A Declaration of Independence but the World Grows Smaller

I think Daniel Schwartz at The Connecticut Employment Law Blog has the right approach in his post, Happy July 4th.

But even though this is not one of those holidays that has any particular employment law tie or angle, I couldn't help think about the full circle type connection between the independence from European influences that we celebrate today and the announcement earlier this week of The First Global Union, as reported by Jeffrey Hirsch at Workplace Prof Blog.

Workers Uniting, a combination of the UK union Unite and the United Steelworkers, not only has a name, but a website. There is no question that the world is more connected and things that we have long thought of as being "local" have global aspects. So it should be no surprise that is true for the labor and employment law world as well.

Although it may not be a surprise, that does not mean it may not be revolutionary.

Keeping Data Submitted to EEOC Confidential - Easier Now?

One of the worries about submitting information to agencies investigating workplace issues is the risk that it will be released to an employer's detriment. While the worry is real, the ability to get much judicial guidance is limited as it takes a unique set of circumstances for it to happen.

But happen it did and earlier this week the D.C. Circuit addressed the issue. The opening paragraph outlined the unusual circumstances, and its holding:

Seven years ago, Venetian Casino Resort, LLC repaired to district court for an injunction to keep the Equal Employment Opportunity Commission from disclosing certain confidential information without notice. The district court dismissed the case as unripe, but we held otherwise and remanded the case for proceedings on the merits. The district court then granted the Commission’s motion for summary judgment and Venetian appealed, arguing the Commission’s disclosure policy is unlawful. We agree, reverse, and remand the case for the district court to enter an injunction prohibiting the Commission from disclosing Venetian’s confidential information pursuant to its current disclosure policy.

Venetian Casino v. EEOC (D.C.Cir. 6/27/08) [pdf]

Although not totally clear from the opinion, this seems to be concern about the garden variety turning over of information submitted by the Venetian to a lawyer (or potential one) for the plaintiff, even though the Ventian had identified the information as confidential.

Although it's a victory for Venetian for the time being, it seems likely only to force the EEOC into coming up with a better rationalization for its rules, or a rule that makes it clear that the Commission should give an employer notice and chance to respond before releasing the data.

That's the possibility offered by Professor McCormick in her analysis of the case at Workplace Prof Blog, The EEOC and Disclosure of Employer Data. Although I don't always agree with the academics at Workplace Prof Blog, even though it is clearly one of the best sources of current employment law information on the web, this is one of those occasions where I do.

Compromise on Capitol Hill -- Coming Soon

When you see these names listed together, what do you think?


American Association of People with Disabilities
American Diabetes Association
Bazelon Center for Mental Health Law
Epilepsy Foundation
HR Policy Association
International Franchise Association
Leadership Conference on Civil Rights
National Association of Manufacturers
National Disability Rights Network
National Council on Independent Living
National Restaurant Association
Society for Human Resource Management
U.S Chamber of Commerce


When attached to a letter to Congressional leaders it means that a compromise on the ADA Restoration Bill is getting much closer.


Thanks to Shopfloor, the blog for the National Association of Manufacturers for the link to the letter and their update on this compromise.


Depending on what happens in the national elections, this could be the harbinger of things to come.

5th Circuit Limits "Associational Rights" Under the FMLA

There has been a recent spate of activity about associational rights under various statutes, with most of them taking a relatively broad view of expanding protection for those who have been discriminated/retaliated against because of their association with an employee who had a substantive claim. See for example the Laconic Law Blog's post on Associational Discrimination or the Ohio Employer's Law Blog post on an April decision by the 6th Circuit.

Which makes Friday's decision by the 5th Circuit in Elsensohn v. St. Tammany's Parish Sheriff's Office (5th Cir. 6/6/08) [pdf] interesting because the 5th Circuit refused to do so under the FMLA. Elsensohn's wife, who was formerly employed by the Sheriff's office had an FMLA claim against it. Elsensohn was a sergeant. According to his complaint, "at all times Elsensohn attempted to not involve himself in his wife's FMLA claim except to give her moral support."

After she settled her FMLA claim, Elsensohn claimed he was denied a promotion and was transferred to a less favorable position. He sued under FMLA saying he had been retaliated against because the employer knew if her case went to trial he would testify on her behalf.

However, he did not fit under the literal language of the statute of being one who "had given, or was about to give" any information in connection with a proceeding, nor had he "testified, or was about to testify in any inquiry or proceeding." The district court found his potential participation with his wife's claim was not enough to bring him literally within the wording of the FMLA's protective ambit.

The 5th Circuit while agreeing that some other courts had expanded laws to cover such claims, noted it had refused to do so under the ADEA, and since it appeared the protection there was even broader than that afforded to individuals under the FMLA, declined to do under the FMLA as well.

In the greater scheme of things, not a huge decision, but certainly an interesting one in a unique niche that seems to be getting some attention of late.

Ads, News Stories -- the Employee Free Choice Act is Serious Business

Although it made a short lived run in this Congress, the improperly named Employee Free Choice Act, will quite likely be in the headlines on a regular basis next January and February. Although clearly it depends on the outcome of the election, my guess is that there will be an attempt to get it to the new President's desk as quickly as the Family Medical Leave Act made it to President Clinton's. Fortunately, I don't think that's likely.

Unlike the EFCA, the FMLA had been in the works for a long time. Here's a brief history from the political blog, The Personal Is Political:

1. Senator Chris Dodd is generally credited as being the author of the FMLA. He wrote and introduced a version of it in 1986, six years before Bill Clinton ran for president and seven years before Clinton took office.

2. It was a long slog to get the FMLA passed. The Senate would have passed it under Reagan but because there was a threatened presidential veto and a filibuster it was pulled.

3. Then Congress passed it twice during George H.W. Bush’s presidency. It was vetoed both times.

4. When Bill Clinton ran for office in 1992, he promised he would sign this legislation.

5. After Clinton was elected, the Congress took this up quickly, in part to show that they and the new president could break the Washington gridlock and could get things done.

6. The Family and Medical Leave Act, H.R.1 and S.1, was passed by the House on February 3 and by the Senate on February 4. While they had passed it twice before, because this was a new Congress, they needed to pass it again.

7. Fulfilling his campaign promise to sign the bill that had been authored by Dodd and vetoed twice by the former president, the FMLA was the very first piece of legislation signed by President Clinton.

That was two weeks and two days after his inauguration, a record that will be hard to top.

But there is no question that it is at the top of organized labor's agenda. That's why even during the legislative "off season" business group's are already running ads and unions are busy denouncing them. The NAM's blog, Shopfloor had an interesting report on the battle in Maine, Card Check: But What About the Substance? which also has a link to the ads themselves, click here.

Why Maine? My guess is that it's because that's where two moderate Republican senators, Olympia Snowe and Susan Collins live. In this year's EFCA cloture vote, both Senator Snowe and Senator Collins voted against cloture. The vote was 51 - 48, which indicates that there is still a lot of work to go before EFCA will just sail through Congress.

However, Senator Collins is up for re-election and can't be too thrilled about having to talk about that vote in an election season where Senator Obama is almost sure to carry Maine.

That advertising about a specific piece of legislation is not only being run but fought over six months before it will likely be voted on again in Congress in the relatively small state of Maine gives you a hint about the stakes involved. Employers should take heed.

This Can't Be Good for the Workplace

This lead from a CNN story, Why some folks get a loan workout and others don't caught my attention:

More than 3,000 times daily, struggling homeowners call the foreclosure Help Hotline for advice on how to save their homes.

There is no question that pressures at home often carry over into work. Summer with its distractions and hot weather can often make for a less than optimum work environment, if these headlines keep up, you can bank on it this year.

5th Circuit View on Retaliation Under the FLSA

No question that FLSA is the hot topic labor and employment circles these days, although most of that attention is focused on collective actions. Last week, the 5th Circuit took up another area, one of those rare cases of "first impression" -- what constitutes retaliation under the "complaint" portion of the anti-retaliation statute in the FLSA. Hagan v. Echostar Satellite LLC (5/30/08) [pdf].


That section of the FLSA provides it is illegal for an employer to:

discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

The case reached the Court on an appeal by a discharged employee. The trial court granted a direct following a mistrial. The employee, a supervisor, claimed the protected activity was his passing to the human resources department a question from the technicians he supervised about whether a change in policy that would lead to less overtime was legal. Since he was terminated for the way he handled the implementation the new practice whether that action was "protected activity" was crucial.


The district court made three legal findings before applying them to the facts:

1. "even an informal, internal complaint could constitute protected activity under the FLSA,"


2. in order to be protected employee the employee must have “stepped out of his role as an Echostar field service manager, either to complain to his employer in behalf of the technicians, or in his own behalf, about a supposed violation or irregularity under or related to the FLSA,"


3. and that the FLSA "protects employees engaged in otherwise protected activity if that employee possesses a good faith belief that the employer had violated the law."

The 5th Circuit, in an opinion joined by one of its newer members, Judge Leslie Southwick, noted that the 2nd Circuit had taken a more restrictive view than the district court did and would not extend FLSA protection to informal complaints. It refused to take that view, instead going with the district court and what it viewed to be the majority rule in other courts. It did note that it was important that the complaint be about the legality of an action.

The Court also accepted the district court's 2nd premise, that the employee must be doing something other than his job, here being an intermediary between his employees and human resources, which was one of the functions of a manager. A different holding would otherwise mean a whole class of employees, managers, hr and legal, would be protected for just doing their job.

The Court found givenn that Hagan could not meet either of the first two principles, it did not need to address the good faith argument and so, in an appropriate act of judicial restraint, it did not.

I don't think this case represents a land mark shift in the 5th Circuit's view of employment cases generally, but I do think it is an indicator that it is not now a court that automatically looks for the most harsh outcome for employees, if in fact it ever was. Although here the employee lost, the standard which the Court articulates for the first time seems to be a clearly correct and mainstream, as well as less employer friendly than at least one of its sister circuits.