For those in the blogging and larger world following the saga of a now apparently former Delta flight attendant who was first suspended and now fired, you can check out the announcement of her termination from the self named Queen of the Sky herself. What is truly fascinating though for those interested in getting a pulse on how the public views employment law issues is to check out the (as of mid-afternoon Saturday, about 24 hours after the posting) 72 comments which accompany the announcement. You can also see the now reposted pictures which are at least in part the basis for the termination. The comments range from those who agree with Delta's actions, those who agree some action was appropriate but think termination was too harsh, those who are outraged at Delta, and those who just want a date!
Speaking of the ADA - A Government Guide for Food Service Employers
The EEOC and the FDA have jointly produced a compliance guide for Restaurants and Food Employers. How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers. Not all that often that you get advice specifically tailored to your industry, and probably worth a read. If you think not, see previous entry.
MDV Watch - EEOC Hits DuPont in Louisiana Trial
A Louisiana federal court jury sided with the EEOC and Laura Barrios, for whom it sued last week, awarding almost $1.3 million to the former DuPont worker, who was "forced" into disability retirement. Check out the story at HR.BLR.com. The $1 million punitive damages award will be cut to $300,000 under Title VII caps and then the whole verdict will have to pass post-trial scrutiny of the trial judge and then the 5th Circuit. Still the words of the EEOC General Counsel Eric Dreiban are worth considering:
Update: Although MDV's that stand up intact on appeal are rara avis, and even this one did not stand upt totally, it still fared better than most. Excepting only the district court's award of $200,000 in front pay, the 5th Circuit found the contested evidence supported the jury's findings as well as upholding a partial summary judgment of liability under a "perceived disability" theory. EEOC v. DuPont (5th Cir. 3/1/07) [pdf].
This may not be the case to take on appeal, but it appears that DuPont was in effect hoisted in part by their own actions since the summary judgment was based on:
This is a good example of how difficult ADA cases are going to be for employers when they get beyond the issue of disability and force employers to defend on other grounds.
The jury's verdict should signal employers that they should abandon paternalistic and discriminatory ideas about people with disabilities. Employers should engage in dialogue with employees with disabilities so that their employees receive effective and reasonable accommodations.ADA cases are very difficult to sustain legally given the tight interpretation of the law, but as this case shows, in front of a jury a very different dynamic applies.
Update: Although MDV's that stand up intact on appeal are rara avis, and even this one did not stand upt totally, it still fared better than most. Excepting only the district court's award of $200,000 in front pay, the 5th Circuit found the contested evidence supported the jury's findings as well as upholding a partial summary judgment of liability under a "perceived disability" theory. EEOC v. DuPont (5th Cir. 3/1/07) [pdf].
This may not be the case to take on appeal, but it appears that DuPont was in effect hoisted in part by their own actions since the summary judgment was based on:
upon the broad restrictions placed on her by DuPont physicians, the total and permanent disability benefits provided to her with DuPont’s assistance, and DuPont’s pleadings and discovery responses. DuPont admitted in its discovery responses that Barrios was "incapable of walking” and “permanently disabled from walking.”The court did not agree with DuPont's argument that it had considered her unable to work in only a narrow range of jobs, since it excluded all the jobs in the refinery based on its view that she could not safely evacuate in an emergency, and didn't provide evidence of jobs outside the plant that she could have done.
This is a good example of how difficult ADA cases are going to be for employers when they get beyond the issue of disability and force employers to defend on other grounds.
Are New Protected Classes Emerging? A Provocative (and Important) Question
Today's Daily Labor Report ($) has a good article about developing trends to provide protection for groups that have generally been thought to NOT be protected under civil rights laws. The three groups where at least some case law can be found to support their protection under certain circumstances? homosexuals, transgendered and mothers. If you have a subscription to the DLR, be sure and check out, Are New Protected Classes Emerging (BNA DLR 10/29/04). The case law is by no means clear, but it is apparent that at least some inroads are being made in some courthouses. More to add to an employer's already overloaded plate.
USERRA Is A Liberal Statute - But Doesn't Stretch This Far
Obviously in a time where military lives are not only at risk but the center of a hot political campaign, sensitivity to the rights of those who serve in the armed forces in whatever capacity is justifiably great. The 3rd Circuit noted not only the times, but described the circumstances facing it:
Although there were several aspects of Gordon's attempted USERRA claim, basically they all failed because it is really an employee rights statute. The one section that arguably applied with respect to 8 hours rest, dealt only with an employee's obligation as to when to report to claim rights under USERRA and does not speak to an employer's obligations.
The case is of particular interest at this time because of the large number of reservists called up for military duty as a result of the conflicts in Iraq and Afghanistan. The alleged events underlying this action are tragic. Willie Gordon, an active member of the United States Army Reserve, also worked for the defendant, Wawa, Inc., in Vineland, New Jersey. On Sunday, September 17, 2000, on his way home from weekend Reserve duties in Virginia, Gordon stopped by the Vineland store to pick up his paycheck and to obtain his work schedule for the upcoming week. At that time, Gordon's shift manager allegedly ordered him to work that night's late shift, and threatened to fire him if he refused. Willie Gordon complied with the order, and on his drive home from work, lost consciousness at the wheel of his car. His car crashed, and he died as a result of his injuries.Bringing various state claims, his estate also brought a claim under USERRA, claiming among other things that he was entitled to 8 hours rest after his tour of military service. The district court dismissed the USERRA claim and refused to assert pendent jurisdiction over the state court claims. The 3rd Circuit today agreed. Gordon v. WAWA, Inc. (3rd Cir. 10/28/04) [pdf].
Although there were several aspects of Gordon's attempted USERRA claim, basically they all failed because it is really an employee rights statute. The one section that arguably applied with respect to 8 hours rest, dealt only with an employee's obligation as to when to report to claim rights under USERRA and does not speak to an employer's obligations.
Quick Link to State Laws Related to Voting Rights of Employees
Thanks to Professor Gely of the University of Cincinnati College of Law for his research and post providing a link to the various state laws concerning employees and their right to vote.
Research Materials on Labor Arbitration and ADR in Employment
Actually an article on legal research materials in those area. Researching Labor Arbitration and Alternative Dispute Resolution In Employment. Here is how the article is described:
This guide by Suzanne Thorpe and Laura J. Cooper identifies comprehensive bibliographies that discuss arbitration and other means of employment dispute resolution in unionized and nonunionized settings; texts that dispute resolution practitioners consider to be essential reference tools; sources that contain arbitration awards; sources that provide information about alternative dispute resolution professionals, and texts of procedure and ethics rules. In addition, texts, periodicals, and websites that offer additional commentary on arbitration, mediation, and other types of employment dispute resolution are identified.Just more splendid reference material at LLRX.com.
ERISA Fiduciary = Honor, Prestige? Nope, Defendant
At least more and more it seems according to yesterday's post by Janell Grenier at Benefits Blog. The bullet points she pulls from an article cleverly called "Lawyering Up" at PlanSponsor.com:
". . . more 401(k) litigation now than ever"The clear word of advice -- if you hold that lofty title of fiduciary for an ERISA plan(s), you make sure you know that the plan documents are up to date and up to snuff. It won't keep you from getting sued, but doing just that will go a long way in keep you from getting successfully sued.
"[T]the trend has snowballed. . . "
"[T]he current spate of salacious scandals at major corporations has fanned the flames . . . "
"The law is in a state of flux" and "evolving."
To Honor (and Assist) Those Who Also Serve - the American Juror
Perhaps unusual in a time when jury trials and lawyers who try jury cases seem to be a vanishing breed, the American Judicature Society has a new dedicated portal, the National Jury Center. Thanks to the folks at beSpacific for the link.
Healthcare Benefits - A Major Problem Looking for Solutions
Or so it seems. And according to the WSJ's Career Journal, Companies Get Tough To Trim Cost of Benefits one way to do that is to look to those employees (or potential employees) who are apt to be over consumers of healthcare benefits. The targeted are the familiar, smokers, and the one that gets too close to many of us, the obese. (It may be much closer than you think, just check out the definitions of obesity found on the web.) And dinner with a Senior V.P. of HR last evening confirmed how important this issue is to employers. My friend talked glowingly of her insurance broker for healthcare who had recently obtained a renewal at a 5% increase, with no change in benefits.
Independent Contractor or Employee - Sometimes A Million Dollar Question
As a Mary Kay Sales Director found out last week, when another large verdict went down the tubes at the hands of a Texas Court of Appeals. Although it is not clear from the opinion what the amount of the judgment was, the original jury verdict was over $11 million. Woolf, a very successful Mary Kay Sales Director was recovering from cancer and claimed she had been discriminated against for lack of accommodation under the California Fair Employment and Housing Act. (Although it is not clear I assume the case was in Dallas because of a venue provision in the contract.) In my initial post I noted this was a trial lawyer's nightmare, strong legal point, bad facts.
Mary Kay toughed it out for what looks like a relatively easy determination that a Mary Kay representative is an independent contractor not an employee. Mary Kay, Inc. v. Woolf (Tex. App. - Dallas, 10/20/04). The Court followed the roadmap from the recent Supreme Court decision on the distinction between employees and independent contractors, Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308 (Tex. 2002). Unlike the plaintiff who was losing a million dollar judgment in the San Antonio Court of Appeals on the same day, see prior post, Woolf's only hope is a motion for rehearing or being bailed out by the Supreme Court. Either of those seems highly unlikely.
For future reference, those interested in the choice of law question in employment law related cases may want to check out the court's discussion of DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677 (Tex. 1990). Woolf had contended that under California law she was an employee, not an independent contractor. Unfortunately for her, the agreement specified that Texas law was applicable and the court found nothing in California law that makes the classification of workers as employees or independent contractors a "fundamental policy." For Woolf to have won on the choice of law question, she would have had to convince the court that California had a materially greater interest and the choice of law conflicted with a fundamental policy of California.
Mary Kay toughed it out for what looks like a relatively easy determination that a Mary Kay representative is an independent contractor not an employee. Mary Kay, Inc. v. Woolf (Tex. App. - Dallas, 10/20/04). The Court followed the roadmap from the recent Supreme Court decision on the distinction between employees and independent contractors, Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308 (Tex. 2002). Unlike the plaintiff who was losing a million dollar judgment in the San Antonio Court of Appeals on the same day, see prior post, Woolf's only hope is a motion for rehearing or being bailed out by the Supreme Court. Either of those seems highly unlikely.
For future reference, those interested in the choice of law question in employment law related cases may want to check out the court's discussion of DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677 (Tex. 1990). Woolf had contended that under California law she was an employee, not an independent contractor. Unfortunately for her, the agreement specified that Texas law was applicable and the court found nothing in California law that makes the classification of workers as employees or independent contractors a "fundamental policy." For Woolf to have won on the choice of law question, she would have had to convince the court that California had a materially greater interest and the choice of law conflicted with a fundamental policy of California.
The Devil Is (Always) In the Details - Possible Impact of State Constitutional Amendment on Domestic Partner Benefits
As states leap into the breach (or maybe the fire?) to deal with issues related to same sex marriage, it may make for a period of unsettled times for employers with respect to a number of issues. For example, voters in Michigan will vote on the following constitutional amendment on November 2:
Michigan is not the only state facing this issue. In Ohio, Issue 1, a similar amendment is drawing fire because of its potential impact on business. According to a Cleveland News Herald editorial, Passage of Issue 1 bad for Ohio business , it has even brought out opposition from the state's two Republican senators, George Voinovich and Mike DeWine.
More proof that nothing is ever as simple as it seems.
To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.It is the highlighted words that are causing concern about how this might impact employer currently (or considering) providing benefits for same sex partners. According to at least some quoted in this story in Detroit's metrotimes this would bar government employers in Michigan from providing such benefits, not impact many private employers, and leave private employers who contract with or receive funds from the State in limbo.
Michigan is not the only state facing this issue. In Ohio, Issue 1, a similar amendment is drawing fire because of its potential impact on business. According to a Cleveland News Herald editorial, Passage of Issue 1 bad for Ohio business , it has even brought out opposition from the state's two Republican senators, George Voinovich and Mike DeWine.
More proof that nothing is ever as simple as it seems.
Blogging Meets the Workplace in the Air
Or really on the ground now I should say. Although I have maintained a blog for two years and try to keep in touch with what is going on in the world of blogs, I am generally pretty much out of touch. So I am quite behind in learning of a controversy involving a fellow blogger that intersects with the topic I do write about, employment law. Apparently an unnamed airline, better known as Delta, has grounded the apparently unnamed, but obviously because of her pictures if nothing else, not unknown flight attendant, for posting "inappropriate pictures" on her blog. To make matters worse it appears that this happening in my own backyard since the Queen of the Sky, (the flight attendant's nom de plume) resides in Quirksville, Texas, which sounds as if it might be the same state capital in which I reside.
In better days the blog was titled Diary of A Flight Attendant, but now at least temporarily, is Diary of a grounded Flight Attendant. A summary of the story, and a longer riff on freedom of speech can be found in this post at Cathy's world.
Legal points to be learned from this scenario: First amendment (and other constitutional) rights don't apply to private employers. The Queen of the Sky's charge of discrimination could have merit if employees of the opposite gender have engaged in similar conduct that she is being disciplined for, and Delta was aware of it and did not react in a similar fashion.
Non-legal point. What a mess for Delta.
In better days the blog was titled Diary of A Flight Attendant, but now at least temporarily, is Diary of a grounded Flight Attendant. A summary of the story, and a longer riff on freedom of speech can be found in this post at Cathy's world.
Legal points to be learned from this scenario: First amendment (and other constitutional) rights don't apply to private employers. The Queen of the Sky's charge of discrimination could have merit if employees of the opposite gender have engaged in similar conduct that she is being disciplined for, and Delta was aware of it and did not react in a similar fashion.
Non-legal point. What a mess for Delta.
A Headline the Tort Reformers Would Applaud
Bosses at the mercy of a 'litigious' workforce. However, I don't think tort reform as a concept, much less a movement has made much headway in Europe which is the focus of the article at the Business Europe website. Although the jargon is different not too difficult to understand the meaning of: "The regular introduction of new laws, coupled with no win no fee deals offered by claims companies have inspired many workers 'to have a punt'."
Amount in Controversy of Underlying Dispute Not Arbitration Award Controls Jurisdiction
Since federal courts are courts of limited jurisdiction and the FAA itself does not confer jurisdiction, when an action to confirm or vacate an arbitration award is filed with diversity as the jurisdictional basis, there must be $75,000 in controversy. How is that amount in controversy measured - by the underlying controversy or the award? Theis Research, Inc. v. Brown & Bain (9th Cir. 10/20/04)[pdf] posed the question perfectly. A $200 million dollar malpractice claim resulted in a zero award. In a challenge to the award was there jurisdiction or not? Because you properly look to the underlying dispute there was jurisdiction according to the 9th Circuit. No help to the plaintiff in this case who had filed the suit seeking to vacate the award since it was affirmed.
Update: I thought this case seemed familiar. In doing some catch up reading on other blogs, I see that I was close, but not exactly correct. This case had not been decided but the 9th Circuit had another go at the same issue once before. That time it came out with the opposite conclusion, but later withdrew that opinion and decided the case on other grounds, opening the door for this "correct" reading. At least the latter is the view of Howard Bashman at How Appealing, where I found this post which provided all of the details about the prior case.
Update: I thought this case seemed familiar. In doing some catch up reading on other blogs, I see that I was close, but not exactly correct. This case had not been decided but the 9th Circuit had another go at the same issue once before. That time it came out with the opposite conclusion, but later withdrew that opinion and decided the case on other grounds, opening the door for this "correct" reading. At least the latter is the view of Howard Bashman at How Appealing, where I found this post which provided all of the details about the prior case.
Genetic Discrimination and Congress - Not this Term
Although committee and related work is proceeding and the Senate has passed a version of a bill that would prohibit discrimination on the basis of genetic information 95-0, the bill has stalled in the House. It is not unusual for ideas and legislation to carry over from Congressional session to session and so you can expect this one back at the forefront when the new Congress convenes in January. Here is the latest information from the Society on Human Resource Management concerning their concerns about the proposed legislation.
Bullying Award Cut, But £630,000 Still In Play
Cantor Fitzgerald is £116,000 better off following its appeal of an award to a former employee who claimed he was subjected to a “culture of bullying and abuse”. The Scotsman website has the report, Cantor Fitzgerald Wins Damages Award Cut. I reported on the initial award here more than a year ago. With a conceded £75,000 offset for amounts earned at his new employer, so far Cantor Fitzgerald is only out £41,667. However, £630,000 is still at stake and has been referred back to the lower court for further articulation of its rationale based on the evidence already taken. Although it is not clear, it appears that amount is related more to a bonus that was not paid than damages arising from the bullying conduct. Although not totally clear, it appears that the award just for the bullying conduct, after the reduction by the appellate tribunal, was £116,000, still a fairly substantial amount of coin for 6 months abuse.
Mind Map of Employer/Employee Rights and Responsibilities European Version
Clever mind map at Biz/Ed, Employer/Employee Rights and Responsibilities.
The purpose:
The purpose:
The two mind maps above give an indication of just how big this area is - it covers many thousands if not millions of pages of legislation. Clearly, you are not expected to know details about all these areas but you will be expected to understand the main features of these key pieces of employment legislation.And that's what the mind maps set out to do.
The first task therefore is to get a basic understanding of the key points of the legislation relating to employment law.
Not Enough Indexes and Statistical Reports For You?
Or do you just need a little relief from the boredom of all the important statistics that actually mean something? Then check out the following indexes suggested in a clever article by WSJ writer Jared Sandberg, Bleeding indicators, other indexes gauge workplace health.
Among the proposed indexes:
Among the proposed indexes:
Really Gross Domestic Product: One of the most important quarterly measures of a company's performance, this figure gauges increases in output, specifically trash piling up in office garbage cans as a result of janitorial cutbacks.And a couple of others thrown in for good measure.
Perk Deficit: Measures the drastic reduction in available workplace assets, ranging from free food and paper products to office supplies (seasonally adjusted to exclude September's back-to-school theft).
Fudge-It Surplus: This measure of the depth of trouble a company is in is based on the number of times the management insists that it's healthy.
Disposable Personnel Nincompoops: This real-time index gauges the inventory of idiots-on-hand. Applicable to all industries, the DPN measures people's stupidity as indicated by everything from their suggestion-box entries to their PowerPoint presentations.
Bleeding Economic Indicator: Charts the departure of key personnel, giving extra weight to the lameness of a former executive's new job and excuses about wanting to spend more time with the family.
No-Confidence Index: This measure emerged to track the rise and fall of company T-shirt production during an era when a company initiative, product or trade show wasn't an initiative, product or trade show without its own T-shirt.
Underemployment Index: Tracks the number of fliers on the office bulletin board from employees who are seeking to moonlight in order to make ends meet.
First, No Hockey - And Now This, Ranger Ex-Cheerleader Sues for Sexual Harassment
While it's not Mackris v. O'Reilly, yet, hockey deprived fans should check out the Newsday story about Courtney Prince's claim based on the conduct of managerial personnel. Prince, former member and captain of the New York Rangers City Skaters, claims she was terminated after she warned her fellow cheerleaders to be wary of the company executives as well as the players. That followed a request for sex in a bathroom at a West Village party which ultimately led to her being called (according to her) a 'sexual predator'. Maybe it will be as entertaining as a hockey game! One legal point, unlike the Mackris suit, it does appear that Prince has cleared the administrative hurdles of filing a charge of discrimination.
$1.5 Million Sabine Pilot Verdict Tanked Because of Faulty Charge
It is not all that uncommon for a large jury verdict to go up in smoke when it hits the appeals court, and that is what happened this morning when a Laredo district court judgment of $1.5 million was wiped away by the San Antonio Court of Appeals. Laredo Medical Group v. Mireles (Tx.App. - San Antonio 10/20/04). What is perhaps even more frustrating to the plaintiff is that the court found that there was substantial evidence to support her allegation that she had been terminated for refusing to commit perjury, even though she was never required to testify. The Court's total discussion of this point is in two short paragraphs:
The opinion turns on the broader trial/appellate issue of broad form submission, with the Court relying on decisions by the Supreme Court disapproving broad form submissions in cases with similar results, although it notes that the Supreme Court has never had this precise issue. To make it more interesting, the Court notes its sister court in Fort Worth has taken a different position on this question.
It seems ripe for Supreme Court review, but if it reaches the court, it will raise an interesting issue for Justice Green, a member of this panel decision. He will become a Supreme Court Justice on January 1st. My assumption is that he would recuse himself. However, I only assume that to be true and that may not be the case. If it is required, that raises an interesting question, since the people of Texas have elected him to sit in the capacity of a Supreme Court Justice. In the panel decision, he was only making a legal decision based on the record, as opposed to a trial judge who was creating the record, so it does not seem that the need for recusal is as great. Why shouldn't the defendant be entitled to have his legal judgment applied once again? I am sure that others who know a lot more about appellate law and recusal can quickly set the matter straight on this point.
Although Mireles and her counsel can not be happy, she has at least kept her hopes for another day in court alive. Unless, and I think that is a huge caveat, the Supreme Court chooses to weigh in on whether or not "perjury in the abstract", as this might be called, is sufficient for a Sabine Pilot cause of action when it is considering the issue of the proper submission.
Mireles also claims that Volmert asked her to perjure herself in connection with a lawsuit brought by a former employee against two doctors and that she refused. There is legally sufficient evidence of this allegation. Mireles testified that an office manager had "raised some concerns about one of the doctors in the practice to the administration at LMG." According to Mireles, after the office manager raised the concerns, one of the doctors wanted to fire the office manager. Volmert asked Mireles to investigate the accounting practices followed by the office manager at the doctors' office. After Mireles finished her investigation, Volmert asked her whether there were any grounds on which to fire the office manager. Mireles told Volmert that there was nothing wrong with the accounting practices followed by the manager, so Mireles could not recommend that the office manager be terminated. Volmert then told Mireles to say "whenever asked by counsel, that [Mireles] had found some inappropriate accounting practices by the office manager." Volmert asked Mireles to "concoct this story in the lawsuit." Mireles testified that she told Volmert she would not do so.Unfortunately for Mireles, the perjury issue was just one of four definitions of what constituted an "illegal act" for Sabine Pilot purposes, and there was no evidence to support findings that Mireles was ever ordered to violate the first three.
LMG and Mercy argue that Volmert's alleged request of Mireles to perjure herself and Mireles's refusal do not fit within Sabine Pilot because "[i]t is undisputed that Mireles was never called on to testify in the lawsuit brought before the office manager." Sabine Pilot, however, only requires a party to refuse to perform an illegal act. Whether one is called to testify is immaterial. Mireles meets Sabine Pilot's requirements by refusing to commit perjury when asked by Volmert.
The opinion turns on the broader trial/appellate issue of broad form submission, with the Court relying on decisions by the Supreme Court disapproving broad form submissions in cases with similar results, although it notes that the Supreme Court has never had this precise issue. To make it more interesting, the Court notes its sister court in Fort Worth has taken a different position on this question.
It seems ripe for Supreme Court review, but if it reaches the court, it will raise an interesting issue for Justice Green, a member of this panel decision. He will become a Supreme Court Justice on January 1st. My assumption is that he would recuse himself. However, I only assume that to be true and that may not be the case. If it is required, that raises an interesting question, since the people of Texas have elected him to sit in the capacity of a Supreme Court Justice. In the panel decision, he was only making a legal decision based on the record, as opposed to a trial judge who was creating the record, so it does not seem that the need for recusal is as great. Why shouldn't the defendant be entitled to have his legal judgment applied once again? I am sure that others who know a lot more about appellate law and recusal can quickly set the matter straight on this point.
Although Mireles and her counsel can not be happy, she has at least kept her hopes for another day in court alive. Unless, and I think that is a huge caveat, the Supreme Court chooses to weigh in on whether or not "perjury in the abstract", as this might be called, is sufficient for a Sabine Pilot cause of action when it is considering the issue of the proper submission.
From A Border Community - Talk About National ID Cards
An opinion piece from the San Diego Union-Tribune about ways to control immigration, if we are serious. The proposal, a national worker ID card. The reason we don't have it, according to the author, hypocrisy. I don't know that is true, but it wouldn't be the only place where that particular vice is rampant.
7th Circuit Discourse On Battle Between Two Unions - A Good Piece of Judicial Work
I love to read the opinions of the 7th Circuit. They are written in clear, concise language and evidence a common sense approach to the law that, heaven forbid, if applied everywhere would probably make for a lot fewer lawsuits and thus fewer lawyers. Which all of us in our candid moments would probably agree would be a good thing. This case arose in the background of a long running rivalry by two competing unions for representation of a bargaining unit of employees. The loser in that competition, which has previously been held in contempt by the 7th Circuit for violating a NLRB order not to threaten supporters of the opposing union, continued its fight through the support of four individuals who sued the prevailing union for failing to enforce its collective bargaining agreement with the employer, Randall Rents of Indiana.Pease v. Production Workers Union of Chicago and Vicinity Local 707 (7th Cir. 10/15/04) [pdf].
While rejecting all their claims, Judge Easterbrook was able to cover a lot of territory: With respect to the first:
Turning to the claim of the 2nd appellant who had also filed bankruptcy:
And for the third appellant who advanced a claim because he had been laid off in a reduction in force the Court was able to dispatch of his claim and give its view of the nature of the litigation in one short paragraph:
And finally, one claimant had managed to convince a jury of one theory, although even that was taken away by the judge. In disposing of his claim, Judge Easterbrook managed to touch on the nature of the interaction between representatives and their various constituents, a keen understanding of how unions normally behave and an important though not often discussed rule of evidence. First the interaction of a representative and their cogitating:
While rejecting all their claims, Judge Easterbrook was able to cover a lot of territory: With respect to the first:
All four plaintiffs have appealed, but their joint brief does not advance any argument on behalf of Michael Gear. This abandons his claim.Two short declarative sentences, one appellant down, three to go.
Turning to the claim of the 2nd appellant who had also filed bankruptcy:
And the Court is not afraid to turn its withering look at the merits of a claim. Referring to the one it had just found no longer belonged to Mr. Pease:Pease appears to be engaged in bankruptcy fraud: he prosecuted this suit simultaneously with a personal bankruptcy in which he omitted from his schedule of assets the existence of this chose in action. ... We need not get into the subtle question whether there is any way in which a debtor in bankruptcy could prosecute a high-stakes claim such as this after concealing it from his creditors. Compare Morlan v. Universal Guaranty Life Insurance Co., 298 F.3d 609 (7th Cir. 2002) (claims formally abandoned by a trustee revert to the debtor even if not scheduled, though the abandonment may be rescinded if induced by concealment), with Leon v. Comcar Industries, Inc., 321 F.3d 1289 (11th Cir. 2003) (employees who conceal contract or other substantial claims from their creditors cannot pursue them during or after bankruptcy). Pease?s claim belongs to his creditors (represented by the trustee); and the trustee, although notified belatedly, has declined either to prosecute the litigation or to relinquish it to Pease by formal abandonment. Pease has forfeited any opportunity to argue that the trustee did abandon it to him directly or by inaction after learning of its existence.
Not that Pease had much of a claim to begin with. Local 707 took his discharge to arbitration and lost, following detection of another fraud: he did not have the sort of driver's license that he falsely had told Randall that he possessed and that was essential to his employment. None of the criteria for upsetting an arbitrator?s award is even arguably satisfied.Being charged with fraud for two separate acts in one opinion is no mean feat. Mr. Pease should be entitled to some sort of award, since he certainly won't be collecting anything from his litigation.
And for the third appellant who advanced a claim because he had been laid off in a reduction in force the Court was able to dispatch of his claim and give its view of the nature of the litigation in one short paragraph:
Viti was laid off about a month after his hire. As the most junior employee, he was most exposed to the vagaries of business, and it is undisputed that Randall reduced its staff after demand for its services slackened. Last hired, first fired, is what the collective bargaining agreement provided. It does not matter whether Viti had graduated from 'probationary' status under the collective bargaining agreement; he was still the most junior. That Local 150 continues to argue on his behalf (and that of Pease) implies that this is vexatious litigation.Thanks to the Court for affirming what I frequently refer to as the "gold standard" in making termination decisions. LIFO (last in, first out) is the term I use, being one of the few things I remember from my Accounting 101 course.
And finally, one claimant had managed to convince a jury of one theory, although even that was taken away by the judge. In disposing of his claim, Judge Easterbrook managed to touch on the nature of the interaction between representatives and their various constituents, a keen understanding of how unions normally behave and an important though not often discussed rule of evidence. First the interaction of a representative and their cogitating:
Welcoming support - Local 707 naturally thought better of those who favored its role and opposed Local 150's efforts to oust it - differs from abandoning anyone. Many a union (or public agency, for that matter) faithfully protects its political opponents -often from a sense of duty, and if that is lacking from a desire to improve its prospects of reelection.The role unions normally play:
Unions regularly fight tooth and nail to establish seniority systems and avoid forfeitures of that benefit, which favors longer-term workers (and longer-term members!) over newcomers. Local 707 behaved according to expectations. Had the union instead supported Berge [a member with much greater seniority than Walker], then Walker would have had a much stronger claim that it had violated its duty.And finally that little used rule of evidence featuring another speech favorite of mine "the burden of persuasion.":
The jury heard evidence that Local 707 was hostile to Local 150 and its supporters, of whom Berge was one. It also heard evidence that Local 707 and Randall had an understanding, in place before Walker bumped Berge, that workers who transferred to other positions at Randall kept their seniority in the event of a return to the bargaining unit. It was this evidence, which the district judge viewed as undisputed, that led to the Rule 50 judgment in defendants' favor.And finally a parting shot:
According to Berge (and Local 150), the jury was free to disbelieve the sole witness who testified about this understanding, which had not been reduced to writing. And if the jury could disbelieve the testimony, Berge insists, then it also could find that Berge had the superior right to the position, for he had eight months' seniority and Walker had none. The argument is half right. Juries can reject testimony, but doing so is not the same thing as evidence to the contrary. See, e.g., Krist v. Eli Lilly & Co., 897 F.2d 293 (7th Cir. 1990). That's an old, and very important, ingredient in the law of evidence. A jury's decision to disbelieve a witness (or conclude that the witness did not have an opportunity to observe or learn what happened) is consistent with that witness's proposition being true. Someone else may have had better knowledge, or better memory, or better ability to relate and thus to persuade. And if there is no other witness - as there was none in this case -that leaves a hole in the record. We do not know whether the proposition is true or false. (The wrinkle noted in United States v. Zafiro, 945 F.2d 881, 888-89 (7th Cir. 1991), affirmed on other grounds, 506 U.S. 534 (1993) - that disbelief of a criminal defendant's exculpatory testimony can imply consciousness of guilt and thus, like flight to avoid prosecution, add to the evidence in support of conviction - is not applicable here, and we need not discuss how far this proviso extends. See Stallings v. Tansy, 28 F.3d 1018 (10th Cir. 1994); United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993).) When the record is silent, all turns on who had the burden of persuasion (better, the risk of non-persuasion) with respect to the point. See EEOC v. G-K-G, Inc., 39 F.3d 740, 746-47 (7th Cir. 1994); NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th Cir. 1983).
So let us throw out the testimony about prevailing practices and see what happens. The answer is that Berge, as the plaintiff, is no better off, for a plaintiff bears the risk of non-persuasion.
Plaintiffs' other arguments have been considered and need not be discussed.Good judging is hard. And like most things in life, those who make it look easy do not belie that fact, but rather show really how good they are. And they should be appreciated.
FLSA Collective Actions - Low Sign Up Rates?
One concern of employer's in a collective action is that a court will allow a notice to be sent to all potential members. Since it seems almost like an offer of a free ride, why would anyone not take it? But they don't, at least not in large numbers, or at least that is the anecdotal experience of employers who have had such problems. Last week's story in Pizza Marketplace, Few signing on for Pizza Hut class action suit, was proof again. Although notice was sent in May to a potential nation wide class of Restaurant General Managers, as of early October less than 10% had signed up.
Texas Supreme Court Reverses Lower Courts, Favors Employee in Disability Claim
The Texas Supreme Court is frequently pilloried for its unwavering support of employers, but Friday's decision, Little v. Texas Department of Criminal Justice (10/15/04) [pdf], written by the soon to be departed Justice Steven Smith differs from that path. Reviewing a summary judgment granted by the trial court and upheld by court of appeals to an employer who argued that an amputee was not disabled as the term was defined under the Texas Labor Code, the Supreme Court held otherwise.
Tracking the evolution of a disability claim under the Texas state anti-discrimination statute, the Court finds that "disability" now should be interpreted as that term is used in the ADA. In Little , although the plaintiff had a prosthetic leg, she still walked with a limp. Basically, the Supreme Court held that "the summary judgment record reflects that, at the time of the adverse employment actions of which she complains, she was significantly restricted as to the manner in which she could walk compared to the manner in which the average person in the general population could walk." Given that reading of the record, it is not new law that she should defeat summary judgment. That she prevailed in the Texas Supreme Court, after two lower courts held otherwise, is something that no doubt will catch many, on both sides of the docket, by surprise.
Tracking the evolution of a disability claim under the Texas state anti-discrimination statute, the Court finds that "disability" now should be interpreted as that term is used in the ADA. In Little , although the plaintiff had a prosthetic leg, she still walked with a limp. Basically, the Supreme Court held that "the summary judgment record reflects that, at the time of the adverse employment actions of which she complains, she was significantly restricted as to the manner in which she could walk compared to the manner in which the average person in the general population could walk." Given that reading of the record, it is not new law that she should defeat summary judgment. That she prevailed in the Texas Supreme Court, after two lower courts held otherwise, is something that no doubt will catch many, on both sides of the docket, by surprise.
8th Cir. - Desert Palace Has NO Impact on Its Summary Judgment Precedent
Staking out its position in a debate that seems to be picking up steam, the 8th Circuit makes it quite clear that it does not find the Supreme Court's decision in Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003) requires it to alter its existing body of summary judgment law. Other courts, including some district courts in the 8th Circuit had dared to venture otherwise.
Here is the money quote from the Court:
Here is the money quote from the Court:
We have long recognized and followed this principle in applying McDonnell Douglas by holding that a plaintiff may survive the defendant’s motion for summary judgment in one of two ways. The first is by proof of “direct evidence” of discrimination. Direct evidence in this context is not the converse of circumstantial evidence, as many seem to assume. Rather, direct evidence is evidence “showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated” the adverse employment action. Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997). Thus, “direct” refers to the causal strength of the proof, not whether it is “circumstantial” evidence. A plaintiff with strong (direct) evidence that illegal discrimination motivated the employer’s adverse action does not need the three-part McDonnell Douglas analysis to get to the jury, regardless of whether his strong evidence is circumstantial. But if the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext. See, e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994). This formulation is entirely consistent with Desert Palace. Thus, we conclude that Desert Palace had no impact on prior Eighth Circuit summary judgment decisions.The court notes the danger of using a case decided after a trial on the merits (Desert Palace)to alter well established rules on summary judgment. Given the threat to summary judgment many had felt would be based on the Desert Palace decision, this opinion provides a good rationale for those who still seek summary judgment.
MDV - $1.8 Million Dollar Verdict for Former HR Director
The story in the Contra Costa Times sums it up, $1.8 million award at bias trial. Marietta Harvey, Filipina and for five years a Director of HR for Sybase was terminated in February 2003 and then denied two lower level jobs that she claims went to less qualified white males. What might have angered the jury, evidence that CEO John Chen reportedly repeated another executive's comment that "the human resources department had too many Asian American employees and looked like an airport." Also probably not likely to make friends, testimony by the CFO that the "company planned to respond to the verdict by laying off employees to maintain the company's cash assets."
The understatement of the year, a S.F. attorney quoted commenting on the verdict, ""That's the sign of an angry jury." No kidding.
Update: Although more often than not a jury verdict doesn't successfully make it through the appeals stage, this one has, at least through the first stage. According to an East Bay Business Times story, Appeal Court affirms $1.8M verdict against Sybase, the intermediate appellate court even restored $500,000 in punitive damages that the trial court had taken away. The appellate court opinion can be found here.
The understatement of the year, a S.F. attorney quoted commenting on the verdict, ""That's the sign of an angry jury." No kidding.
Update: Although more often than not a jury verdict doesn't successfully make it through the appeals stage, this one has, at least through the first stage. According to an East Bay Business Times story, Appeal Court affirms $1.8M verdict against Sybase, the intermediate appellate court even restored $500,000 in punitive damages that the trial court had taken away. The appellate court opinion can be found here.
11th Cir. Upholds Judge Pryor's Recess Appointment
The 11th Circuit reaffirms one of its own, albeit he will be one of them only for a short period. Rejecting a challeng to Judge William H. Pryor Jr.'s February 20, 2004 appointment to the 11th Circuit during a Senate recess, the Court holds President Bush was acting within his constitutional powers to make recess appointments in appointing the former Alabama Attorney General. Evans v. Stephens (11th Cir. 10/14/04) [pdf]. Notwithstanding the victory, the Court does remind of the shortcomings of such an appointment, "For those who fear judicial recess appointments because the appointments bypass the Senate completely, we stress the obvious: the temporary judges lose their offices at the end of the Senate’s next Session."
Arbitrator's Rejection of No Second Chance Drug Policy Tossed
The 3rd Circuit refuses to agree with an arbitrator's rejection of Citgo's zero tolerance drug policy which provided no second chance for employees who tested positive for illegal drugs. (Employees who voluntarily admitted a drug problem and asked for help were exempted from the zero tolerance rule.) Although noting the powers of a court to reverse an arbitrator are limited, this is one of those occasions when it can, and does. Citgo Asphalt Refining Co. v. Local No. 2-991 (3rd Cir. 10/14/04) [pdf].
Reversing both the arbitrator and the district court which had affirmed his decision, the Court found the arbitrator's finding that the zero tolerance policy was unreasonable was not supported by the record. The money quote expressing their view:
Reversing both the arbitrator and the district court which had affirmed his decision, the Court found the arbitrator's finding that the zero tolerance policy was unreasonable was not supported by the record. The money quote expressing their view:
We do not understand how the arbitrator could conclude on this record that it is unreasonable for CITGO to adopt a policy that attempts to pressure impaired employees into stepping forward and seeking help before their impairment results in a catastrophe.My guess is that those residing in the shadows of the refinery might well share their view on the importance of preventing a catastrophic occurrence.
Mackris v. O'Reilly - A Sexual Harassment Complaint
Bill O'Reilly and his employers are now charged with sexual harassment in a complaint filed in New York state court. O'Reilly in fact sued first, after a breakdown in settlement negotiations. You can check out the story in today's Washington Post and you can see a copy of the complaint posted at the Smoking Gun. Caution, XXX rated with apparently verbatim quotes from what one would assume are tape recordings of conversations between the two.
What is strange about the complaint based on an admittedly quick skim is that there is no indication the plaintiff has complied with any of the procedural requirements that are normally required before bringing such a suit. Maybe that's an oversight in the drafting, or I missed it in my quick skim, or maybe New York state law doesn't require it. But assuming, none of those is true, then all one can speculate is that we are in for a long and salacious story line.
In fact, regardless if any of those are true I think we are in line for just exactly that. Even at this juncture, I think I can safely predict this will not be a good thing for the plaintiff, for O'Reilly, either of their families and friends, O'Reilly's employers, the courts, the legal profession, or the important cause of ending sexual harassment in the workplace.
An update. For background on Mackris' counsel, Benedict Morelli, check out this story from the New York magazine website.
What is strange about the complaint based on an admittedly quick skim is that there is no indication the plaintiff has complied with any of the procedural requirements that are normally required before bringing such a suit. Maybe that's an oversight in the drafting, or I missed it in my quick skim, or maybe New York state law doesn't require it. But assuming, none of those is true, then all one can speculate is that we are in for a long and salacious story line.
In fact, regardless if any of those are true I think we are in line for just exactly that. Even at this juncture, I think I can safely predict this will not be a good thing for the plaintiff, for O'Reilly, either of their families and friends, O'Reilly's employers, the courts, the legal profession, or the important cause of ending sexual harassment in the workplace.
An update. For background on Mackris' counsel, Benedict Morelli, check out this story from the New York magazine website.
Double Taxation in Settlement of Employment Cases Statutorily Eliminated
Employment practitioners are well aware of the tax consequences of settlement of employment cases which often provide obstacles to resolution. One of the hottest issues is whether or not in a settlement involving attorneys fees, the plaintiff should be taxed on the total settlement amount including attorneys fees, or only on the portion that he or she netted. If taxed on both, it resulted in double taxation as plaintiff's counsel also was taxed. Making it particularly troublesome was the impact of the Alternative Minimum Tax, which in extreme cases could mean that an employee could owe more in taxes than they actually received.
The circuit courts were divided, with the 5th Circuit for example not requiring double taxation, but others doing so. The Supreme Court had taken a pair of cases to decide the issue this term. See Commissioner of Internal Revenue v. Banks and Commissioner of Internal Revenue v. Banaitis which are set for oral argument on November 1.
The impact of those cases will now have interest only to the parties involved as one of the many provisions of the huge corporate tax bill, the American Jobs Creation Act of 2004, is a provision that eliminates that problem in any case involving discrimination. See §703 of the Conference Report Civil Rights Tax Relief (p. 343) [pdf]. For a more complete explanation see the Statement of the Conference Managers explaining the background and the amendment beginning on p. 252 of the Statement of the Conference Managers. [pdf].
Although only maintaining the status quo in the 5th Circuit, it removes the uncertainty raised by the pending Supreme Court action and for those circuits which allowed the double taxation, it is a major step forward.
The circuit courts were divided, with the 5th Circuit for example not requiring double taxation, but others doing so. The Supreme Court had taken a pair of cases to decide the issue this term. See Commissioner of Internal Revenue v. Banks and Commissioner of Internal Revenue v. Banaitis which are set for oral argument on November 1.
The impact of those cases will now have interest only to the parties involved as one of the many provisions of the huge corporate tax bill, the American Jobs Creation Act of 2004, is a provision that eliminates that problem in any case involving discrimination. See §703 of the Conference Report Civil Rights Tax Relief (p. 343) [pdf]. For a more complete explanation see the Statement of the Conference Managers explaining the background and the amendment beginning on p. 252 of the Statement of the Conference Managers. [pdf].
Although only maintaining the status quo in the 5th Circuit, it removes the uncertainty raised by the pending Supreme Court action and for those circuits which allowed the double taxation, it is a major step forward.
Union Muscle?
Anyone familiar with today's organized labor movement knows it has in large part cast its lot with success of its political patrons as opposed to a ground up organizing campaign. So perhaps it is not surprising to see today's story in the Wall Street Journal about attempts by union supporters to intimidate Busch/Cheney backers in the heart of the Florida battleground. (Among the casualties in a confrontation last week, a Bush/Cheney staffer with a broken wrist.) Given the general tenor of today's political discourse, it is not all that big of a step. It would be nice if we could dial it back on all fronts several notches, but I dream.
How Well Has Sarbanes-Oxley Fared as an Employment Law?
Not all that well according to the views of Professor Larry Ribstein, a professor at the University of Illinois law school. His post, Sarbanes-Oxley as employment law was sparked by a Wall Street Journal article pointing out, among the other things, the problems that lodging enforcement powers with the decidedly non-financial oriented OSHA has caused.
But some complaints are rolling in. It's hard not to at least look at a story that begins:
But some complaints are rolling in. It's hard not to at least look at a story that begins:
It's past midnight when a lone informant steps from the parking garage shadows and stamps out a lipstick-stained Marlboro Light. The top brass, she whispers, has looted the company, defrauded shareholders and covered up a toxic dump responsible for dozens of deaths. She hands over a stack of documents. Then a car screeches and she dashes away.That's how a recent Seattle Times story on whistleblowing under Sarbanes Oxley begins. One of the points discussed in the story is how well some of the ventures formed to help compliance, like Ethicspoint, are doing in that venture.
Oxycontin - Problem with Drug of Choice for On the Job Injuries?
Since I don't actually handle workers compensation cases (or other personal injury cases for that matter) I don't know as much about the medical aspects of cases as many lawyers do. However, just in the course of cases I do handle, from disability to workers comp retaliation, it is not that unusual for me to get some insight into the various medications that are frequently used. But till today, I had never heard of oxycontin, and was surprised at the story about this apparently heavily prescribed medicine in the Workers Comp Insider. The drug is apparently more powerful than morphine and is typically prescribed in 50 day doses, which has led to a real problem with diversion. My guess is that I will be hearing more about this one.
Violence - A Reminder
Nothing particularly new in this article, but a good reminder,Violence in workplace almost never a surprise.
Not What Your Insurance Company Would Like You To Think
Although not an employment law case, hard not to notice this first line from Judge Cudahy's opinion in Great West Casualty Company v. National Casualty Company (7th Cir. 10/06/04) [pdf]:
Sometimes it feels as if the only thing that purchasing insurance actually ensures is that one will eventually have an unpleasant dispute with the insurer over payment on a claim.Ouch!
Maritime Crew of Floating Casino Are "Seamen" For Purpose of FLSA Exemption
Although much attention lately has been on the white collar exemptions to the FLSA, sprinkled throughout the act are other exemptions, including one for "seamen." In a case brought by 21 employees of a floating casino, which spent 90% of its time docked, are the workers exempt? It depends on what they do. The court would start with a presumption that if they are entitled to the special benefits that seamen get such as the right to "cure and maintenance" or coverage under the liberal Jones Act, then they are seaman for purposes of the FLSA exemption. Judge Posner in his typical way describes the effect of the presumption as having "the incidental but not trivial advantage of making law a little simpler." Here, the presumption was not rebutted, although the court finds that those whose function was clearly related to the casino rather than a ship, such as a croupier should be able to overcome the presumption. Harkins v. Riverboat Services, Inc. (7th Cir. 10/06/04) [pdf].
Of perhaps even more interest for other cases was the court's strict interpretation of the requirement of a consent to participate in the case which had been styled as a collective action. Although actually named as parties and deposed, 18 of 21 putative plaintiffs claims were dismissed for failure to file a written consent. Arguing to no avail that it was not needed since they were named, the court refused to agree, finding no basis for not interpreting strictly the literal requirement of the statute. If the case had been called a joint action rather than the statutory collective action, where recovery was sought for those "similarly situated" the outcome would have been different.
14 also sued for retaliatory discharge, a claim that was allowed to proceed without the consent. The jury found for the employer, and the court never specifically addressed the merits of that claim in the decision affirming the lower court. Presumably it is wrapped up in Judge Posner's final words:
Of perhaps even more interest for other cases was the court's strict interpretation of the requirement of a consent to participate in the case which had been styled as a collective action. Although actually named as parties and deposed, 18 of 21 putative plaintiffs claims were dismissed for failure to file a written consent. Arguing to no avail that it was not needed since they were named, the court refused to agree, finding no basis for not interpreting strictly the literal requirement of the statute. If the case had been called a joint action rather than the statutory collective action, where recovery was sought for those "similarly situated" the outcome would have been different.
14 also sued for retaliatory discharge, a claim that was allowed to proceed without the consent. The jury found for the employer, and the court never specifically addressed the merits of that claim in the decision affirming the lower court. Presumably it is wrapped up in Judge Posner's final words:
The plaintiffs urge a number of errors in trial rulings. None is substantial, and there is no need to burden the opinion with a discussion of them.Enough said.
Wage and Hour Regulations Pass One More Hurdle - Next Fight Post Election
The newly implemented white collar exemption regulations to the Fair Labor Standards Act, which have been the subject of much rhetoric, or one might even say, much vitriol, have survived yet another challenge. A conference committee vote just concluded on S. 1637, an export tax bill, narrowly defeated Senator Tom Harkin's amendment designed to revoke the more "controversial" provisions. Although there are arguments over the exact impact, it would have derailed the bulk of the regulations and certainly created a procedural nightmare. Not that the regulations are totally out of the woods. The next major challenge is likely to come as part of the FY2005 Omnibus Appropriations bill which will probably not be considered until a lame duck session following the November 2 elections.
One additional piece of good news for the supporters of the regulations or those who have to interpret them, the Gregg Amendment which was attached to the Senate-passed version in an ill fated attempt to gain more Democratic votes or at least lessen the controversy by freezing certain job classifications under the old Part 541 Regulations, was not raised for a vote in Conference. Although well intended, it would have added yet another layer of complexity.
Stay tuned post November 2nd.
One additional piece of good news for the supporters of the regulations or those who have to interpret them, the Gregg Amendment which was attached to the Senate-passed version in an ill fated attempt to gain more Democratic votes or at least lessen the controversy by freezing certain job classifications under the old Part 541 Regulations, was not raised for a vote in Conference. Although well intended, it would have added yet another layer of complexity.
Stay tuned post November 2nd.
5th Circuit - ADA Title I Claim Requires Employment Relationship
Although it seems this would be fairly self-evident, apparently there is not yet a substantial amount of case law dealing with whether or not an employment relationship is required in order to bring an ADA claim under Title I. Faced with a claim arising from the rather specialized training programs for those interested in careers working on today's automobiles, the 5th Circuit holds that admission to a school that trains individuals to work on Mercedes, even though funded by Mercedes, does not establish the requisite employment relationship to sue either Mercedes or the school under Title I. Brennan v. Mercedes Benz USA (5th Cir. 10/5/04) [pdf].
The 5th Circuit also affirms the summary judgment throwing out his intentional infliction claim. Although on first blush it appears this might have been a case where the Court would have cited the Texas Supreme Court's recent Hoffman-LaRoche v. Zeltwanger decision, see my previous post, it did not. However, given the primary holding, that the alleged misconduct was not covered by the statute under which Brennan sued, the reason that it was not cited is obvious. Zeltwanger would not be applicable as it undercuts the intentional infliction of emotional distress claim only where other legal protection is available. Since in this case there was no other legal claim because of the lack of the employment relationship, there was no legal barrier to plaintiff bringing the IIED claim, just a failure on his part to produce any evidence to support it.
The 5th Circuit also affirms the summary judgment throwing out his intentional infliction claim. Although on first blush it appears this might have been a case where the Court would have cited the Texas Supreme Court's recent Hoffman-LaRoche v. Zeltwanger decision, see my previous post, it did not. However, given the primary holding, that the alleged misconduct was not covered by the statute under which Brennan sued, the reason that it was not cited is obvious. Zeltwanger would not be applicable as it undercuts the intentional infliction of emotional distress claim only where other legal protection is available. Since in this case there was no other legal claim because of the lack of the employment relationship, there was no legal barrier to plaintiff bringing the IIED claim, just a failure on his part to produce any evidence to support it.
A World View Of the Picket Line
In Europe, workers are much more likely to take to the picket line, or so it seems to the casual observer (which would be me). However, according to the story, The Workplace: Differences in nations are striking in the International Herald Tribune, there are substantial differences in the various European countries. Thanks to the folks at the M.P. Catherwood Library, School of Industrial & Labor Relations, Cornell University for the tip to the article in their stellar communication, Workplace Issues Today.
It's A New (Fiscal) Year for the U.S. Government
And that means something for employers. For one, more than a few companies who had been dealing with the EEOC over potential litigation found themselves as defendants in a newly filed lawsuit as the agency repeated its annual ritual of filing a large number of suits in the last week of the fiscal year. It does not seem to me to be a money issue, since the costs of the suit will all come in the next fiscal year, but it certainly is a way of making the numbers of cases filed in the fiscal year look better. Always an important stat for any regulatory agency.
The new fiscal year also meant a new year for H1-B visas. That program which is currently capped at 65,000 allows companies to bring in certain professionals from outside the country. In the tech boom Congress had allowed the number to soar as high as 195,000. Last Friday, a new year opened, unfortunately according to the LA Times story, Limit Reached on H1-B Work Visas, it also closed. Only applications filed by last Friday will be considered according to that report. Unless Congress provides some relief, those desirous of such visa's can join the legion of Cubs fans and wait for next year.
The new fiscal year also meant a new year for H1-B visas. That program which is currently capped at 65,000 allows companies to bring in certain professionals from outside the country. In the tech boom Congress had allowed the number to soar as high as 195,000. Last Friday, a new year opened, unfortunately according to the LA Times story, Limit Reached on H1-B Work Visas, it also closed. Only applications filed by last Friday will be considered according to that report. Unless Congress provides some relief, those desirous of such visa's can join the legion of Cubs fans and wait for next year.
The Circle of Employment Law Blogs Expands
Checking out George's Employment Blog, which I do far too infrequently these days (and it has nothing to do with swearing off anything to do with St. Louis, especially now that the Astros have made it back into playoff contention), he has tracked down a new employment law blogger, Phillip Wilson, whose Laboring Away at the Institute, is self described as "sitting at the intersection of labor, organization transformation, politics, austrian-economics and high-end audio." Not too surprisingly, he notes he is "pretty much the only house on the block." And one of Wilson's recent posts led me to yet another new blog, LaborProf Blog, written by Rafael Gely, Professor of Law at the Cincinnati College of Law. Both appear to be of August '04 vintage. Welcome to the club.
OSHA Goes Retail
My guess is that when most people think of OSHA, certainly when I do, it is generally in an industrial setting of some sort. But Jordon Barab at his Confined Space blog caught a happening in my own backyard. Neiman Marcus' Austin discount outlet, Last Call, has been issued a willful OSHA citation for violation of "lockout/tagout" rules. According to the story at a superb safety related website that was new to me, Safety.BLR.com, the store is alleged to have allowed employees to work in a compacting machine while it was still running. The proposed fine, $93,000. Probably not available in the Neiman Marcus Christmas catalog.
"Equal Offender Discriminator" Defense Suffers Another Defeat
Numerous discrimination cases arise out of workplaces dominated by one gender, usually male, and the 2nd Circuit uses one such case to make clear that merely because both sexes are exposed to the same sexual banter does not necessarily mean that there can not be a hostile environment claim on the basis of sex. Petrosino v. Bell Atlantic (2nd Cir. 9/29/04) [pdf]. Petrosino worked as installation and repair technician for Bell Atlantic and would report with her all male coworkers each morning to a company garage for their daily assignments.
The trial court found that while there were "incessant sexually offensive exchanges at the daily assignment meeting and omnipresent sexual graffiti in the terminal boxes" which was "undeniably boorish and offensive" it could not be the basis for a hostile environment gender claim because it "was not motivated by hostility to Petrosino because of her sex." A finding fueled in large part because of the court's conclusion that the same conduct would have occurred even if Petrosino had not been there. (A no doubt accurate finding that probably says as much about male culture as anything else.) The Circuit Court dispatched with that finding, holding instead, "the mere fact that men and women are both exposed to the same offensive circumstances on the job site, however, does not mean that, as a matter of law, their work conditions are necessarily equally harsh."
The Court explained:
The line drawn by the district court would be much simpler to apply, but it is hard to fault the logic of the Circuit Court's explicatory paragraph.
The trial court found that while there were "incessant sexually offensive exchanges at the daily assignment meeting and omnipresent sexual graffiti in the terminal boxes" which was "undeniably boorish and offensive" it could not be the basis for a hostile environment gender claim because it "was not motivated by hostility to Petrosino because of her sex." A finding fueled in large part because of the court's conclusion that the same conduct would have occurred even if Petrosino had not been there. (A no doubt accurate finding that probably says as much about male culture as anything else.) The Circuit Court dispatched with that finding, holding instead, "the mere fact that men and women are both exposed to the same offensive circumstances on the job site, however, does not mean that, as a matter of law, their work conditions are necessarily equally harsh."
The Court explained:
The comments and graphics that permeated Petrosino’s work environment may have sexually ridiculed both men and women, but there is an important, though not surprising, distinction. The conduct at issue sexually ridiculed some men, but it also frequently touted the sexual exploits of others. In short, the insults were directed at certain men, not men as a group. By contrast, the depiction of women in the offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men. Such workplace disparagement of women, repeated day after day over the course of several years without supervisory intervention, stands as a serious impediment to any woman’s efforts to deal professionally with her male colleagues.The Court also noted that the debate was still open as to whether the perspective used in judging the comments was to be a reasonable person or a reasonable woman, or as one of their colleagues had suggested in an earlier opinion, at least a reasonable person informed of “how members of the protected class regard the challenged remarks or displays.” No need to decide here, since a person of either gender could find the "sexually offensive comments and graffiti here at issue more offensive to women than to men and, therefore, discriminatory based on sex."
The line drawn by the district court would be much simpler to apply, but it is hard to fault the logic of the Circuit Court's explicatory paragraph.
Subscribe to:
Posts (Atom)