Although technically a GAO study on Radio Frequency Identification Technology in the Federal Government [pdf], it is a good introduction to anyone who is curious about one of the technologies that will likely lead to workplace privacy issues as it becomes more commonly used. Hat tip to beSpacific for the link.
Who Should Be More Scared -- Employers or Federal Judges?
On the newly discovered (by me) Disability Law blog, is this post, Travis on the Transformative Potential of Employment Discrimination Law, taken from a recently published law review article in the Washington and Lee Law Review, Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 Wash. & Lee L. Rev. 3 (2005).
What caught my attention was this quote from the article pointing out (in the author's view) a problem with the interpretation of the ADA by the judiciary:
What caught my attention was this quote from the article pointing out (in the author's view) a problem with the interpretation of the ADA by the judiciary:
One of the reasons for this disappointing result is that judges have interpreted the ADA and Title VII through the lens of "workplace essentialism." For either the ADA or Title VII to restructure the workplace successfully, judges first must envision an alternative. To do so, judges must be able--and willing--to parse out the malleable ways that job tasks are organized from the actual tasks that comprise the essence of the job itself. Judges repeatedly have demonstrated an inability--or simply an unwillingness--to take this step. Instead, judges have assumed that jobs are defined at least in part by the default organizational structures that make up the full-time face-time norm, thereby placing those structures beyond the reach of antidiscrimination law and undermining the law's transformative potential.
In short, in order to give the ADA the transforming effect that was intended, judges should decide how to re-order work in a much more significant manner than they have so far been willing to do. There are things that we should not task our judges with, and trying to decide how best to redesign the nature of work is probably one of them. I am fairly certain it is a task that not many federal judges would look forward to.
Quick, Judge Owen Where Are You? 5th Circuit Affirms Summary Judgment for Plaintiff
It is a good thing that the Senate has finally confirmed another out of the mainstream judge to the 5th Circuit, as they seem to have lost their bearing -- affirming a summary judgment for a plaintiff in a 1st Amendment retaliation case. Salge v. Edna Independent School District (5th Cir. 5/27/05) [pdf]. Hopefully, my irony will not be lost on those who are in any way in touch with reality, as opposed to say, Senator "Chuck" Schumer, D.-N.Y. whose comments about Judge Priscilla Owen were as off as his ego is big.
More to the point on the Salge case, it is somewhat unusual for a plaintiff to win summary judgment in any employment case as there are usually factual questions which clearly preclude it. So much so in fact that such motions are rarely filed. Here though there was no dispute that a school secretary was fired for answering a reporter's question about the contract status of the principal that she worked for. Whether that involved public or personal speech and how it fared in the balancing between the employer's interests and the constitutional right of Ms. Salge, was under the circumstances a legal question. The 35 page decision is a good overview in the legal aspects that are relevant in 1st amendment retaliation cases.
More to the point on the Salge case, it is somewhat unusual for a plaintiff to win summary judgment in any employment case as there are usually factual questions which clearly preclude it. So much so in fact that such motions are rarely filed. Here though there was no dispute that a school secretary was fired for answering a reporter's question about the contract status of the principal that she worked for. Whether that involved public or personal speech and how it fared in the balancing between the employer's interests and the constitutional right of Ms. Salge, was under the circumstances a legal question. The 35 page decision is a good overview in the legal aspects that are relevant in 1st amendment retaliation cases.
New FMLA Regulations Coming Soon?
Professor Gely at the LaborProf Blog is commenting on the possibility of the DOL issuing new FMLA regulations soon in DOL Considers Changes To FMLA's Regs, including a link to a news story, Family, medical leave act at center of hot debate, by Stephanie Armour, USA Today's workplace reporter. It is true that there is both need and support for changes to the FMLA. You can check out some of the arguments being made for change at the website of the National Coalition to Protect Family Leave.
While I hope I am wrong, I would be very surprised to see the DOL venture out too far into controversial regulatory waters so soon after the heated rhetoric over the changes to the FLSA white collar exemptions. Changes to the FMLA would not have to be controversial, but given the partisan rhetoric that permeates every issue in Washington these days, it would be. This is one prediction I would be happy to see be spectacularly wrong, but don't put too much money against me on this one.
Updated: Not quite three years later, the proposed regulations are in the February 11, 2008 federal register. See my post here with a link to the proposed regulations.
The Guidebook for EEOC Lawyers
Recently I mentioned that EEOC trial lawyers were becoming a force in the courtroom. If you want to see their internal playbook check out the newly issued, Regional Attorneys' Manual. It ranges from the administrative procedure which any organization has to deal with (and which it is often helpful to know about if you are on the other side) and also substantive issues related to lawsuits. For example, the Information Sheet on Nonpecuniary Compensatory Damages [pdf] the Commission gives to individual plaintiffs to allow them input on whether they want to seek damages that may allow discovery into very private matters, might be very helpful if the Commission is objecting to the scope of your discovery into mental anguish related issues.
All in all a helpful reference when you find yourself opposite the EEOC in litigation.
Does Your IT Department Ever Make You Feel Nervous?
Just try firing one. George Lenard has a scary post about the potential consequences over at George's Employment Blawg, Insiders with axe to grind wreak cyber-havoc.
Small hint, when considering insider problems, "in 92% of the cases, a negative work-related event triggered the insider action."
Small hint, when considering insider problems, "in 92% of the cases, a negative work-related event triggered the insider action."
Perfume Allergy Worth 10 Million? In Detroit It Was
Erin Weber, formerly a DJ at Detroit country station WYCD-FM, complained that a co-employee wearing Tresor, made by Lancome, not only made her lose her voice but one time she "felt an electric shock quell through my entire body." According to Weber, the perfume was a pre-meditated attack by another female DJ, Linda Lee, co-host of the afternoon Edwards and Lee show. In an email to the station management, Weber claimed Lee intentionally walked by her at the Downtown Detroit Hoedown -- a popular annual country music festival. "Linda nearly brushed past me and a cloud of perfume trailed behind me," Weber wrote.
"To have brought the perfume with her suggests forward planning. This appears to be a premeditated attack which was entirely unprovoked by me in anyway," Weber wroteHer employer, Infinity Broadcasting said it asked the offending employee to stop wearing the perfume, changed their schedules so they did not interact and ultimately fired Weber when she did not come to work. The AP has a pretty bare bones story, see here, that has been widely circulated but the Detroit Free Press has more details in Radio DJ wins $10.6 million in stink over perfume.
A pre-verdict story also in the Free Press, Jury deliberates radio personality's lawsuit, said Weber was forced to work in a studio where a guest on an earlier show had spilled acetone while giving another host a manicure. There was also evidence that even though Weber's show was a ratings success, she made only $66,000 a year while males earned 2 or 3 times as much. Weber complained about the pay issue to the EEOC.
All of that apparently did not set well with the all female jury since according to the Free Press story, it awarded "$7 million in punitive damages, $2 million in mental anguish and emotional distress and $1.6 million for past and future compensation."
While the "perfume allergy" makes for good copy, including my favorite headline from a South African website, DJ wins $10m in smelly saga, one wonders if it will even stand up as a disability claim. My guess is it was the other aspects of the employer's conduct that set the jury off into an MDV frenzy; it may have been the unequal pay or the retaliation claim that Weber made after she filed a complaint with the EEOC. Even then the jury twice sent notes to the judge saying they were having difficulty reaching a decision. Given the numbers, my guess the fights were over damages not liability, and if I am right there was someone on the jury who was pressing for an amazingly high number. (Not that $10 million isn't!)
One other thing about the headlines accompanying the AP story, most refer to a $10 million judgment. By all accounts all that has happened is that a jury verdict has been returned. A verdict is only a step (albeit in this case a giant one) to a judgment, which must either be appealed or paid. But before a verdict becomes a judgment, the Court must apply the law to it, which in this case might very well reduce much of the award by application of the $300,000 caps on compensatory and punitive damages if the claim was only under the ADA.
In any event as Infinity Broadcasting, the owner of the station, was saying, the judgment, when there actually is one -- "will be appealed". Nevertheless the verdict is an impressive reminder of how serious some juries can be when it comes to meting out punishment to an employer for their perceived wrongdoing.
Call In Requirement Not Barred By FMLA
When you have the following policy, you know there must have been a history of sick leave abuse by a number of employees:
During regular working hours, when an employee is home on sick leave, the employee must notify the appropriate authority or designee when leaving home and upon return. An employee is to remain at home except for personal needs related to the reason for being on sick leave. While on sick leave an employee may be called or visited by a sick leave investigator unless the employee has 150 days or more of accumulated sick leave credit.
This must be a city thing, as the only other case I remember seeing it in, also involved a city government.
In Callison v. City of Philadelphia (3rd Cir. 5/20/05) [pdf] the Court rejected the employee's argument that his suspensions for violation of this policy was prohibited by the FMLA. The Court's view was simple:
And not that anyone really cares, but so do I.In granting the City’s motion for summary judgment, the District Court found that the City’s sick leave policy requiring an employee on leave to “call the Sick Leave Hotline when leaving home during regular working hours does not conflict with any substantive provisions of the FMLA.” ... Further, the Court reasoned that the purpose of the FMLA is not compromised by this policy because it “neither prevents employees from taking FMLA leave nor discourages employees from taking such leave. It simply ensures that employees do not abuse their FMLA leave.” We agree.
Arbitration Announced By 'Barebones' Email - Not Sufficient According to 1st Circuit
The law on whether an employer can unilaterally implement mandatory arbitration adds another chapter this week as the 1st Circuit holds an employer's email, containing links to the full policy, fails to meet the minimal notice requirement necessary for mandatory arbitration of an Americans with Disabilities Act claim. Campbell v. General Dynamics Government Systems Corp. (1st Cir. 5/23/05) [pdf].
For purposes of this opinion the Court assumed there would be an enforceable agreement under Massachusetts state law. Its decision to not enforce the arbitration policy turned on a requirement in the ADA first articulate in its 1999 decision in Rosenberg v. Merrill Lynch. Under the Rosenberg standard, the Court found its task here to be:
whether General Dynamics's e-mail announcement of the Policy provided sufficient notice to the plaintiff that his continued employment would constitute a waiver of his right to litigate any employment-related ADA claim, thereby rendering judicial enforcement of that waiver appropriate.
Although the Court goes to great lengths to note that email can be a legitimate means of announcing and implementing an arbitration policy, this attempt did not suffice. rather:
To be blunt, the e-mail announcement undersold the significance of the Policy and omitted the critical fact that it contained a mandatory arbitration agreement. The result was that a reasonable employee could read the e-mail announcement and conclude that the Policy presented an optional alternative to litigation rather than a mandatory replacement for it. Because that primary communication lends itself to such a conclusion -- rather than cluing in the reader by including a simple statement of the kind contained in the Policy itself that '[t]he mutual obligations set forth in [the] Policy shall constitute a contract between the Employee and the Company' -- we conclude that it failed to put the recipient on inquiry notice of the unilateral contract offer contained in the linked materials.
When considering the logistics of implementing an arbitration policy in the 1st Circuit, or elsewhere for that matter, this case should be on your reading list.
Just as an aside, although you were not yet quite sure why, you had some idea how the case might turn out just by the Court's choice of language in describing the plaintiff's relationship to the employer: "For a period of nearly three years, plaintiff-appellee Roderick Campbell toiled as an at-will employee of General Dynamics Government Systems Corporation." Employees a court views as 'toiling' are often on their way to judicial success.
Challenging Conventional Wisdom - Private Settlements of FLSA May Be OK
It seems to be a time of re-examination of what is accepted as well established law in the employment arena. Professor Charles Morris has written a book, The Blue Eagle At Work: Reclaiming Democratic Rights In The American Workplace which makes the argument that the NLRA guarantees that employees have a viable right to engage in collective bargaining through a minority union on a members-only basis. If that is true, it would be a shock to almost every practitioner in the area of labor/management relations. Check out Phillip Wilson's view at Laboring Away at the Institute, that this is an argument that may have more merit you might think.
But perhaps even more amazing, earlier this year, Judge Xavier Rodriguez, of the Western District of Texas, who before becoming a member of the judiciary was a practicing labor and employment lawyer, has challenged another musty principle -- that a private employer cannot resolve a wage and hour dispute without either the participation of the Department of Labor or court supervision. In a well reasoned opinion, after exploring past Supreme Court decisions, the legislative history of the Portal to Portal Act, its judicial treatment and a review of circuit court decisions in this area, Judge Rodriguez comes up with the following conclusion:
Therefore, the Court holds that, according to the language of the FLSA, its amendment by the Portal-to-Portal Act of 1947 and the Fair Labor Standards Amendments of 1949, and its interpretation in the case law, parties may reach private compromises as to FLSA claims where there is a bona fide dispute as to the amount of hours worked or compensation due. A release of a party's rights under the FLSA is enforceable under such circumstances.
Martinez v. Bohls Bearing Equipment Co.(W.D. Tx - 2/28/05) [pdf]. [The link takes you to the general website of Courtweb, but you will have to use the search function to find the full opinion.] Before going whole hog in getting releases, make sure you read the portion of the opinion where the Judge lays out the argument and its parameters since "bona fide dispute" might be considered a limiting term (pp. 15 -38). And in some circuits, such as the 11th, the argument is clearly foreclosed by existing precedent. But for an area where many, if not most, practitioners had accepted the conventional wisdom that all such settlements were foreclosed, Judge Rodriguez' opinion at a minimum provides a principled basis for arguing otherwise.
Update: If you don't want to go through the trouble of finding the whole opinion, you can find a thorough summary at the Thompson publishing website, Court Permits Private Parties To Settle FLSA Overtime Dispute.
Is Your Work Email More Likely To Be Monitored in Europe or the U.S.?
I would have missed that question, although I guess technically it depends where in Europe. That according to a study just released by the American Management Association and the ePolciy Institute as reported at eMarketer, Ever Get the Feeling... if you are an employee in Spain or France, there's about a 70% chance that the boss is checking your email regularly. In the U.S. only about 1/3 do it with regularity. Monitoring internet surfing is more common on both sides of the pond.
Given the significance of email and the productivity (and other) issues with surfing the internet, it doesn't seem likely either of these is going to become less frequently monitored. The next big monitoring issue would seem to be gps or similar monitoring. For employers with mobile employees, the technology will soon be there if it isn't already. If you don't think so, check out Tag Team: Tracking the Patterns of Supermarket Shoppers, from Wharton Knowledge, how grocers are now studying the route you wheel your cart through their store using RFID techonology.
But so far at least according to the study, less than 10% of employers have ventured off into these waters, according to the data in the AMA's press release on the study. But my guess -- it will be the topic of more and more discussions over the next year.
Help To the Procrastinators of the World, More Benefits News
Tired of having to schedule doctor's appointments in December, or buying yet another extra pair of glasses in order not to lose some of the funds set aside in your flexible spending account? Good news today over at Janell Grenier's Benefits Blog, A Welcome Development for Flexible Spending Accounts: The Modified "Use-It-Or-Lose-It" Rule, discussing the IRS announcement of a way to extend for 2 ½ months the time that the funds have to be used.
The nitty gritty is here in Notice 2005-42. For some of us, all this does is delay the timing of our last minute rush, but for world class procastinators it's still like manna from heaven. Of course, your employer has to make sure that they amend their plan to give you that extra time. And that is something that can't be put off. So tell your plan administrator, "call our benefits lawyer -- now. "
The nitty gritty is here in Notice 2005-42. For some of us, all this does is delay the timing of our last minute rush, but for world class procastinators it's still like manna from heaven. Of course, your employer has to make sure that they amend their plan to give you that extra time. And that is something that can't be put off. So tell your plan administrator, "call our benefits lawyer -- now. "
AARP and The Retiree Health Benefit Conundrum
As a casual follower of benefits law, I have been following the dispute between AARP and the EEOC over a law that would allow employers to offer different tiers of retiree medical benefits, depending on whether or not the retiree is eligible for medicare. Some retirees who had great retirement medical benefits, supported by AARP, have so far blocked through litigation an EEOC regulation that would make that possible. Check out my earlier post, 2nd Round of the Day to the Old Folks As Well.
The bigger problem is that if AARP remains successful, the logical consequence is that fewer employers will offer any retirement medical benefits at all, a result that is not likely to be in the interests of most members of AARP. The Blue Cross, Blue Shield Health Issues website has a good overview of the the problem, AARP's Daunting Dilemma.
The only solution that would seem to solve AARP's problem would be to mandate employers to provide such benefits; an idea whose time really has not come. If anything, it appears Congress might step in on the side of business and the EEOC to trump the ongoing AARP litigation. In many respects, it does seem to be a basic policy decision, which in my view makes Congress the place it should be resolved.
9th Cir. To Take Make Up Case En Banc
Since what I write here is collected in a somewhat permanent manner, it's nice to have a prediction come true. Friday, the 9th Circuit helped me on that score by announcing it was granting en banc consideration of Jespersen v. Harrah's Operating Company, Inc. So the panel decision, upholding the make up requirement, which I reported on here is now history, unless adopted by the en banc court. (Don't hold your breath.)
Actually, I am only halfway home on the prediction, as what I said was, "this case is unlikely to go quietly into the night. Look for en banc consideration and ultimately certiorari on this one."
Derivative Discrimination Claim Still Not There In the 7th Circuit
As a union steward, Dennis Walker complained to the warehouse manager about the company's treatment of its black workers, treatment which included but was not limited to:
co-workers singing racially derogatory songs, references to African Americans as “monkeys,” and graffiti including “N-I-G-A” written throughout the warehouse.
Walker, although white, was offended by the conduct. When it was not remedied, and he thought he was being retaliated against, he sued claiming both discrimination and retaliation.
Walker's discrimination claim was not based on his own race, but was more a bystander claim. As the Court noted, while he like any enlightened employee was offended, his claim for derivative discrimination failed because he :
Walker's discrimination claim was not based on his own race, but was more a bystander claim. As the Court noted, while he like any enlightened employee was offended, his claim for derivative discrimination failed because he :
made no attempt to establish that the conduct was so offensive to him as a third party as to render the workplace hostile not only for him but for any reasonable employee who likewise was a bystander rather than a target of the harassment.
Walker v. Mueller Industries, Inc. (7th Cir. 5/11/05) [pdf]. Walker's attempt at a "derivate discrimination claim" was an uphill fight, as the Court itself noted, its prior opinion in Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1180-81 (7th Cir. 1998):
all but closes the door on the notion that an employee who observes workplace hostility but is not a member of the class of persons at whom the harassment was directed may bring a derivative claim for the harassment.
Almost but not quite, as in both Bermudez and here, the Court could avoid deciding whether such a cause of action exists by deciding that there was a lack of proof that the "bystander" suffered a "poisoned environment."
Walker's retaliation claim was more straight forward. If he were retaliated against because of his complaints of racial harassment, he would prevail. Unfortunately for Walker, it failed because he could not show an adverse employment action. All of the incidents of which he complained were ultimately short of what is required to be an adverse employment action, one of the elements for a successful retaliation claim.
Walker's retaliation claim was more straight forward. If he were retaliated against because of his complaints of racial harassment, he would prevail. Unfortunately for Walker, it failed because he could not show an adverse employment action. All of the incidents of which he complained were ultimately short of what is required to be an adverse employment action, one of the elements for a successful retaliation claim.
Diversity - Does It Include Thought?
One of the interesting things about the internet, particularly as funneled through the blogosphere and powered by rss feeds, is how you can so easily stumble serendipitously from one story to another. For example in one of the H.R. blogs I now collect thru Onfolio (free plug for a good program), HR For the Leader In You, I pick up a link to an editorial by Dr. Miguel de la Torre "presently of Hope College" on the issue of diversity. What really caught my eye though was the comment about the editorial contained in the blog, "You can agree or disagree with him in his premise vis a vis your employer or your experience, but I have been around long enough to have seen what he is talking about...and it still happens, I am afraid."
Intrigued, I read the article and also googled Dr. de la Torre, who currently is in the news for his change in positions from Hope College to Iliff School of Theology, a Methodist seminary in Denver. According to news stories the change is occurring either because of pressures brought on Dr. de la Torre following some recent editorials (described as theologically conservative, socially liberal) which caused him to spar with Dr. James Dobson and his conservative Christian group, or because he hasn't been compensated for the scholarly work he has been doing. Or what seems more likely, a combination of the two.
Intrigued, I read the article and also googled Dr. de la Torre, who currently is in the news for his change in positions from Hope College to Iliff School of Theology, a Methodist seminary in Denver. According to news stories the change is occurring either because of pressures brought on Dr. de la Torre following some recent editorials (described as theologically conservative, socially liberal) which caused him to spar with Dr. James Dobson and his conservative Christian group, or because he hasn't been compensated for the scholarly work he has been doing. Or what seems more likely, a combination of the two.
But in any event, back to the originally linked editorial, Diversity that's only skin-deep written by Dr. de la Torre. After appreciating much of what was said in the editorial, I ended up focusing on the following paragraph which was near the end, a fourth way to make it appear that you were interested in diversity, without really doing anything about it:
4) find people of color who speak with white voices and advocate policies detrimental to their own racial and/or ethnic community. You can always find "white" Latino/as, African-Americans, Asians-Americans and Amerindians who are willing out of conviction, profit, self-loathing or survival to parrot the dominant culture's ideologies. Such individuals step on the heads of their own people to catch the eye of those in power, hoping to be rewarded for publically preferring whiteness over their own group. We Latino/as call them "coconuts" because they are brown on the outside but white on the inside. African-Americans call them "Oreos." They are known as "bananas" by Asian-Americans and "apples" by Amerindians. They allow the institution to become multi-colored without having to become multi-cultural, which is, after all, what many institutions secretly prefer. Isn't it?
As a white male I often hesitate to enter into these debates. But I find it ironic that some of the most fierce advocates of diversity, deny diversity of thought to others. For e.g. although I would be loathe to ascribe Clarence Thomas or Thomas Sowell's views to "profit, self-loathing or survival," my guess is that Dr. de la Torre might think one or both "advocate policies detrimental to their own racial and/or ethnic community." And although Professor de la Torre also had "conviction" in that grouping, nothing about the tenor of the paragraph makes me think that he cuts people of color any slack who fail to adhere to his views.
Which does nothing to take away from the validity of the points he makes in other parts of this article and perhaps in many of his other writings. But it does make me reflect that it is all too easy for us to condemn as "wrong", others who think differently than we do. And isn't it that kind of thinking which makes the discussion of diversity necessary in the first place?
Which does nothing to take away from the validity of the points he makes in other parts of this article and perhaps in many of his other writings. But it does make me reflect that it is all too easy for us to condemn as "wrong", others who think differently than we do. And isn't it that kind of thinking which makes the discussion of diversity necessary in the first place?
"Just Make It Go Away" - Now $8 Million Later
It is probably going to be around awhile. It -- is a lawsuit brought by an applicant for a customer service position at an EchoStar call center. Dale Alton, who is blind, was denied the job because he was "too slow" on a Braille test, although according to the Rocky Mountain News story, he would not have used Braille in the position he was applying for. The "make it go away" quote was attributed to the EchoStar H.R. Vice President after Alton returned to apply a second time.
The jury awarded $8 million in punitive damages (only $2,500 in actual damages), but it could have been worse. According to the story, the jury foreman reported:
The evidence against the Douglas County satellite-TV company was so damning that some jurors wanted to award plaintiff Dale Alton, of Lakewood, as much as $30 million. "This was a compromise," he said. "I know it probably sounds like a lot of money . . . but it's something we felt was equitable."
The EEOC's own press release, modestly styled, EEOC Wins $8 Million Jury Verdict for Blind Worker In Disability Bias Case Against EchoStar has more details that might give some insight into what the jury foreman meant. According to the story:
When Mr. Alton first went to EchoStar to apply, EchoStar told him it would not do him any good to put in an application because they were not set up to handle blind people. However, after receiving a copy of his charge of discrimination, EchoStar invited Mr. Alton back and put him through a sham interview process that included a Braille test, which was longer and more difficult that the test given sighted people, and a Windows skill test that consisted of a person giving him directions on how to access icons, such as "move to the left, move down, now click."
Much of the testimony was centered on whether or not the employer could have accommodated Alton's blindness with a special screen reader software program known as JAWS. An in court demonstration on how it worked apparently convinced the jury.
Another note to the wise. This is not the first time this year that the EEOC has been reported in an MDV story, see MDV Watch - EEOC Hits DuPont in Louisiana Trial and Just In Time For Christmas - FedEx MDV Verdict. In the past, EEOC trial lawyers have often been discounted, and in fact they are often stretched too far and too thin. However, given the recent results it is a clear that they can be a force to be reckoned with. Any employer (or their counsel) who goes to trial under the impression that they will not be able to try a good case, should probably think again.
Another note to the wise. This is not the first time this year that the EEOC has been reported in an MDV story, see MDV Watch - EEOC Hits DuPont in Louisiana Trial and Just In Time For Christmas - FedEx MDV Verdict. In the past, EEOC trial lawyers have often been discounted, and in fact they are often stretched too far and too thin. However, given the recent results it is a clear that they can be a force to be reckoned with. Any employer (or their counsel) who goes to trial under the impression that they will not be able to try a good case, should probably think again.
OSHA's New Initiative - Not Your Normal Republican Policy
Even a veteran critic of the weakness of OSHA in general and this administration's enforcement of it in particular, Jordan Barab notes favorably a new task force using existing laws, including those other than OSHA, to go after willful violators of OSHA. See OSHA, Feds Take A Step Toward Real Workplace Penalties. Quoting from the NYT on the new program:
The initiative does not entail new legislation or regulation. Instead, it seeks to marshal a spectrum of existing laws that carry considerably stiffer penalties than those governing workplace safety alone. They include environmental laws, criminal statutes more commonly used in racketeering and white collar crime cases, and even some provisions of the Sarbanes-Oxley act, a corporate reform law.
And although Barab welcomes this action, in his view it is not enough, check out his story for links to new legislation to toughen OSHA penalties and hold employers accountable for workplace deaths being offered by Senators Kennedy and Corzine.
Executive Compensation and the IRS - Check Out Their Guidebook
If you are an executive, or in charge of executive compensation, you might want to check out the IRS guidance to their agents who are conducting executive compensation audits. The various topics:
Transfers of Compensatory Stock Options to Related PersonsA tip of the hat to Janell Grenier at Benefitsblog: Executive Compensation Audit Technique Guides for the link.
Non-Qualified Deferred Compensation Plans
Stock Based Compensation
IRC 162(m) Salary Deduction Limitation
Fringe Benefits
Golden Parachutes
Split Dollar Life Insurance
"All Politics Is Local," But This Is Just Bizarre
Tip O'Neill supposedly first, or at least most famously, uttered those words and no doubt the wards of Massachusetts have had their share of interesting political stories. But I doubt they would top what appears to be happening in of all things a park district board in Troy, Illinois. The Tri-park Township Board seems to have had some issues in the past, including a new member who defeated an incumbent in April elections. While Mary Kmetz is new as a commissioner, she is not a stranger to the Park Board. In the past as an employee of the Park Board she filed seven discrimination charges with the EEOC. Although she made two settlement offers, both were rejected by the Board, and the charges ended up being dropped and she ended up being terminated.
But now following her election, the Park Board President announced that the State Attorney is being asked to consider perjury charges against his new colleague based on her sworn statements to the EEOC. According to a story on the St. Louis Post-Dispatch website, it is related to the approximately $10,000 in costs the Board spent in defending itself. According to the Board President's statement:
It is the park district's position that taxpayers should not have to bear the expense when disgruntled employees perjure themselves in an attempt to influence management decisions.
Would love to be present at the next Commissioner's meeting.
Mixed News For Those That Want the Right To Pack Heat At Work
Although Oklahoma has passed, and Texas is considering legislation limiting employers' ability to ban weapons which would otherwise be lawful under each state's concealed gun laws, a recent study claims that doing so would increase the risk of homicide in the workplace. According to Dana Loomis, a professor of epidemiology at the University of North Carolina, "there was a nearly sevenfold increase in the risk of a worker being killed in workplaces that allowed guns and other weapons." You can check out the story, Homicides More Likely at Workplaces That Allow Guns at the healthcentral.com website. Thanks to the folks at the Daily Labor Report for the tip to the story.
The proposed Texas law, H.B. 79 which has been reported out of committee, would still permit an employer to ban guns from its "premises", but not from keeping guns in a locked vehicle, unless the vehicle is going to be parked in a garage or lot that is fenced in, not open to the public and guarded by security personnel. Interestingly, the bill does not provide the "guarded lot" exception for public employers. The legislation also has language protecting employers from liability in a civil action because of an occurrence inolving a handgun carried by someone licensed under this chapter.
The proposed Texas law, H.B. 79 which has been reported out of committee, would still permit an employer to ban guns from its "premises", but not from keeping guns in a locked vehicle, unless the vehicle is going to be parked in a garage or lot that is fenced in, not open to the public and guarded by security personnel. Interestingly, the bill does not provide the "guarded lot" exception for public employers. The legislation also has language protecting employers from liability in a civil action because of an occurrence inolving a handgun carried by someone licensed under this chapter.
Although I am certain employers will be happy to avoid liability, they are probably more likely to be concerned about the life of their workers if Dr. Loomis' data is correct. To be fair, it is unclear whether Dr. Loomis study dealt with an unrestricted right to bring guns on an employer's premises or also included workplaces where guns were allowed to be kept in locked cars. Something I am sure the Texas legislature will check out before going forward (he said with tongue firmly planted in cheek).
Paramour Cases - California Style
Although not very successful as a Title VII cause of action, employees who allege they have been mistreated because their boss favors a fellow employee with whom he or she has a sexual relationship, get another shot today before the California Supreme Court. Sacramento Bee reporter, Claire Cooper has the story on the so called Chowchilla case, named for the women's prison where the alleged misdeeds occurred.
You have to love a story with a lead like "Prisons are notorious for being hotbeds of sexual intrigue, where the strong prey on the weak. In one California institution, the offenders weren't inmates, though." The story goes on to give the heart of the allegations:
You have to love a story with a lead like "Prisons are notorious for being hotbeds of sexual intrigue, where the strong prey on the weak. In one California institution, the offenders weren't inmates, though." The story goes on to give the heart of the allegations:
Here is a link to the summary of the case as posted on the Supreme Court's calendar for today and the underlying appeals court decision [pdf], denying the claim.According to court papers, Lewis Kuykendall, the warden of Valley State Prison for Women in Chowchilla in the 1990s, had at least three lovers on staff. He promoted them and bestowed other advantages. One of those women, in turn, formed a close personal alliance with another high-ranking woman. Together, they made work intolerable for two female officers after they threatened to complain. The situation continued for several years.
If the California Supreme Court issues a favorable decision, even though it is under a California statute, employers would be well served to prepare for another round of such cases. Put most succinctly, executives 'fooling around' with office mates, should cut it out now.
Update: The California Supreme Court has now decided the case, reversing the lower courts. For a link to the decision see Paramour Claims Live in California.
Taxpayers and Employee Lawsuits
As I have noted before, a substantial number of MDV's have governmental entities on the losing end, a burden which is ultimately shifted to taxpayers. An article from the Northjersey.com website, Harassment suits cost N.J. taxpayers $30 million shows just what that impact can be as it surveys the state of employment law litigation in the Garden State. Actually, one of those most impacted is the insurer of a number of municipalities, the Municipal Excess Liability Fund. That there is an insurance company involved doesn't really change where the ultimate cost resides.
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