8 Days of Christmas? No, 8 Parts of Executive Employment Agreement

Probably the lawyer in me that likes things that are organized in a way that enhances understanding, but a story in the Portland Business Journal about the 8 parts of an executive employment agreement struck me as a nice way to cover one of those topics that is perpetually on my "learn more about" list.

The eight parts listed by Portland lawyer, Paula Barran are:

1. duties,
2. obligations,
3. timing,
4. payment,
5. extra benefits,
6. parting,
7. prenup and
8. disagreements

Check the article for the details.

FMLA Expanded with Passage of Department of Defense Funding Bill

More action on the legislative front as Congress today adopted the first expansion of the Family and Medical Leave Act since its original passage. Although for a limited (and good) cause, the expansion is a big one.

It encompasses two kinds of leave --

• 12 weeks where "the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation and there is a "qualifying exigency" which is to be defined by the Secretary of Labor by regulation; and

• 26 weeks where an eligible employee who is the spouse, son, daughter, parent, or next of kin of an injured servicemember needs to take care of them. This is apparently a one time leave.

In short, the expansion which is part of the Department of Defense funding bill is designed to provide possible leave for families of servicemen for both active duty call ups and cases of injury.

Although it is part of a much bigger bill, the relative portions expanding the FMLA can be found here. President Bush is expected to sign the bill.

It is unclear when it will be effective, although arguably it could be as soon as it is signed by the President which should be in the next few days, even though obviously there will be no regulations for some time.

Stay tuned for more details.

More Gray Hair in the Cockpit - Commercial Pilots Can Now Fly to 65

One of the few age limitations* that has been enshrined in legislation bites the dust, as Congress unanimously passes legislation allowing pilots flying for commercial airlines to fly until age 65, rather than the current 60. See Southwest pilots union praises new 65 rule.

Although I am sure this has been in the works for sometime so that some of the kinks have been worked out, I can imagine that it is causing some major rethinking of personal plans as pilots who had been nearing forced retirement now have a decision to make, while many more junior pilots are now looking at more years in the second seat than they had planned.

I probably wouldn't have thought of this as an employment related topic had I not defended a most interesting lawsuit a decade or so ago caused by confusion about who this rule applied to. I knew it was going to be interesting when I read the complaint and it quoted from a comment written on the plaintiff's resume - "What, pray tell, do we do with this? He is approaching his 60th birthday." Sure enough Exhibit A to the complaint was a photocopy of the resume with what was clearly a yellow sticky note attached to it, that contained those words in the HR manager's handwriting.

How did it end up in the plaintiff's hands? A mysterious fax from the company's offices was all that was ever known.

As you might guess, "interesting" does not always mean fun.

* At least on the end I now most personally identify with!

A (Very) Belated Thanks To the Folks at Wage Law

I have learned that much like exercise it is quite easy to fall out of the habit of blogging. As anyone who has checked here regularly of late, it is apparent that I have fallen out of the habit. (And as others who know me personally can attest, I have fallen off the exercise wagon as well.) I have also fallen woefully behind with the current reading which is a pre-requisite to having anything to say.

So it is very belatedly in my effort to catch up on some back reading that I finally made it to a November 9th post at Wage Law, where Mark and Michael Walsh, the authors of that blog were kind enough to list me in the top ten of their favorite blogs. See Wage Law: The Best Law Blogs.

Having just stuck my toe into the murky waters of California's version of wage and hour law earlier this year, I have an even greater appreciation than I did before of the service that the two principals in the Walsh & Walsh law firm provide in keeping the rest of the world abreast of late breaking developments in what has to be one of employment law's hottest area.

Sound Advice on Handling Lawsuits

Although not directly related to labor and employment law, the thoughts of Stewart Weltman in a column in law.com's In House Counsel forum, Think Like a Plaintiffs Attorney to Lower Litigation Costs, are spot on.

Almost every point he makes is one I have come to understand over 30 plus years of handling employment law suits of various sizes, from small to big.

You really should read the article to get his take on things but here's the big picture:

• Prepare every case as if it was going to trial, that's the most certain way to get it settled favorably;
• Don't waste your time (and money) fighting over little things; and more things than you think are little things;
• Don't get involved in discovery disputes, but bend over backwards to provide all documents that are within the discovery requests of the other party;
• Use fewer, but more experienced lawyers; make sure that your trial lawyer knows the facts of the case well;
• The earlier you settle a weak case the better;
• Keep your "story" simple, and know what it is early on

Although he doesn't say it quite this way, have trial lawyers on your side, not "litigators."

Two 5th Circuit Approved Jury Instructions in Discrimination Case

In the age of the vanishing jury trial it is rare to get decisions on the validity of jury charges, so it is always nice to have 5th Circuit endorsed language. In Price v. Rosiek Construction Co. (5th Cir. 12/10/07) [pdf] the Court upheld a jury determination of no discrimination in the face of a challenge to two instructions.

The first was on the effect of a determination by the TWC-CRD or EEOC (here the TWC -CRD had issued a cause finding). The lower court had instructed that:

[a]ny finding or determination of the EEOC that discrimination occurred or that it could not find sufficient evidence of discrimination “is not dispositive of whether discrimination occurred."

The court further instructed:

The findings or determinations of the EEOC are therefore not binding on the trier of fact. You may, but are not required, to accept the findings in the EEOC reports. The reports do not relieve you of your obligation to review all of the evidence in the case and to make your decisions based on the facts as you read them.

The trial court had also given this instruction that employers will find helpful:

Title VII does not shield against harsh treatment in the workplace. Nor does the statute require the employer to have good cause for its decisions. Title VII is not a vehicle for second-guessing business decisions. The employer may take adverse action against an employee for a good reason, a bad reason, a reason based on erroneous facts, or no reason at all, so long as its action is not for a discriminatory reason.

Of course the Court was considering these instructions in light of a favorable jury verdict and under an abuse of discretion standard, but still they are now "5th Circuit" approved.

The Court also dealt with an issue currently pending before the Supreme Court -- whether so called "me too" evidence of discrimination should be allowed. And just as some of the U.S. Supreme Court justices apparently had concerns about allowing such evidence at oral argument, the 5th Circuit did as well.

It upheld the trial court's exclusion of evidence by a fellow employee of Price concerning discrimination against him. The Court was cautious, not wanting to get out too far ahead of what the Supreme Court might do, emphasizing that the other employee did not have any evidence about the decision maker in Price's case and in any event the testimony could have had only a slight effect.

Payday Claim Divides Texas Supreme Court

Those who view the Texas Supreme Court as a monolithic force against employees in employment cases might be surprised by the closeness of today's 5-4 decision holding that an untimely Payday Act claim pursued to conclusion through the administrative process bars a timely common law action for breach of contract for the unpaid wages on the ground of res judicata. Igal v. Brightstar Technology Information Group, Inc. (Tx. 12/7/07) [pdf].

Justice Dale Wainwright authored the majority opinion, and was joined by three of his fellow Supreme Court Justices, Green, Willett and Johnson and joined for all but one section by Justice Bob McCoy of the 2nd Court of Appeals sitting by designation for Justice Hecht who was recused.

Justice Brister wrote the dissent, joined by C.J. Jefferson and Justices O'Neill and Medina.

Although all agreed that the 180 day limit for filing a Payday claim is not jurisdictional, they disagreed over whether the finding that the claim was untimely was an adjudication on the merits, which they also seemed to agree was necessary for res judicata.

Although Justice Wainwright's opinion offered two reasons for the preclusive effect, one that the TWC had actually decided the merits (adjudication of disputed fact), that portion was not joined by Justice McCoy so the opinion of the Court is only on the second grounds, "a court’s dismissal of a claim because of a failure to file within the statute of limitations is accorded preclusive effect."

Although a far cry from the rhetoric of Justice Scalia in many of his dissents, Justice Brister's parry of the majority's statement that it was merely prohibiting a plaintiff two bites at the apple -- "this is not about biting apples twice; this is about a man’s wages" -- is fairly unusual in recent years.

The actual impact of this decision (beyond of course a very disappointed Igal) is not likely to be much since the facts will not often occur. My guess is for those who look for such things, the slight divide amongst justices may well be the intriguing aspect.