what this means, nor do I, but it can't be a happy thing for organized labor, or Obama. As he also notes, it could turn what would have been an academic question, whether a 2 member Board can operate in the absence of a three member quorum, into something much more important. That case is currently pending before the Supreme Court.
Even if the 2 member power is upheld, at this particular time it really won't matter, since the two current members, who were nominated by Presidents of different parties, only act when they are in agreement, which means nothing too controversial is likely to occur until something gives on the appointment to the three vacancies.
Update: NAM's Shopwatch story from yesterday has even more details about the action. See, Senate to President: Reconsider NLRB Nominee.
Imperial Winter Series Boxing Day Race
A tradition far more wholesome and less controversial than the Boxing Day Hunts is the Imperial Winter Series Boxing Day Races which I took part in for the first time today. A stiff wind down the backstraight made any breakaways virtually impossible though some (including my teammate for over a lap) had a good go. Seemed faster than recent weeks but that must have been an effect of the wind, as was the dropping of a fair few this week. I was finding it difficult to keep tabs on what was going on, mistaking two dropped riders at one point for a break. I was there for the sprint but barely and got obstructed by a slower rider taking a racing line through the S bends oblivious to anyone behind. That's racing: you have to be both strong and in the right place.
Average speed 23.1
Average speed 23.1
Weighing In On Religion in the Workplace
Although Iowa's turn in the political sun won't roll around for at least another 18 months or so, there's an interesting post from Patrick Smith at the Iowa Employment Law Blog, Are Employee Religious Freedoms in Jeopardy?
The jumping off point for his comment was a guest column in the Des Moines Register by Lake Lambert III, Professor of Religion at Wartburg College, in Waverly, Iowa. Dr. Lambert is advocating for the Workplace Religious Freedom Act. As the article notes, the Act has been kicking around for quite awhile, notwithstanding support on both sides of the aisle. Although it occasionally gets a push, the fact that it has not made much progress I think speaks volumes to the potential problems. Smith thinks the bill cuts too broadly and points out some of the issues:
Still it has been a few years since I have written about it. My first post was in 2003 and things had not changed much when I wrote in 2005, Workplace Religious Freedom Act - Consensus On Neither the Right Nor Left. It is not unheard of for legislation to languish year after year, only to make it to the forefront. The ADA and FMLA are two examples of statutes that were introduced in a number of Congresses before becoming law, ENDA (protection for sexual preference and more) may be the next.
And who knows, even though it doesn't seem to be making much progress, the Workplace Religious Freedom Act doesn't show any signs of going away either.
The jumping off point for his comment was a guest column in the Des Moines Register by Lake Lambert III, Professor of Religion at Wartburg College, in Waverly, Iowa. Dr. Lambert is advocating for the Workplace Religious Freedom Act. As the article notes, the Act has been kicking around for quite awhile, notwithstanding support on both sides of the aisle. Although it occasionally gets a push, the fact that it has not made much progress I think speaks volumes to the potential problems. Smith thinks the bill cuts too broadly and points out some of the issues:
In a country with so many different religious practices, however, an expanded duty to accommodate them all could create more problems than it solves. What happens when the practices of different religions conflict? What about situations where an employer's legitimate interest in safety or uniformity impacts an employee's desire to wear religious clothing or articles? Under existing law, employers have more flexibility to address these situations in the context of legitimate business needs. The proposed RWFA tips the balance too far the other way.I couldn't agree more.
Still it has been a few years since I have written about it. My first post was in 2003 and things had not changed much when I wrote in 2005, Workplace Religious Freedom Act - Consensus On Neither the Right Nor Left. It is not unheard of for legislation to languish year after year, only to make it to the forefront. The ADA and FMLA are two examples of statutes that were introduced in a number of Congresses before becoming law, ENDA (protection for sexual preference and more) may be the next.
And who knows, even though it doesn't seem to be making much progress, the Workplace Religious Freedom Act doesn't show any signs of going away either.
An Argument Against the Arbitration Fairness Act
Even as one segment of the employment community, defense contractors and sub-contractors with large contracts, have lost the right to have arbitration agreements as a condition of employment, a summary of a recent law review article makes what it calls the "not so popular" argument in favor of such clauses. See, Jonathan Adler's of New York Law School's comment at The Obiter Dictum, A Not So Popular Argument Supporting the Use of Mandatory Arbitration Clauses.
The longer article is Determining if Mandatory Arbitration is “Fair:” Asymmetrically-Held Information and the Role of Mandatory Arbitration in Modulating Uninsurable Contract Risks, by Paul Bennett Marrow.
The longer article is Determining if Mandatory Arbitration is “Fair:” Asymmetrically-Held Information and the Role of Mandatory Arbitration in Modulating Uninsurable Contract Risks, by Paul Bennett Marrow.
Here's the money quote from the Obiter Dicta article:
Two comments, first I am not as optimistic as the writer that the Arbitration Fairness Act will not pass; secondly, I think saying that being for mandatory arbitration is not a popular position, may be the understatement of the year.Passage of the Arbitration Fairness Act of 2009 (which seems unlikely given its current status in both House and Senate committees) will cause more problems than it will solve. For instance, without the availability of mandatory arbitration, many parties will be more vulnerable to potential litigation and its associated uncertainties. As a result, overall transaction costs will increase. These costs will be directly passed to borrowers and franchisees. Employers will also pass these costs to business customers, albeit indirectly.
Imperial Winter Series Race 3 - Saturday 19th December 2009
Not quite so many on the start line this time around. Perhaps the freezing temperature had something to do with that. By the start time the worst of the ice had been chipped off the circuit or hidden under strategically placed cones. After a lap or two the cold no longer mattered. I felt good and at no time got trapped at the back, though the smaller field definitely helped there. Unhappily there was a crash immediately ahead of me on the last lap coming out of the tight bend. I had to stop for that but then restarted and about six of us passed the 3rd cats (who not only moved over but shouted encouragement) and sprinted for the line for who knows what lowly position (21st it turns out!)
Average speed 23.6mph.
Average speed 23.6mph.
The Helmet Debate Drags On
The Transport Research Laboratory has this week published a further paper on the effectiveness of cycle helmets. A long report that concludes that
"Cycle helmets would be expected to be effective in a range of accident conditions particularly the most common accidents that do not involve a collision with another vehicle, often simply falls or tumbles over the handlebars and also when the mechanism of injury involves another vehicle glancing the cyclist or tipping them over causing their head to strike the ground."
It would, I suppose, be genuinely astonishing if it were found that helmets were of no use in protecting the head in any circumstance. I have a clubmate who found his particularly helpful when caught unawares by a descending carpark barrier. I sometimes have wished I was wearing mine in the kitchen when my head has contacted an open cupboard door.
The TRL report expressly says it does not deal with the vexed question of risk compensation, whereby people's behaviour changes as a consequence of seeing themselves or others as less vulnerable. Nor does it deal with the questions whether the wearing of helmets should be encouraged or mandated, but its conclusions probably mean that we should not be expecting any change in the Highway Code's advice to cyclists to wear a helmet (accompanied by a vulnerable looking cyclist cowering in the gutter).
Whether this report will provide further impetus to motor insurers to blame cyclists for head injuries because they have not worn a helmet remains to be seen. What I will say is that in no case yet has a Court determined that a cyclist both ought to have been wearing a helmet and that it would have made any difference. No deduction for contributory negligence has therefore been made by a Court to date. Cyclists and their lawyers should bear that in mind when a reduction is suggested.
I have already expressed my views on contributory negligence here. Nothing in the latest paper changes my view. It is so much more important that people cycle than that they cycle with helmets and the Australian experience demonstrates that you cannot encourage both. It is so much more important that accidents are prevented than that we are forced to look to personal protection to hope to minimise their effect.
So when we see a famous footballer taking his children out for a bicycle ride let us applaud him for getting on a bike and not attack him because he has chosen not to wear a helmet.
"Cycle helmets would be expected to be effective in a range of accident conditions particularly the most common accidents that do not involve a collision with another vehicle, often simply falls or tumbles over the handlebars and also when the mechanism of injury involves another vehicle glancing the cyclist or tipping them over causing their head to strike the ground."
It would, I suppose, be genuinely astonishing if it were found that helmets were of no use in protecting the head in any circumstance. I have a clubmate who found his particularly helpful when caught unawares by a descending carpark barrier. I sometimes have wished I was wearing mine in the kitchen when my head has contacted an open cupboard door.
The TRL report expressly says it does not deal with the vexed question of risk compensation, whereby people's behaviour changes as a consequence of seeing themselves or others as less vulnerable. Nor does it deal with the questions whether the wearing of helmets should be encouraged or mandated, but its conclusions probably mean that we should not be expecting any change in the Highway Code's advice to cyclists to wear a helmet (accompanied by a vulnerable looking cyclist cowering in the gutter).
Whether this report will provide further impetus to motor insurers to blame cyclists for head injuries because they have not worn a helmet remains to be seen. What I will say is that in no case yet has a Court determined that a cyclist both ought to have been wearing a helmet and that it would have made any difference. No deduction for contributory negligence has therefore been made by a Court to date. Cyclists and their lawyers should bear that in mind when a reduction is suggested.
I have already expressed my views on contributory negligence here. Nothing in the latest paper changes my view. It is so much more important that people cycle than that they cycle with helmets and the Australian experience demonstrates that you cannot encourage both. It is so much more important that accidents are prevented than that we are forced to look to personal protection to hope to minimise their effect.
So when we see a famous footballer taking his children out for a bicycle ride let us applaud him for getting on a bike and not attack him because he has chosen not to wear a helmet.
So You Think Your Fantasy Football Team Is Doing Bad
Odds are that you have not been fired for it. Not the case for four employees at Fidelity Investments, whose office is apparently located in my neighborhood. Rob Radcliff at Smooth Transitions has the complete story, Fantasy Football Firing, complete with a poll of Fort Worth Star Telegram readers on whether they think the company over reacted. (No surprise how that one turned out.)
This is an interesting and timely story for me as I will be speaking at the Advanced Employment Law Seminar sponsored by the Texas State Bar in early January. My topic: "You're Not the Boss of Me: When and How Much Can an Employer Regulate Employee Conduct On and Off the Job."
Rob correctly points out that the key is likely to be that Texas is an employment at will state. I think the most interesting long term question is whether or not somewhere down the road, the expectations of the general public on what employers should do, as opposed to what they can legally do, becomes so at odds with employment at will, that the venerable doctrine is abandoned.
Of course that could never happen. And Lehman Brothers could never go bankrupt, Arthur Andersen could never fail, and Tiger Woods could never .... You get the point.
This is an interesting and timely story for me as I will be speaking at the Advanced Employment Law Seminar sponsored by the Texas State Bar in early January. My topic: "You're Not the Boss of Me: When and How Much Can an Employer Regulate Employee Conduct On and Off the Job."
Rob correctly points out that the key is likely to be that Texas is an employment at will state. I think the most interesting long term question is whether or not somewhere down the road, the expectations of the general public on what employers should do, as opposed to what they can legally do, becomes so at odds with employment at will, that the venerable doctrine is abandoned.
Of course that could never happen. And Lehman Brothers could never go bankrupt, Arthur Andersen could never fail, and Tiger Woods could never .... You get the point.
A Pre-Cursor to the Arbitration Fairness Act Takes Another Step
The Arbitration Fairness Act, which would ban the practice of making agreement to arbitration a condition of employment, is not likely to be voted on until sometime in the spring of 2010. However, those in favor of arbitration in the workplace can not be pleased by the survival of the Franken amendment to the Defense Appropriations Bill which bans such agreements by defense contractors.
After passing the Senate in October (the day before I was testifying in a Senate Judiciary Committee hearing involving arbitration where Senator Franken took the lead) it has now passed not only the House, but survived a conference committee. Franken Rape Amendment Included In Defense Spending Bill.
The amendment extends not only to first tier contractors, but also to sub-contractors, if either of them exceed $1,000,000. Although much of the publicity surrounding the Amendment has been focused on a rape that occurred against an employee who had an arbitration agreement, by extending its coverage to any claim under Title VII it is much broader than cases involving sexual assault.
Here is the language of the Franken Amendment that survived conference :
Hat tip to the Washington Labor & Employment Wire for their post on the appropriations bill.
Update (12/21/09): President Obama signed the law over the week end. Obama Signs Into Law Restriction on Arbitration Clauses.
Update (12/30/09): If you check the comments below, a reader has pointed out that I may have read the Franken Amendment too broadly when I suggested it may cover any Title VII claim. I certainly can see the point, and actuallythink hope he or she is correct.
However, I am apparently not the only one to read it broadly (or at least write about it that way). The
Alaska Employment Law blog's post, The Breadth of the Franken Amendment, quotes from the Legislative & Public Policy Direct of NELA:
Legislative drafting is obviously not an easy task. Not that they need it, but it definitely provides job security to judges.
After passing the Senate in October (the day before I was testifying in a Senate Judiciary Committee hearing involving arbitration where Senator Franken took the lead) it has now passed not only the House, but survived a conference committee. Franken Rape Amendment Included In Defense Spending Bill.
The amendment extends not only to first tier contractors, but also to sub-contractors, if either of them exceed $1,000,000. Although much of the publicity surrounding the Amendment has been focused on a rape that occurred against an employee who had an arbitration agreement, by extending its coverage to any claim under Title VII it is much broader than cases involving sexual assault.
Here is the language of the Franken Amendment that survived conference :
The bill now goes back to the Senate where passage is expected before Christmas.SEC. 8116. (a) None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 that is awarded more than 60 days after the effective date of this Act, unless the contractor agrees not to:
(1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention; or
(2) take any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates that the employee or independent contractor resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress,false imprisonment, or negligent hiring, supervision, or retention.
(b) None of the funds appropriated or otherwise made available by this Act may be expended or any Federal contract awarded more than 180 days after the effective date of this Act unless the contractor certifies that t requires each covered subcontractor to agree not to enter into, and not to take any action to enforce any provision of, any agreement as described in paragraphs (1) and (2) of subsection (a), with respect to any employee or independent contractor performing work related to such subcontract. For purposes of this subsection, a ‘‘covered subcontractor’’ is an entity that has a subcontract in excess of $1,000,000 on a contract subject to subsection (a).
(c) The prohibitions in this section do not apply with respect to a contractor’s or subcontractor’s agreements with employees or independent contractors that may not be enforced in a court of the United States.
(d) The Secretary of Defense may waive the application of subsection (a) or (b) to a particular contractor or subcontractor for the purposes of a particular contract or subcontract if the Secretary or the Deputy Secretary personally determines that the waiver is necessary to avoid harm to national security interests of the United States, and that the term of the contract or subcontract is not longer than necessary to avoid such harm. The determination shall set forth with specificity the grounds for the waiver and for the contract or subcontract term selected, and shall state any alternatives considered in lieu of a waiver and the reasons each such alternative would not avoid harm to national security interests of the United States. The Secretary of Defense shall transmit to Congress, and simultaneously make public, any determination under this subsection not less than 15 business days before the contract or subcontract addressed in the determination may be awarded.
Hat tip to the Washington Labor & Employment Wire for their post on the appropriations bill.
Update (12/21/09): President Obama signed the law over the week end. Obama Signs Into Law Restriction on Arbitration Clauses.
Update (12/30/09): If you check the comments below, a reader has pointed out that I may have read the Franken Amendment too broadly when I suggested it may cover any Title VII claim. I certainly can see the point, and actually
However, I am apparently not the only one to read it broadly (or at least write about it that way). The
Alaska Employment Law blog's post, The Breadth of the Franken Amendment, quotes from the Legislative & Public Policy Direct of NELA:
My guess is that defense contractors will put the wording from the Franken amendment "as is" into their agreements, and then when someone seeks to enforce arbitration of a Title VII claim with no relationship to "sexual assault or harassment" and we will get our first determination that matters. Even if the commentator below is correct about Title VII being limited, it seems a little harder to apply that reasoning to "negligent hiring, supervision or retention." ]Importantly, it bars contractors and subcontractors that are funded by 2010 appropriations not only from entering into pre-dispute “agreements” with their employees that require arbitration of Title VII claims, but also from ENFORCING any such agreements that already exist. It also appears to apply to such “agreements” with ANY of the contractors’ employees, anywhere, not just those whose jobs are funded by defense appropriations.
Legislative drafting is obviously not an easy task. Not that they need it, but it definitely provides job security to judges.
The trouble with cycle lanes
I am not a fan. On my commute in this morning I was using a cycle lane to filter on the nearside past stationary traffic in Isleworth when a right turning car took me out. I landed rather ungracefully on his bonnet. Fortunately neither of us was going very fast (15mph my Garmin says) and I am essentially unhurt. Looking at Google Maps (me left to right in that very narrow cycle lane) I see that the lane markings have changed since the satellite photograph as the cycle lane now extends past the driveway to the bus stop. I would normally overtake on the offside but the cycle lane meant the stationary traffic was further out so, with a central traffic island, there was no room. When passing a side road I am always in the primary position or to the offside of stationary traffic but I had not noticed this driveway nor had I seen the gap in traffic that enabled the oncoming car to turn right into my path.
I can now confirm that not all accidents are reported to the police. I shall not bother [edit: actually I shall; I will try to report by email and see if the Metropolitan Police now make reporting easy]- the last time I was taken out on a roundabout and ended up in hospital the police agreed not to prosecute the motorist if she went on a course. I will report it to CTC's SMIDSY campaign instead.
I can now confirm that not all accidents are reported to the police. I shall not bother [edit: actually I shall; I will try to report by email and see if the Metropolitan Police now make reporting easy]- the last time I was taken out on a roundabout and ended up in hospital the police agreed not to prosecute the motorist if she went on a course. I will report it to CTC's SMIDSY campaign instead.
Joint Commission and Bullying
If you have ever worked in or around hospitals, you know that two words that get everyone's attention are, Joint Commission. That's a shorthand description of an accreditation review that is a top to bottom scrubbing of every facet of an institution, with serious consequences if you don't meet the standards.
So when Professor David Yamada, the leading proponent of anti-bullying legislation notes that the Joint Commission has enacted standards that can be read as requiring anti-bullying procedures and training, I take note. See Workplace bullying in healthcare I: The Joint Commission standards.
So when Professor David Yamada, the leading proponent of anti-bullying legislation notes that the Joint Commission has enacted standards that can be read as requiring anti-bullying procedures and training, I take note. See Workplace bullying in healthcare I: The Joint Commission standards.
Labor and Employment Comes (Slowly?) Into the Electronic World
In looking at commentary on yesterday's granting of cert in City of Ontario v. Quon (more about that follows), I found a reference to an interesting law review article by William A. Herbert, Deputy Chair and Counsel for the New York State Public Employment Relations Board, provocatively titled, The Electronic Workplace: To Live Outside the Law You Must Be Honest.
While I haven't read the whole article, I was struck by one of his introductory comments: There's probably a lot of truth to that, but I think that it is changing.
Besides not being able to open your email without the announcement of yet another seminar on social media, there's other evidence that we are actually moving beyond the platform to actual developments. One is a report from Richard Negri at today's workplace, Some Things I Took Away From The Organizing Conference Last Week. That's organizing as in bringing a union to your workplace, not as in straightening your closets. If you don't think it's a different world, just check out the power point presentation, Organizing & New Media in the Obama Era at the conference's web site.
And yesterday, the Supreme Court granted certiorari in the Quon case where the 9th Circuit held that notwithstanding the city's policy that it could review electronic messages on equipment furnished to its employees, the employee nevertheless had an expectation of privacy because of the way the policy was implemented. Although the case is likely to turn on 4th Amendment law that is not directly relevant to private sector employers, any action by the Court that seems to expand the privacy rights of employees is likely to have a ripple effect on related areas such as common law privacy claims.
It may be too early to say that labor and employment law is up to date on all forms of communication and interaction that we now live with on a daily basis, but there's no question that willingly or not, it is clear that we will soon be dealing with them.
While I haven't read the whole article, I was struck by one of his introductory comments:
In many ways, United States labor and employment law sleepwalked into cyberspace. Although there is wide societal recognition that new technologies are leading to the diminishment of personal privacy, there has not been an equal demand for changes in the legal paradigm.
Besides not being able to open your email without the announcement of yet another seminar on social media, there's other evidence that we are actually moving beyond the platform to actual developments. One is a report from Richard Negri at today's workplace, Some Things I Took Away From The Organizing Conference Last Week. That's organizing as in bringing a union to your workplace, not as in straightening your closets. If you don't think it's a different world, just check out the power point presentation, Organizing & New Media in the Obama Era at the conference's web site.
And yesterday, the Supreme Court granted certiorari in the Quon case where the 9th Circuit held that notwithstanding the city's policy that it could review electronic messages on equipment furnished to its employees, the employee nevertheless had an expectation of privacy because of the way the policy was implemented. Although the case is likely to turn on 4th Amendment law that is not directly relevant to private sector employers, any action by the Court that seems to expand the privacy rights of employees is likely to have a ripple effect on related areas such as common law privacy claims.
It may be too early to say that labor and employment law is up to date on all forms of communication and interaction that we now live with on a daily basis, but there's no question that willingly or not, it is clear that we will soon be dealing with them.
The week that was
Law enforcement at the most basic level seems to me to leave something to be desired. On my daily commutes last week I saw a woman cyclist pulled over by a 4x4 police vehicle who had stopped to hand out a fixed penalty for contravention of a traffic light. Fair enough I suppose (always assuming she had not passed the line to be visible to an HGV) but I have never ever seen a motorist stopped for using a handheld mobile 'phone or for contravention of an advanced stop line or indeed for jumping a red light though I see scores of such offences every day. The police are after all responding to the concerns of the popular press who almost daily call for a crack down on 'rogue cyclists'.
When Westminster councillor Angela Harvey spoke to The Times last week to support a proposal to allow traffic wardens power to fine errant cyclists she told them that:
“We’re always getting little old ladies who are knocked down and abused by a cyclist, who leaves them on the ground as they ride away. The police are the only people who have the ability to enforce this issue, and they just aren’t taking this seriously enough. There are more of our officers on the street than there are police at any given time, so it is a sensible solution.”
Meanwhile BBC news reports a recent study which has confirmed what we all know, that mobile 'phone use amongst motorists is common-place. Motorists now appreciate that the risks of a penalty are negligible and use hand held 'phones no less than they did before legislation banning their use.
Ms Harvey seems to me to be a bit like the sherriff in the lawless frontier town who does not dare to tackle the bandits with the shotguns, but instead urges her deputies to deal with the kids with the pea-shooters. Let's exaggerate the harm done by the pea-shooters and turn a blind eye to the death and destruction threatened by the untouchables.
Imperial Winter Series Race 2
A fine day but with a stiff northerly wind for the second race of the Winter Series. 3 Thames Velo riders in the 4th cat event and 2 in the 3rds today - a record at least in recent years. We were given advice on the start line as to how to avoid last week's difficulties with the coming together of the two races but in fact the problem solved itself this week. Perhaps we 4th cats were marginally faster, or the 3rd cats marginally slower or both, but we were blissfully undisturbed by each other. The field was not quite as crowded as last week's 70 riders but was still fairly full. I aimed to keep near the front for at least the first 30 minutes. For a short moment I thought I might have made it into a break of 5 but the pack has a capacity to put on an impressive burst of speed both to reel in any breaks and to leave me for standing in the final lap. My teammate Andy fared better, in only his second race, he got towards the front and stayed there until the final sprint.
Average speed 24mph
Average speed 24mph
MDV the Malicious Prosecution Way
There are a myriad of ways that employers end up in front of a jury. One of the less frequent, but as seen by the result, no less dangerous, is a case for malicious prosecution. They usually arise like the facts in a federal court in Virginia last week. Clyde Bennett, a night shift foreman was fired and charged with grand larceny in connection with the embezzlement of computer equipment.
When that charge was later dropped, he filed a lawsuit against his former employer for malicious prosecution. According to the report from the Richmond Times Dispatch, the jury took less than half an hour to deliver its message. Jury awards $3.2 million to local trucking company employee.
Because the legal standards are relatively high, this verdict is likely to have a long way to go before it becomes a judgment that has to be paid. But it is a good reminder that any time one of the actions that an employer is considering is filing a criminal charge against an employee, that there is at least the potential for what at the time would seem preposterous -- that it could be the employer that ends up the defendant.
When that charge was later dropped, he filed a lawsuit against his former employer for malicious prosecution. According to the report from the Richmond Times Dispatch, the jury took less than half an hour to deliver its message. Jury awards $3.2 million to local trucking company employee.
Because the legal standards are relatively high, this verdict is likely to have a long way to go before it becomes a judgment that has to be paid. But it is a good reminder that any time one of the actions that an employer is considering is filing a criminal charge against an employee, that there is at least the potential for what at the time would seem preposterous -- that it could be the employer that ends up the defendant.
Imperial Winter Series - Saturday 5th December
At last - racing again in the Imperial Winter series run by the terrific Doug and Lucy Collins. Met up with my teammates Andy and Paul, the former a first time 4th cat and the latter a seasoned 3rd. I got a puncture warming up which I noticed at the start line at 1pm (the start time). I asked Doug for a spare wheel but he told me I had time to change my tube. Well obviously he doesn't know just how slow I am. By the time I got back to the car, fixed the punture and returned to the circuit they had all started. The Commissaire kindly let me join a lap late; well that is one way of getting to the front early on. As my club coach noted I can stay near the front for the first half of the race but seem to lose this ability later on. For me it all fell apart a bit as the 3rd cats went by as it took for ever and for that period it was impossible to pull out and move back towards the front. I came in at the back of the bunch as did Andy (brilliant, for my first few races I was lapped). We hung around long enough to see Paul come in in the rear portion of his bunch.
For a full account of this (and many other) races see Lance Woodman's blog.
Average Speed 24 mph.
For a full account of this (and many other) races see Lance Woodman's blog.
Average Speed 24 mph.
Google and Legal Research
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:
I doubt that many are canceling their Westlaw or Lexis accounts today, but it is an interesting development.
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.
Traffic Lights
Such a 'free for all' would though require a hierachy of vehicles, with motorists giving way to cyclists and both giving way to pedestrians such that in a collision the driver of the larger type of vehicle would at least bear the burden of demonstrating in a civil case that the accident was not his fault. I have described this as akin to the system prevailing in some European countries. This is of course a simplification of a complex piece of comparative law which I may attempt in a future post. The burden is harder to shift in some countries and in some circumstances than in others.
Finally, I am gratified that a number of people have been kind enough to express appreciation of my last post.
Wrongful Termination North of the Border
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":
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.
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
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.
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
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.
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
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: DePree v. Saunders (5th Cir. 11/13/09). [pdf]
At some point, that is going to be a handy reference.
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.
At some point, that is going to be a handy reference.
Wage & Hour: Not Just Collective Actions Anymore
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.
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.
Cycling against the car culture
[Warning:this is a long blog. A shortened version has now been published in the New Law Journal]
Last year (2008) 2,538 people were killed in theUnited Kingdom
Last year (2008) 2,538 people were killed in the
The main tenets of this car culture can be summarised as follows:
1. The inevitable attrition is a price well worth paying (by unknown others) in return for individual autonomy and convenience (often now described as necessary to the way in which we live our lives).
2. Every physically competent adult has a right to drive, removable only as a punishment for serious or repeated criminal offending and, even then, only temporarily.
3. Conduct which might be regarded as dangerous in any other walk of life is, in a motorist, merely careless and that which would otherwise be careless is excusable. This tenet is coloured by a sense of ‘There but for the grace of God, go I’ in the mind of the individual scrutinising the conduct in question.
4. Road safety efforts should be focussed upon segregating the vulnerable road user from motorised traffic (at the expense of ensuring the safe sharing of road space) and upon encouraging, or even mandating, personal protection to ameliorate the consequences of the collisions which are accepted as inevitable.
5. A myopic view of the fundamental laws of physics which permits motorists to argue that their responsibilities and actions in controlling 1,000+ kgs at up to 70mph should be judged in a similar manner to those controlling less than 100kgs at up to about 20mph. It is not necessary to be an apologist for red light jumping or pavement riding cyclists to point out that the risks they pose are many orders of magnitude less than the risks to pedestrians and cyclists from poorly controlled motor vehicles
There are some signs that the car culture runs deep within our justice system, which arguably lags Parliament’s and Governments’ (central and local) efforts to restore a balance between motorised and alternative modes of personal transport. The bicycle is not only an inspired individual response to the difficulties of getting around but also a solution to the general problem of traffic congestion. The individual cyclist who leaves the car at home is freeing up road-space, reducing risk for all other road users and benefiting the environment for all. Even the cyclist who makes a trip that would not otherwise be made by car presents a negligible risk to others. The number of pedestrians killed by cyclists is similar to the number killed by golf balls; in each case too small to register on statistics, but on the few occasions per decade that it does occur accompanied by much publicity.
Cycling is not, on any rationale scale, a dangerous activity. It is, however, often perceived as dangerous because of the cyclist’s inherent vulnerability and it remains, per mile travelled, significantly more dangerous than driving, a trend that the recently released statistics for the second quarter of 2009 reveal to be moving in the wrong direction. The perception of danger is heightened by the suggestion that protective headgear is a necessity. In a collision between a bicycle and a motor vehicle the cyclist will come off worse, with the motorist virtually invulnerable (save to any subsequent legal sanction). While bearing the relative risks in mind, it is nonetheless worth reminding cyclists that in a collision with a pedestrian, the pedestrian will often come off worse (though the cyclist will still not have the invulnerability of the motorist).
It is a mark of a civilised society that the law protects the weak from unwarranted harm inflicted by the strong. It is important for cyclists to know that they share the roads with motorists who have an obligation to take care around them and that those who do not will be called properly to account. When a motor vehicle strikes a cyclist, and particularly when a fatality results, it is of the utmost importance that a thorough investigation take place, that where the facts warrant it a prosecution is pursued for the appropriate offence (without requiring a near certainty of conviction), and that following any conviction a deterrent sentence is passed. The car culture needs addressing at each of these levels.
Investigation and prosecution
In early June 2008, Marie Vesco, a 19 year old from France who had recently settled in this country, was cycling in a group of around a dozen from London to Brighton . They were travelling on the A23 and had to negotiate a junction where the nearside lane of three became an exit slip road. To travel straight on the group had therefore to cross the nearside lane. This is what Ms Vesco was doing when she was hit first by a car taking the exit and then by another car following close behind. A short police report concluded, somewhat lamely, that Ms Vesco and the driver of the first car had either separately or jointly failed to judge each other’s intentions. There was no proper analysis of whether the car should have been attempting to overtake the cyclists in those circumstances or whether the cyclists were afforded sufficient space or whether the next car was following a safe distance behind. The CPS decided not to prosecute, a decision that was unhappily communicated to the distraught family too late for them to consider a private prosecution. The A23 is not a motorway (perhaps it should be but that is a separate matter), it is thus a road available to all traffic. However the car culture tenet of segregation suggests that the cyclists should not be anywhere near fast moving traffic, detracting from the fact that motorists should recognise that the nature of the road and junction, combined with the awful consequences of a collision at speed, called for extreme care in overtaking the cyclists.
It is worth noting that in Ms Vesco’s home country it is a requirement that traffic overtaking a cyclist allow a margin of 1.5m (5 feet), and this self evidently needs to be increased with the speed of the passing vehicle. Here the Highway Code (rule 163) requires motorists to give vulnerable road users they are overtaking ‘at least as much space as you would a car’ implying (though not without some unfortunate ambiguity) a similar, roughly 5.5 foot, margin. In no industrial or other context would a reduction in a like margin of safety be regarded as acceptable, yet on the roads it is both commonplace and excused.
One month after Ms Vesco’s tragedy, in July 2008, Anthony Maynard, a 25 year old experienced cyclist was on an evening training ride with other members of the Reading Cycling Club. By the time he reached Bix on the A4130 dual carriageway near Henley he was with just one other club-mate. Both were struck by a van that had overtaken another vehicle and then pulled in to the nearside lane killing Mr Maynard and injuring his companion. No prosecution was brought apparently on the basis that the van driver had been dazzled by the sun and could not therefore see what was, or was not, in the road space that he was driving into at speed. Again some might be forgiven for suspecting that the car culture assumed that vulnerable road users should be out of the way and that it need not occur to a motorist that the space he is blindly driving into might contain cyclists.
In contrast one can only gape in astonishment at the series of choices made by the police, the CPS and District Judge Bruce Morgan that, in 2006, led to Daniel Cadden’s conviction for inconsiderate cycling. His offence was using the road on his commute home through Telford where he was cycling at around 20mph. Initially the police stopped him for riding in the road position which is recommended by the cyclists’ bible ‘Cyclecraft’ and taught on bikeability cycle training courses; that is, he was cycling in a position well out from the nearside edge of the road. It was belatedly appreciated that, wherever Mr Cadden was positioned across the road, traffic could not overtake him, in accordance with rule 163 mentioned above, without crossing double white lines in the centre of the carriageway. It is partly to discourage dangerous attempts by motorists to ‘squeeze by’ that a cyclist should often take the position Mr Cadden was adopting. District Judge Morgan, who had the benefit of expert evidence from the author of ‘Cyclecraft’ John Franklin, nonetheless convicted Mr Cadden on the basis that it was inconsiderate to ride on the road at all, rather than on a separate cycle path. Interestingly, advice from the Department of Transport in its proposed Code of Conduct for Cyclists is, “As a general rule, if you want to cycle quickly, say in excess of 18 mph/30 kph, then you should be riding on the road.” Mr Morgan’s credentials as an adherent of the car culture cannot be faulted; he had earlier acquitted of speeding and dangerous driving PC Milton who was clocked driving an unmarked police vehicle at well over twice the speed limit on a motorway and other roads. Both of DJ Morgan’s decisions were overturned on appeal but there remains a striking contrast between the police, prosecution and judicial time and effort directed towards the literally harmless Mr Cadden and that directed towards motorists who have run down cyclists.
Sentence
In September 2009 two appeals against sentence came before the Court of Appeal. In one, Darren Hall appealed a sentence of seven months detention in a young offenders’’ institution following his guilty plea to the offence of wanton and furious carriage driving contrary to section 35 of the Offences against the Person Act 1861 (a bicycle being deemed a carriage in Victorian legislation). He had in August 2008 been riding his bicycle on the pavement in Weymouth when, after turning a corner at speed, he collided with Mr Ron ald Turner who died some days later from a pulmonary embolism attributable to the collision. Mr Hall was young (20 at the time of the collision) and stopped to render assistance (had Mr Hall been a motorist, the sentencing guidelines relating to causing death by driving make clear that this would be treated as a mitigating factor).
His appeal against his detention was dismissed by the Court of Appeal who observed that he ought to have realised that if he collided with an elderly or infirm pedestrian it was entirely possible that serious injury might ensue. “It was the sort of cycling which, in our judgment, created at least some risk of danger. It was, therefore, not far short of dangerous cycling”. The logic of this cannot be faulted, although it is worth pondering why cyclists not infrequently ride on pavements. They should not do so, but so long as the car culture sends out the message that cyclists are not welcome, or safe, on the roads but should be separated from, and thus out of the way, of motor traffic, the unfortunate practice is likely to persist. It is rather encouraged by the strategy adopted by many Highway Authorities of providing for cyclists by painting bicycle paths on the pavement instead of ensuring that traffic is calmed appropriately for shared use of the road.
In the other case Matthew Rice appealed a sentence imposed at Peterborough Crown Court of 20 weeks imprisonment and a two year driving ban for the offence of causing death by careless driving introduced by section 20 of the Road Safety Act 2006. Mr Rice had been driving home along a narrow country lane near Fenstanton in Cambridgeshire at about 6pm on a Friday in November. He was third in a line of three vehicles headed by a car travelling at 40 to 45mph. This was not a sufficient rate of progress for either Miss Buckingham (driving the car second in line) or Mr Rice. Mr Rice pulled out to overtake both the cars ahead of him but Miss Buckingham then pulled out to overtake as well. Mr Rice could no longer see what lay ahead but nonetheless remained behind Miss Buckingham to overtake the lead car. A fit cyclist, Mark Robinson, was riding in the opposite direction. His front light was seen by the driver of the lead car and was described by another witness as ‘quite brightly lit’. Miss Buckingham saw him just in time and was able to regain her correct side of the carriageway without a collision. Mr Rice did not see Mr Robinson until it was too late. The road was not wide enough for two cars and a bicycle and there was a head on collision, at a closing speed of about 70 mph, in which Mr Robinson tragically died.
Mr Rice was driving fast on the wrong side of the road in circumstances where he could not see what was coming towards him. In any ordinary sense of the word this is dangerous. Using the words aptly applied to Mr Hall’s cycling, it was the sort of driving which created at least some risk of danger and was, therefore, not far short of dangerous driving. However the Crown had agreed with the Defence that this was not close to the border of dangerous driving but was in the middle range of careless driving. Comparisons were then made with the fate of Miss Buckingham who had been convicted of careless driving and failing to stop and received a fine of £300 with a disqualification from driving for nine months. It was thought that the levels of culpability were the same with a difference only in the consequences. This seems charitable to Mr Rice; Miss Buckingham could see where she was going and, albeit late, saw Mr Robinson in time to avoid a collision. Had it not been for Mr Rice’s actions no accident would have occurred and (as any cyclist who has tried reporting a ‘close shave’ will know) it is inconceivable that she would have faced any prosecution.
There was further concern expressed about the far lower powers of sentencing available had the accident resulted in serious injury rather than death, though the Court did acknowledge that Parliament had singled out the consequence of death as calling for particular sanction. Of course the lack of draconian sentencing power, had the consequence been serious injury, results also from the peculiar reluctance to condemn as ‘dangerous’ actions which in any context, other than driving, would be unhesitatingly so described. Charging decisions are important. Judge Peter Moss when sentencing a man (R v Robertson Guildford Crown Court 10.11.09) who had used his car to run down and seriously injure a cyclist rightly expressed his sentencing powers (2 years custody) for dangerous driving as “absurdly low and incomprehensible” given the facts of that case, but he may have been assisted by a more imaginative decision to prosecute for assault occasionally actual bodily harm which carries a maximum of 5 years. Prosecutors here might learn from the course taken by Los Angeles prosecutors in the case of Dr Christopher Thompson, who was this month convicted on seven counts including assault with a deadly weapon after a road rage incident resulting in two injured cyclists. [January 2010 - now sentenced to 5 years.]
In the event in Rice’s case, the Court of Appeal decided that it was not sufficiently clear that the Judge had considered suspending the custodial sentence and since the Court of Appeal thought that was the appropriate course, they duly suspended the sentence. This could be said to be different from Mr Hall’s treatment, though it may be that there was some good reason, which is not clear from the report, why a suspension of Mr Hall’s sentence would have been inappropriate.
The Court of Appeal then considered Mr Rice’s appeal against his two year driving ban. The Court sympathised with the predicament of a man who had chosen a life-style which made a driving ban a serious impediment to keeping his job and reduced the ban from 2 years to 12 months. This is the same period for which Mr Hall was disqualified from holding a driving licence as a consequence of his offence committed on a bicycle.
Finally it is to be noted that the sentencing guideline’s aggravating feature of failing to take extra care around vulnerable road users was not invoked against Mr Rice. True he did not know he was in the vicinity of a cyclist until it was too late but he was driving nearly literally blindly into a space which foreseeably contained a cyclist.
In May 2009, Denis Moore, received a suspended prison sentence at Durham Crown Court following his conviction of causing death by careless driving. He had struck and killed a cyclist, Mr Jorgensen, as a consequence of failing to accord him the right of way on a roundabout. As noted, the causing death by driving sentencing guidelines identify cyclists, amongst others, as vulnerable road users, and state that a driver is expected to take extra care when driving near them. Driving too near to a bicycle or horse is an aggravating factor. The guidelines go on to indicate that where the actions of the victim or a third party contributed to the commission of the offence that should be acknowledged as a mitigating factor. In passing sentence Judge Lowden referred to defence counsel’s submission that Mr Jorgensen’s lack of a helmet was a mitigating feature. It is not clear whether this is in fact what tipped the balance against an immediate custodial sentence and it would be deeply disturbing if it was. There appeared to be few other potentially mitigating features (and indeed Mr Moore had been habitually driving for years unsupervised with a provisional licence). The absence of a helmet clearly did not contribute to the commission of the careless driving, and the section 20 offence is more serious than careless driving because of the consequences, not the other circumstances, of the offence. Whether a helmet would in fact have made any difference is highly questionable and is unlikely to have been investigated at a sentencing hearing. But in any event, even if Mr Jorgensen was more vulnerable as a consequence of being helmetless, then, as Darren Hall’s case illustrates, the vulnerability of the victim is no mitigation.
Presumptions of Liability
A storm was recently provoked when it emerged that the Government advisory body, Cycling England, planned to recommend that, in civil cases, an onus of proving that the accident was not their fault be placed on motorists who collide with vulnerable road users. The details of the recommendations, still less their prospects of acceptance, remain unclear. Press reports of a strict liability, regardless of fault, are probably a distortion. More likely is a proposal to adopt a system akin to that which is widespread in other European countries; that the motorist is at fault unless proved otherwise. Variants include a general assumption that the driver of the larger vehicle is to blame, thus the presumption is against cyclists in collisions with pedestrians. Few cases in practice turn upon the burden of proof. The heavier and faster the vehicle you chose to control, the more danger you present to others. A recognition that this imposes a correspondingly greater duty and, in the event of accident, comes with a burden of proof may constitute one small step towards the shift in culture required and would be a useful precursor to any trials of innovative traffic solutions which involve the removal of traffic lights and other junction controls.
Conclusion
The car culture has developed over generations and will not change overnight. Rising levels of congestion, pollution, obesity and recognition of climate change have led to Government action to encourage cycling, particularly as an alternative to motoring. To an extent these efforts are succeeding and there has been a rise in the number of cyclists on the roads in recent years. Cycling remains though a minority activity and one major challenge is in enticing individuals to trade the virtual invulnerability of a motor car, where the risks are borne by others, for the vulnerability of the cyclist to the mistakes of motorists. The risks to the cyclist are not in truth as high as they are often perceived and are more than counterbalanced by the health benefits of exercise. However the perception, aided and reinforced by segregation and requirements for personal protection, feeds the reluctance of cyclists to take to the roads. Potential road cyclists as a consequence remain in the car or ride on the pavement. Mr Turner, no less than Ms Vesco, Mr Maynard, Mr Robinson and Mr Jorgensen, was a victim of the car culture.
It is crucial that when cyclists do take to the roads the risks to them posed by motorists are minimised and this requires a willingness to challenge the car culture. Police, Prosecutors and Judges, as well as legislators, have an important role to play in achieving this.
Can the NLRB Function With 2 Members?
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.
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
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:
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
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 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
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:
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
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
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:
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:
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.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.
A UK/USA Split - Protection For Those Over 65
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.
That's where the U.S. statutory protection, the Age Discrimination in Employment Act, started; but two amendments later, it has no upper cap.
Ronde Picarde Saturday 12th September 2009
With a bit of lucky timing at the Eurotunnel, we made it this year from home to the sign on in Abbeville in 3 ½ hours, which meant I got there at 1958 French time, 2 minutes before the advertised closing time. Tents were already being taken down, the guy checking the electronic tags had turned his laptop off and the bags of goodies had plainly run out. However I got the bare essentials minus sufficient ties for transponder and number, and headed west into a glorious sunset to the usual cabin by the golf-course.
There I assembled the bike, tied the number on using dental floss and inserted into my rear bottle carrier the sawn off tonic bottle which was all part of the plan to avoid last year’s disaster at the water station.
The following dawn saw me up having breakfast and going easy on the coffee in an attempt to avoid a stop behind a hedge later in the day. In the gathering light I made the 15 minute ride back to the start, caught up by part of a large group from the
At 0804 we set off for the mad dash out of Abbeville with the speed soon picking up to 30 mph as we blasted southeast. However as we reached the first roundabout outside Abbeville the riding became very hairy. The lead vehicles slowed to below the pace of the peleton and we all bunched up behind, with the foolhardy picking past the strong, my speed dropping from 32 mph to 12. Once past the roundabout the pace picked right up again. There was a high speed crash as we zoomed through Epagnette to Eaucourt. Then the sharp turns as we left the main road and the delay getting over the narrow bridge before we wound up again as we headed south towards where I had expected the first hill. However this year we diverted from the route of previous years and headed straight to Bellifountaine avoiding the worst of the hill and gradually separating out into large groups.
As we went south to Oisement a strong wind made itself apparent especially after we had crossed the motorway for the first time and headed northwest. The wind must have been heading somewhere out of the Northeast. The echelon spread left across the road, with the first handful of riders, and then strung out in a long line all on the far left. Fortunately there were motorcycles everywhere warning oncoming traffic to get off the road. The wind strengthened and riders desperately tried to get shelter from each other, which was the probable cause of a sudden crash right in the middle of the peleton alongside me.
Speed remained high and I hit 30mph again on the descent down to the seaside town of
Heading back to the coast we were back into a strong crosswind. Again there was a string of riders along the left side of the road. However close I was to the side of the road someone would come further to my left to try to take shelter from me. I couldn’t seem to find shelter for myself and gave up just before Cayeaux and headed through
The next group came by shortly before the bifurcation came up. This group was fine to begin with and I was even spending a fair bit of time at, or at least towards, the front of it. At the water sation my sawn off tonic bottle served its purpose well, I picked up two bottles one went into my makeshift holder, the other into my back pocket. There was welcome relief from the wind provided by the
I was on my own for nearly all the remaining 20 miles. I was passed by a pair doing a 2 up that involved riding side by side taking it in turns to be in the crosswind. As I got to the last hill I spied a large group behind and decided I would try and keep ahead of them. By now there was a tailwind so I time trailed back to the finish.
After the pasta, beer and chips at the finish, it was time to return to Virginie’s for the now customary
Total time this year was 05:42, good enough for Gold, but a disappointment after last year’s rather better performance. I came in 282nd, one hour behind the winner and 102nd in my age category. For the first time I had a slower time than the preceding year.
Still a great ride and as always thoroughly recommended.
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