One Prediction That Had Some Legs

Forecasting is an art not a science, and truth be known luck is probably the most single important factor if one gets it right, still I could not help but think back to one of my first posts of this year, 2011 --- the Year of the Non-minority? where I thought that we might see
more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race.
Now a few days before year's end the 5th Circuit decides Vaughan v. Woodforest Bank (5th Cir. 12/21/11). Ms. Vaughan, a white bank manager who managed a work force that was almost all black was terminated for what was described as "inappropriate comments in the presence of employees and customers that created a perception of racial discrimination and uncomfortable environment due to lack confidentiality."

The Court reversing a summary judgment in favor of the employer discussed the three comments that were said to underlie this conclusion. Without really saying so, the Court seemed to be saying that the comments did not seem to them to set a racial tone. Although its unclear how much it influenced the decision, it did note that the manager who made the decision to terminate Vaughan had a view that any discussions of race were problematic: "we cannot talk about race in the workplace" and "if you talk about race in the workplace it's racial discrimination."

Probably pushing my luck, but I sense that this particular type of case may have more than a one year run.

Why Employers Don't Like Statutes Creating Causes of Action

One of the responses by the employer community to almost any proposed statutory cause of action is not that it supports employers who engage in whatever conduct is going to be prohibited, but that by adding yet another statutory cause of action, there is yet one more way for a lawsuit to be brought.

If you accept my basic premise, when a a lawsuit has been filed, the employer has lost, and from that point on, the only question is how much, then that argument makes sense. The issue is finding the balance, and I would argue that we have plenty of such legislation and could have a "holiday" to use a phrase currently in the political discussion from any additional new statutory causes of action. Particularly since causes of action never go away.

What brought about this particular post was a decision last week by the 7th Circuit which is a true head scratcher,  DeGuelle v. Camilli (7th Cir. 12/15/11) [pdf].

Among other things you had a
  • A Sarbanes Oxley complaint filed against a privately held company, so there was no coverage;
  • A RICO action predicated on the actions related to tax accounting that the terminated employee had been raising for years, and where
  • the Court relied on the provision in SOX that prohibits termination of a whistleblowing employee, because it is a listed statute for a predicate act for RICO purposes.
But I think what got me even more than the unusual legal aspect of the case was the account of the type of situation that anyone who has been doing this long enough has seen before. An irreconcilable difference of opinion develops between an employee feels who feels there is serious wrongdoing, an allegation that the company does take seriously, but disagrees with, and the inevitable bad outcome that occurs.

Because it is a review of summary judgment in favor of the employer, which was reversed, the Court had to accept all the allegations as true, and by doing so you have to assume egregious conduct including intentional tax violations and cover up.

But what is also true is that the employer had already sued the employee in state court for disclosing confidential information and obtained a judgement of $50,000 against him. To be fair, that is on appeal.

I obviously have no knowledge of who is right and who is wrong, but I do know that we have created in a relatively short period of time a very complex web of legal arguments for employees who are fired to say their termination was illegal. This decision points out how such statutes interact to create even more ways. 

Whether that is good or bad is a legitimate question, but we really are reaching the point where a weighing of the good and bad is in order.  Not just an automatic more is better.

Imperial Winter Series Hillingdon Race 3 Saturday 17th December

Another bright sunny but cold day (5ºC) with a blustery west wind.  The long shadows even at 1pm served as a reminder that we are close to the shortest day.  After last week's experience we started with a lecture on safe riding but I am afraid there were crashes in both the 3rd and 4th cat races again.  The one in the 3rd cat race unfolded before my eyes on the short uphill section between the right hand and left hand bends.  Started as a wobble near the front and got amplified so that the rider a few back had nowhere to go but the grass where I believe he at least got a soft landing.  The woman in the 4th cat race [correction: I see from Lucy's report she was in our race, I had not noticed] was not so fortunate and was lying on the circuit for several of our laps.  I hope she is ok.
The racing seemed fast today.  Again we did not catch the 4th cats, but at least they did not catch us either.  There were some spirited breaks and we were lined out at several points as the pace increased to get them back.  A good race though not for me personally.  I punctured with one and a half laps to go.  I now take spare wheels with me but you cannot have a lap out to change your wheel with under 5 laps to go.  I fell rapidly off the back as my rear tyre deflated.  I had hoped there would be sufficient air left for me to finish the race but at half a lap to go I was onto the rims.  I was not going to ride my racing wheels on the rims so I walked the last half lap both to finish and to pick up my spare wheel at the hut.
My stats will be a bit out because of the puncture but from the start to when I started walking: .
52 mins at 23.8 mph, max 29.2mph.
I stayed to watch a teammate in the following E/1/2/3 race.


E/1/2/3 midrace


E/1/2/3 Finish

The 9th Circuit Does Their Part On Oracle Case, Extending California Labor Laws

One of the issues that I think has the potential to cause a lot of trouble for employers is the application of one state's labor and employment laws to employee who travel to work in another state.  In today's mobile world that is a lot of folks, especially employees located near state borders.

Basically, what happened is that Colorado based trainers who work for California based Oracle, brought a suit claiming that they should be paid in accordance with California wage and hour laws for the days they did training in California. The District Court rejected the claim. A 9th Circuit panel reversed. After a request for en banc hearing, the question was certified to the California Supreme Court. The Supreme Court basically gave the same answer the 9th Circuit had -- California law is applicable for the days the instructors worked more than a full day in California. See, Sullivan v. Oracle Corp. (Cal. S.Ct 6/30/11).

This week, the 9th Circuit completed the round trip (and engaged in a little mutual back patting), allowing as how, just like they did in their original opinion, the California Supreme Court got it right. They threw out some constitutional arguments on the part of Oracle and remanded the case for further proceedings. Sullivan v. Oracle Corp. (12/13/11).

How much training did they do? Not all that much.  One plaintiff did 150 days in Colorado, 32 in California and 52 days in other states. The next year, 150 in Colorado, 12 days in California and 20 days in other states and the third year of the period, 150 in Colorado, 30 days in California and at least 19 days in other states.   The other two plaintiffs had even less time in California.

The only thing that prevents this decison from being a total disaster is the following paragraph:
The contacts creating California interests are clearly sufficient to permit the application of California’s Labor Code in this case. The employer, Oracle, has its headquarters and principal place of business in California; the decision to classify Plaintiffs as teachers and to deny them overtime pay was made in California; and the work in question was performed in California.
Which keeps alive an argument that the case is only applicable to California based employers, although I am sure that cases are already in the works to challenge that aspect of the case.

Ultimately, I think this is an issue that the Supreme Court has to take up. From my prior experience there is precious little law on how we deal with state laws on "traveling" employees. 

Talk about an impact on commerce. 

Hopefully I am wrong, but I would not be surprised if this were one of the hot new things in 2012. And after enough are filed, maybe we will start to get some answers. Hopefully better ones than this weeks ruling.

Imperial Winter Series Race 2 - Saturday 10th December

A bright sunny day with a much lighter wind than last week but also a lot cooler at 6ºC.  I felt a bit more comfortable in the bunch this week only at the back on the occasions that the pace picked right up.  We passed the 4ths(or most of them) a couple of times today but on their penultimate lap, half a dozen or so of them passed us at the finish of their race, whilst at the same time they were lapping a substantial part of their own field.  We slowed to let them past and once their race finished the attacks in ours began.  Once again a small group got away n the final laps – Lucy’s report will have far more detail than I was able to observe.  At the bell I was at the back of the field and happy to stay there until we crossed the line.
Unhappily there was a crash in the 4th cat race, on the bend just before the clubhouse, and as I left the circuit two ambulances were there.  I hope those involved were not badly injured and recover soon.
Stats: 1h04m at av 24.9mph.  Max 30mph.

Imperial Winter Series Hillingdon Race 1: Saturday 3rd December

Courtesy Mark Hopkins who has some great shots
permission applied for.
A mild sunny winter's day with a stiff westerly breeze.  When I looked on the Imperial site this morning I saw the 4th cat race was fully booked so I grabbed one of the few remaining places in the 3rd cat race before they also went.  It is an indication of just how popular racing in general and the Imperial Winter Series in particular is.  There must be some WyndyMilla sponsorship as the pink flags were out and I am now the owner of a WyndyMilla bidon (always useful).
This was my first race for 4 months and it showed.  I sat in towards the back for most of the race.  A break of 6 got away entirely unnoticed by me and we alternated between the literally conversational and the fairly frantic.  We never did catch the 4th cats, who I think must have had an exceptionally fast race today.  Perhaps because it was all now about 7th place the gallop for the line started much later than usual and with half a lap to go we were free wheeling in a close packed group down the back straight.  I was happy just to hang on in there and come in with the bunch.
Stats: 1h05m at av 24.6 mph.  Max 29.7 mph.

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