What You Can Find On the Web - the Board's §10(j) manual

Having been mostly out of pocket last week, I am sure this is old news now, but checking up this morning through Tom Mighell's (of Inter Alia fame) newsletter, I found mention of a new blog (to me) from the library at Lewis & Clark Law School, the BoleyBlogs, and a quick trip there found a reference to the allegedly complete (but bootlegged) copy of the National Labor Relations Board §10(j) manual. If I had been reading my regular blogs I would have found Robert Ambrogi's LawSites original post, last Monday, just like BoleyBlogs did, and I could have referred you to it then. I had difficulty getting the link to work, although it finally did. Hard to believe that there are that many people interested in Section 10(j) of the National Labor Relations Act, but if you have a real passion, just keep trying.

Wage and Hour Regulations - What Else You May Feel - What A Mess

Regardless of your view on the now published and theoretically to become effective August 23, 2004 regulations revising the white collar regulations that regulate the most common exemptions to the wage and hour law, you would have to agree that the process is nothing less than a mess. There is surprisingly little comment in this week end's news, although the story is far from finished. For a quick recap of the week's happenings see the CBS MarketWatch story,Senate votes to block new overtime regulations. However, it was not only the Harkin amendment that passed but also the Gregg amendment, which permanently exempts 55, many not well described occupations. What would happen if all of this became law would be a hopelessly confused situation, where you now might have to analyze exemptions under the old regulations, the new regulations, and the Gregg amendment and in order to be exempt it would have to pass all three. So much for simplicity. Of course both the Gregg and Harkin amendments have to complete the Congressional gauntlet and if they should, the President will then have a tough election year choice. Hard to predict what will happen, but pretty easy to know that it will be a mess no matter what.

The Million Dollar Verdict Back - In A Big Way - $15 Million for Sexual Harassment

A two week trial in U.S. District court in Albany, N.Y. ended in a $15 million verdict for 25 year old Kristen Nestler, who brought sexual harassment charges against Chartwell Dining Services. Although because of caps, the recovery will only be $450,000, it still is an impressive statement. Check out the story in the Albany Times Union or the one in the Troy Record. The jury was apparently upset as much about the "sham" investigation as it was the conduct of the middle age manager who harassed the much younger marketing manager. The final blow was when the company told her that none of her co-employees corroborated her story, which was not true.

New Drug Testing Rules and Methods - Hair, Saliva and Sweat

The Houston Business Journal has a story on new drug testing methods that are mentioned in the proposed revisions for the Federal Workplace Drug Testing Programs.

Where is a Jury When You Need One?

Must be what the plaintiff was thinking in Koons v. Aventis Pharmaceuticals, Inc. (8th Cir. 5/7/04) [pdf]. After working 15 years, the plaintiff, the head of security for the company was losing his position because he did not want to transfer to New York from Kansas City. He worked on under both a severance and a key employee retention plan. What had been an exemplary performance record soured during the transition period as he was forced to end another employee's termination early. When his replacement was hired more than 6 months before his departure date he was left with relatively little to do and in fact he was urged to retire by his successor. Instead he agreed to an earlier termination date of about six weeks. Although still on the payroll he had little to do and in fact with full knowledge of the company he began to pursue a real estate career. In doing so, one thing he did was talk a lot on his company cell phone, including 3,321 minutes in August. The same month there was also a complaint from an employee who had received an announcement from the plaintiff about his new real estate adventure. That email was from a list the company considered and marked confidential. After that it becomes less clear what happened, but the plaintiff was ultimately confronted with these two issues and when he maintained they were appropriate under company policies, was terminated one month before his agreed date for violation of company policy. The problem, for him, was that the termination for policy violations cost him the $200,000 or so he was entitled to in severance pay. His claim, or at least the one that made it to the 8th Circuit, was whether he was entitled to the benefits and also whether or not he had been terminated to interfere with his receipt of an ERISA benefit. The answer by the magistrate who tried the case was no, and the 8th Circuit noting the deference it was required to give to such decisions upheld it. Since it seems a very favorable set of facts and an unusual course of conduct by the employer, the extremely favorable outcome for the employer, makes one wonder what is missing from the record. Maybe nothing more than strict adherence to the rule of law, but I am almost certain that this is one case where the plaintiff most sorely wished he had been allowed to argue his case in front of a jury of his peers.

For Certain Texas Plaintiff's, Supreme Court's Action Gives Two More Years

Race and most national origin claims, can be brought under §1981 as well as Title VII or the TCHRA. Doing so avoids the administrative prerequisites, the salary caps and now thanks to today's Supreme Court decision, plaintiffs have two more years to bring such claims. Jones v. R.R. Donnelley & Sons Co. (U.S. 5/3/04). Although it had earlier held that the most applicable state statute of limitations should apply to §1981 claims, today's decision was to determine whether that had changed because of a Congressional statute which applies a four year catchall statute of limitations to all statutes passed since 1990. The question was whether the revisions to §1981 contained in the Civil Rights Act of 1991 were enough to bring it within that statute. The answer,unanimousous yes. And so in Texas where we have the two year tort statute of limitations, these claims will now live for another day, actually another 730 days.

6th Circuit Supportive of Arbitration - Except for Problems With Costs

Reversing a Tennessee trial judge who among other things thought philosophically that Title VII cases should be in court, the 6th Circuit generally upholds an arbitration agreement. The one caveat has to do with possible cost splitting. The agreement which incorporated AAA's cost structure was sent back to the district court to see if plaintiff can show it would be prohibitively expensive. The Court also rejected the employer's offer to pay the costs, agreeing with the 11th Circuit that allowing post contractual modification would only encourage employers to put in onerous provisions. Still, with care about the cost splitting provisions, it is basically a green light for arbitration in the 6th Circuit. Cooper v. MRM Investment, Inc. (6th Cir. 5/3/04) [pdf].