Race in Hiring: What's in a Name? Perhaps Plenty if You're a Job Seeker

With Trent Lott making racial issues the headline of the day, this is a reminder that not all is necessarily well in the employment field. And the problems are not limited to the South. Check out the story in today's NYTimes on a recent study.

Wondering How to Explain No or Low Raises to the Troops?

The magazine CFO story, cleverly titled: Raises? Get Out the Microscope at least offers some cover.

No Right to Sue Letter Required for Age Claim - Fifth Circuit

The plaintiff filed an EEOC charge alleging age discrimination, and then amended his lawsuit to add his age claim within 2 years of the allegedly discriminatory act. What he did not have, at any time, was a right to sue letter for his age discrimination claim. Defendant argued this deprived the court of jurisdiction. Neither the district court, nor the Fifth Circuit bought the argument. Finding the language of the age act different from Title VII, the Court found a right to sue letter is not required under the ADEA. The window for suing under the ADEA runs from 60 days after filing the charge to 90 days after receipt of a right to sue letter, if one is received. Julian v. City of Houston (5th Cir. 12/11/02). This is the second time in the past 2 years, the Fifth Circuit has had to deal with procedural issues involving the ADEA. Last summer, the Fifth Circuit made the opposite finding: merely having a right to sue letter from the EEOC is not sufficient, when the plaintiff never filed a charge. Steve Mierl, one of my colleagues here in Austin, was instrumental in making sure that the EEOC practice of issuing a right to sue letter to an individual who had not filed his own charge of discrimination was shot down and that the Court did not apply the piggyback rule where the one party who filed a charge, never filed a lawsuit. Bettcher v. Brown Schools (5th Cir. 2001).



In Julian, the City not only lost its jurisdictional argument, but it also suffers the possible loss of front pay as the Fifth Circuit sent the case back to the lower court to consider whether or not instatement to the position he had been denied a promotion too was feasible, and if not, whether front pay would be appropriate. Among the court's rulings were that the mere fact that his position would be at will was no reason alone to deny front pay, and that even though any award was somewhat speculative, that risk was to be borne by the discriminating party, not the employee.

Million Dollar Verdicts - ADA case in California

Over the years, I have kept a file of reports of $1,000,000 plus jury verdicts in employment law cases. I hoped that I could learn something from them, thus avoiding having my name ever mentioned prominently in such a story. Jottings seems a perfect place to collect those reports and quite often, the stories give a sense of what did go wrong at trial or with the case. Here's the latest involving a 59 year old employee, a long time 'temporary employee' who had apparently been doing the job for some time, but couldn't pass a physical agility test to become a permanent employee, which would have provided benefits. You can read the initial story here.

Cash Balance Plans To Get Green Light

The Department of Labor has issued proposed regulations that would give guidance (and clearance) for employers wishing to convert to so called cash balance benefit plans. You can read the New York Times story here or check out the actual proposed regulations [pdf].

Texas Legislature - Proposed House Bills

The legislative session doesn't open until January 3, 2003, but many of the Representatives-elect have already begun to pre-file legislation. Among the bills that would impact employment practices are the following:



HB 50 Sylvester Turner D - Houston. Mandatory leave for employees to attend school conferences, and penalties against retaliation for exercizing that right.



HB 105 Norma Chavez, D - El Paso. Would allow unemployment benefits, without charge to an employer's account, if an employee is forced to leave employment because of domestic violence.



HB 126 Lonnie Burnam D - Fort Worth. Requires parity for mental illness in disability policies sold in state of Texas.



HB 145 Burt Solomons R - Carrollton. Provides for modification to enforcement of interlocutory orders of the Texas Workers Compensation Commission.



HB 152 Ron Wilson D - Houston. Placing limitations on an employer's ability to obtain so called 'dead peasants insurance' [pdf] which has led to substantial litigation.



HJR 18 Suzanna Hupp R - Lampasas. A constitutional amendment to grant a broad right of privacy.



A look at the pre-filed Senate legislation will be forthcoming.

Forbes Points Out Rise In Wage & Hour Class Action Suits

Yesterday's article focuses on a procedural step in an on-going case against C.H. Robinson to add a class of 3,000 employees, but goes on to note the growing trend of such suits. Although suits under California's more pro-employee wage and hour law are the most common, more and more suits are being brought under the Fair Labor Standards Act which applies to employers in all states.