UFCW Goes - 3rd Major Union to Depart AFL-CIO

See the letter from UFCW President Joe Hansen. The money quote (or from the AFL-CIO's perspective, the loss of money quote):

The UFCW, in order to pursue the most effective course of action for its members and all workers in its core industries, is terminating its affiliation with the AFL-CIO effective immediately.

Probably not the last shoe to drop either.

It Took Martin Luther 95 Theses - These Guys Are Up to 23

At the Future of Work Weblog, Charlie Grantham and Jim Ware have come up with 23 theses about the evolving nature of work. According to the introduction, they actually are a couple of years old now and the authors are finding the future is arriving "a bit slower" than they thought it might. Some of these ideas are similar to ones Tom Peters has been talking about for several years now-- think "Brand You" and each individual is a "unit of one." But with a purpose similar to Martin Luther's famous 95 theses, provoking thought and discussion, they are worth checking out, The ReFormation of Work.

Employment law gets its own theses, Number 12:

Employment law will change to recognize a new category of relationship of people to organization In the early years of the 21st century two basic forms of worker/company relationship existed in the United States and most other industrialized countries. There was either an employee/employer relationship or a contractor relationship. Both these forms have proved to be inadequate for the new, more agile and fluid kinds of social relationships required by knowledge workers (the so-called creative class). We believe the nascent form of the new relationships will be built on the concept of Limited Liability. Corporations or Partnerships pioneered in the legal, accounting, and consulting professions. Individual professionals will become in essence a "company of one" and band together for projects, which may operate as short-lived formal organizations for limited periods of time.

I am not quite sure I follow that one, since I think the relationships they are describing would end up "legally" the same or certainly similar to the current independent contractor relationship. This doesn't mean that the impact on employment law of changes reflected in the whole 23 if they come to pass will not be substantial, and it certainly seems likely that many will at least to some degree.

Maybe what they are saying is that since current law -- certainly statutory based law -- is tied to the employer/employee relationship that significant changes will have to be made. Opening up the whole body of employment law to negotiation on how to handle "a new relationship of people to organization" -- now that would be most interesting. But then most revolutions are.

Check Your EPLI Policy - When Coverage For Discrimination Doesn't Mean The Most Common Type of Discrimination Claim

Employment practices liability coverage has had a resurgence in the last few years. But as most developments in the law it takes time for issues related to that coverage to work their way through the courts. There must first be a claim, the claim has to be denied, litigated in the trial court and then appealed for appellate case law to develop. All of that takes time. Earlier this week the 5th Circuit handed down one of the first major EPLI decisions that I can remember seeing based on policies sold since EPLI became such a popular form of coverage.

Although hard to tell who will ultimately "win" this particular battle between a Louisiana School Board that bought an EPLI policy from Mid-Continent Casualty Insurance Company, the holding is significant enough for all those who are purchasers of such insurance to make sure that the scope of the coverage is what they think it is.

In simplest terms, the policy appeared to provide for coverage of discrimination claims since wrongful act was defined to include:

(1) actual or alleged discrimination, whether based upon race, sex, age, national origin, religion, disability or sexual orientation; [and] (2) actual or alleged sexual or racial harassment;...

But the policy also had an exclusion for loss resulting from any claim:

brought about or contributed to in fact by any dishonest, fraudulent or criminal Wrongful Act or by any Wrongful Act committed with actual knowledge of its wrongful nature or with intent to cause damage.

This provision was referred to by the Court as the "intentional acts" provision.

The School Board was sued for racial discrimination under a disparate treatment theory. Because disparate treatment requires a finding of intentional discrimination, what the policy appeared to cover was eliminated by the intentional acts exception according to the insurance company.

The School Board was less than happy, as the Court noted:

The Board acknowledges, as it must, the presence of the exclusion for intentional acts, but urges that the exclusion cannot be squared with the policy’s explicit coverage of racial discrimination and racial harassment as both are inherently intentional in nature. The Board argues that any attempt to reconcile the policy’s exclusion with its coverage for discrimination and harassment leads to the absurd result that coverage is available only for “unintentional” “intentional” acts.

But the money quote by the Court deciding whose view was correct was this:

We are persuaded that the exclusion for intentional acts in the School Board’s policy does not conflict with the policy’s coverage for racial discrimination and racial harassment. It is well settled that claims for racial discrimination may allege either “intentional” or “unintentional” acts. Specifically, “[i]n the context of Title VII litigation, we recognize two types of discrimination claims: disparate treatment and disparate impact.” “Disparate treatment refers to deliberate discrimination in the terms or conditions of employment,” whereas disparate impact claims “do not require proof of intent to discriminate.” As written, the policy can readily be interpreted to extend coverage for claims alleging disparate impact discrimination while excluding coverage for disparate treatment discrimination.

Coleman v. School Board of Richland (5th Cir. 7/25/05)[pdf].

Although the Court noted other cases had taken a more favorable view of the argument made by the Board, it found its holding that coverage was properly denied proper under Louisiana law for construing insurance policies and also by the position taken by the 7th Circuit in Solo Cup Co. v. Federal Insurance Co. 619 F.2d 1178 (7th Cir. 1980).

The Court looked more favorably on another argument of the Board, that other portions of the claim were covered, at least for the purposes of providing a defense.

Although this decision is based on Louisiana law, it should make clear the importance to anyone purchasing EPLI insurance, who certainly would expect that the most common variety of discrimination claims -- those based on a disparate treatment theory -- would be what it is buying protection for, should be sure to review the proposed policy in light of this decision.

STOP THE PRESSES! Law Firm Prepares for Trial!

So here's the headline: Orange County in the Hot Seat Again Only Months After Jury Awarded Former County Employee a $1.7 Million Verdict. Not too unusual you say, until you read it and find it is a PRESS RELEASE by a lawsuit that begins "[Law Firm] today announced it is preparing for trial in a suit against the County of Orange for wrongful discrimination and termination of a county employee." What? Quick let's turn on the printing press, just next week we have lawyers who "are preparing to take a deposition," "preparing requests for production," even "preparing to give a client some advice."

And in fact, this law firm has earlier this summer announced that it "filed a second amended complaint" and last summer it "retains experts for testimony." WOW! Isn't there a line of decency somewhere?

Or maybe there is a more serious side to this release since the 2nd sentence is "Opening arguments are set to begin on August 22, 2005...". The "press release" then goes on to give plaintiff's side of the story (favorably of course) and highlights a recent verdict against the defendant, Orange County, highlighting a MDV awarded against it in April of this year. There may well be another purpose, but the only thing that I can see that this release does would be to taint the jury pool. Surely that, or influencing the settlement process, is not the intent of the law firm which issued the press release.

I will be interested in seeing what the legal ethics specialists in the blogosphere have to say about this one, and what the defense counsel and the Court do. Maybe nothing, in which case the legal system may be in worse shape than I thought.

Update:For technical reasons that are beyond me, comments do not show up on the front page of the blog, but if you go to the permalink page (by hitting the time post -- in this case Posted 8:45 AM), you will see a couple of comments so far. Both seem to think I over reacted.

The comments did, as thoughtful comments should, make me think about my view and my post. For one thing, the post is not written as clearly as it could have been. Trying to be both facetious (is it newsworthy that a lawfirm is "preparing" to do something?) -- and raise a serious point (the impact of this communication on a pending trial) was not done as well as it could have been. For example, the 2nd and 3rd press releases don't strike me as problematic, just somewhat silly, so the "line of decency" really referred to the pre-trial press release which goes to the more serious point, not those two releases.

I also checked the California Rules of Professional Conduct and the most applicable rule appears to be Rule 5-120 Trial Publicity. I don't know enough about the facts or the interpretation of the California Rules to know whether or not one would "know or reasonably should know that [this release] will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Or, even if it did, whether or not it would fit within one of the numerous exceptions that permit comment anyway.

Of course not everything that is within the rules is necessarily the "right" thing which is often in the eye of the beholder. This one doesn't seem right to me, but one of the good things about the blogosphere is the opportunity to get multiple views. So please check out the comments (and feel free to add your own.)

Employee Loyalty Litigation - - On Steroids

It started as many such cases do. A departed employee, a state court lawsuit alleging misappropriation of trade secrets and breach of a confidentiality agreement, an ex parte motion seeking immediate discovery to prevent the destruction evidence. What took this one above the everyday was a search order executed by a policeman to enter the ex-employee's house and take his computer. When entry was initially refused, the lawyer for the employer returned to Court and got an ex parte enforcement Order allowing the police officer to use reasonable force to enter the house. All of that was ultimately accomplished and the ex-employee's computer and other evidence was taken.

Although nothing is conveyed in the opinion as to the result of the state court litigation, what did happen was a federal suit by the ex-employee under § 1983, alleging the actions of the employer, several of its employees and their attorneys who participated in obtaining and carrying out the order violated his Fourth Amendment rights to be free from unreasonable searches and seizures and his procedural and substantive due process rights under the Fifth and Fourteenth Amendments.

Unfortunately for the ex-employee, his suit foundered on the shoals of no state action, a pre-requisite for a valid § 1983 claim. Yanaki v. Iomed, Inc. (10th Cir. 7/26/05) [pdf]. But my guess is that somewhere today there was a sigh of relief at the offices of some lawyers who probably did not enjoy being on the receiving end of a lawsuit, even if it turned out successfully.

After Acquired Evidence (sort of) Defeats Prima Facie Case

In an unusual case, the 11th Circuit has affirmed a summary judgment in a sex discrimination claim because plaintiff could not establish one of the elements of the prima facie case -- that she was qualified for the position that she sought. What was unusual was that the factor that proved her unfit for the position of driver, two speeding tickets, were not known at the time she was not hired. Underwood v. Perry County Commission (11th Cir. 7/21/05) [pdf].

Although the Court referred to after acquired evidence as utilized by the Supreme Court in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), it noted that this application was really different. In McKennon the issue was damages, not the prima facie case. Rather than relying on McKennon, the Court said this was really a simple case -- either she was qualified for the position or she was not. Here, there was no dispute that if the two tickets had been known she would not have been hired, and also no dispute that even if a favorable hiring decision had been made, the tickets would have been uncovered before the hiring was completed.

The objective nature of the "after acquired evidence" was the key, as the Court noted with objective facts it was less concerned with "some of the pitfalls of the use of “after acquired” evidence, such as post hoc mining of an applicant’s file to discern nondiscriminatory reasons for a failure to hire." Although holding under this narrow set of circumstances, "after acquired evidence" could defeat the prima facie case, the 11th Circuit was by no means attempting to open a wide door.

Update: Apparently having second thoughts on the unusual use of "after acquired evidence," the 11th Circuit vacated their July opinion discussed above. The end result was the same, the plaintiff lost, but this time it was her failure to show that the position for which she applied was filled by a man that was fatal to her sex discrimination claim. The Court disavowed any need to consider the "after acquired evidence" argument, that it had used as the basis for its first decision. Underwood v. Perry County Commission (11th Cir. 12/5/05) [pdf].

Happy 15th13th Birthday to the ADA

Actually, in light of all the reports on this being the 15th birthday of the Americans with Disabilities Act, what I should have said to be more accurate was Happy 13th Effective Birthday to the ADA. Those already toiling in the labor and employment law vineyards in 1990 will remember that there was an unusual lead time between the date that the first President Bush signed the legislation on July 26, 1990 and the effective date of Title I that dealt with employment on July 26, 1992. Initially only employers with more than 25 employees were covered. It was another two years, July 26, 1994 before the threshold for coverage was lowered to the current fifteen employees. For the effective date of the various sections, see Americans with Disabilities Act, A Summary.

No telling how many forests were sacrificed to all the writing about the ADA in that two year period (not to mention the moaning and gnashing of teeth). It was primarily, although not exclusively, done by those of us on the management side, never willing to let an opportunity to "excite the troops" go by. As it turns out the ADA has ended up being interpreted in vastly different ways than at least some had predicted. What seemed the common wisdom at the time, "that any lawyer who could not prove anyone was disabled should turn in his bar card," turned out to be oh so wrong. Fortunately for some of us, blogs did not then exist so our predictions are at least not preserved for the whole world to see.

Update: Thanks to the commenter for catching that my dates were off by a decade. I have updated to the correct dates.

Labor Split - Is it Personalities or is it Private v. Public?

The speculating about why continues even as the body of organized labor is in the process of dividing. Today a front page article from the NYT, Analysis: Ambitions Are Fueling Union Split, suggests that at bottom it is a personality clash between AFL-CIO chief and former head of the SEIU, John Sweeney, and his one time protege and current head of the SEIU, Andrew Stern.

As the most outside of outsiders, I obviously don't know. But from a logical standpoint, at least based on the rhetoric, the debate is over which of two paths is the way to labor's rejuvenation -- through support and encouragement (i.e. money) for politicians which will lead to a more favorable climate for organizing; or more money on organizing, which will make organized labor stronger vis a vis employers and will have the added benefit of creating more political clout. Molly Ivins, who is much more in the know seems to say pretty much the same in her article at Working For Change, Solidarity later:

To oversimplify, Sweeney pretty much bet his wad on the Democrats on the theory that labor will never come back unless it gets a level playing field. Setting aside the spinelessness and incompetence of the Democratic Party (I think Democrats who voted for the bankruptcy bill alone should be run out of the party), it sure looks like a losing strategy. Labor skates with the Change to Win Coalition cite the old definition of insanity: doing the same thing over and over and expecting a different result. To oversimplify again, the CWC wants to move all the artillery over to grass-roots organizing.

If that is an accurate view from the two camps, then the next question -- who benefits directly from the first approach, regardless of whether it ultimately works to increase a more level playing field for organization? I can quickly think of two possibilitieses. Cynically, the top union leadership which likes having at least one of the major political parties treat them as "power brokers." The other group would be those unions whose management counterpart is most affected by politics, unions which represent government workers -- the American Federation of State, County & Municipal Employees, perhaps being the most visible. (One of the few areas of organized labor that has grown in numbers in the era of the "political" strategy and seemingly most opposed to a change in strategy.)

If I am a government sector labor activist, money spent on politicians is a direct strategy in creating a more favorable environment for my growth and success; for private sector unions it is at best an indirect strategy. I am sure that is a far too simple analysis, but one that surely must be somewhere in the mix.

Two Are Gone, Others on Their Way? It's A New Day for Organized Labor

Reuters and others are reporting that the Teamsters and the SEIU have both formally declared that they were leaving the AFL-CIO and that four other unions, Laborers International of North America, UNITE HERE (the textile, garment, hotel employees), the United Food and Commercial Workers, and the United Farm Workers, all fellow members of the Change to Win Coalition may follow suit. The Carpenters, the 7th member of the coalition, left the fold four years ago. For the most current reporting be sure and check out Working Life, for on the scene's reports from the AFL-CIO convention in Chicago.

What does this mean for employers? Well obviously, it is far too early to tell and there will be plenty of opinions offerered over the coming days. Here's one from (as far as I know) a neutral academic, Robert Bruno, a labor expert at the University of Illinois at Chicago, who in the Reuters article suggests having two union coalitions may boost organizing and political activity. "When nonunion workers have options, when they have competing unions vying for their membership, they'd be more likely to join." Good old fashioned competition -- rings true to me. My thought for employers is this should be a time for increased vigilance, not celebration.

EEOC Update on Guidance in Light of National Railroad Passenger Corp. v. Morgan

The EEOC announces it has updated its Compliance Manual to incorporate the teachings of the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan,536 U.S. 101 (2002) a decision whose impact on the importance of administrative charges for discrete acts of discrimination may have been initially overlooked by many. For the changes themselves check out the EEOC's Compliance Manual Chapter 2: Threshold Issues.

The AFL-CIO (at least the Convention) Splintering

According to Working Life which is on top of developments at the AFL-CIO's 50th (hardly golden) convention set to formally convene tomorrow, the UFCW, Teamsters, UNITE HERE and SEIU will not attend the convention.

For those political junkies who have bemoaned the lack of truly interesting national political conventions, this certainly is one hell of a story. On the other hand, it also represents an on-going story of the future direction of organized labor, one that is important for all of us regardless of our involvement in labor relations or which "side" of the issue we are aligned with. This really is an issue/event that the blogosphere is covering hands down better than the real media. Follow the developments at Jonathan Tasini's Working Life or the House of Labor, a collective blog of interested observers. Jonathan Barab at Confined Space, although not present (he never get's to go anywhere fun he says) has some other suggestions for those at Blogging from the AFL-CIO Convention.

Why I (Unfortunately) Will Have Work For the Duration ...

of my working life, probably regardless of how long that is. Fom Sunday's, NYT: There's No Shortage of Intolerance in the Workplace.

On a brighter note, there are the Millenials - the generation born after 1977 (or 1980 according to some) described in a report by Patti Carey for the National Conference of Legislatures, Understanding Four Generations at Work:

Millenials are leading the way to becoming color-blind. They value diversity, and they get along with members of different racial and ethnic groups. As a group, they are more open to interracial dating than to dating across economic classes. Unlike other generations, they do not have any gender restrictions. After all, many of them have played on coed Little League teams. Their corporate board compositions will certainly have a different flavor than those of yesterday and today.

Someday.

Senator Schumer's Questions - Limited Role of Labor and Employment Law Issues

At least they are not apparent from the face of the questions, although the answers (if they are given) could be broader and either mention or at least raise labor and employment related issues. The only questions that peripherally touched on labor and employment matters were:

Can Congress regulate labor standards for states and cities under its Commerce Clause power?

Do you agree with the 1976 decision in which the Supreme Court held that Congress could not extend the Fair Labor Standards Act to state and city employees (National League of Cities v. Usery), or do you agree with the later 1985 decision, which held that Congress could (Garcia v. San Antonio Metropolitan Transit, overruling Nat'l League of Cities). Was the Court right to overturn its precedent nine years later? Why or why not? Although a question about application of a labor statute, it is more about how he would respect precedent, a way of gauging his views on how Roe v. Wade should be treated.

What is the proper role of the federal government in enacting laws to protect the rights of the disabled? This is a topic that covers three questions, but they all address the access rather than employment aspects of disability laws.

See the complete list handed to Judge Roberts by Senator Schumer at their initial meeting.

Of course the Senator has said he will not be limited to this list, and he and his staff have at least four to five weeks till the hearings begin to draft more. Not to mention the seventeen other members of the Committee. But given the prominent role that Senator Schumer seems (self) destined to play in the confirmation process, the absence from his first list highlights that labor and employment issues will not be central to Judge Roberts' confirmation proceedings. Certainly different from the charged hearings over Justice Thomas where sexual harassment became a major focus fourteen years ago.

Bad Week to Be a Jailer in California - Bad Press and a $20 Million MDV

This was not a great week for the California prison system. The one's ok, three's too many and two is an open question, paramour case handed down by the California Supreme Court not only should have been embarrassing, but made terrible law for all California employers. See, Paramour Claims Live in California - Although Maybe It's A Question of How Many? But that wasn't the most costly news of the week, as Monday the prison system was losing a $20 million dollar age discrimination case as reported in the Contra Costa Times, California prison to appeal doctor's $20 million judgment.

The real shocker --- the plaintiff, Robert Johnson, M.D. was 86. According to his counsel, "He planned to work until he was 95. And he was up to it. His grandfather lived to be 112. He has the genetics going for him."

Give credit to Dr. Johnson's counsel, Ralph Wegis, as it appears he anticipated what the not a spring chicken himself Judge Richard Posner would propose in his blog post, Refusing to Retire: What Can Be Done When People Overstay Their Welcome?:

It is simply this: beginning at age 70, require every life-tenured professor and every life-tenured judge to take a test of mental acuity every five years. (I use these simply as examples of "light" jobs from which the occupant is unlikely to be forced to retire by the demands that the job places on him.) The test results would be available to the members of the professor's department or the judge's court but to no others. The results would not be a basis for a determination of incapacity; they would not even be admissible in a competence hearing. The expectation rather is that a poor test result would persuade the individual, perhaps by persuading his colleagues who would in turn persuade him, or persuade members of his family to persuade him, to retire voluntarily.

Wegis was able to report that "tests showed that Johnson had the mental acuity of a much younger person."

And for the second MDV report in a row -- a bit of understatement (I hope) from the defense side of the table:

It came as a bit of a shock because of the excessive nature of the dollar amount. It will lead us to appeal the decision next month. [emphasis added]

Just a bit.

The Power of FOIA -- EEOC's Brief Bank Index

The Freedom of Information Act can work wonders for those who are willing to put the time and effort into pursuing requests through an administrative labyrinth. Like Discovery Channel cyclists riding at the rear of a breakaway, sometimes you get to take advantage of the hard work of others.

This is one of those times as Michael Ravnitzky has obtained the Equal Employment Opportunity Commission's Brief Bank in full. Unfortunately, like brief banks at a lot of law firms it has not been updated since 1998. But at least it's a start. Thanks to Michael and others at The Memory Hole, a site dedicated to "rescuing knowledge freeing information."

The Exception That Proves the Rule -- Employee Actually Reinstated

Although reinstatement is a remedy provided for in statutes prohibiting discrimination, it is rare that it ever happens. But proving the exception to the rule, Hydie Sumner who earlier won $2.2 million against Merill Lynch in an arbitration of her of sex discrimination claim is going back, After She Sued Merrill, It's Back to the Job, according to the NYT.

Her intent when she goes back:

I've always wanted my job back. I joined Merrill to be a leader. This was a very expensive process for Merrill, which is why it's sad that they chose to do it this way. I could be in a position to shed light on how to create changes where this won't happen in the next 5 to 10 years.

Wouldn't you like to be a fly on the wall her first few days back?

Settling FMLA Claim Just Got A Little Lot Tougher

Brian Peterson at his eponymous West Virginia Legal Blog, has a good report, FMLA claims cannot be settled without court or DOL approval, on yesterday's decision in Taylor v. Progress Energy, Inc. , No. 04-1525 (4th Cir. July 20, 2005) [pdf]. The Court applied § 825.220(d) of the FMLA regulations as written -- an employee cannot waive rights under the FMLA. Call this one the revenge of Robert Reich, President Clinton's Secretary of Labor, and a good reminder of the importance of having control of the executive branch of government when it comes to writing and amending regulations.

According to the 4th Circuit the trial court was led astray by the 5th Circuit's opinion in Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003) which had taken a restrictive view of the regulation, holding it applied only to prospective waivers. A position with which it flatly disagreed.

The fact pattern in Taylor is exactly the kind that one would expect -- a severance package with a release that the employer no doubt thought included FMLA claims. Given the long statute of limitations and lack of adminstrative pre-requisites for FMLA claims, if Taylor is accepted by other courts, it could cause a lot of headaches for employers who thought that they were in the clear.

Brian has an interesting suggestion for a summary proceeding in federal court that could review such settlements. I have a different one. With a split between the 4th and 5th Circuits -- let's ask the new Supreme Court with Justice Roberts to decide. On second thought, I am not sure that is a good idea. We might well see Justice Roberts borrowing from his dissent in AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005), where as I noted the other day in supporting the power of the Secretary of Labor to issue regulations he wrote:

Perhaps the Secretary was wrong ... That is not the question before the court. The statute plainly delegates the authority to make such policy-laden judgments to the Secretary ... and the Secretary has reasonably exercised that authority.

Maybe we should go to Plan B, deal with this in the current move to make technical corrections to the FMLA, or since that has not made a lot of progress, maybe it's time to amend the OWBPA to cover FLSA and FMLA claims.

A More Complete List of Judge John Roberts' Labor and Employment Related Decisions

Although I set out a fairly comprehensive list yesterday, a little more checking turned up an additional four cases, and Don Caster at All Deliberate Speed, has done more yeoman's work on this as well. In light of the two efforts, I have "updated" (and hopefully corrected) the list of Judge Roberts' labor and employment law decisions. First, I found four more cases that I did not find in my initial search. As with the overall list, on the most simplistic basis -- which side won -- the results were split.

• Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161, 15 A.D. Cases 1351 (07/09/2004). 2-1 panel. Roberts in majority. Reversed finding of lower court that employee's disability discrimination claim was barred by sovereign immunity. Employee
• Harris v. Federal Aviation Administration, 353 F.3d 1006 (01/13/2004) 3-0 Panel. Affirmed lower court's dismissal on limitations of claims by PATCO employees arising out of their placement after being rehired. Employer
• Resort Nursing Home v. National Labor Relations Board, No. 03-1369 (11/30/2004) 3-0 Panel. Enforcing NLRB's order against appeal by employer. Employee
• Stanford Hospital and Clinics v. National Labor Relations Board, 370 F.3d 1210 (06/11/2004) 3-0 Panel. Reversed NLRB order finding employer refused to bargain. Employer

For those one or two individuals (if there is anyone other than Don and I) who want to review all the decisions that Judge Roberts participated in (at least that I have found so far) to divine how he might decide labor and employment cases if confirmed as a Supreme Court Justice, the list of of 31 decisions follows.

To explain its makeup, in addition to adding the four new cases (and including the two that were contained in a separate post yesterday) I made some other adjustments based on Don's analysis. First, as he points out there were two FAA cases included which although involving employees are more administrative than employment cases, so I have removed those two. On the two that I listed as mixed, I have left Storer as such, since it was an OSHA appeal with two contested points, the employer wone one and the employee won one. I have moved the In Re England case involving the Chaplaincy Board to the Employer win group as opposed to mixed. (It is interesting that Roberts sided against the position of the Full Chaplaincy Group, which has been identified in the New York Times as a group promoting evangelical chaplains in the military, see Evangelicals Are a Growing Force in the Military Chaplain Corps, although that is a wholly different subject that I don't need to approach.)

So with the revised and recategorized list I have again done my very simplistic analysis based on the outcome as Employee (which also includes the position of labor) and Employer, and the now one case that remains, Mixed. See Don's post for a slightly different way of analyzing the opinions and his analysis.

At the point of over-emphasizing the obvious, the results reflect nothing in the way of a clue to Judge Roberts' views on labor and employment issues. That would take at least a careful reading of the opinions (which I certainly have not done) and even then it is quite possible that given the number and the fact that in most cases he was a participant, not an author, one might not be confident that one could predict how he would rule in any particular case. However, with that rather large caveat, it is an interesting split based just on the results (Employee - 12 Employer 18 Mixed 1). Perhaps more meaningfully, when the Court was reversing the court or agency below the results are (Employee 6 Employer 3). The two times his vote made a difference, i.e. he was to use an O'Connor reference, the "swing vote" one decision was for the employee and one was for the employer.

After all is said and done, perhaps the most that can be said about this data, but also what in all fairness should be said about it, is that Judge Roberts' judicial record with respect to labor and employment law is certainly within the judicial mainstream. And there is nothing in it, that should stand as a bar, or in my personal view as an impediment, to his confirmation.

Now back to regular blogging.

List of Employment Related Decisions

1. Bloch v. Powell, 348 F.3d 1060 (11/21/2003). 3-0 Panel. Roberts' opinion. Affirmed lower court's dismissal of claim by State Department employee. Employer
2. International Union of Operating Engineers, Local 470, ALF-CIO v. National Labor Relations Board, 350 F.3d 105 (12/02/2003). 3-0 panel. Affirmed NLRB decision in favor of employer. Employer
3. Stewart v. Evans, 351 F.3d 1239 (12/19/2003). 3-0 panel. Roberts' opinion. Affirmed dismissal of employee's claim of wrongful search by employer. Employer
4. American Federation of Government Employees v. Federal Labor Relations Authority, 352 F.3d 433 (12/23/2003). 3-0 panel. Upheld Federal Labor Relations Authority dismissal of union claim. Employer
5. Harris v. Federal Aviation Administration, 353 F.3d 1006 (01/13/2004) 3-0 Panel. Affirmed lower court's dismissal on limitations of claims by PATCO employees arising out of their placement after being rehired. Employer
6. LeMoyne-Owen College v. National Labor Relations Board, 357 F.3d 55 (02/10/2004). 3-0 panel. Judge Roberts' opinion. Granted employer's petition for review of NLRB's decision and remanded to the Board for further proceedings. Employer
7. Graham v. Ashcroft, 358 F.3d 931 (02/24/2004). 2004 3-0 panel. Roberts' opinion. Affirmed trial court's dismissal of FBI agent's claim. Employer
8. Association of Civilian Technicians v. Federal Labor Relations Authority, 360 F.3d 195 (03/12/2004). 3-0 panel. Reversed finding of FLRA, granting union's petition to review. Employee
9. S.A. Storer and Sons Co. v. Secretary of Labor, 360 F.3d 1363 (03/19/2004). 3-0 panel. Agreeing, in part, that employer had not violated OSHA standards, sent back for further proceedings. Mixed
10. Dunkin' Donuts Mid-Atlantic Distribution Center, Inc. v. National Labor Relations Board, 363 F.3d 437 (April 02, 2004). 3-0 panel. Affirmed NLRB's finding against employer. Employee
11. Evergreen America Corp. v. National Labor Relations Board, 362 F.3d 827 (04/02/2004) 3-0 panel. Affirming NLRB's finding that employer had refused to bargain. Employee
12. National Association of Government Employees, Local R5-136 v. Federal Labor Relations Authority, 363 F.3d 468 (04/06/2004). 3-0 panel. FLRA had dismissed two complaints brought by Union. Court reversed one, and upheld one. Employee
13. American Postal Workers Union, AFL-CIO, v. National Labor Relations Board, 370 F.3d 25 (06/04/2004). 3-0 panel. Affirmed NLRB decision in favor of employer. Employer
14. Stanford Hospital and Clinics v. National Labor Relations Board, 370 F.3d 1210 (06/11/2004) 3-0 Panel. Reversed NLRB order finding employer refused to bargain. Employer
15. Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161, 15 A.D. Cases 1351 (07/09/2004). 2-1 panel. Roberts in majority. Reversed finding of lower court that employee's disability discrimination claim was barred by sovereign immunity. Employee
16. In re England, No. 03-5329 (D.C.Cir. 07/27/2004) 3-0 panel. Roberts' opinion. Reversed trial court and upheld rule that Chaplaincy Board decisions not open to review. Challenge was filed by Full Gospel Chaplaincy Group. Employer
17. United States ex rel Totten v. Bombardier Corporation, 380 F.3d 488 (08/27/2004) 2-1 panel. Roberts' majority opinion. Affirmed dismissal of whistleblower complaint. Employer
18. Carter v. George Washington University, No. 01-7203 (D.C.Cir. 10/29/2004) No. 01-7203 October 29, 2004 3-0 panel. Upheld trial court's grant of summary judgment on Title VII claim. Employer
19. United States, ex rel Williams v. Martin-Baker Aircraft Co., Ltd. (11/26/2004). 3-0 panel. Reversed and reinstated whistle-blower claim. Employee
20. Resort Nursing Home v. National Labor Relations Board, No. 03-1369 (11/30/2004) 3-0 Panel. Enforcing NLRB's order against appeal by employer. Employee
21. National Treasury Employees Union v. Federal Labor Relations Authority, 392 F.3d 498 (12/17/2004) 3-0 Panel. Reversed FLRA and sustained union's complaint. Employee
22. Hutchinson v. Central Intelligence Agency, 393 F.3d 226 (01/04/2005). 3-0 panel. Affirms trial court's summary judgment in favor of employer. Employer
23. Koszola v. Federal Deposit Insurance Corporation, 393 F.3d 1294 (01/07/2005). 3-0 Panel. Roberts' opinion. Affirms dismissal of a whistleblower's claim. Employer
24. American Federation of State, County & Municipal Employees Capital Area Council 26 v. Federal Labor Relations Authority, 395 F.3d 443 (01/14/2005). 3-0 panel. Held the FLRA properly dismissed complaint of Union. Employer
25. National Treasury Employees Union v. Federal Labor Realtions Authority, 404 F.3d 454 (04/15/2005). 3-0 panel. Roberts' concurring. Upheld Union's position over whether bargaining was required. Employee
26. WalMart Stores, Inc. v. Secretary of Labor, 406 F.3d 731 (05/10/2005). 3-0 panel. Denies WalMart's challenge of OSHA violation. Employee
27. Wagener v. SBC Pension Benefit Plan - Non Bargained Program, 407 F.3d 395 (05/17/2005). 3-0 panel. Reversed trial court's dismissal of claim. Found employee had stated a claim for ERISA discrimination. Employee
28. American Federation of Labor and Congress of Industrial Organizations v. Chao, 409 F.3d 377 (05/31/2005) 2-1 Panel. Roberts' dissented. Panel found Secretary of Labor had exceeded her authority in regulations governing union reporting. Roberts' dissent argued that it was within her authority. Employer
29. ITT Industries, Inc. v. National Labor Relations Board, (06/28/2005). 3- 0 Panel. Affirmed NLRB's finding against employer. Employee
30. Booker v. Robert Halfinternational, Inc. (07/01/2005). 3-0 panel. Roberts' opinion. Severed out provision of arbitration agreement that was unenforceable, affirmed trial court and enforced the arbitration agreement. Employer
31. Porter v. Natsios, (07/01/2005). 3-0 panel. Roberts' opinion. Affirmed trial court's dismissal of Title VII claim of employee. Employer

More on Judge John Roberts' Decisions in Labor and Employment Cases

Superceded: Click here for A More Complete List of Judge John Roberts' Labor and Employment Related Decisions.

In addition to the two opinions mentioned in my prior post, a quick (which means it may not be complete) search found 27 decisions that Judge Roberts participated in on the D.C. Circuit. I have provided a brief description of the Court's actions, Judge Roberts role in the decision and characterized it as either for the employee or employer position. Althought that is a very arbitrary way of looking at decisions, it still shows that Judge Roberts has certainly not been one sided. In fact what is more notable is the number of times Judge Roberts sided with the employee's position in reversing a lower court or agency. Most, although not all, of his rulings that favored employers were in agreement with the court or agency below.

• Ramaprakash v. Federal Aviation Administration, 346 F.3d 1121 (10/21/2003). 3-0 Panel. Roberts' opinion. Reversing FAA action against employee. Employee
• Bloch v. Powell, 348 F.3d 1060 (11/21/2003). 3-0 Panel. Roberts' opinion. Affirmed lower court’s dismissal of claim by State Department employee. Employer
• International Union of Operating Engineers, Local 470, ALF-CIO v. National Labor Relations Board, 350 F.3d 105 (12/02/2003). 3-0 panel. Affirmed NLRB decision in favor of employer. Employer
• Stewart v. Evans, 351 F.3d 1239 (12/19/2003). 3-0 panel. Roberts' opinion. Affirmed dismissal of employee’s claim of wrongful search by employer. Employer
• American Federation of Government Employees v. Federal Labor Relations Authority, 352 F.3d 433 (12/23/2003). 3-0 panel. Upheld Federal Labor Relations Authority dismissal of union claim. Employer
• LeMoyne-Owen College v. National Labor Relations Board, 357 F.3d 55 (02/10/2004). 3-0 panel. Judge Roberts' opinion. Granted employer's petition for review of NLRB's decision and remanded to the Board for further proceedings. Employer
• Graham v. Ashcroft, 358 F.3d 931 (02/24/2004). 2004 3-0 panel. Roberts' opinion. Affirmed trial court’s dismissal of FBI agent’s claim. Employer
• Association of Civilian Technicians v. Federal Labor Relations Authority, 360 F.3d 195 (03/12/2004). 3-0 panel. Reversed finding of FLRA, granting union’s petition to review. Employee
• S.A. Storer and Sons Co. v. Secretary of Labor, 360 F.3d 1363 (03/19/2004). 3-0 panel. Agreeing, in part, that employer had not violated OSHA standards, sent back for further proceedings. Mixed
• Dunkin' Donuts Mid-Atlantic Distribution Center, Inc. v. National Labor Relations Board, 363 F.3d 437 (April 02, 2004). 3-0 panel. Affirmed NLRB’s finding against employer. Employee
• Evergreen America Corp. v. National Labor Relations Board, 362 F.3d 827 (04/02/2004) 3-0 panel. Affirming NLRB’s finding that employer had refused to bargain. Employee
• National Association of Government Employees, Local R5-136 v. Federal Labor Relations Authority, 363 F.3d 468 (04/06/2004). 3-0 panel. FLRA had dismissed two complaints brought by Union. Court reversed one, and upheld one. Employee
• Duchek v. National Transportation Safety Board, 364 F.3d 311 (04/20/2004). 3-0 Panel. Roberts' opinion. Held FAA action arbitrary regarding drug test. Employee
• American Postal Workers Union, AFL-CIO, v. National Labor Relations Board, 370 F.3d 25 (06/04/2004). 3-0 panel. Affirmed NLRB decision in favor of employer. Employer
• In re England, No. 03-5329 (D.C.Cir. 07/27/2004) 3-0 panel. Roberts' opinion. Reversed trial court and upheld rule that Chapliancy Board decisions not open to review. Challenge was filed by Full Gospel Chaplaincy Group. Mixed
• United States ex rel Totten v. Bombardier Corporation, 380 F.3d 488 (08/27/2004) 2-1 panel. Roberts' majority opinion. Affirmed dismissal of whistleblower complaint. Employer
• Carter v. George Washington University, No. 01-7203 (D.C.Cir. 10/29/2004) No. 01-7203 October 29, 2004 3-0 panel. Upheld trial court’s grant of summary judgment on Title VII claim. Employer
• United States, ex rel Williams v. Martin-Baker Aircraft Co., Ltd. (11/26/2004). 3-0 panel. Reversed and reinstated whistle-blower claim. Employee
• National Treasury Employees Union v. Federal Labor Relations Authority, 392 F.3d 498 (12/17/2004) Reversed FLRA and sustained union’s complaint. Employee
• Hutchinson v. Central Intelligence Agency, 393 F.3d 226 (01/04/2005). 3-0 panel. Affirms trial court’s summary judgment in favor of employer. Employer
• American Federation of State, County & Municipal Employees Capital Area Council 26 v. Federal Labor Relations Authority, 395 F.3d 443 (01/14/2005). 3-0 panel. Held the FLRA properly dismissed complaint of Union. Employer
• National Treasury Employees Union v. Federal Labor Realtions Authority, 404 F.3d 454 (04/15/2005). 3-0 panel. Roberts' concurring. Upheld Union’s position over whether bargaining was required. Employee
• WalMart Stores, Inc. v. Secretary of Labor, 406 F.3d 731 (05/10/2005). 3-0 panel. Denies WalMart’s challenge of OSHA violation. Employee
• Wagener v. SBC Pension Benefit Plan - Non Bargained Program, 407 F.3d 395 (05/17/2005). 3-0 panel. Reversed trial court’s dismissal of claim. Found employee had stated a claim for ERISA discrimination. Employee
• ITT Industries, Inc. v. National Labor Relations Board, (06/28/2005). 3- 0 Panel. Affirmed NLRB’s finding against employer. Employee
• Booker v. Robert Halfinternational, Inc. (07/01/2005). 3-0 panel. Roberts' opinion. Severed out provision of arbitration agreement that was unenforceable, enforced the arbitration agreement. Employer
• Porter v. Natsios, (07/01/2005). 3-0 panel. Roberts' opinion. Affirmed trial court’s dismissal of Title VII claim of employee. Employer

Donald Caster, who is the author of a superb blog with a different point of view, All Deliberate Speed, has contributed to this look at Judge Roberts' record with a more detailed analysis of some of the opinions on the court, as well as a look at some of the cases he handled as an advocate. See Judge Roberts' Record on Employment Law.

More I am sure will come in the future, but for those interested in going to the source materials so to speak, here's a start.

Update: Although not highlighted all case names should be links to the actual decision.

A First Look at Judge John Roberts on Labor and Employment Law Issues

Jordan Barab, an articulate advocate for employees, particularly on safety issues, takes what admittedly is a first, although relatively thorough, take on the views on labor and empoyment matters a Justice Roberts would bring to the Supreme Court if confirmed. Check out last evening's post, John Roberts, at Confined Space. Although based mostly on comments from others rather than examples of opinions he has authored it does give you a flavor of how he is going to be viewed by organized labor.

Mentioned is Roberts representation of Toyota in the Supreme Court case explaining how restrictions on major life activities were to be interpreted under the ADA, but as I mentioned in my post of last night, Now Let the Feeding Begin, it seems unlikely that will be much of a weapon when Toyota Motor Manufacturing v. Williams was a unaminous opinion authored by the now "revered" Justice O'Connor.

Meanwhile over at the Supreme Court Nomination Blog, which is keeping a list of Judge Roberts D.C. Circuit Court opinions, so far the only one appearing under employment law is:

Koszola v. FDIC, 393 F.3d 1294 (D.C. Cir. 2005) [pdf] - Writing for a unanimous panel, Judge Roberts rejected the plaintiff's claim that the FDIC violated the anti-retaliation provisions of the Whistleblower Act by terminating him. The relevant law provides that the government can avoid liability by establishing by "clear and convincing evidence" that it would have taken the same action absent the employee's disclosure. Judge Roberts declined to adopt the Federal Circuit's requirement that courts apply a special test for "clear and convincing evidence" in this context on the grounds that it is a common legal standard with which judges are familiar.

On another issue with labor overtones and mentioned in Barab's post, is Judge Robert's dissent in AFL-CIO v. Chao. It is also summarized on the Supreme Court Nomination Blog:

AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005) - Judge Roberts dissented from the majority's holding that the Secretary of Labor exceeded her statutory authority by promulgating certain reporting requirements for labor unions. Judge Roberts highlighted several aspects of the statutory delegation that indicated that Congress had intended to confer especially broad authority on the Secretary, and concluded that the regulations should have been upheld at Chevron Step Two.

Rather than substance, Judge Roberts was more concerned with the proper division of power between the Court and the Department of Labor:

Perhaps the Secretary was wrong in her assessment about what degree of union involvement in the affairs of a trust poses a danger of the trust being used to circumvent or evade reporting requirements, but see Time Warner Entertainment Co. v. FCC, 240 F.3d 1126, 1141 (D.C. Cir. 2001) (FCC’s attribution of influence based on control of 5% of company’s voting shares domination or control test would prove unworkable, and perhaps the majority’s approach is right. That is not the question before the court. The statute plainly delegates the authority to make such policy-laden judgments to the Secretary — the question is what “[s]he may find necessary to prevent the circumvention or evasion of . . . reporting requirements,” 29 U.S.C. § 438 (emphasis added) — and the Secretary has reasonably exercised that authority. I therefore respectfully dissent from Part III of the court’s opinion. [emphasis added]

Obviously much more will be learned about Judge Roberts' views over the coming weeks, stay tuned.

Now Let the Feeding Begin ...

Mercifully, for me and those of you reading this blog, any reporting about the confirmation process of Supreme Court nominee Judge John Roberts, will be limited to his views on employment and labor cases. On that note, one thing I did not know was that he represented Toyota in Toyota Motor Manufacturing Inc. v. Williams, one of the major cases viewed as being a limiting decision interpreting the Americans with Disabilities Act. And for those Senators (e.g. Senator Leahy D-Vt) who have been so liberal in their praise of retiring Justice O'Connor, it will be interesting to see how they can bash Judge Roberts for being an advocate in that case, decided unaminously by the Supreme Court and authored by none other than Justice O'Connor.

But before bowing out of the feeding frenzy, I would make just two more points. First, back in the good old days I believe Judge Roberts is the type of nominee, who based on what is known so far, would have been warmly received and would have been confirmed after an appropriate, but polite confirmation process. That is not a partisan comment, because I have no doubt if the situation were reversed and a comparable liberal, but well qualified from the standpoint of intellect, integrity and judicial temperament were nominated by a Democratic President that the same kind of donnybrook we are about to see would also occur. (My guess is that Judge Roberts is no further right, than Justice Ginsburg was left. The fact that her nomination did not cause a comparable outroar is more a sign of how badly the partisan atmosphere has deteriorated in the 12 years since her nomination rather than a comment on their prospective relationship to the judicial mainstream.)

Secondly, if I were a Democrat, particularly one running for office in the 2006 elections, I would be deathly afraid that the face and image of the party is going to be represented most prominently by Senator Leahy and his right hand person for judicial nominees, Senator Schumer (D-NY). In his post-announcement rush to challenge Judge Roberts, the anticipation of 12 weeks (months?) in the spotlight was all too evident. Maybe we will get a replay of Senator Hatch telling him that he is asking "dumb ass questions" that occurred in Judge Roberts confirmation hearings for the D.C. seat he now holds. See Howard Bashman's post and link to those hearings here. Senator Schumer will of course not be the only big ego in the confirmation hearings, but my guess is that he will be by far the most obnoxious. Apparently, I was not the only one who was less than impressed with the start of the Democratic Dynamic Duo, see Professor Ethan Leib's post about their conference at PrawfsBlawg, that begins, "Why do the Democrats do such stupid things sometimes?"

Covenants Not to Compete, Texas Style and the Supreme Court Selection

I know next to nothing about Judge Edith Brown Clement, the media predicted nominee to replace Justice O'Connor. But in the next ten to twelve weeks I am quite sure I will be told more than I want to know about her by people who know next to nothing as well. (Actually that probably can be said of the last six hours.)

The only decision of Judge Clement's that I do know anything about is of significance only to those who have ever tried to determine the enforceability of a covenant not to compete under Texas law.

As some background, it helps to know that in the late 1980's and early 1990's there was a contest of wills between the Texas legislature and the Texas Supreme Court that could basically be summarized as the legislature favored covenants not to compete and the Supreme Court opposed them. After bouncing back and forth with each trying to outdo the other, the matter was finally "settled" by a Supreme Court decision, Light v. Centel Cellular which has puzzled practitioners and courts for a number of years. My view has always been Light ended the debate between the legislature and the Supreme Court because it took years for anyone to understand it.

Just as lawyers were beginning to feel they had some handle on how Light was going to be interpreted by the courts, the 5th Circuit handed down Guy Carpenter & Company, Inc. v. Provenzale, 334 F.3d 459 (5th Cir. 2003) authored by Judge Clement. (There was some irony in that the 3 judge panel interpreting a highly confusing Texas body of law consisted entirely of Louisiana judges.) Although any opinion which waded into the murky waters of Light was potentially difficult to understand, Guy Carpenter was at best confusing, particularly given the way Texas courts had begun to interpret Light.

Commentators agreed. From the Texas Labor and Employment Law Section's newsletter:

The Fifth Circuit also appears to hold that the seminal Texas case on covenants not to compete, Light v. Centel Cellular Co. of Texas, 883 S.W.2d 642 (Tex. 1994), has been misinterpreted by most of the intermediate Texas courts of appeals. In a nutshell, the Fifth Circuit's decision indicates that when an employee's access to trade secrets is the reason for a noncompetition agreement, the noncompetition agreement will not fail merely because the promise of such access may be "illusory" to an employee at will. [emphasis added]

Or Cameron J. Shilling, in his article Restrictive Covenants: A Multi-State Survey Of Judicial Decisions From January 2003 Through January 2004:

Some Courts construe this timing requirement very strictly. See C.S.C.S., (agreement stating that employer "may reveal" confidential information to employee is insufficient); Sheshunoff, ("The fact that [the employer] gave new confidential information and training to [the employee] some time after entering into the agreement will not suffice.") Tom James of Dallas, Inc. v. Cobb (agreement stating that employee "has received" confidential information is insufficient). Other courts do not construe the timing requirement so strictly. See Beasley v. Hub City Texas, L.P., (agreement stating that employee "will be" granted access to confidential information is sufficient where employee later was provided with such information); Guy Carpenter & Co., Inc. v. Provenzale (refusing to read the timing requirement strictly because doing so "pin[s] the enforceability of non-solicitation agreements on whether an employer discloses confidential information at the time the employee signs an employment contract, [which] is not what [Tex. Bus. & Com. Code Ann.] §15.50 intends or requires.") Unfortunately, these disparate readings of the timing requirement are leading to factually indistinguishable results, and confusing Texas' statutory law governing restrictive covenants. [all cites omitted, emphasis added]

One law firm's comment on the decision was that, "The safest route for an employer is to promise in the agreement to provide at least some of the confidential information the moment the employee begins working. Many of the Texas cases have required this, and it is far from clear that the Fifth Circuit's opinion in Provenzale represents the law in Texas.[emphasis added]

And finally, in a written paper at an employment and labor law seminar this spring, two commentators note, "The Fifth Circuit's 2003 opinion in Guy Carpenter & Company, Inc. v. Provenzale ... demonstrates the confusing nature of the unusual non-compete law in Texas. ... The Fifth Circuit, in a confusing opinion, reversed the trial court." [emphasis added]

Although admittedly confusing, Judge Clement's opinion got to what many thought was a common sense reading of the statute and arguably what the pro-covenant legislature had intended. In fact, the Texas Supreme Court is currently considering a case which gives it another opportunity to bring some clarity to this area of the law.

But my biggest hope -- that no Senator bothers to ask Judge Clement about this opinion. No one should be forced to defend having to sort out the post-Light jumble of decisions and the current state of Texas law on the enforceability of covenants not to compete. The process will be painful enough without that added burden.

One final irony -- the author of the initial opinion in Light v. Centel Cellular that started us down this path? None other than one of the likely shepherds of Judge Clement's nomination, then Texas Supreme Court Justice, now United States Senator, John Cornyn, a member of the Judiciary Committee before whom Judge Clement will first appear.

Updated: Almost two years after it was argued the Texas Supreme Court finally issued its opinion in Sheshunoff, see Major Change in Texas Non-compete Law.

Learning From the Enemy - Plaintiffs' Class Action Employment Lawyers' Tips for Employers

Joseph M. Sellers and Julie Reiser, lawyers in the D.C. office of Cohen, Milstein, Hausfeld & Toll outline their credentials for their article, Companies in the Crosshairs, in Legal Times:

While we have many years of experience representing victims of employment discrimination, we do not generally give legal advice to employers. But we have served as lead or class counsel in more than 30 of these cases, including the Wal-Mart and Boeing cases, and we can offer clues to the workplace practices that cause particular employers to become the subject of careful investigation and, in some cases, the target of litigation.

You need to read the article to get the details, but here are the factors these lawyers look at in evaluating whether or not to file a suit as a class action:

1. A repeated pattern of individual complaints.

2. Failure to afford employees equal opportunity to compete for job openings.

3. Failure to guide managers in the exercise of discretionary employment decisions.

4. Failure to ensure that the factors on which employment decisions are based are job-related.

5. Failure to monitor individual manager decisions and failure to audit work-force data to detect patterns of discrimination.

6. Failure to respond promptly and effectively to employee complaints.

7. Epithets and bigoted humor in the workplace.

All good tips, but I have bolded two that I would particularly emphasize. Really just common sense things, but as most lawyers who practice on both sides of the employment law docket will admit, if common sense was present in abundance, there would be a lot less need for our kind.

Paramour Claims Live in California - Although Maybe It's A Question of How Many?

Meandering through what sounds as if it was a modern day Peyton Place set behind bars, the California Supreme Court in a case involving the California prison system, today unanimously found a cause of action for paramour preference can exist. The Court set out the circumstances under which such a cause of action is viable:

[A]lthough an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as "sexual playthings" or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management.

Miller v. Department of Corrections (7/18/05) [pdf].

Having established a new standard, the Court goes on to find that the plaintiffs had done enough in this case to go forward on their claims, reversing summary judgment which had been affirmed by the intermediate appellate court.

The defendant tried to rely on a large body of cases holding that a supervisor who favors only his (or her) paramour, without more, is not sufficient to establish a cause of action. While not disagreeing in theory, the Court found they were not applicable here where the allegations were that the supervisor in question, a prison warden, was having affairs with three different female employees, apparently at the same time. There were also allegations that one of the three women involved with the male warden may also have been having an affair with a female warden, but it appears that fact was more a matter of (prurient?) interest than a needed ingredient for the claim which the Court today finds exists.

As support for their theory, the Court relied (you could almost see the gleam in their eye) on EEOC statements of position approved by no less than the then Chair of the EEOC, now Supreme Court Justice, Clarence Thomas.

An overly simplistic view of the case is that the law in California is one affair with a subordinate is ok, simultaneous affairs with three subordinates is not, and two --- remains to be seen. Pragmatically, it means more involvement in the affairs (pun definitely intended) of their employees will now be required of those brave souls known as California employers.

Blawg Review #15 - Ready for Perusal

You have to not only love, but stand in awe at the wit and energy behind Blawg Review #15, hosted this week by fellow management employment lawyer, George Lenard at George's Employment Blawg. You know it has potential when it sets out these self imposed criteria:

Blawg Review #15 shall have a groovy, rockin', psychedelic 60s and 70's theme.

Every post shall be grouped under a pop-song heading, preferably the Beatles.

Every Graphic shall complement this theme in some fashion.

And then meets them all in splendid fashion! It is a mid-summer must read.

And thanks for his kind words on the 3rd anniversary of Jottings:

I started this Blawg (a bit over two years ago), knowing Jottings was the main "competition." It soon became obvious to me that the universe of blawg-worthy material was more than adequate to keep us from being redundant.

Jottings is frequently included in my HR/Employment Blogosphere Updates, because of the consistently well-summarized case analysis, something I often lack time for. Jottings has been a good competitor in setting a high standard and inspiring me to reach out in a slightly diferent direction -- making this Blawg somewhat more HR-oriented.

With wit and humor as exemplified by today's post extravaganza (inspired no doubt by the Grateful Dead Tshirt and week end reunion) there is no danger of George's Employment Law Blawg showing up on anyone's redundancy list.

My First Post - 3 Years Ago

Wednesday, July 17, 2002
Posted 9:55 PM by Michael

For lack of a green card

..... No, not the kind typically associated with immigration issues, but the kind that accompanies certified mail and is used to prove when an item is received. Some time ago, the EEOC (at least where I practice) quit sending right to sue letters by certified mail. Since the time for filing a lawsuit is tied not to the date of the right to sue letter, but the date of receipt, it is easy to see the kind of problems that were certain to arise. Rather than having government certified (or quasi-government, depending on your view of the U.S. Postal Service's status) proof that the right to sue letter was received on a date certain it is now open to speculation. The 5th Circuit Court of Appeals has added its voice to other courts to at least provide a partial answer. When the date of receipt is uncertain or disputed, the Court will use a statutory presumption that it was received between 3 to 7 days after its date. In this case the court didn't need to be more certain since the suit was untimely regardless of which standard the court applied. Taylor v. Books A Million, decided 7/15/02.

The argument for the three days is the period applied in the Federal Rules of Civil Procedure for service of documents by mail. That would make sense, and hopefully will be the standard applied when the Court is forced to decide that issue.

********************
Hard to believe that it has been three years since I penned that first post. A particular thanks to Professor Ross Runkel, who is an incredible source of information on anything related to employment and labor law at LawMemo, who had these kind words on the occasion of the third anniversary of this blog:

"Jottings By An Employer's Lawyer" is a model of professional blogging by an attorney. Here is why:

Michael faithfully keeps to the topic of employment law.

He writes about important court decisions immediately after they are decided.

He includes serious articles that are relevant to employment lawyers, human resources professionals, and union representatives.

He presents his information in a clear manner.

He has a thing about million dollar verdicts (MDVs), and reports on them faithfully.

That is a great compliment and a good summary of what I hope this endeavor provides for those who read it regularly or stumble across it in search of the type of information that it contains.

Thanks to all who have stopped by once or many times.

Nice Retirement Send Off - $5.2 Million Award

Just not a good year for Anaheim. First their baseball team drops their name, excuse me it is technically the Los Angeles Angels of Anaheim, and now a 30 year police veteran has won the largest award ever by an individual against the city. Ray Welch, 51 and a 30 year veteran of the police force retired after he was injured on the job and according to the jury verdict discriminated against after he complained to the state Department of Fair Housing and Employment that he had been passed over for promotion. After a 2 ½ week jury trial, the result, Ex-Anaheim Officer Awarded $5 Million.

The reports of the trial are not very complete, the only indication of what might have caused the jury's reaction was Welch's lawyer's comment that there was testimony that other's overheard the Chief of Police had said Welch would never get any other assignments [perhaps implying that the Chief had said otherwise] and that Welch basically had been relegated to answering the phone.

One thing that was common to a number of the MDV's that have been reported on here, the reaction from the defendant. By an assistant city attorney: "We're very surprised and somewhat shocked by it." Somewhat?

The Business View of the Supreme Court -- Not Getting Its Fair Share of Attention?

As barrels of ink* are being written about the Supreme Court, most of it about the horse race aspect of who will get picked and why, BusinessWeek has an interesting perspective on how the business world will view the Rehnquist Court, which, regardless of when it actually happens, is clearly coming to an end. The point -- not enough attention paid at the high court to basic business problems -- the kind found in statutory interpretation cases, not grand constitutional principles. Speculating on why, the article poses it may be the lack of real world business law experience on the part of any members of the Court. Check out, The Hands-Off Rehnquist Court.

The article does note that business should be thankful for what it has received:

The Rehnquist Court has bestowed many valuable gifts on Big Business. Over the past 18 terms it has, among other things, placed strict limits on punitive damages, curtailed the ability of plaintiffs' lawyers to exploit questionable "junk" science, granted greater commercial free speech protection to marketing, and prevented the Americans with Disabilities Act (ADA) from becoming a financial nightmare.

And I would say that employers can't realistically complain about not getting enough attention, although the last two terms have not been overly exciting in the employment law world. Many of the decisions would have been dramatic only if they had been decided differently.

I would second the idea in the BusinessWeek that one of the most important, perhaps even surprising, areas has been the Court's interpretation of the Americans with Disabilities Act. While others, particularly advocates for the disability community, are highly critical of the Court's actions, my belief has always been that the Court felt compelled to apply a high threshold for the Act's applicability, because for once they truly did fear the proverbial "floodgates of litigation."** Rather than allowing the game players to take advantage of a most expansive definition, they reigned it in. The failure to do so would have been a financial disaster for business and a litigation quagmire. In the end, I don't think that would have been good for anyone, including the disabled community.

* A metaphor that may soon be obsolete as pixels not print become the dominant method of communication.

**According to Professor Michael Bazyler's recent article in the University of Richmond Law Review, "The phrase 'opening the floodgates of litigation' connotes a pejorative meaning in American legal argument. Most often, it is used by courts as a reason not to allow a certain case to proceed for fear that it would overburden both courts and society with a new class of lawsuits." Quoted in the California Cure for Japanase War Crimes.

Hiring Decisions: The Mother Penalty, The Father Bonus

At least on a theoretical basis, two Cornell sociologists have determined both exist. Their recently presented study showed the following ranking (from best to worst) in terms of hiring decisions and starting salaries: fathers, childless women, childless men, mothers. The report discussed at Two New Studies Look at Mothers -- and Smokers -- in the Workplace - also reported on another study, that smokers earn less than over the long term than non-smokers.

But it was the mother, father discussion that caught my eye, particularly given the way the study was done:

[The sociologists] created resumes and human-resource department memos for candidates for an executive-level marketing job in a communications startup. The resumes contained effectively identical qualifications. Correll and Benard then added features to distinguish the candidates. On some resumes, they indicated that the candidate served in a parent-teacher association. On others, they said he (or she) served in a neighborhood association. The HR memos also included notations on whether a candidate was a parent or married. Correll and Benard used names to flag candidates' gender. Some were given typically male names while others received typically female ones.

The scholars hired college students to act as screeners, telling them that the hiring company marketed to young people and thus wanted their input in its hiring decisions. They gave each student a pair of resumes -- two women or two men; one a parent, the other not -- and instructed them to rank the candidates and even propose starting salaries. They also asked them to suggest how many late arrivals at work a candidate should be allowed before being penalized.

On every measure but one, mothers scored lower than everyone else. (On the number of late arrivals allowed, they tied with men without kids.) Mothers were ranked as less competent and committed and least likely to be promoted. And they were offered lower starting salaries.

Other research data in their paper indicates that in prior research college undergraduates' ratings of candidates tended to mirror that of professionals. If that is true, not sure how employers guard against this type of decision making intruding into their own hiring process, but knowledge might be a start.

A hat tip to Heath Row at Fast Company for the link.

What is Work at a Call Center? A Million Dollar Suggestion

Actually what is work at a call center remains an open question, but just how serious a question is indicated by news of a $1 million plus settlement by healthcare giant Humana, Inc. as reported in the Louisville Courier Journal, Humana reaches back-wages deal. What was at issue?

The workers were not paid for time spent powering up computer equipment, logging on to the network and bringing up programs necessary for their work. "They can't do their job" without performing those duties, "so that's considered work time," said Jo Anne Burgoyne, a spokeswoman for the Labor Department's office in Atlanta.

The FLSA continues to be a major area of serious, i.e. big dollar, litigation for employers.

Attention will again be focused on the issue of what is work when the Supreme Court takes up two cases on whether employees are required to be paid for certain waiting time in Tum v. Barber Foods and IBP v. Alvarez next term, as I reported here when certiorari was granted. A year before the Supreme Court granted cert, I had called Tum "a solid win for the employer, Doffing & Donning, Walking & Waiting - A Hit At the Chicken Plant, so it would be nice to have a Supreme Court affirmation, rather than more fuel being thrown on what to many employers is feeling more and more like a hot flame.

"To Care For a Family Member" Under FMLA Has Limits

And an Alaska Airlines maintenance mechanic exceeded them when the days he took off to spend with his pregnant wife were diverted into a cross country trip to Atlanta to return a car he had there to his Seattle home. The fact that he called his wife regularly during the trip, or that having a working vehicle might be "psychologically reassuring," were not enough to bring him within the protective cover of the FMLA. Tellis v. Alaska Airlines, Inc. (9th Cir. 7/12/05) [pdf].

The Court relied on its previously articulated standard, "Interpreting this rule, we have previously stated that caring for a family member with a serious health condition “involves some level of participation in ongoing treatment of that condition.” Marchisheck v. San Mateo County, 199 F.3d 1068, 1076 (9th Cir. 1999).

The Court also took the pains to quote from a California state court decision reviewing the state equivalent regulation to point out there is an additional element -- the assistance must have at least some relationship to the family member's medical care. In finding that time spent moving her mother to a one story apartment from a two story house to minimize the need for on-going at home assistance was not protected, the state court wrote:

Pang’s admissions make clear that she was not there to directly, or even indirectly, provide or participate in medical care for her mother. Instead, she was there to help pack her mother’s belongings and tell the movers where to place her mother’s furniture. While Pang’s presence may have provided her mother some degree of psychological comfort, this was merely a collateral benefit of activities not encompassed by the Commission’s regulations.

For those concerned about 'loopholes' in the FMLA that are easily exploited decisions of this nature are at least some comfort. Unless of course the 9th Circuit, as it sometimes does, reels it back via an en banc proceeding. Even though it wouldn't shock me, I wouldn't predict it.

A hat tip to Ross Runkel who was blogging about this case at his Law Memo within what must have been minutes of its issuance by the 9th Circuit, see Fetching a car is not FMLA protected leave.

Not Practicing What He Is Preaching -- A Management Lawyer Is On Vacation

Michael Fitzgibbon, a Toronto labor and employment lawyer, who keeps tabs on what is happening in Canadian employment law matters at Thoughts of A Management Lawyer, posted some great vacation factoids just as he was leaving town for what is I am sure a well earned vacation, A Vacation by Any Other Name? :

• last year, Americans forfeited an average of 3 paid vacation days - 415 million days total - a 50% increase over 2003
• the value of unredeemed frequent-flyer miles is $700 billion, exceeding the value of U.S. dollars in circulation
• middle-aged men who skip vacation for five years increase their risk of heart attack by 30%
• the RAND Corporation in California now gives its employees a 5% bonus if they use all of their vacation days
• 32% of paid vacation time is spent doing non-vacation activities
• 30% of employees do office-work during vacation
• 43% return feeling overwhelmed by the work they have to do

I happened to have an email exchange with Mike today, and so I know he has not totally slipped into vacation mode. "Tomorrow," he says, uttering words that many of us have said all too often when we are supposed to be vacationing.

When 2/3 Of Your Panel Are Supreme Court Possibilities

Talk about a high powered panel. Depending on whose list and when you look at it, you have one on the 'short' list to replace Justice O'Connor in Judge Luttig and one on the at least "mentioned and recommended" list in Judge Wilkinson. So it it is interesting to see how they handle a question of federal jurisdiction, which in some respects is the first limitation on an activist judge.

Although it is a basic that was drilled into those of us who were fortunate to have Professor Bernie Ward for federal courts, it is nevertheless a mantra that needs repeating, federal courts are courts of limited jurisdiction. Thus the first decision a federal court must always make is whether it is empowered to hear the case.

Here the facts arise out of a wrongful termination suit brought by two ex-employees, one who claimed she was terminated when she refused to ask a friend who happened to be a deputy sheriff to arrest a union organizer. The suit was filed in state court, but removed to federal court by the employer who claimed that the wrongful discharge claim allegedly brought under West Virginia state law was pre-empted by federal law, namely the National Labor Relations Act.

The district court agreed and dismissed the wrongful termination claim, while remanding a state wage claim to the state courts. On appeal, the former employees challenged the dismissal. Judge Wilkinson drew the honors of explaining the difference between "total pre-emption", where state law is entirely displaced by federal law, thus giving the federal courts jurisdiction, and merely "pre-empted" by state law such that there may be a valid defense, but no federal jurisdiction. It sounds more complicated than it really is, as Judge Wilkinson is able to explain in his well crafted opinion. Lontz v. Tharp (4th Cir. 7/1/05) [pdf].

Judge Wilkinson makes his point on why this issue is important:

If this distinction amounted to deciding which court had the honor of dismissing the case, it might appear to be a dispute over trifles. But even if the structural allocation of authority could be dismissed as trivial, we think more is at stake. For instance, the removal-cum-dismissal urged by defendants is predicated on the assumption that sections 7 and 8 do in fact preempt the state law claims. But what if that assumption is faulty? Garmon itself made clear that not every state law claim that touches on sections 7 and 8 is in fact preempted. [cites omitted] If it turned out that the plaintiffs’ claims here are among those not preempted, removal and dismissal unconstitutionally deprive the plaintiffs of the opportunity to make their case, and deprive West Virginia of the right to vindicate its own non-preempted laws.

Ultimately what the Court hints may well happen is that the West Virginia court to which the case is being remanded will hold that the matter is pre-empted by the NLRA, under the so called Garmon pre-emption test, but that is for the state court to decide. Since there is not complete pre-emption, the federal court had no power to make that (or any other) decision.

Maybe not a big test, but for those looking for judges who understand the limits to their powers, clearly a passing score. My only complaint - Judge Wilkinson's use of "conflation," which while accurately used is a word whose time has come out of nowhere in the last few years, but at least for me, has more than worn out its welcome.