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:
  • 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:

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

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.

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 Midlands who had discovered Virginie’s accommodation. I got there with half an hour to spare – thus far things were going better than last year but it was not to last. My ranking in my category last year had secured me a place in the front start pen with a lot of ferociously fit looking racers. No need, it seemed to me, to worry about where in the front pen I started so I spent a bit of time looking about for my team-mate with no success, before settling into some idle conversation with some guys from Carlisle who did the 113 miles in under 5 hours last year.


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 Ault. The road surface was untypically poor and I had drifted towards the back on this descent. As I turned sharp right for the short 25% ascent out of the town, my way was blocked by cyclists trying to pick their way past a parked car that was obstructing much of the road. It was a real challenge not to stop or fall off and my Garmin records a speed of 3 mph. By the time I got to the top of the hill I was off the back-stupid really as that is what happened to me last year. So with 3 others we struggled into the powerful headwind, finally re-establishing contact with the bunch as they slowed for the roundabout at Hautebat. The 2 mile chase had worn me out though and I suffered for it soon.


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 Brighton in a small group that had been shelled from the back. I was still struggling and at around St Valery, I decided to stop, pause behind a hedge to avoid the need for delay later on, and carry on at a gentle pace waiting for the next group.


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 Forest of Crecy which sheltered us somewhat. However as we emerged from the forest the cross wind was back with a vengeance and I was struggling yet again. Shortly after Noyelles, when a hill combined with everything else, I got dropped for the second time.

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 Champagne




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.

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

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?

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.

Helmets

I do not cover my professional activities on these pages and have thus far avoided the question of helmets. However I have a letter in this week's Cycling Weekly responding to a call from another cyclist to 'wear your helmet'. It is one thing to hear this from a non cycling Judge (as to which I have vented my views in the New Law Journal and elsewhere, see http://www.newlawjournal.co.uk/nlj/content/personal-injury-blame-victim); I do worry though when cyclists themselves look to secondary and uncertain hope of injury reduction rather than the avoidance of accidents. I would like to see increased criminal penalties for those who speed, use mobile phones or drive carelessly/inconsiderately in the vicinity of a vulnerable road user. I say this as a cyclist rather than a lawyer but am all too aware of the lack of zeal often exhibited by prosecuting authorities in motoring cases.

Thames Velo Hillingdon Crit Saturday 5th September


My club's turn at Hillingdon today so after a very inactive August I raced again. This week's crash was in the simultaneously run E/1/2/3 race and they were just picking themselves up as the 4th cat race came through. Had a few digs off the front but nothing lasted and the inevitable bunch sprint at the end is not for me. I finished in time to gawk in admiration at the two man leading break in the senior race containing my recent team mate, Harry Bulstrode, who chose our race to get the necessary points for Elite status. Tragically he punctured with 3 laps to go but still kept ahead of the chasing break of 5 to come in 2nd. One day I hope to emulate that with a break that works.

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