Starbucks Union Woes Over?

Well at least one battle is, as the venerable Wobblies of the IWW, which as I noted here, had filed a petition to represent employees at the Starbucks' 36th and Madison location in Manhattan, have now withdrawn their petition. That follows a challenge over the appropriateness of the requested bargaining unit. The Regional Director's ruling [pdf] finding the union's requested single store unit appropriate, but including shift supervisors over the union's objection, was appealed to the Board. The Board agreed to hear the appeal, an action described in an even-handed way [he says with tongue planted firmly in cheek] at the Union's website as, Bush Administration Intervenes for Starbucks Against Union. The day after the Board agreed to accept the appeal, the IWW withdrew the petition according to a story in the BNA's Daily Labor Report ($).

Lawyers Scare Workers with BB Gun Fights

I have to admit the lead of today's story in the Springfield, Missouri News-Leader was intriguing:

St. Louis — When police officers responded to a call in St. Louis County, they found women hiding under desks, in their cars and closets at an office building, some saying they had seen two men carrying handguns.



But Melinda Hagaman, who works in the building, told authorities not to worry.



"I knew it had to be the lawyers from down the hall," she told the St. Louis Post-Dispatch in Tuesday's edition. Police said two lawyers who work in the building apparently took part in a BB gun fight on Friday.

While I had hoped this article might lead to a heretofore unknown tactic for subduing disruptive employees, alas, it was, as one of the 'guilty parties' admitted, just another lawyer "acting like an idiot."

Could we make this stuff up?

Statute of Frauds in Employment Agreements - When Is It Applicable?

There are many different variations, but according to the San Antonio Court of Appeals,

Where the time of performance of a contract is uncertain and performance can conceivably occur within one year, the statute of frauds does not apply.

Tabrizi v. Daz-Rez Corp. (Tx. App. - San Antonio) (8/4/04). While that allowed the former manager of El Maracumbe, a Tex-mex eatery on Austin Highway in San Antonio, to collect almost $40,000 on his breach of contract claim, it is still less than a totally happy day, as his even larger claim for lost profits is unsuccessful.



The Court reminds that proof of lost profits does not have to be exact, nor it is even necessary to submit underlying documents, but "[a]t a minimum, opinions of lost-profit estimates must be based on objective facts, figures, or data from which the lost-profits amount may be ascertained." And with that, the almost $200,000 jury award - a lot of Number 2, cheese enchilada dinners - is down the drain.

Employment Law as a Microcosm of the Rest of the World - Class Action Style

If I had to guess (and actually it is at least an "educated guess" based on my regular review of employment law cases filed in Texas courts) one of the most common employment lawsuits filed in Texas so far this year would be a collective action under the Fair Labor Standards Act. And as so often is the case, what that means is that employment law, in Texas and elsewhere, is really just a mirror of what is happening in the rest of the world. So much so that an article in the Boston Business Journal, discussing among other things the stalled Class Action Fairness Act of 2003, quotes one lawyer referring to class actions as "an industry. It is simply a much more mature industry." That is using mature in the chronological as opposed to wisdom sense no doubt.

15 Employees - Jurisdictional or Does It Go to the Merits?

Whether an employer defendant under Title VII has 15 employees can, depending on the circuit in which the case is being tried, be either a factual question that the plaintiff must establish as part of the case on the merits, or a jurisdictional question, which can derail the entire proceeding when raised at any time. Although one gathers perhaps not too keenly, the most recent iteration from New Orleans is that current 5th Circuit precedent makes it a jurisdictional issue. That means that a post-jury verdict by the defendant that the court lacked subject matter jurisdiction had to be heard, and when the court agreed, the case dismissed for lack of subject matter jurisdiction. Arbaugh v. Y & H Corporation, d/b/a The Moonlight Cafe (5th Cir. 8/2/04) [pdf].



To get there the Court had to wade through two thorny factual issues: (i) whether or not delivery drivers were employees or independent contractors under the economic realities test used to determine employee status for Title VII purposes, and (ii) whether under last year's Supreme Court decision in Clackamas Gastroenterology Associates., P.C. v. Wells, 538 U.S. 440(2003) the two owners of the corporation and their wives should be counted as part of the statutory 15. The answers, to the dismay of the plaintiff and her counsel who had obtained a favorable jury verdict, were: independent contractors and no. The bottom line, case dismissed - no subject matter jurisdiction. Several other circuits would at least go the other way on the basic issue of whether the 15 employee limit is jurisdictional, so it could be that this might see the light of day in the Supreme Court.



If you are a New Orleans fan, you might know The Moonlight Cafe, famous either as a favorite writing place of emergency room doc/author Dean Paschal, the best burger in New Orleans, or of course a Garden District favorite, which according to Gambit Weekly's restaurant guide "comes to the rescue of many a night owl, delivering barbecue ribs, cheese fries, gyros, burgers, salads, po-boys and even steaks into the wee hours. " Delivering, but not, as now certified by the 5th Circuit, with their own employees.

Genetic Discrimination Information

Janell Grenier, who is always on top of things at BenefitsBlog, has a reference to a new National Institutes of Health website which features research on genetic discrimination issues in both health insurance and employment.

Shelton Padgett, 1948-2004

Blogging was light last week as 2 speeches and a brief deadline preceded a quick week end trip to La Jolla. The weather was lovely and so was getting away. But sitting in a café yesterday morning just before heading to the airport I got an email from a San Antonio colleague that Shelton Padgett, a fellow management side labor lawyer, who I knew well from my 20 years of practice in San Antonio had died, way too soon, at the age of 56. Given the nature of our practice, management employment lawyers almost never have a case together and in fact are competitors. Still over the years, through the speaking circuit, various associations or whatever you end up becoming friends of many who do the same thing you do. Shelton was one of those, and he will be missed.