Yes, I am snowbound, the Winter Series is again cancelled and I still do not posses a turbotrainer so I will crack on with a legal update instead:
On 1st November the Criminal Division of the Court of Appeal dismissed an appeal by cyclist, Carl Betts, against his sentence of 30 months imprisonment for inflicting grevious bodily harm on a youth who had taunted him. The facts, taken from the Judgment of Mr Justice Hedley, were as follows:
"The events develop really in the early hours of the morning of 26th November 2009. The complainant was aged 17 and was part of a group of young people in a park and there was much laughing and general noise and so on going on. The appellant, who was some 5 years older, at 22, passed this group on his bicycle. There was directed at him quite unnecessary abuse and foul language. Wiser heads would simply have ridden on. But the appellant decided to stop and confront this group about their behaviour and he got off, returned to the group and there was an altercation. The appellant then delivered two punches to the head of the complainant, the effect of which was to put him on the ground.
As he struck the ground it appears that the complainant suffered a further and, as it turns out, extremely serious brain injury."
The Court commented that there was simply no reason at all for the violence to be offered. It is all particularly distressing as it is all so unnecessary. Against that, Betts pleaded guilty and, through the prosecutions's acceptance that this was not the more serious offence of causing GBH with intent, it was accepted that he had not intended the consequences of his actions.
Nonetheless the Judge was held to have been entitled to pass a severe sentence to reflect the gravity of the injury which had occurred and, as a matter of general public policy, if you punch somebody to the head, you should take the consequences however unintended or even unexpected.
It appears that the only reason for the original abuse and foul language was that Betts was on a bicycle and perhaps the main lesson for cyclists is that in the face of such abuse they should ride off if they can. There may also be parallels to be drawn where the cyclist is the victim, rather than the perpetrator, of violence.
On 18th November, Dennis Putz, the killer of the cyclist, Catriona Patel, was sentenced to 7 years imprisonment following his conviction of causing her death by dangerous driving. He ran down Ms Patel driving a Thames Materials skip lorry in South London in June 2009. Mr Putz was using a handheld mobile 'phone at the time of the collision and was also still above the legal drink drive limit after a binge the night before. Putz had a long long history of convictions demonstrating a contemptuous disregard for the laws intended to make the roads safer. His Honour Judge Chapple gave him a lifetime driving ban (a very rare example of this power being exercised).
Questions must arise as to whether Putz's employers, Thames Materials, knew or ought to have known that they were sending lorries driven by such a dangerous menace onto the public roads. These questions only intensified when on 7th December a Japanese businessman in a taxi on the A4 heading into London was killed when a Thames Materials HGV travelling in the opposite direction apparently lost control. Thames Materials has been reported to state that, "We are very sorry about both cases. We are working very closely with police to try to understand what happened. It has been very hard for us as a company." The last sentence has not succeeded in eliciting any great sympathy from this quarter.
Section 3 of the Health & Safety at Work Act 1974 is intended to protect persons not at work from the activities of those at work where risks to health and safety may arise from the manner of the carrying out of the employer's activities (I paraphrase). Enforcement is the responsibility of the Health and Safety Executive. In the past the Executive have made it clear that road traffic is not one of its priorities. HGVs kill a disproportionate number of cyclists, especially in London, so arguably this should move up the list.
Thames Materials may be an obvious place to start, but this gives me an opportunity to name and shame Fowler Welch, Oil Salvage Limited and Sunlight Textile Services, none of which have taken the slightest interest when I have drawn to their attention poor driving by their HGV drivers around cyclists. Lorry drivers have an enormous responsibility, and to be fair most of them drive very well. It seems reasonable to expect, in the interests of road safety, companies running fleets of lorries to ensure they employ only the most responsible careful and well trained drivers.
Imperial Winter Series Race 2
A good day for the first of the terrific Doug and Lucy Collins’ Imperial Racing Winter Series for this season. Dry with a temperature of +9°C and a light westerly wind (though it always seems a bit stronger at Hillingdon). The series was planned to kick off last Saturday but the ice and snow on the circuit made cancellation inevitable. We will be lucky if that is the only race to be lost to this icy winter.
I signed on a little apprehensively for I had somehow stepped up from 4th category to 3rd category since last winter. I need not have worried though; the speed was very similar, though there was some more tactical riding with bursts of energy interspersed with collective breathers while we waited to see what move would happen next.
Early on I discovered I was not in good enough form to keep up with the rider who keenly sprinted straight off the start or to get into any break. There were some early attempts, but I did not have the strength to go with them and no-one had the strength to stay away (maybe the ice hasn’t affected just my training, though I somehow suspect most others have a turbo in the garage). My club coach was watching, and he had once advised me to settle for an objective of staying near the front for as long as possible. It was therefore largely for his benefit that at 3 laps to go I was at the front; indeed with the sprint on everybody’s minds I had trouble getting off the front and then struggled with the inevitable acceleration in the last couple of laps.
I was at the back discussing with my old racing companion, James, how it might not be wise to compete the sprint, when the wisdom of that joint thought was borne out by a crash on the home straight. Bikes came down to the left of me and then immediately afterwards one to the right of me. I do hope they are all ok. I carried on to roll over the line just off the back of the bunch, which pretty much met my objective of the day.
25 miles in 1h02m. Average speed 24.2 mph. Top speed 30mph just before slowing for the crash.
I signed on a little apprehensively for I had somehow stepped up from 4th category to 3rd category since last winter. I need not have worried though; the speed was very similar, though there was some more tactical riding with bursts of energy interspersed with collective breathers while we waited to see what move would happen next.
Early on I discovered I was not in good enough form to keep up with the rider who keenly sprinted straight off the start or to get into any break. There were some early attempts, but I did not have the strength to go with them and no-one had the strength to stay away (maybe the ice hasn’t affected just my training, though I somehow suspect most others have a turbo in the garage). My club coach was watching, and he had once advised me to settle for an objective of staying near the front for as long as possible. It was therefore largely for his benefit that at 3 laps to go I was at the front; indeed with the sprint on everybody’s minds I had trouble getting off the front and then struggled with the inevitable acceleration in the last couple of laps.
I was at the back discussing with my old racing companion, James, how it might not be wise to compete the sprint, when the wisdom of that joint thought was borne out by a crash on the home straight. Bikes came down to the left of me and then immediately afterwards one to the right of me. I do hope they are all ok. I carried on to roll over the line just off the back of the bunch, which pretty much met my objective of the day.
25 miles in 1h02m. Average speed 24.2 mph. Top speed 30mph just before slowing for the crash.
Polyglot for Wage and Hour Administrator
Almost two years into his term, President Obama is making a 2nd try at an Administrator for the Wage and Hour division of the Department of Labor, with his nomination of Leon Rodriguez, currently a DOJ lawyer and formerly County Attorney for Montgomery County, Maryland. See, President Obama Announces More Key Administration Posts.
The White House did not use the polyglot label, but when he was announced as County Attorney in April 2007, it was noted he spoke, "English, French, Spanish, Hebrew and Italian".
President Obama's earlier nominee, Lorelei Boylan from New York had asked that her name be withdrawn more than a year ago. See, Wage & Hour: Not Just Collective Actions Anymore.
The White House did not use the polyglot label, but when he was announced as County Attorney in April 2007, it was noted he spoke, "English, French, Spanish, Hebrew and Italian".
President Obama's earlier nominee, Lorelei Boylan from New York had asked that her name be withdrawn more than a year ago. See, Wage & Hour: Not Just Collective Actions Anymore.
Disparate Impact Suit - Credit Checks
Three times a year for the last several years I have done a program for the UT School of Law, CLE group called Essential Employment Law. In the morning, I talk about theory and in the afternoon my good friend (and great lawyer) Connie Cornell talks about the practical application.
One of the things I always cover are the three theories of discrimination, including disparate impact. Since disparate impact is not something that always readily comes to mind when you first think about discrimination I always try to mention an example that might cause people to relate to something that they could be doing.
This year, based on the EEOC's recent interest, I talked about credit checks. See, EEOC Public Meeting Explores the Use of Credit Histories as Employee Selection Criteria.
Given that history, it was not rocket science to predict such actions might be coming, but I did find it affirming to see the headline in today's Employment Law 360, School Sued Over Use Of Credit Checks In Hiring ($), challenging the University of Miami's Medical School's hiring practices.
According to the article:
And if you have not looked in awhile at how savvy plaintiffs' employment lawyers are using the net in these cases, check out the website Credit Discrimination Lawsuit, by one of the plaintiffs' counsel in the suit (Outten & Golden LLP), which include a link to the complaint filed in the S.D. of Florida along with reports and case studies. It also poses the following three questions:
Note that while the first question is limited to the University of Miami, the other two cast a much broader net. If you can answer yes to any of the three, the site kindly notes that "we" would like to talk with you and provides a questionnaire where you can furnish the details.
It may not be a bad time to brush up on disparate impact law.
One of the things I always cover are the three theories of discrimination, including disparate impact. Since disparate impact is not something that always readily comes to mind when you first think about discrimination I always try to mention an example that might cause people to relate to something that they could be doing.
This year, based on the EEOC's recent interest, I talked about credit checks. See, EEOC Public Meeting Explores the Use of Credit Histories as Employee Selection Criteria.
Given that history, it was not rocket science to predict such actions might be coming, but I did find it affirming to see the headline in today's Employment Law 360, School Sued Over Use Of Credit Checks In Hiring ($), challenging the University of Miami's Medical School's hiring practices.
According to the article:
As noted by the term "lead plaintiff", the case was filed as a class action. Unfortunately, almost by definition disparate impact claims lead to class claims.The lead plaintiff in the case is Loudy Appolon, a black woman who lives in Miami. In the summer of 2009, she applied for and was offered a position as a senior medical collector at the university's medical school.Just before her employment was about to commence — and after she had resigned from her previous position at North Shore Medical Center — the university reneged on its job offer due to her credit history, the complaint alleges.It says that her credit history showed no pending delinquencies and just a few defaults from prior years that had been remedied to the satisfaction of lenders.
And if you have not looked in awhile at how savvy plaintiffs' employment lawyers are using the net in these cases, check out the website Credit Discrimination Lawsuit, by one of the plaintiffs' counsel in the suit (Outten & Golden LLP), which include a link to the complaint filed in the S.D. of Florida along with reports and case studies. It also poses the following three questions:
- Have you been a victim of Credit Discrimination while applying for a job at the University of Miami?
- Have you been denied a job based on your Credit History?
- Have you been denied a job based on your Criminal History?
Note that while the first question is limited to the University of Miami, the other two cast a much broader net. If you can answer yes to any of the three, the site kindly notes that "we" would like to talk with you and provides a questionnaire where you can furnish the details.
It may not be a bad time to brush up on disparate impact law.
University of Texas School of Law and Labor Law
When I graduated from UT Law School in 1975, I had taken the only labor law course that was offered (if you didn't count the 2 hour Employee Rights course, which was solely about workers compensation claims). It was a traditional labor law course about the NLRA and was taught by Jerre Williams, who later served on the 5th Circuit. Professor Williams was active as a neutral.
The current labor law expert on the UT Campus is Julius Getman and his latest book, How to Restore the Power to Unions is reviewed at Today's Workplace.
The current labor law expert on the UT Campus is Julius Getman and his latest book, How to Restore the Power to Unions is reviewed at Today's Workplace.
In Defense of the EEOC? No, Just a Reminder About Pancakes
Tom Crane, at the San Antonio Employment Law Blog, had a very interesting post last week that complains about an EEOC investigator turning an employee away when it appeared she had a valid complaint, EEOC Would Not See Retaliation If It Was in Front of Its Face.
And I must admit the story is fairly compelling.
After receiving a report of sexual harassment, the investigator asked whether she had told the HR department. After answering no, the employee called HR and made a report from the EEOC office. Then the story continues:
But I do have to say, when I read the story, a saying by one of my former law partners came to mind:
And I must admit the story is fairly compelling.
After receiving a report of sexual harassment, the investigator asked whether she had told the HR department. After answering no, the employee called HR and made a report from the EEOC office. Then the story continues:
It is certainly not my place to defend the EEOC, they are big enough to do that themselves, nor can I say that I have not heard of events happening at the EEOC that are probably not the best course of action. (But hey, what large organization doesn't have some incidents that don't put them in their best light.)Within ten minutes, the owner calls the employe, still at the investigator's office. She puts him on speaker phone. The owner says, "I understand you complained about me. You don't need to return to the office." The owner fired the employee over the EEOC's own phone within ten minutes of her complaint. The investigator heard it all.One might think, great, what great evidence! The silly owner called and fired the employee for pursuing her rights with the EEOC - right where the EEOC could observe the whole chain of events.Wrong. The invstigator still insisted she had no case and refused to allow her to file a claim for discrimination or for retaliation. He tells the employee she should just go collect her last paycheck and move on with her life.
But I do have to say, when I read the story, a saying by one of my former law partners came to mind:
Every pancake, no matter how thin, has two sides.My guess is that there is another side to this story.
The Technology Changes -- But the Principles Stay the Same
I have seen several posts about the NLRB issuing a complaint based on an employee's facebook post about their supervisor, that led to additional comments by fellow employees. See Nolo's Employment Law Blog's post as an example, NLRB Sues Employer for Firing Employee Over Facebook Post.
When I talk about social media, I always make the point that although the technology is new, the principles that need to be applied already exist. The law about concerted activity is quite developed; shoot, it was well developed when I had my first 5th Circuit argument back in 1979. There the issue was a comment made at a meeting about an announcement that the employer was going to require everyone to take two weeks off as they moved the printing plant where the employees worked. It's that same body of law that now gets dusted off, because instead of a comment made at a worker's meeting, it is a comment issued through a new mode of communication.
Although it is not to say that there is nothing ever new, it is true that it is probably more rare than we think.
When I talk about social media, I always make the point that although the technology is new, the principles that need to be applied already exist. The law about concerted activity is quite developed; shoot, it was well developed when I had my first 5th Circuit argument back in 1979. There the issue was a comment made at a meeting about an announcement that the employer was going to require everyone to take two weeks off as they moved the printing plant where the employees worked. It's that same body of law that now gets dusted off, because instead of a comment made at a worker's meeting, it is a comment issued through a new mode of communication.
Although it is not to say that there is nothing ever new, it is true that it is probably more rare than we think.
Another Interesting Development from Last Tuesday - $4 MDV for FLSA Retaliation
While most eyes were turned to the election results last Tuesday night, a former Los Angeles policeman was enjoying a $4 million dollar verdict in his favor, after a jury agreed that he had been fired because of his testimony in a federal wage and hour lawsuit brought against the city by another officer.
Richard Romney had testified that he had followed the "unwritten policy" of denying officer's pay for less than a full hour of overtime. After his testimony, an investigation was initiated and he was ultimately discharged for violating the city's written rules on overtime. L.A. County jury awards $4 million to former LAPD officer.
Although all jury verdicts have a long way to go before they become collectable judgments, this one has an additional and somewhat unusual hurdle. It could be severely influenced by the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics, which was argued on October 13th. The transcript of the argument is here.[pdf]
Part of the issue is that the FLSA was really the first statute to provide employee rights and a prohibition against retaliation outside the union context, and Congress had not yet had the ability to focus on all the aspects of what protected activity really needed to be covered. Whether the statute is applied as it was written or as Congress would no doubt write it now, may make all the difference.
And in this case, that's a big difference.
Richard Romney had testified that he had followed the "unwritten policy" of denying officer's pay for less than a full hour of overtime. After his testimony, an investigation was initiated and he was ultimately discharged for violating the city's written rules on overtime. L.A. County jury awards $4 million to former LAPD officer.
Although all jury verdicts have a long way to go before they become collectable judgments, this one has an additional and somewhat unusual hurdle. It could be severely influenced by the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics, which was argued on October 13th. The transcript of the argument is here.[pdf]
Part of the issue is that the FLSA was really the first statute to provide employee rights and a prohibition against retaliation outside the union context, and Congress had not yet had the ability to focus on all the aspects of what protected activity really needed to be covered. Whether the statute is applied as it was written or as Congress would no doubt write it now, may make all the difference.
And in this case, that's a big difference.
Stealing From Inside the Museum - Egyptian Artifacts Theft in Long Island Proves the Point
Loss prevention at a museum starts by examining internal practices. When pieces are missing from a museum, the first place to look for a suspect is inside. Fortunately, a museum's risk can be reduced by performing thorough background checks on prospective employees and by creating moderate institutional oversight practices.
While the vast majority of museum employees are honest and trustworthy, there are many unfortunate instances where missing objects turn up in the hands of museum workers. Last week the New York Post reported that a federal court sentenced the director of the Long Island University Hillwood Museum to a year and a day in prison plus a $5000 fine for stealing Egyptian artifacts from his own museum. Barry Stern admitted to exacting revenge on his employer when his contract as museum director was not renewed. He worked 22 years for the university.
The Post describes how Stern stole the artifacts from the museum, brought them to Christie's for auction, and claimed they came from the Barry Stern collection. Records of the objects' existence at the Hillwood Museum were wiped out. The pieces earned Stern $51,500.
(As a side note, one wonders how the auction house failed to conduct enough due diligence regarding the provenance of the objects, particularly where the pieces presumably had accession numbers associated with the objects.)
The International Foundation for Cultural Property Protection helps cultural institutions minimize the risk of theft. Any of our colleagues can assist museums with internal loss prevention. www.ifcpp.org
Read more: http://www.nypost.com/p/news/local/li_museum_director_sentenced_for_m8ewK4q1OIOWlINeCC4BRN#ixzz13BvQpl1L
While the vast majority of museum employees are honest and trustworthy, there are many unfortunate instances where missing objects turn up in the hands of museum workers. Last week the New York Post reported that a federal court sentenced the director of the Long Island University Hillwood Museum to a year and a day in prison plus a $5000 fine for stealing Egyptian artifacts from his own museum. Barry Stern admitted to exacting revenge on his employer when his contract as museum director was not renewed. He worked 22 years for the university.
The Post describes how Stern stole the artifacts from the museum, brought them to Christie's for auction, and claimed they came from the Barry Stern collection. Records of the objects' existence at the Hillwood Museum were wiped out. The pieces earned Stern $51,500.
(As a side note, one wonders how the auction house failed to conduct enough due diligence regarding the provenance of the objects, particularly where the pieces presumably had accession numbers associated with the objects.)
The International Foundation for Cultural Property Protection helps cultural institutions minimize the risk of theft. Any of our colleagues can assist museums with internal loss prevention. www.ifcpp.org
Read more: http://www.nypost.com/p/news/local/li_museum_director_sentenced_for_m8ewK4q1OIOWlINeCC4BRN#ixzz13BvQpl1L
If You Want Your Art Back, Be Mindful of the Statute of Limitations
The First Circuit Court of Appeals decided the case of Museum of Fine Arts, Boston v. Seger-Thomschitz on October 14, 2010. Claudia Seger-Thomschitz, the heir of art collector Oskar Reichel, contacted the Museum of Fine Arts to reclaim Two Nudes by Oskar Kokoschka. Seger-Thomschitz argued that the painting left the hands Reichel because of Nazi coercion.
The Museum of Fine Arts spent 18 months researching the issue and concluded that Reichel sold the painting voluntarily. The Boston Globe published criticisms of this view in a May 2008 article. Nevertheless, the MFA sought an order from federal district court declaring that the museum legitimately owned the painting. The lower court ruled that the MFA rightfully owned the painting, and the court of appeals has now affirmed this decision.
The basis of the court of appeal's opinion is threefold. First, the district court's grant of a favorable judgment for the museum was proper on statute of limitations grounds because Seger-Thomschitz did not make a demand on the MFA within the three years statute of limitations under Massachusetts law. Second, the appeals court rejected Seger-Thomschitz's weak claim that the statute of limitations should bend in the wake of the non-profit section of the federal Internal Revenue Code [501(c)(3)]. Third, the court rejected her argument that the Massachusetts statute of limitations conflicted with America's foreign policy as expressed through the Holocaust Victims Redress Act of 1998, the Washington Conference Principles on Nazi-Confiscated Art, the Vilnius Forum Declaration, and the TerezÃn Declaration on Holocaust Era Assets and Related Issues. These proclamations are aspirational and not law, the court essentially declared.
The message in this case is clear: Where a party believes that art is improperly in the hands of another, the claimant must be conscious of the statute of limitations clock and perform the necessary due diligence to start a cause of action.
Two Nudes can be seen at http://www.mfa.org/collections/search_art.asp?recview=true&id=34173&coll_keywords=&coll_accession=&coll_name=two+nudes&coll_artist=Kokoschka&coll_place=&coll_medium=&coll_culture=&coll_classification=&coll_credit=&coll_provenance=&coll_location=&coll_has_images=&coll_on_view=&coll_sort=2&coll_sort_order=0&coll_view=0&coll_package=0&coll_start=1
"Holocaust Historians Blast MFA Stance in Legal Dispute," The Boston Globe, May 28, 2008 at http://www.boston.com/ae/theater_arts/articles/2008/05/28/holocaust_historians_blast_mfa_stance_in_legal_dispute/
The Museum of Fine Arts spent 18 months researching the issue and concluded that Reichel sold the painting voluntarily. The Boston Globe published criticisms of this view in a May 2008 article. Nevertheless, the MFA sought an order from federal district court declaring that the museum legitimately owned the painting. The lower court ruled that the MFA rightfully owned the painting, and the court of appeals has now affirmed this decision.
The basis of the court of appeal's opinion is threefold. First, the district court's grant of a favorable judgment for the museum was proper on statute of limitations grounds because Seger-Thomschitz did not make a demand on the MFA within the three years statute of limitations under Massachusetts law. Second, the appeals court rejected Seger-Thomschitz's weak claim that the statute of limitations should bend in the wake of the non-profit section of the federal Internal Revenue Code [501(c)(3)]. Third, the court rejected her argument that the Massachusetts statute of limitations conflicted with America's foreign policy as expressed through the Holocaust Victims Redress Act of 1998, the Washington Conference Principles on Nazi-Confiscated Art, the Vilnius Forum Declaration, and the TerezÃn Declaration on Holocaust Era Assets and Related Issues. These proclamations are aspirational and not law, the court essentially declared.
The message in this case is clear: Where a party believes that art is improperly in the hands of another, the claimant must be conscious of the statute of limitations clock and perform the necessary due diligence to start a cause of action.
Two Nudes can be seen at http://www.mfa.org/collections/search_art.asp?recview=true&id=34173&coll_keywords=&coll_accession=&coll_name=two+nudes&coll_artist=Kokoschka&coll_place=&coll_medium=&coll_culture=&coll_classification=&coll_credit=&coll_provenance=&coll_location=&coll_has_images=&coll_on_view=&coll_sort=2&coll_sort_order=0&coll_view=0&coll_package=0&coll_start=1
"Holocaust Historians Blast MFA Stance in Legal Dispute," The Boston Globe, May 28, 2008 at http://www.boston.com/ae/theater_arts/articles/2008/05/28/holocaust_historians_blast_mfa_stance_in_legal_dispute/
Putting Me and Other Employer's Lawyers Out of Work
David Yamada and I have never met but have developed a friendship via the net. Even though we often have different views, usually not on the desired result, but on the ways of getting there, based on our civil conversations in an area where that is not often the case, I think it is fair to say that David would never wish me ill, in a financial sense or otherwise.
However, clearly in his most recent post, What if we applied the Golden Rule at work?, he has intentionally or otherwise stumbled on a concept that if followed would clearly lessen the need for those on both the defense and plaintiff sides of the employment law bar, including yours truly.
Just to emphasize David's post, for all the training I have done about employment law, best hr practices, employment law trials, not making juries mad, positive employee relations, etc. at the end of the day, the Golden Rule is a most apt summary for each of those topics. And actually one which is really hard to improve on.
Unfortunately, I don't think it is likely the need for employment lawyers is going to end any time soon.
But a basic tenet, well known and available to all, that really could lessen the need, is there for all of us to see.
However, clearly in his most recent post, What if we applied the Golden Rule at work?, he has intentionally or otherwise stumbled on a concept that if followed would clearly lessen the need for those on both the defense and plaintiff sides of the employment law bar, including yours truly.
Just to emphasize David's post, for all the training I have done about employment law, best hr practices, employment law trials, not making juries mad, positive employee relations, etc. at the end of the day, the Golden Rule is a most apt summary for each of those topics. And actually one which is really hard to improve on.
Unfortunately, I don't think it is likely the need for employment lawyers is going to end any time soon.
But a basic tenet, well known and available to all, that really could lessen the need, is there for all of us to see.
Legal Update Autumn 2010
The Court of Appeal in Smith v Hammond [2010] EWCA Civ 725 has reversed a trial Judge’s finding that the driver of a DAF lorry, Mr Hammond, had been partly to blame for the severe injuries sustained by a 13 year old cyclist, Joshua Smith, on a newspaper round. The evidence of Mr Hammond, accepted by the trial Judge, was that he had been travelling at the 30 mph speed limit when the cyclist attempted to cross the road from one driveway to the opposite side straight in front of him.
The road was a residential street in Tean depicted here (outside number 77 which I believe to be in this general area):
Mr Hammond had seen Joshua at the side of the road looking in the opposite direction. The trial Judge had found that Mr Hammond ought to have sounded his horn to alert Joshua to his presence.
The Court of Appeal overturned that decision on the basis that the HGV drier could not reasonably have been expected to sound his horn until Joshua was on the move out into the road and by then it would have been too late anyway.
On the law, as it is, one can see how that decision is arrived at. Sounding a horn every time somebody might do something unwise, could lead to a cacophony of noise in residential areas.
I have though two observations. First, speed. It is in my view high time that the speed limit in residential areas where children on bicycles and on foot can be readily anticipated, is reduced to 20 mph. There has been talk of this for years but political foot-dragging because it may be perceived as a ‘war on the motorist’. In this case the HGV was travelling at around 30 mph. Although Mr Hammond says say he ‘eased off the accelerator’ there is no suggestion that this reduced the speed before the cyclist came into his path other than marginally. At 20 mph there would have been more time to sound the horn, to brake and to swerve and if a collision had taken place the consequences would have been far less devastating. I once tried to persuade the Court of Appeal that in certain circumstances travelling at 30mph in a 30mph zone was itself negligent. I got nowhere. This is not for the Judges; this is for Parliament to fix.
Second observation is that in most of Europe the cyclist would have succeeded in his claim against the HGV driver despite the driver being held not to be at fault. This is, in my view, justifiable here on the premise that HGVs are large dangerous vehicles which should only be permitted onto the roads o terms that they pay for the damage occasioned by their presence. However I hold a minority view on this and although widespread in the European Union and apparently recommended by the soon to be abolished quango, Cycling England; the motoring public here would not stand for it and it is manifestly not something the Judges can alter.
Mr Hammond had his own claim against the cyclist for causing him a post traumatic stress disorder. The trial Judge had rejected this claim saying that Joshua could not reasonably have foreseen that his actions would have led to injury to Mr Hammond. The Court of Appeal reversed this also, saying it was sufficient if he should have foreseen injury to another road user, such as another cyclist. This aspect was dealt with briefly and could have merited greater analysis. Mr Hammond was surely outside the zone of the risk of physical injury; had a driver coming the other way seen what occurred and suffered PTSD he would not be able to recover. The only valid distinction is that Mr Hammond would foreseeably consider himself an instrument of the accident. The Court of Appeal was pleased to note that Joshua’s employer the Co-Op had agreed to pay the damages to Mr Hammond (rather than the bill falling on Joshua personally).
Other news this quarter relates to the adequacy of investigation into fatal cases. A seminar on this topic was organised by RoadPeace last month Improving the Post Crash Response. Unfortunately prior commitments kept me away from this. I would have liked to have been there because I take the view that improvements are required. This is highlighted by the case of London cyclist, Eilidh Cairns. I have written about her inquest already in an earlier legal update. This week the driver of the HGV that crushed Eilidh was fined £200 for driving an HGV with defective vision. His vision was only ever tested some time after the accident at the insistence of Eilidh’s family, who could not understand how he had not seen her prior to the fatal collision in Notting Hill in February 2009.
As a lawyer I find it easier to understand, than others may, that the Court had to sentence on the basis of the charge made and could not assume that the collision was caused by the defective vision (for had it been, the charge should have been a far more serious one). Nonetheless driving an HGV around crowded streets in London with defective vision may be thought to be a serious matter. The driver seems on any objective view to have got off lightly, following a very late plea of guilty, with a £200 fine, £150 costs and a £15 surcharge. He got the three penalty points but no disqualification. It is a striking feature of our society that outside the world of motoring, the Health and Safety requirements which relate to, for instance, visual checks for all those required to work at display screen equipment seem to matter more than eye tests for those who drive in the vicinity of vulnerable road users. Far too often (daily in my case!), HGVs pass far too close to cyclists (examples are here, here and here). Our society accepts far too readily this hazardous proximity focussing on the actual collision without challenging drivers as to what they were doing so close to a cyclist as to permit a collision to occur.
It is not wise to cycle when drunk (and illegal, if so drunk as to not have proper control of the bike). However even if a cyclist is drunk, it should not be sufficient to conclude an investigation into his death by saying it was probably he who deviated from his course. This is what apparently happened following the death of Piotr Kobiela. As in any safety context there is good reason for a comfortable margin of safety. We cyclists need a car width not in order pointlessly to inconvenience others but because anything less is dangerous, intimidating and does not make any allowance for potholes, mechanicals and wobbles.
The road was a residential street in Tean depicted here (outside number 77 which I believe to be in this general area):
Mr Hammond had seen Joshua at the side of the road looking in the opposite direction. The trial Judge had found that Mr Hammond ought to have sounded his horn to alert Joshua to his presence.
The Court of Appeal overturned that decision on the basis that the HGV drier could not reasonably have been expected to sound his horn until Joshua was on the move out into the road and by then it would have been too late anyway.
On the law, as it is, one can see how that decision is arrived at. Sounding a horn every time somebody might do something unwise, could lead to a cacophony of noise in residential areas.
I have though two observations. First, speed. It is in my view high time that the speed limit in residential areas where children on bicycles and on foot can be readily anticipated, is reduced to 20 mph. There has been talk of this for years but political foot-dragging because it may be perceived as a ‘war on the motorist’. In this case the HGV was travelling at around 30 mph. Although Mr Hammond says say he ‘eased off the accelerator’ there is no suggestion that this reduced the speed before the cyclist came into his path other than marginally. At 20 mph there would have been more time to sound the horn, to brake and to swerve and if a collision had taken place the consequences would have been far less devastating. I once tried to persuade the Court of Appeal that in certain circumstances travelling at 30mph in a 30mph zone was itself negligent. I got nowhere. This is not for the Judges; this is for Parliament to fix.
Second observation is that in most of Europe the cyclist would have succeeded in his claim against the HGV driver despite the driver being held not to be at fault. This is, in my view, justifiable here on the premise that HGVs are large dangerous vehicles which should only be permitted onto the roads o terms that they pay for the damage occasioned by their presence. However I hold a minority view on this and although widespread in the European Union and apparently recommended by the soon to be abolished quango, Cycling England; the motoring public here would not stand for it and it is manifestly not something the Judges can alter.
Mr Hammond had his own claim against the cyclist for causing him a post traumatic stress disorder. The trial Judge had rejected this claim saying that Joshua could not reasonably have foreseen that his actions would have led to injury to Mr Hammond. The Court of Appeal reversed this also, saying it was sufficient if he should have foreseen injury to another road user, such as another cyclist. This aspect was dealt with briefly and could have merited greater analysis. Mr Hammond was surely outside the zone of the risk of physical injury; had a driver coming the other way seen what occurred and suffered PTSD he would not be able to recover. The only valid distinction is that Mr Hammond would foreseeably consider himself an instrument of the accident. The Court of Appeal was pleased to note that Joshua’s employer the Co-Op had agreed to pay the damages to Mr Hammond (rather than the bill falling on Joshua personally).
Other news this quarter relates to the adequacy of investigation into fatal cases. A seminar on this topic was organised by RoadPeace last month Improving the Post Crash Response. Unfortunately prior commitments kept me away from this. I would have liked to have been there because I take the view that improvements are required. This is highlighted by the case of London cyclist, Eilidh Cairns. I have written about her inquest already in an earlier legal update. This week the driver of the HGV that crushed Eilidh was fined £200 for driving an HGV with defective vision. His vision was only ever tested some time after the accident at the insistence of Eilidh’s family, who could not understand how he had not seen her prior to the fatal collision in Notting Hill in February 2009.
As a lawyer I find it easier to understand, than others may, that the Court had to sentence on the basis of the charge made and could not assume that the collision was caused by the defective vision (for had it been, the charge should have been a far more serious one). Nonetheless driving an HGV around crowded streets in London with defective vision may be thought to be a serious matter. The driver seems on any objective view to have got off lightly, following a very late plea of guilty, with a £200 fine, £150 costs and a £15 surcharge. He got the three penalty points but no disqualification. It is a striking feature of our society that outside the world of motoring, the Health and Safety requirements which relate to, for instance, visual checks for all those required to work at display screen equipment seem to matter more than eye tests for those who drive in the vicinity of vulnerable road users. Far too often (daily in my case!), HGVs pass far too close to cyclists (examples are here, here and here). Our society accepts far too readily this hazardous proximity focussing on the actual collision without challenging drivers as to what they were doing so close to a cyclist as to permit a collision to occur.
It is not wise to cycle when drunk (and illegal, if so drunk as to not have proper control of the bike). However even if a cyclist is drunk, it should not be sufficient to conclude an investigation into his death by saying it was probably he who deviated from his course. This is what apparently happened following the death of Piotr Kobiela. As in any safety context there is good reason for a comfortable margin of safety. We cyclists need a car width not in order pointlessly to inconvenience others but because anything less is dangerous, intimidating and does not make any allowance for potholes, mechanicals and wobbles.
A SAD Story In So Many Very Different Ways
Commenting on lawsuits based on newspaper stories is risky business. I do it frequently and I probably should remind myself and those who read this blog of the dangers more often. It is not because newspaper reporters are incompetent or that they are not trying to do a good job, it is just that reporting a lawsuit is a very complicated piece of work that requires far more time than is available or really necessary to get some of the high points, which is about the best one can reasonably hope for. So the real question is whether or not the lack of depth which is almost inevitable, prevents even a glimpse of the why something happened, as opposed to just the results.
I say all of this based purely on my own experience. In the relatively few cases I have had which have been the subject of much publicity, I can accurately say that the stories often were less than adequate in portraying reality. The most obvious was a six week trial in a smaller Texas city which at the time had two newspapers. In most common terms, one "was for the plaintiff" and one "was for the defendant." Each day for most of the six weeks and even leading up to it, the story was the front page headline on both papers and was quite detailed, frequently running over to multiple inside pages. A neutral observer might fairly have wondered if they were even reporting on the same case. And although I was certainly not neutral, I did know what was going on and would have to admit that neither was very close to really expressing it.
Which brings me, long way round so to speak, to the report in Eau Claire Leader Telegram of Tuesday's verdict in a Madison, Wisconsin trial of a teacher's disability claim. Former Somerset teacher wins $2 million lawsuit.
If the newspaper report is accurate (see above) then all it would have taken to accommodate Renae Ekstrand's disability, depression caused by Seasonal Affective Disorder, would have been allowing her to switch classrooms to one with a window. An accommodation that another teacher would have been willing to make.
The fact that such a simple thing didn't happen, makes me think there is much more to this story.
In fact, we know there is because this case had an appellate history before going to trial. First, a district court granted summary judgment for the school district. That was partially reversed by the 7th Circuit, which rejected Ekstrand's constructive discharge claim, but sent the failure to accommodate claim back for trial, presciently holding that "we disagree with the district court that no reasonable jury could find in favor of Ekstrand's failure-to-accommodate claim."
But even in sending that claim back to trial, Judge Bauer, who authored the court's opinion offered this:
So it is easy to see why this case went to trial.
Still, the bottom line result is the same. A jury didn't like what the school district did and let it know with its $2 million plus verdict. The reporter did catch, which many don't, the distinction between verdict and ultimate recovery noting that under the ADA it would be greatly reduced by the statutory damage caps.
When I started this post, I had intended to offer my thoughts on why it is that so many MDV's involve public sector defendants, but having rambled on about the difficulties of newspaper reporting, that subject is best saved for another day.
Unfortunately, I doubt that I shall have to wait long for the opportunity.
I say all of this based purely on my own experience. In the relatively few cases I have had which have been the subject of much publicity, I can accurately say that the stories often were less than adequate in portraying reality. The most obvious was a six week trial in a smaller Texas city which at the time had two newspapers. In most common terms, one "was for the plaintiff" and one "was for the defendant." Each day for most of the six weeks and even leading up to it, the story was the front page headline on both papers and was quite detailed, frequently running over to multiple inside pages. A neutral observer might fairly have wondered if they were even reporting on the same case. And although I was certainly not neutral, I did know what was going on and would have to admit that neither was very close to really expressing it.
Which brings me, long way round so to speak, to the report in Eau Claire Leader Telegram of Tuesday's verdict in a Madison, Wisconsin trial of a teacher's disability claim. Former Somerset teacher wins $2 million lawsuit.
If the newspaper report is accurate (see above) then all it would have taken to accommodate Renae Ekstrand's disability, depression caused by Seasonal Affective Disorder, would have been allowing her to switch classrooms to one with a window. An accommodation that another teacher would have been willing to make.
The fact that such a simple thing didn't happen, makes me think there is much more to this story.
In fact, we know there is because this case had an appellate history before going to trial. First, a district court granted summary judgment for the school district. That was partially reversed by the 7th Circuit, which rejected Ekstrand's constructive discharge claim, but sent the failure to accommodate claim back for trial, presciently holding that "we disagree with the district court that no reasonable jury could find in favor of Ekstrand's failure-to-accommodate claim."
But even in sending that claim back to trial, Judge Bauer, who authored the court's opinion offered this:
Ekstrand v. School District of Somerset(7th Cir. 10/6/09).From the sparse record in this case I assume that the School District of Somerset has high standards. Its Web site proclaims its motto: Learning Today to Succeed Tomorrow. In a district like this, parents quite naturally take an interest in who is teaching their children. And I can't imagine that many parents would be too pleased to have their first-graders in a classroom taught by a teacher who, to quote the court's opinion, suffered from “fatigue, anxiety, hypervigilance, tearfulness, racing thoughts, and trouble organizing tasks” plus “inability to concentrate ․ retrieve words, make decisions ․ focus on the needs of her students ․ hypersomnia ․ panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide” in the fall of 2005. While I can imagine that an employer like UPS might be able to accommodate a delivery person with these kind of issues, I have a hard time understanding how a school district could do the same for a first-grade teacher. This makes me wonder if Ms. Ekstrand, in the context of teaching, could ever establish that she was a “qualified individual with a disability” under the ADA in the fall of 2005 or that an accommodation that would be necessary to ameliorate her condition would be “reasonable.” This issue deserves, I suggest, a close look on remand.
So it is easy to see why this case went to trial.
Still, the bottom line result is the same. A jury didn't like what the school district did and let it know with its $2 million plus verdict. The reporter did catch, which many don't, the distinction between verdict and ultimate recovery noting that under the ADA it would be greatly reduced by the statutory damage caps.
When I started this post, I had intended to offer my thoughts on why it is that so many MDV's involve public sector defendants, but having rambled on about the difficulties of newspaper reporting, that subject is best saved for another day.
Unfortunately, I doubt that I shall have to wait long for the opportunity.
If You Have a Choice, Would You Bifurcate Punitive Damages?
That was a question I was discussing with a colleague Friday just before we gave a seminar presentation on Things that Employers Do to Make Juries Mad, and Pay for it with Big Verdicts. Fortunately in our case it was purely hypothetical.
But I was reminded of it when I saw today's report of a follow up punitive damage award of $4.8 million, after an earlier award of $3.4 million in compensatory damages. See, Former Rite Aid Employee Wins $4.8 Million Punitive Damages Award.
The award to Maria C. Martinez came in a disability and retaliation case, with the retaliation following her complaint that she had been sexually harassed.
The Beverly Hills Courier story says the defense counsel urged the jury not to award punitive damages, saying they "had already sent the chain store a strong message with the compensatory award." The sad fact is that is pretty much all there is to say.
In Texas state courts, the defendant gets to make the election. Unless there are strong and unique reasons not to, I opt against bifurcation. Basically, I don't want to be in the position of the defense attorney, having to come back after the jury has already hammered you, and your message is "now we get it." A hard sell when you have pushed hard to win on liability.
The clearest benefit is that you get to keep out the net worth of the company in the trial on the merits, but unless it is a stealth company, most jurors know that you are big.
I don't think that small benefit comes close to the cost of losing the opportunity of having it all settled in one bite, where if you have any jurors on your side, they probably have the best opportunity to effect a reasonable compromise.
And another factor I had not really considered is the anger of the jury. Sure, they are angry with you, because they found against you, including the issue, usually some sort of malice, that will justify punitive damages. But it's not that anger I am talking about.
It is the anger that they had to come back and do it again. Since jurors are not told about the possibility of punitive damages (at least in Texas), they are not aware when they answer that magical question a certain way they have just insured another day or two of jury service. Not exactly something that most of them are excited about.
Maybe that's why it only took one-half hour of deliberations to more than double the amount awarded.
But I was reminded of it when I saw today's report of a follow up punitive damage award of $4.8 million, after an earlier award of $3.4 million in compensatory damages. See, Former Rite Aid Employee Wins $4.8 Million Punitive Damages Award.
The award to Maria C. Martinez came in a disability and retaliation case, with the retaliation following her complaint that she had been sexually harassed.
The Beverly Hills Courier story says the defense counsel urged the jury not to award punitive damages, saying they "had already sent the chain store a strong message with the compensatory award." The sad fact is that is pretty much all there is to say.
In Texas state courts, the defendant gets to make the election. Unless there are strong and unique reasons not to, I opt against bifurcation. Basically, I don't want to be in the position of the defense attorney, having to come back after the jury has already hammered you, and your message is "now we get it." A hard sell when you have pushed hard to win on liability.
The clearest benefit is that you get to keep out the net worth of the company in the trial on the merits, but unless it is a stealth company, most jurors know that you are big.
I don't think that small benefit comes close to the cost of losing the opportunity of having it all settled in one bite, where if you have any jurors on your side, they probably have the best opportunity to effect a reasonable compromise.
And another factor I had not really considered is the anger of the jury. Sure, they are angry with you, because they found against you, including the issue, usually some sort of malice, that will justify punitive damages. But it's not that anger I am talking about.
It is the anger that they had to come back and do it again. Since jurors are not told about the possibility of punitive damages (at least in Texas), they are not aware when they answer that magical question a certain way they have just insured another day or two of jury service. Not exactly something that most of them are excited about.
Maybe that's why it only took one-half hour of deliberations to more than double the amount awarded.
Cycle Lanes
Further to my last post, one piece of cycling infrastructure that is a complete waste of white paint is the discretionary (dotted line) cycle lane. Without at least a requirement that motor vehicles 
not enter the lane until they have a clear exit, they are of no use to cyclists. All they do is keep us to the edge of the road, out of the way of 'proper traffic'. I would do away with them all.
What's he yelling? Something about a cycle track
A finger stabbing gesture accompanies this man's expression of view that I should not be on the road; I should be on the cycle track. His mate the driver obviously agrees, assuming he is in control of the horn. To be fair, he did take the trouble to move over (a tiny bit) which differentiates this driver from the ones that try to squeeze me off the road. As for the shouting, I am a lawyer who believes in free speech, however strongly I dissent from the view being expressed.
Here is the cycletrack alongside the A30 which they would like me to use. It is, like most, cycling infrastructure completely unsuitable if you wish to get anywhere in anything approaching a hurry. It is also built in either ignorance or defiance of all relevant design standards.
I used to use this track when I first started tentatively commuting by bike. It took me at least 30 minutes longer than it does using the road, and with the numerous junctions and the requirement to give way to vehicles approaching from all directions, I was less safe.
There is though a pervasive attitude that cyclists should use cycle lanes, highlighted by the daft conviction of Daniel Cadden and the wishy-washy compromise wording in rule 61 of the Highway Code. We were saved from even worse wording. However it should read:
"Cycle Routes and Other Facilities. Use of these facilities is not compulsory. The choice as to whether to use them or not is yours and your decision will depend upon your level of experience and skills, as well as the prevailing traffic conditions."
I am all for optional segregated cycling facilities, but not for surrendering the general road network to the exclusive use of the motorist. Motorists have motorways; when not on a Motorway they should share the road.
I used to use this track when I first started tentatively commuting by bike. It took me at least 30 minutes longer than it does using the road, and with the numerous junctions and the requirement to give way to vehicles approaching from all directions, I was less safe.
There is though a pervasive attitude that cyclists should use cycle lanes, highlighted by the daft conviction of Daniel Cadden and the wishy-washy compromise wording in rule 61 of the Highway Code. We were saved from even worse wording. However it should read:
"Cycle Routes and Other Facilities. Use of these facilities is not compulsory. The choice as to whether to use them or not is yours and your decision will depend upon your level of experience and skills, as well as the prevailing traffic conditions."
I am all for optional segregated cycling facilities, but not for surrendering the general road network to the exclusive use of the motorist. Motorists have motorways; when not on a Motorway they should share the road.
Statute of Limitatons to Recover Stolen Culture Lengthened in California
Governor Arnold Schwarzenegger signed into law California Assembly Bill 2765. This law allows an owner of a stolen or fraudulently taken cultural object to file a lawsuit to recover the piece within six years of finding the object. This new law is significant for three reasons.
First, it doubles the time an aggrieved party can recover an object of "historical, interpretive,scientific, cultural, or artistic significance" that has been stolen or taken by fraud or duress
Second, the law enacts the "actual discovery" rule. That means that the six year clock only starts to run once the original owner actually discovers the wherabouts of the cultural object.
Third, the law is retrospective. The legislature specifically stated that the law "shall apply to all pending and future actions commenced on or before December 31, 2017, including any actions dismissed based on the expiration of statutes of limitation in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not
expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute." There is no doubt then that the new law may impact Marei Von Saher's effort to move forward on her claim to recover Lucas Cranach the Elder's diptych "Adam and Eve" from the Norton Simon Museum, originally looted by the Nazis.
Read the law at http://leginfo.ca.gov/pub/09-10/bill/asm/ab_2751-2800/ab_2765_bill_20100930_chaptered.html
First, it doubles the time an aggrieved party can recover an object of "historical, interpretive,scientific, cultural, or artistic significance" that has been stolen or taken by fraud or duress
Second, the law enacts the "actual discovery" rule. That means that the six year clock only starts to run once the original owner actually discovers the wherabouts of the cultural object.
Third, the law is retrospective. The legislature specifically stated that the law "shall apply to all pending and future actions commenced on or before December 31, 2017, including any actions dismissed based on the expiration of statutes of limitation in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not
expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute." There is no doubt then that the new law may impact Marei Von Saher's effort to move forward on her claim to recover Lucas Cranach the Elder's diptych "Adam and Eve" from the Norton Simon Museum, originally looted by the Nazis.
Read the law at http://leginfo.ca.gov/pub/09-10/bill/asm/ab_2751-2800/ab_2765_bill_20100930_chaptered.html
CPAC public sessions on Colombia and Greece cultural property agreements coming soon
The Cultural Property Advisory Committee will be holding public sessions on October 12 and October 14, 2010 to consider renewing the cultural property protection agreement with Colombia and to consider a new agreement with Greece.
More information can be found by reading the Federal Register at http://exchanges.state.gov/media/office-of-policy-and-evaluation/chc/pdfs/2010frncpacmtg10.pdf.
More information can be found by reading the Federal Register at http://exchanges.state.gov/media/office-of-policy-and-evaluation/chc/pdfs/2010frncpacmtg10.pdf.
McDonnell Douglas Bites the Dust in Tennessee
Yesterday I wrote about Texas' own little corner of the workers' comp world, today it is the Volunteer State's turn to take the spotlight for its unique view of an element of employment law. In Gossett v. Tractor Supply Co. (Tenn. 9/20/10) a sharply divided Supreme Court dumped one of the long time stalwart's of employment discrimination and retaliation, the McDonnell Douglas shifting burden of proof for evaluating a plaintiff's claim.
The Cour rather unceremoniously concluded,
Although it might be found on a closer reading of the opinion, what seems to be missing from the majority's opinion is a basic understanding of what the McDonnell Douglas framework was intended to do. The United States Supreme Court that created it was faced with how does an employee prove intentional discrimination based on a protective category, when it is highly unlikely that employers will admit to such.
One way they concluded was to set up a prima facie case of factors that do not conclusively prove discrimination, but if totally unrebutted, would be sufficient to permit an inference of discrimination to be drawn. They placed the burden of establishing the prima facie case on the plaintiff, allowing them to create an inference of discrimination. However, when the employer articulates a legitimate business reason that would explain the facts that were used to establish the prima facie case. When that happens the burden then reverts to plaintiff to show that the real reason for the discrimination was their membership in a protected class.
Now clearly the formulation has gotten a little more complicated and some well known federal judges, most notably Judge Posner of the 7th Circuit, are clearly not fans, but to merely toss it out without even making it clear that they understood how it came to be, seems somewhat odd.
The Cour rather unceremoniously concluded,
we hold that the McDonnell Douglas framework is inapplicable at the summary judgment stage because it is incompatible with Tennessee summary judgment jurisprudence.Actually the headline to this post is technically inaccurate, since the Court went on to say
Furthermore, when applied at the summary judgment stage, the shifting burdens of the McDonnell Douglas framework obfuscate the trial court's summary judgment analysis. The McDonnell Douglas framework "is intended to progressively sharpen the inquiry into the elusive factual question of intentional discrimination" or retaliation. Burdine, 450 U.S. at 254 n.8. Although such inquiry is particularly appropriate at trial, it is ill-suited for the purpose of determining whether "there is no genuine issue as to any material fact."Most employment law practitioners outside Tennessee state court will be somewhat surprised with that view, since most of the jurisprudence is that once a case actually gets to trial, the McDonnell Douglass framework is particularly inappropriate.
Although it might be found on a closer reading of the opinion, what seems to be missing from the majority's opinion is a basic understanding of what the McDonnell Douglas framework was intended to do. The United States Supreme Court that created it was faced with how does an employee prove intentional discrimination based on a protective category, when it is highly unlikely that employers will admit to such.
One way they concluded was to set up a prima facie case of factors that do not conclusively prove discrimination, but if totally unrebutted, would be sufficient to permit an inference of discrimination to be drawn. They placed the burden of establishing the prima facie case on the plaintiff, allowing them to create an inference of discrimination. However, when the employer articulates a legitimate business reason that would explain the facts that were used to establish the prima facie case. When that happens the burden then reverts to plaintiff to show that the real reason for the discrimination was their membership in a protected class.
Now clearly the formulation has gotten a little more complicated and some well known federal judges, most notably Judge Posner of the 7th Circuit, are clearly not fans, but to merely toss it out without even making it clear that they understood how it came to be, seems somewhat odd.
Good News for Texas Non-subscribers, Bad News for Excess Carrier
Texas has its own little corner of the workers' compensation world, as I think it is now the only state that permits employers to opt out of the workers compensation system. It does not come without a penalty, because a non-subscriber employer loses the bar against being sued by its employees for negligence, and when it is sued, loses a number of its common law defenses to negligence such as assumption of the risk, contributory negligence etc.
Still, given the costs of workers compensation, particularly before the system underwent some radical changes a decade or more ago, many major employers opted out, and have come up with fairly sophisticated programs that give them more flexibility and that are backed at least in some respect by insurance.
One of those disputes played out in a case that was decided today by the 5th Circuit, which was required to make an "Erie guess" as to what the Texas Supreme Court would do. American International Specialty Lines Ins. Co., v. Rentech Steel LLC et al (5th Cir. 9/21/10) [pdf].
The question is what would the Texas Supreme Court do in interpreting an insurance policy in this situation which excluded coverage:
Unfortunately for the insurer, the Court found not only did it believe that the statute does no more than modify the common law claim, and thus as it framed the question, the exclusion was not applicable; more importantly it found that is what the Texas Supreme Court would say as well.
Although the insurance carrier is on the short end of the stick of this opinion (and at $10 million it is a pretty big stick) it is not as if the employer fared all that well. The day before the initial trial was scheduled, the employer/insured tossed it wholly into the insurance company's lap by filing Chapter 7 bankruptcy.
Only in Texas. Literally.
Still, given the costs of workers compensation, particularly before the system underwent some radical changes a decade or more ago, many major employers opted out, and have come up with fairly sophisticated programs that give them more flexibility and that are backed at least in some respect by insurance.
One of those disputes played out in a case that was decided today by the 5th Circuit, which was required to make an "Erie guess" as to what the Texas Supreme Court would do. American International Specialty Lines Ins. Co., v. Rentech Steel LLC et al (5th Cir. 9/21/10) [pdf].
The question is what would the Texas Supreme Court do in interpreting an insurance policy in this situation which excluded coverage:
under any workers’ compensation, disability benefits or unemployment compensation law, or any similar law.The excess carrier which was looking at a $10,000,000 judgment against for a negligence claim if it was unsuccessful, argued that since the Texas Workers Comp Law penalized the non-subscriber employer and insured by stripping it of some defenses, it should be excluded as being under a "workers' compensation" or at least "any similar law."
Unfortunately for the insurer, the Court found not only did it believe that the statute does no more than modify the common law claim, and thus as it framed the question, the exclusion was not applicable; more importantly it found that is what the Texas Supreme Court would say as well.
Although the insurance carrier is on the short end of the stick of this opinion (and at $10 million it is a pretty big stick) it is not as if the employer fared all that well. The day before the initial trial was scheduled, the employer/insured tossed it wholly into the insurance company's lap by filing Chapter 7 bankruptcy.
Only in Texas. Literally.
My racing season
Dunsfold Park where I got one precious point
With the nights drawing in, all evening racing now a distant memory and the season winding down, it is time to review my third season racing. I mentioned in an earlier post that I had finally found some modest form in June, though I wondered then if it would be a flash in the pan. To be honest I believe it was and after the distraction of the etape and then a long period away with only occasional leisurely riding of a mountain bike, I returned to a race circuit significantly weaker in September than I had left one in early August. Nevertheless the points I got in high summer were not wasted as I collected a rather lucky eighth place at Thorney Island last Sunday.
The result is that I got the ten points this season to leave the fourth cats for the thirds. I am not at all sure how I will handle the stiffer competition of 3rd cat races; I intend to post what happens in the next Winter Series. I hardly have an impressive palmares. It can be seen that I have raced and raced and done rather poorly in all but a handful of them. I hope this may encourage somebody out there to give racing a go. To misquote Mark Twain you will not regret it if you remain upright and it does provide a whole new dimension to riding a bike. It helps, of course, to be young and strong but I am living proof that you can get something out of it if you are neither.
My aim for the winter is to train myself to sprint, not an easy thing to work on during a London commute so I am just going to have to introduce myself to the concept of a training ride or even (I thought I would never say it) a turbotrainer.
Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says
Although it may no longer be true, donning and doffing cases at one time were clearly the big ticket FLSA collective action. And for those still fighting those fights who have been concerned about the thumb that the DOL put on the scale with their June 16 Administrator's Interpretation (No. 2010-2), which reversed course from two earlier opinion letters issued this decade (yes, Obama administration vs. Bush administration), you now have some very favorable authority from yeseterday's decision by the 6th Circuit in Franklin v. Kellogg Co. (6th Cir. 8/31/10) [pdf].
Looking to determine the meaning of the phrase "changing clothes" in § 203(o) of the FLSA, the Court surveyed the DOL's view of that portion of the FLSA and found the following:
As it appears in §203 not §213 the Court placed the burden on the employee, siding with the 5th and all other circuits which have decided the question, except for the 9th Circuit.
Up to this point the opinion is very employer friendly, but at this point it diverges for some other holdings:
If it does, given the somewhat limited nature of section 3(o) which requires a collective bargaining agreement to be applicable, the most important point could well be the deference given to agency interpretations. While it may always have been the case, it is now more clear than ever, particularly in the field of labor and employment law, regulatory agencies are much more bound to an Administration's viewpoint than stare decisis.
My own view is that is not a very good way to run a railroad, but no one has asked my opinion, nor are likely to give it much weight. It is however a fact of life, and if we are going to deal with it, we might as well know exactly what view the courts are going to give such changing views. Myguess hope is that it is the same as the 6th Circuit here.
Looking to determine the meaning of the phrase "changing clothes" in § 203(o) of the FLSA, the Court surveyed the DOL's view of that portion of the FLSA and found the following:
- 1997 Opinion Letter - "clothes" in section 3(o) does not encompass protective equipment and section 3(o) is an exemption to the FLSA that should be read narrowly;
- 2001 Opinion Letter - reiterated the position taken in the 1997 Letter;
- 2002 Opinion Letter - "changing clothes" in section 3(o) refers to the putting on and taking off the protective safety equipment typically worn in the meatpacking industry;
- 2007 Opinion Letter - reiterated the position of the 2002 Letter;
- June 16, 2010 Administrator's Opinion - section 3(o) exemption does not extend to protective equipment worn by employees, that is required by law, by the employer, or due to the nature of the job.
First, "an agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view. [cite omitted] The DOL's position on this issue has changed repeatedly in the last twelve years, indicating that we should not defer to its interpretation. Additionally, we find its interpretation to be inconsistent with the language of the statute.For the fans of burden of proof (the most important vestige of employment at will), the Court addressed the question of whether section 3(o) is an exemption to the FLSA where the employer has the burden or a definition, where the employee has the burden. Although it does so, the Court really did not have to look much further than which section of the FLSA section 3(o) appears, is it § 203, Definitions or § 213, Exemptions?
As it appears in §203 not §213 the Court placed the burden on the employee, siding with the 5th and all other circuits which have decided the question, except for the 9th Circuit.
Up to this point the opinion is very employer friendly, but at this point it diverges for some other holdings:
- in determining whether changing clothes can be a "principal activity" which thus launches the "workday," the Court held that whether or not the time was compensable does not impact the determination;
- here, changing clothes was a "principal activity".
If it does, given the somewhat limited nature of section 3(o) which requires a collective bargaining agreement to be applicable, the most important point could well be the deference given to agency interpretations. While it may always have been the case, it is now more clear than ever, particularly in the field of labor and employment law, regulatory agencies are much more bound to an Administration's viewpoint than stare decisis.
My own view is that is not a very good way to run a railroad, but no one has asked my opinion, nor are likely to give it much weight. It is however a fact of life, and if we are going to deal with it, we might as well know exactly what view the courts are going to give such changing views. My
Museums and Arts Organizations At Risk for Losing IRS Tax Exempt Recognition: Is Your Organization on the List?
The IRS recently published a long list of non-profits that have not filed appropriate forms for the last three years. Many museums, historical societies, and arts organizations are featured. These groups risk losing their tax-exempt status if action is not taken soon.
The IRS is giving organizations the opportunity to keep their tax-exempt recognition so long as paperwork is filed by October 15, 2010.
See if you are on the list at
http://www.irs.gov/charities/article/0,,id=225889,00.html?portlet=7.
The IRS is giving organizations the opportunity to keep their tax-exempt recognition so long as paperwork is filed by October 15, 2010.
See if you are on the list at
http://www.irs.gov/charities/article/0,,id=225889,00.html?portlet=7.
The Display of Art - A Fiduciary Duty of the Museum
Recently Eli Broad, art collector and philanthropist, told the American Association of Museums about its members' duty to take art out of storage and put it on display. “If 90% of your work is in storage you need to begin lending it to other institutions. Get art out of the basements,” The Art Newspaper reported.
The fiduciary duties of care, loyalty, and obedience obligate art museums to display their works. Museums are generally institutions legally formed for the public good. They hold works in trust for the viewing public. When works are accessioned and not displayed, museum boards of directors may be putting themselves at risk of violating their fiduciary duties.
While these duties have not been traditionally enforced by state attorneys general, the rise in deaccessions by institutions to raise revenue for operating costs could prompt greater scrutiny of these fiduciary duties. Taking works out of the basement makes good legal sense.
The fiduciary duties of care, loyalty, and obedience obligate art museums to display their works. Museums are generally institutions legally formed for the public good. They hold works in trust for the viewing public. When works are accessioned and not displayed, museum boards of directors may be putting themselves at risk of violating their fiduciary duties.
While these duties have not been traditionally enforced by state attorneys general, the rise in deaccessions by institutions to raise revenue for operating costs could prompt greater scrutiny of these fiduciary duties. Taking works out of the basement makes good legal sense.
Cycling in Canada
Domestic creatures (dogs) are intrigued by the unusual sight of a cyclist and are inclined to give chase; so far I have been able to outsprint them but if I encounter one going uphill a confrontation seems possible.
I am starting to stick to 'busier' roads where the occasional passing car means that owners have trained their pets to stay off the roads and the more dangerous wildlife is likely to be some way back in the woods.
Motorists here are generally highly considerate of cyclists; this may be the opposite of 'safety in numbers'. I am sufficiently unusual to be noticed and it is easier to give a cyclist plenty of space if nothing else is around and I am probably the only cyclist they pass in a week.
It is good to have challenges that differ so much from those I face on the usual commute into work.
The Mail Must Get Through
My post arrives at home delivered by a postman on a bicycle. He has always seemed very happy with his job and shows a healthy interest if I happen to be tinkering in the garage with one or other of my bikes on a Saturday morning when he arrives. Certainly if I were a postman I would very much rather deliver on a bicycle then by van or by cart. It is a very great shame that the outgoing chief executive of the Post Office, Mr Crozier, called time on the delivering of mail by posties on bicycles. His replacement, Ms Greene, is under some pressure to reverse this decision.
Ms Greene is moving across the Atlantic having previously headed the Canadian postal service. I happen to be writing this post in Canada and am having an opportunity to observe first hand a culture more motor-centric even than our own. Infrastructure is quite unambiguously devoted to the private motor car. Only the very hardy few cycle here. Postal delivery through the letterbox has, save perhaps in some city-centres, been abandoned for van drops into multiple mailboxes on street corners, in the suburbs, or has to be collected by the customer (almost invariably by car) from the village post office, in rural areas. The elderly and disabled are reliant upon friends, neighbours or relatives to go and pick up their post for them.
The internet has of course transformed the postal service everywhere. It is rare now that I write a letter to a friend or relative or send a cheque through the mail. E-mail and internet banking have done away with the need for all that. Instead I order a lot of goods over the internet and rely upon my postie to deliver parcels of books, bike parts and electronics to my door. This can, though, still be done by bicycle using cargo bikes or even tricycles where necessary.
Mr Crozier has justified his decision by refering to Health and Safety considerations but this is perplexing. Posties will be healthier delivering on a bicycle and cyclists will be safer with fewer vans on the streets; witness my close shave with a Post Office van last month.
CTC have launched a campaign to seek to persuade Ms Greene to reverse Mr Crozier's decision. This campaign has my support.
The Canadian postal service is not, I think, one to emulate.
Cautionary Comments as the ADA Nears Adulthood
Turning 21 is a much bigger deal than turning 20 if you are one who is looking forward to consuming adult beverages legally. But if you are a statute, twenty years is a nice point for others to weigh in on your success.
So in the the last two weeks various pundits have weighed in with their views on the Americans with Disabilities Act. (Although remember in terms of effective date, the ADA has just reached voting age. See, Happy15th13th Birthday to the ADA).
Someone has no doubt collected a number of the articles about the good things the law has done, but I wanted to point out two cautionary notes because I think they make a serious point. They come from the employer side of the docket and are made by other "employer's lawyers" so you are more than welcome to take them with however big of grain of salt that you wish.
Both Jon Hyman at Ohio Employer's Law Blog and John Phillips at The Word on Employment Law raise a valid concern about the breadth of the ADA and its susceptibility to those who would game the system (my word, not theirs). See, Celebrating the ADA, but bemoaning its breadth and ADA's 20th Anniversary: A Contrary View.
To their contributions, I would add two more points. First, as I have pointed out in the past, there is at least some research that says notwithstanding its good intentions, the ADA may actually have hindered the ability of those that we would all consider disabled, to enter the workforce. See, Hurting by Helping? The Law of Unintended Consequences.
The other point is really an expansion on Jon and John's thoughts on the breadth the ADA and the problems that are caused by extending coverage to conditions that are at least further from the core of what have traditionally been considered disabilities.
Think about the law works.
The legality of an employer's conduct in almost all circumstances turns on the fundamental question --is the employee who has complained of discrimination under the ADA, disabled? (I know technically -- whether the person is a qualified individual with a disability). To put it another way, until you know whether someone is disabled, you do not know whether you have to comply with the law or not.
But whether a person is disabled as defined in the original Americans with Disabilities Act was very much a legal question. And not an easy one. Just think of the cases where that was the threshold question and the answer was not available until it went through EEOC, the district court, a court of appeals and in a handful of cases even the supreme court, before that fundamental question was resolved. By then of course many years after the employer had made its own fateful 'guess' as to what the ultimate answer would be.
In other words, in order to comply with the law you have to "know" the answer to what has been the key question over which most ADA lawsuits were fought -- was the person disabled. And in many cases you absolutely could not know for sure, until the lawsuit was decided, which obviously is too late to ensure that you act appropriately
With other types of discrimination it is rare that you have that initial hurdle. You know whether someone is male or female, young or old, black or white, of Hispanic descent etc. In those cases, there is rarely a legal question as to whether the law was applicable.
But are they disabled? As defined under the ADA, not nearly as easy.
And even after all the litigation that occurred after the first 20, oops 18, years, it was not much easier for an employer to make that decision, especially in the middle of the 1,000 other things that were on their plate when they were faced with answering the question.
And even if you had mastered that body of precedent, it has been drastically altered by the recently passed ADAAA, making for more difficulties as we head into the next 20 years.
There is a built in Catch 22 of many ADA cases, particularly those of the type that were mentioned in the two articles -- that in many such cases you don't know whether you have to comply, until you have been tried and found guilty of not complying.
I find it particularly ironic every time I notice a car with a government issued permit pulling into a parking space reserved for those with disabilities.
So in the the last two weeks various pundits have weighed in with their views on the Americans with Disabilities Act. (Although remember in terms of effective date, the ADA has just reached voting age. See, Happy
Someone has no doubt collected a number of the articles about the good things the law has done, but I wanted to point out two cautionary notes because I think they make a serious point. They come from the employer side of the docket and are made by other "employer's lawyers" so you are more than welcome to take them with however big of grain of salt that you wish.
Both Jon Hyman at Ohio Employer's Law Blog and John Phillips at The Word on Employment Law raise a valid concern about the breadth of the ADA and its susceptibility to those who would game the system (my word, not theirs). See, Celebrating the ADA, but bemoaning its breadth and ADA's 20th Anniversary: A Contrary View.
To their contributions, I would add two more points. First, as I have pointed out in the past, there is at least some research that says notwithstanding its good intentions, the ADA may actually have hindered the ability of those that we would all consider disabled, to enter the workforce. See, Hurting by Helping? The Law of Unintended Consequences.
The other point is really an expansion on Jon and John's thoughts on the breadth the ADA and the problems that are caused by extending coverage to conditions that are at least further from the core of what have traditionally been considered disabilities.
Think about the law works.
The legality of an employer's conduct in almost all circumstances turns on the fundamental question --is the employee who has complained of discrimination under the ADA, disabled? (I know technically -- whether the person is a qualified individual with a disability). To put it another way, until you know whether someone is disabled, you do not know whether you have to comply with the law or not.
But whether a person is disabled as defined in the original Americans with Disabilities Act was very much a legal question. And not an easy one. Just think of the cases where that was the threshold question and the answer was not available until it went through EEOC, the district court, a court of appeals and in a handful of cases even the supreme court, before that fundamental question was resolved. By then of course many years after the employer had made its own fateful 'guess' as to what the ultimate answer would be.
In other words, in order to comply with the law you have to "know" the answer to what has been the key question over which most ADA lawsuits were fought -- was the person disabled. And in many cases you absolutely could not know for sure, until the lawsuit was decided, which obviously is too late to ensure that you act appropriately
With other types of discrimination it is rare that you have that initial hurdle. You know whether someone is male or female, young or old, black or white, of Hispanic descent etc. In those cases, there is rarely a legal question as to whether the law was applicable.
But are they disabled? As defined under the ADA, not nearly as easy.
And even after all the litigation that occurred after the first 20, oops 18, years, it was not much easier for an employer to make that decision, especially in the middle of the 1,000 other things that were on their plate when they were faced with answering the question.
And even if you had mastered that body of precedent, it has been drastically altered by the recently passed ADAAA, making for more difficulties as we head into the next 20 years.
There is a built in Catch 22 of many ADA cases, particularly those of the type that were mentioned in the two articles -- that in many such cases you don't know whether you have to comply, until you have been tried and found guilty of not complying.
I find it particularly ironic every time I notice a car with a government issued permit pulling into a parking space reserved for those with disabilities.
Dealing a $2 Million Dollar Verdict in the California Wine Country
Sexual comments and jokes, including a Levitra pen that apparently grows in length, followed by a complaint with no follow up and then a termination were what a Sonoma County jury apparently believed was the hand Shannen De La Cruz , a minimum wage card dealer, had been dealt. $2 million harrassment verdict against Petaluma card room
Although it is easy to imagine how the comments contained in the newspaper story could have been made and taken by everyone as funny, it is equally clear that as it came across in the court room, the jury was offended, not amused.
One factor that certainly did not help the company was the testimony of four other women, including one who had settled her own case. Making that testimony probably even more powerful, she was the human resources chief to whom De La Cruz had reported the harassment. The unresolved issue of how much "me too" evidence should be admitted is an on-going danger of these types of cases.
Although with $5 million year in revenues it's hard to think of the casino on the receiving end of the jury verdict as a really small business, it is certainly no colossus. And what would tend to get almost any small business owner's attention is that the jury verdict amounts to 2/3 of the company's net worth.
Now as I repeatedly mention in reports of MDV's, there is a long way between jury verdict and payment and it is highly likely that any amount ultimately paid, if any, will be considerably less. But that a jury knowing the employee's financial net worth, felt it appropriate to give 2/3 of it to one ex-employee, has to be a sobering thought when contemplating placing one's fate in the hands of a jury.
Although it is easy to imagine how the comments contained in the newspaper story could have been made and taken by everyone as funny, it is equally clear that as it came across in the court room, the jury was offended, not amused.
One factor that certainly did not help the company was the testimony of four other women, including one who had settled her own case. Making that testimony probably even more powerful, she was the human resources chief to whom De La Cruz had reported the harassment. The unresolved issue of how much "me too" evidence should be admitted is an on-going danger of these types of cases.
Although with $5 million year in revenues it's hard to think of the casino on the receiving end of the jury verdict as a really small business, it is certainly no colossus. And what would tend to get almost any small business owner's attention is that the jury verdict amounts to 2/3 of the company's net worth.
Now as I repeatedly mention in reports of MDV's, there is a long way between jury verdict and payment and it is highly likely that any amount ultimately paid, if any, will be considerably less. But that a jury knowing the employee's financial net worth, felt it appropriate to give 2/3 of it to one ex-employee, has to be a sobering thought when contemplating placing one's fate in the hands of a jury.
Kudo's For Giving the Bad as Well as the Good
I am not a fan issuing press announcements following a trial victory. To quote an over used Seinfield line, "not that there's any thing wrong with it ..... ", it's just not my cup of tea.
Similarly, I have never mixed (at least that I can remember) my own personal practice results and my blogging, or at least not in any way that they were identifiable.
Others do, although generally they only give the favorable results.
So I was pleasantly surprised to find the following post, Kent County Jury Finds for School District in O’Neill v. Warwick, on the blog of the Employment Law Group. If you check out the story you can see that in this case their client did not prevail before a Rhode Island state court jury.
I admire anyone who actually tries employment law cases to a jury. And if someone is going to announce their wins, I would suggest that they follow the example of the Employment Law Group and shows us all the results, not just the wins.
If you are clicking through to look at their blog, you might look around as it is also an excellent site for developments in the employment law area, particularly in one of the fastest growing parts, whistleblower cases.
Similarly, I have never mixed (at least that I can remember) my own personal practice results and my blogging, or at least not in any way that they were identifiable.
Others do, although generally they only give the favorable results.
So I was pleasantly surprised to find the following post, Kent County Jury Finds for School District in O’Neill v. Warwick, on the blog of the Employment Law Group. If you check out the story you can see that in this case their client did not prevail before a Rhode Island state court jury.
I admire anyone who actually tries employment law cases to a jury. And if someone is going to announce their wins, I would suggest that they follow the example of the Employment Law Group and shows us all the results, not just the wins.
If you are clicking through to look at their blog, you might look around as it is also an excellent site for developments in the employment law area, particularly in one of the fastest growing parts, whistleblower cases.
CBA-FLSA-State Law? Is It Like Rock-Paper-Scissors?
Unfortunately for companies that operate in more than one state or are intently focused on the Fair Labor Standards Act, the answer is no.
Unlike the kid's game, where the winner is variable, when deciding wage and hour compliance questions, the answer invariably seems to be -- state law tops all.
Judge Easterbrook's short 7 page opinion in Spoerle v. Kraft Foods Global, Inc. (7th Cir. 8/2/10) [pdf] is a good example and (surprisingly) the first appellate decision to address at least one variation of this non-preemption issue. The question was what happens when a CBA which specifically excludes donning and doffing from time worked as permitted under Section 203(o) of the FLSA, runs into a state statute which does not have a similar exclusion? The answer under Section 218(a) according to Judge Easterbrook: state law prevails; employer loses. Here that translates to a $2.2 million dollar judgment on behalf a group of employees against the employer.
This may be the first for this specific issue, but it is not the only time it is a problem. See Union Bargaining Agreements Likely Cannot Waive Overtime Pay Rights, at the Overtime Advisor for a similar issue brewing in Nevada.
If I were rewriting wage and hour law, and I wish someone would ask me to do so, starting with Section 218(a) might not be a bad place to start. Compliance for companies that truly want to comply is hard enough when it is one law, but one law and 50 possible variations is a little too much federalism at times.
If it were truly protecting individuals from abusive treatment that would be one thing. But here, Local 538 of the UFCW, the employees' representative, and the company agreed that donning and doffing time would not be paid. No doubt elsewhere in the CBA that benefit to the company was offset by a benefit to employees, more than likely higher hourly wage rates.
So who really benefits from this $2.2 million decision?
The workers get all that they bargained for, plus a substantial windfall. Lawyers for the company and the plaintiffs (assuming that the judgment is not reversed by the Supreme Court) will have been well compensated. The Company will be out $2.2 + million dollars, which in classic economic terms likely means consumers will now have to pay more for their products.
I am sorry I must have missed something. Why is any of this a good thing?
Unlike the kid's game, where the winner is variable, when deciding wage and hour compliance questions, the answer invariably seems to be -- state law tops all.
Judge Easterbrook's short 7 page opinion in Spoerle v. Kraft Foods Global, Inc. (7th Cir. 8/2/10) [pdf] is a good example and (surprisingly) the first appellate decision to address at least one variation of this non-preemption issue. The question was what happens when a CBA which specifically excludes donning and doffing from time worked as permitted under Section 203(o) of the FLSA, runs into a state statute which does not have a similar exclusion? The answer under Section 218(a) according to Judge Easterbrook: state law prevails; employer loses. Here that translates to a $2.2 million dollar judgment on behalf a group of employees against the employer.
This may be the first for this specific issue, but it is not the only time it is a problem. See Union Bargaining Agreements Likely Cannot Waive Overtime Pay Rights, at the Overtime Advisor for a similar issue brewing in Nevada.
If I were rewriting wage and hour law, and I wish someone would ask me to do so, starting with Section 218(a) might not be a bad place to start. Compliance for companies that truly want to comply is hard enough when it is one law, but one law and 50 possible variations is a little too much federalism at times.
If it were truly protecting individuals from abusive treatment that would be one thing. But here, Local 538 of the UFCW, the employees' representative, and the company agreed that donning and doffing time would not be paid. No doubt elsewhere in the CBA that benefit to the company was offset by a benefit to employees, more than likely higher hourly wage rates.
So who really benefits from this $2.2 million decision?
The workers get all that they bargained for, plus a substantial windfall. Lawyers for the company and the plaintiffs (assuming that the judgment is not reversed by the Supreme Court) will have been well compensated. The Company will be out $2.2 + million dollars, which in classic economic terms likely means consumers will now have to pay more for their products.
I am sorry I must have missed something. Why is any of this a good thing?
Car Sick Highway Engineers
The above is a still from one of my Headcam videos here
I make some further intemperate comments on youtube; but really how can Highways Agencies employ people who think like this ?
My cycle training session
I have mentioned before on these pages that I was planning to have a session of cycle training and the particular concern, that I voiced when I booked, was over the aggression I was attracting from some motorists.
I met my instructor, Colin, at the Imperial War Museum and it was immediately apparent (and I do not blame cycle training organisations for this) that there were hoops to be gone through before we could take to the roads to deal with bikeability level 2 and 3. First the bike check which resulted in a rotating downwards of my brake levers to make it easier to cover the brakes the whole time (I commute on a flat bar bike). Then on an unused tennis court I demonstrated the ability to look behind without falling off and to do an emergency stop.
Finally on the roads Colin followed behind and had the following suggestions:
- Cover the brakes the whole time. I think this makes sense in heavy traffic and I do it instinctively if I am unsure about surrounding traffic. Novel idea for me to do it all the time.
- Road positioning. Was essentially good though I unconsciously come out before turning left (an HGV turn). I suppose I am trying to widen the turn and will think in future about slowing more and maintaining my position in the road until I can see into the left road before making the turn. Also left and right turns into a major road from a side road are made from the same position in the centre of the lane. This was news to me I have been taking the centre of the road before turning right and letting left turning traffic past to my left but this is apparently frowned upon.
-Signalling. I should not have signaled when in a left hand only lane. Apparently signalling with thumb at the top of the hand rather than at the bottom appears more assertive and is therefore recommended.
-Speed. My speed was appropriate, but when slowing when I had priority over a vehicle just in case he pulled out, it is better to carry on soft pedaling otherwise some motorists might think I was stopping.
-Right turn into minor road. My instructor would have liked me to take position in the centre of the road even earlier than I did (which I felt was quite a long way in advance of the junction).
It was not possible in Southwark to replicate my dual carriageway riding but we discussed it at length at the end of the two hour lesson. Colin at least affirmed that my road positioning was appropriate and his suggestion was 1.2 metres out from the kerb. I am generally in that region (the lanes are 3 metres wide). There was some discussion about slowing and letting traffic past but I think we agreed this was not a practical solution. The advice I got was that I am attracting hostility from bad motorists, not good ones, and I was firmly encouraged to report abusive behavior to the police. I have, of course, tried that and got nowhere (I will keep you posted on the correspondence I intend to have soon with the unsuspecting Metropolitan Police Commissioner and the Chief Constable of Surrey on that topic.)
Overall, a useful session with some interesting observations and some reaffirmation that the hostility I am encountering is not due to inappropriate riding on my part. I left with a piece of paper confirming that I have achieved bikeability level 3.
I met my instructor, Colin, at the Imperial War Museum and it was immediately apparent (and I do not blame cycle training organisations for this) that there were hoops to be gone through before we could take to the roads to deal with bikeability level 2 and 3. First the bike check which resulted in a rotating downwards of my brake levers to make it easier to cover the brakes the whole time (I commute on a flat bar bike). Then on an unused tennis court I demonstrated the ability to look behind without falling off and to do an emergency stop.
Finally on the roads Colin followed behind and had the following suggestions:
- Cover the brakes the whole time. I think this makes sense in heavy traffic and I do it instinctively if I am unsure about surrounding traffic. Novel idea for me to do it all the time.
- Road positioning. Was essentially good though I unconsciously come out before turning left (an HGV turn). I suppose I am trying to widen the turn and will think in future about slowing more and maintaining my position in the road until I can see into the left road before making the turn. Also left and right turns into a major road from a side road are made from the same position in the centre of the lane. This was news to me I have been taking the centre of the road before turning right and letting left turning traffic past to my left but this is apparently frowned upon.
-Signalling. I should not have signaled when in a left hand only lane. Apparently signalling with thumb at the top of the hand rather than at the bottom appears more assertive and is therefore recommended.
-Speed. My speed was appropriate, but when slowing when I had priority over a vehicle just in case he pulled out, it is better to carry on soft pedaling otherwise some motorists might think I was stopping.
-Right turn into minor road. My instructor would have liked me to take position in the centre of the road even earlier than I did (which I felt was quite a long way in advance of the junction).
It was not possible in Southwark to replicate my dual carriageway riding but we discussed it at length at the end of the two hour lesson. Colin at least affirmed that my road positioning was appropriate and his suggestion was 1.2 metres out from the kerb. I am generally in that region (the lanes are 3 metres wide). There was some discussion about slowing and letting traffic past but I think we agreed this was not a practical solution. The advice I got was that I am attracting hostility from bad motorists, not good ones, and I was firmly encouraged to report abusive behavior to the police. I have, of course, tried that and got nowhere (I will keep you posted on the correspondence I intend to have soon with the unsuspecting Metropolitan Police Commissioner and the Chief Constable of Surrey on that topic.)
Overall, a useful session with some interesting observations and some reaffirmation that the hostility I am encountering is not due to inappropriate riding on my part. I left with a piece of paper confirming that I have achieved bikeability level 3.
The Difference Between Cloth and Leather Gloves? Just Over a Million Dollars
At least that is the thought one might take from a jury verdict at the end of May in Maine state court. As reported by Michael Afthim's counsel, Peter Thompson and Associates in their blog, Maine Employment Lawyer, his complaints about the working conditions of the men he supervised led to his termination and subsequent suit under the Main Whistleblowers' Protection Act.
According to his counsel:
A year earlier, the Maine Human Rights Commission had passed on filing a lawsuit in the case. See Commission Meeting Minutes of June 29, 2009. Although I am not sure of the significance since I don't know about Maine's process, apparently there had been no written objection filed to the investigator's report. Commission Meeting Minutes of April 13, 2009.
With the current popularity of whistleblowing in legislatures including Congress, and quite frequently with juries, this is a story that may frequently be repeated.
According to his counsel:
CUMBERLAND COUNTY MAINE JURY AWARDS WHISTLEBLOWER $1,015,000 IN DAMAGES.Mr. Afthim became concerned about a number of safety issues in the warehouse that he ran including the lack of ventilation, the company's decision to use cheaper cotton gloves instead of splinter resistant leather gloves, and the insufficient staffing on the second shift. Mr. Afthim noted that the ventilation was so poor in the warehouse that his employees were inhaling significant amounts of dust and dirt. Mr. Afthim made multiple reports and complaints to ALR's management about the ventilation issue but ALR did nothing. Mr. Afthim also noted that the company's switch to cotton gloves from leather gloves was leading to significant splinters for his employees who spent their days constructing and repairing wooden pallets. Mr. Afthim also brought this concern to ALR without an adequate response. Mr. Afthim then noticed that due to understaffing that the workers on the second shift were rushing to keep up with their duties and he became very concerned that this would inevitably lead to a serious injury such as a fall or an accident with the fork lift.
A year earlier, the Maine Human Rights Commission had passed on filing a lawsuit in the case. See Commission Meeting Minutes of June 29, 2009. Although I am not sure of the significance since I don't know about Maine's process, apparently there had been no written objection filed to the investigator's report. Commission Meeting Minutes of April 13, 2009.
With the current popularity of whistleblowing in legislatures including Congress, and quite frequently with juries, this is a story that may frequently be repeated.
Some Facts on Breast Feeding Requirement Under Healthcare Bill
A hat tip to Employment Law 360 for their story, DOL Releases Guidelines On Breaks For Breastfeeding [pdf] ($) and inclusion of Fact Sheet #73 from the Wage and Hour Division, Break Time for Nursing Mothers under the FLSA.
It's the first official word I have seen on a provision contained in the major healthcare reform bill passed earlier this year, that was scant on details.
I am not sure this answers all the questions, but at least it's a start.
It's the first official word I have seen on a provision contained in the major healthcare reform bill passed earlier this year, that was scant on details.
I am not sure this answers all the questions, but at least it's a start.
Etape Diary Monday 19th July
A leisurely start to the day but became more stressful as the taxi to the train arrived late and took 10 minutes to get the bike boxes into the back. The 1144 train turned out however to be running late. Hardly surprisingly dozens of cyclists needed to get bike bags and boxes onboard and there was hassle fitting them all on board exacerbated by the fact that the doors to my carriage had malfunctioned. Safely aboard we travelled northwest to Bordeaux before whizzing off to Paris. The train was a little late which only increased the stress of getting across Paris on the crowded Metro. With a bit of mutual assistance Angus and I managed alright and probably much faster than any taxi. I was, though, beaten to the Eurostar check in by two guys who had travelled light and not dissembled their bikes – so they rode from Montparnasse to Garde du Nord. This struck me as a good idea which I will look into if I ever do this again. It would save the shoulder wrenching experience of the Metro. There is one thing our transport services do much better here than in Paris and that is step free access.
Etape Diary Sunday 18th June
At 0620 I decided it was sufficiently light to venture out and I found my way to the correct start pen by about 0640. The Avenue de Pyrenees and the area surrounding Park Beaumont was packed with 10,000 cyclists. At 0700 a siren sounded and around 8 minutes later I rolled over the start. There was an immediate slightly hairy dip down to the station and a sharp left over the Gave River followed by a fairly speedy undulating ride until we hit the Parc National du Pyrenees at Escot and the start of the day’s first climb the Marie Blanque, a vertical climb of about 1,000 m over about 6 miles. The terrain was wooded providing shade from the early sun and was comfortable enough. The road did narrow though and there was congestion particularly as we picked our way past ambulances and other slow moving vehicles. Fortunately I was over the top before the congestion deteriorated to the point where people had to dismount and walk.
Over the top there was a fast descent and a flat stretch through woods with a bubbling brook on our right hand side. Then came the Soulor which took us up to about 1,500m over around 9 miles. With the heat increasing I found this harder but still manageable.
Over the summit and as I was picking up speed on the descent I heard a Frenchman yelling at a sheep. He was scaring the animal across the road into my path. I missed by a couple of feet and that was my scariest moment of this year’s etape. There was then a long long descent which took us almost to the foot of the Tourmalet. The field was a t last beginning to thin and groups were forming with gaps in between.
As we started to climb again I clocked up 100 miles in a steep sided gorge with a river to the right and cliff to the left. At this point I had been going for 6 ½ hours and I thought a silver at 8h15m could be achievable. It would require just 12 miles in an hour and three quarters.
However I had not reckoned on the energy sapping properties of the Tourmalet on a hot day. I had climbed this mountain before in the 2008 etape, though from the other side and on a positively cold and wet day. Early in the climb I was offered a coke from a Cyclefit feed station but I felt I could manage without and didn’t feel like stopping – that may have been a mistake. Before long, like most of my fellow etappers to whom I have subsequently spoken, I cracked. My feet were killing me and I was draining liquid from my bidons faster than I could get them refilled.
The locals were marvellous with their pouring of cold water over our heads. Some of the water offered was said to be ‘potable’ so I gulped it down. At the water stop at the treeline I gulped, filled bidons and sprayed my feet with water (unlike Mt Ventoux last year this water was on tap). I took a couple of precious aspirins. Thus fortified I set out for the top. This could now be seen through the clear mountain air in the far distance. I ground on slowly as the kilometre signs counted down the distance to the summit. The last 2 km are the longest I have ridden on my bike. People were asking for and getting pushes up the mountain from the many spectators who had congregated near the top. Eventually after a final switchback to the left the summit was in sight and I passed over with a time of 08h40m for a solid bronze. Details of my ride can be found on my Garmin record..
I just had to rest my feet at the top before descending to La Mongie and begged a first aider for a half bottle of water shared with a similarly dehydrated rider. Eventually with loose shoes I headed down to the finish village and had my meal before heading down the mountain to Lourdes to catch a train back to Pau. On the way this sign caught my eye (1.5m = 5 1/2 feet).
Once back in Pau I just made it for the planned dinner at 7.30 with Alex but, alas, he struggled on the mountain too and did not make it back. (Postscript: actually he was busy recording a video for the BBC). So after a few bananas, snacks and whatever I could lay my hands on it was to bed for a deep sleep.
Etape Diary Saturday 17th June
Etape Diary Friday 16th June
Got into the room and reassembled the bike before a very rare steak at a supermarket restaurant round the corner. Returned to my room to watch the Tour and then headed off to the etape village at the Racecourse, hoping to avoid the worst heat of the day. I duly presented my passport in return for my rider number. It did not take long to explore the village; just a very quick ‘Hi’ to Sandy at Bikefit, who recently fitted my feet out, as he was with a customer, before returning to the hotel, dinner and a chance to catch up some sleep.
One Stop Shopping for Whistleblowers
A hat tip to Today's Workplace, the blog of the Outten & Golden firm, for their link to OSHA's new whistleblower website, Office of the Whistleblower Protection Program.
It is worth its weight in gold, if for no other reason than to find a link to all 18 statutes that OSHA currently is responsible for:
And for two final tidbits, before the next OSHA investigation into a whistleblower complaint, you might want to look over the 190 page Whistleblower Investigations Manual and when you get ready to settle check out OSHA's policy for Approval of Settlements with Future Empoyment Waivers. Spoiler alert, it's on a case by case basis and they look at five factors.
It is worth its weight in gold, if for no other reason than to find a link to all 18 statutes that OSHA currently is responsible for:
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. §660The statutes are up to date through the health care bill, but don't yet include those included in the Financial Reform Act which will not be signed into law until tomorrow. For a preview of those, which I am sure will be joining the list soon, see my earlier post, Financial Reform Passes - Major Whistleblowing Changes as Well.
Surface Transportation Assistance Act (STAA), 49 U.S.C. §31105
Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. §2651
International Safe Container Act (ISCA), 46 App U.S.C. §1506
Safe Drinking Water Act (SDWA), 42 U.S.C. §300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §1367
Toxic Substances Control Act (TSCA), 15 U.S.C. §2622
Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971
Clean Air Act (CAA), 42 U.S.C. §7622
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9610
Energy Reorganization Act (ERA), 42 U.S.C. §5851
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. §42121
Corporate and Criminal Fraud Accountability Act, Title VIII of the Sarbanes Oxley Act (SOX), 18 U.S.C. §1514A
Pipeline Safety Improvement Act (PSIA), 49 U.S.C. §60129
Federal Rail Safety Act (FRSA), 49 U.S.C. §20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2087
Section 1558 of the Affordable Care Act (ACA), P.L. 111-148
And for two final tidbits, before the next OSHA investigation into a whistleblower complaint, you might want to look over the 190 page Whistleblower Investigations Manual and when you get ready to settle check out OSHA's policy for Approval of Settlements with Future Empoyment Waivers. Spoiler alert, it's on a case by case basis and they look at five factors.
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