A tradition far more wholesome and less controversial than the Boxing Day Hunts is the Imperial Winter Series Boxing Day Races which I took part in for the first time today. A stiff wind down the backstraight made any breakaways virtually impossible though some (including my teammate for over a lap) had a good go. Seemed faster than recent weeks but that must have been an effect of the wind, as was the dropping of a fair few this week. I was finding it difficult to keep tabs on what was going on, mistaking two dropped riders at one point for a break. I was there for the sprint but barely and got obstructed by a slower rider taking a racing line through the S bends oblivious to anyone behind. That's racing: you have to be both strong and in the right place.
Average speed 23.1
Weighing In On Religion in the Workplace
Although Iowa's turn in the political sun won't roll around for at least another 18 months or so, there's an interesting post from Patrick Smith at the Iowa Employment Law Blog, Are Employee Religious Freedoms in Jeopardy?
The jumping off point for his comment was a guest column in the Des Moines Register by Lake Lambert III, Professor of Religion at Wartburg College, in Waverly, Iowa. Dr. Lambert is advocating for the Workplace Religious Freedom Act. As the article notes, the Act has been kicking around for quite awhile, notwithstanding support on both sides of the aisle. Although it occasionally gets a push, the fact that it has not made much progress I think speaks volumes to the potential problems. Smith thinks the bill cuts too broadly and points out some of the issues:
Still it has been a few years since I have written about it. My first post was in 2003 and things had not changed much when I wrote in 2005, Workplace Religious Freedom Act - Consensus On Neither the Right Nor Left. It is not unheard of for legislation to languish year after year, only to make it to the forefront. The ADA and FMLA are two examples of statutes that were introduced in a number of Congresses before becoming law, ENDA (protection for sexual preference and more) may be the next.
And who knows, even though it doesn't seem to be making much progress, the Workplace Religious Freedom Act doesn't show any signs of going away either.
The jumping off point for his comment was a guest column in the Des Moines Register by Lake Lambert III, Professor of Religion at Wartburg College, in Waverly, Iowa. Dr. Lambert is advocating for the Workplace Religious Freedom Act. As the article notes, the Act has been kicking around for quite awhile, notwithstanding support on both sides of the aisle. Although it occasionally gets a push, the fact that it has not made much progress I think speaks volumes to the potential problems. Smith thinks the bill cuts too broadly and points out some of the issues:
In a country with so many different religious practices, however, an expanded duty to accommodate them all could create more problems than it solves. What happens when the practices of different religions conflict? What about situations where an employer's legitimate interest in safety or uniformity impacts an employee's desire to wear religious clothing or articles? Under existing law, employers have more flexibility to address these situations in the context of legitimate business needs. The proposed RWFA tips the balance too far the other way.I couldn't agree more.
Still it has been a few years since I have written about it. My first post was in 2003 and things had not changed much when I wrote in 2005, Workplace Religious Freedom Act - Consensus On Neither the Right Nor Left. It is not unheard of for legislation to languish year after year, only to make it to the forefront. The ADA and FMLA are two examples of statutes that were introduced in a number of Congresses before becoming law, ENDA (protection for sexual preference and more) may be the next.
And who knows, even though it doesn't seem to be making much progress, the Workplace Religious Freedom Act doesn't show any signs of going away either.
An Argument Against the Arbitration Fairness Act
Even as one segment of the employment community, defense contractors and sub-contractors with large contracts, have lost the right to have arbitration agreements as a condition of employment, a summary of a recent law review article makes what it calls the "not so popular" argument in favor of such clauses. See, Jonathan Adler's of New York Law School's comment at The Obiter Dictum, A Not So Popular Argument Supporting the Use of Mandatory Arbitration Clauses.
The longer article is Determining if Mandatory Arbitration is “Fair:” Asymmetrically-Held Information and the Role of Mandatory Arbitration in Modulating Uninsurable Contract Risks, by Paul Bennett Marrow.
The longer article is Determining if Mandatory Arbitration is “Fair:” Asymmetrically-Held Information and the Role of Mandatory Arbitration in Modulating Uninsurable Contract Risks, by Paul Bennett Marrow.
Here's the money quote from the Obiter Dicta article:
Two comments, first I am not as optimistic as the writer that the Arbitration Fairness Act will not pass; secondly, I think saying that being for mandatory arbitration is not a popular position, may be the understatement of the year.Passage of the Arbitration Fairness Act of 2009 (which seems unlikely given its current status in both House and Senate committees) will cause more problems than it will solve. For instance, without the availability of mandatory arbitration, many parties will be more vulnerable to potential litigation and its associated uncertainties. As a result, overall transaction costs will increase. These costs will be directly passed to borrowers and franchisees. Employers will also pass these costs to business customers, albeit indirectly.
Imperial Winter Series Race 3 - Saturday 19th December 2009
Not quite so many on the start line this time around. Perhaps the freezing temperature had something to do with that. By the start time the worst of the ice had been chipped off the circuit or hidden under strategically placed cones. After a lap or two the cold no longer mattered. I felt good and at no time got trapped at the back, though the smaller field definitely helped there. Unhappily there was a crash immediately ahead of me on the last lap coming out of the tight bend. I had to stop for that but then restarted and about six of us passed the 3rd cats (who not only moved over but shouted encouragement) and sprinted for the line for who knows what lowly position (21st it turns out!)
Average speed 23.6mph.
Average speed 23.6mph.
The Helmet Debate Drags On
The Transport Research Laboratory has this week published a further paper on the effectiveness of cycle helmets. A long report that concludes that
"Cycle helmets would be expected to be effective in a range of accident conditions particularly the most common accidents that do not involve a collision with another vehicle, often simply falls or tumbles over the handlebars and also when the mechanism of injury involves another vehicle glancing the cyclist or tipping them over causing their head to strike the ground."
It would, I suppose, be genuinely astonishing if it were found that helmets were of no use in protecting the head in any circumstance. I have a clubmate who found his particularly helpful when caught unawares by a descending carpark barrier. I sometimes have wished I was wearing mine in the kitchen when my head has contacted an open cupboard door.
The TRL report expressly says it does not deal with the vexed question of risk compensation, whereby people's behaviour changes as a consequence of seeing themselves or others as less vulnerable. Nor does it deal with the questions whether the wearing of helmets should be encouraged or mandated, but its conclusions probably mean that we should not be expecting any change in the Highway Code's advice to cyclists to wear a helmet (accompanied by a vulnerable looking cyclist cowering in the gutter).
Whether this report will provide further impetus to motor insurers to blame cyclists for head injuries because they have not worn a helmet remains to be seen. What I will say is that in no case yet has a Court determined that a cyclist both ought to have been wearing a helmet and that it would have made any difference. No deduction for contributory negligence has therefore been made by a Court to date. Cyclists and their lawyers should bear that in mind when a reduction is suggested.
I have already expressed my views on contributory negligence here. Nothing in the latest paper changes my view. It is so much more important that people cycle than that they cycle with helmets and the Australian experience demonstrates that you cannot encourage both. It is so much more important that accidents are prevented than that we are forced to look to personal protection to hope to minimise their effect.
So when we see a famous footballer taking his children out for a bicycle ride let us applaud him for getting on a bike and not attack him because he has chosen not to wear a helmet.
"Cycle helmets would be expected to be effective in a range of accident conditions particularly the most common accidents that do not involve a collision with another vehicle, often simply falls or tumbles over the handlebars and also when the mechanism of injury involves another vehicle glancing the cyclist or tipping them over causing their head to strike the ground."
It would, I suppose, be genuinely astonishing if it were found that helmets were of no use in protecting the head in any circumstance. I have a clubmate who found his particularly helpful when caught unawares by a descending carpark barrier. I sometimes have wished I was wearing mine in the kitchen when my head has contacted an open cupboard door.
The TRL report expressly says it does not deal with the vexed question of risk compensation, whereby people's behaviour changes as a consequence of seeing themselves or others as less vulnerable. Nor does it deal with the questions whether the wearing of helmets should be encouraged or mandated, but its conclusions probably mean that we should not be expecting any change in the Highway Code's advice to cyclists to wear a helmet (accompanied by a vulnerable looking cyclist cowering in the gutter).
Whether this report will provide further impetus to motor insurers to blame cyclists for head injuries because they have not worn a helmet remains to be seen. What I will say is that in no case yet has a Court determined that a cyclist both ought to have been wearing a helmet and that it would have made any difference. No deduction for contributory negligence has therefore been made by a Court to date. Cyclists and their lawyers should bear that in mind when a reduction is suggested.
I have already expressed my views on contributory negligence here. Nothing in the latest paper changes my view. It is so much more important that people cycle than that they cycle with helmets and the Australian experience demonstrates that you cannot encourage both. It is so much more important that accidents are prevented than that we are forced to look to personal protection to hope to minimise their effect.
So when we see a famous footballer taking his children out for a bicycle ride let us applaud him for getting on a bike and not attack him because he has chosen not to wear a helmet.
So You Think Your Fantasy Football Team Is Doing Bad
Odds are that you have not been fired for it. Not the case for four employees at Fidelity Investments, whose office is apparently located in my neighborhood. Rob Radcliff at Smooth Transitions has the complete story, Fantasy Football Firing, complete with a poll of Fort Worth Star Telegram readers on whether they think the company over reacted. (No surprise how that one turned out.)
This is an interesting and timely story for me as I will be speaking at the Advanced Employment Law Seminar sponsored by the Texas State Bar in early January. My topic: "You're Not the Boss of Me: When and How Much Can an Employer Regulate Employee Conduct On and Off the Job."
Rob correctly points out that the key is likely to be that Texas is an employment at will state. I think the most interesting long term question is whether or not somewhere down the road, the expectations of the general public on what employers should do, as opposed to what they can legally do, becomes so at odds with employment at will, that the venerable doctrine is abandoned.
Of course that could never happen. And Lehman Brothers could never go bankrupt, Arthur Andersen could never fail, and Tiger Woods could never .... You get the point.
This is an interesting and timely story for me as I will be speaking at the Advanced Employment Law Seminar sponsored by the Texas State Bar in early January. My topic: "You're Not the Boss of Me: When and How Much Can an Employer Regulate Employee Conduct On and Off the Job."
Rob correctly points out that the key is likely to be that Texas is an employment at will state. I think the most interesting long term question is whether or not somewhere down the road, the expectations of the general public on what employers should do, as opposed to what they can legally do, becomes so at odds with employment at will, that the venerable doctrine is abandoned.
Of course that could never happen. And Lehman Brothers could never go bankrupt, Arthur Andersen could never fail, and Tiger Woods could never .... You get the point.
A Pre-Cursor to the Arbitration Fairness Act Takes Another Step
The Arbitration Fairness Act, which would ban the practice of making agreement to arbitration a condition of employment, is not likely to be voted on until sometime in the spring of 2010. However, those in favor of arbitration in the workplace can not be pleased by the survival of the Franken amendment to the Defense Appropriations Bill which bans such agreements by defense contractors.
After passing the Senate in October (the day before I was testifying in a Senate Judiciary Committee hearing involving arbitration where Senator Franken took the lead) it has now passed not only the House, but survived a conference committee. Franken Rape Amendment Included In Defense Spending Bill.
The amendment extends not only to first tier contractors, but also to sub-contractors, if either of them exceed $1,000,000. Although much of the publicity surrounding the Amendment has been focused on a rape that occurred against an employee who had an arbitration agreement, by extending its coverage to any claim under Title VII it is much broader than cases involving sexual assault.
Here is the language of the Franken Amendment that survived conference :
Hat tip to the Washington Labor & Employment Wire for their post on the appropriations bill.
Update (12/21/09): President Obama signed the law over the week end. Obama Signs Into Law Restriction on Arbitration Clauses.
Update (12/30/09): If you check the comments below, a reader has pointed out that I may have read the Franken Amendment too broadly when I suggested it may cover any Title VII claim. I certainly can see the point, and actuallythink hope he or she is correct.
However, I am apparently not the only one to read it broadly (or at least write about it that way). The
Alaska Employment Law blog's post, The Breadth of the Franken Amendment, quotes from the Legislative & Public Policy Direct of NELA:
Legislative drafting is obviously not an easy task. Not that they need it, but it definitely provides job security to judges.
After passing the Senate in October (the day before I was testifying in a Senate Judiciary Committee hearing involving arbitration where Senator Franken took the lead) it has now passed not only the House, but survived a conference committee. Franken Rape Amendment Included In Defense Spending Bill.
The amendment extends not only to first tier contractors, but also to sub-contractors, if either of them exceed $1,000,000. Although much of the publicity surrounding the Amendment has been focused on a rape that occurred against an employee who had an arbitration agreement, by extending its coverage to any claim under Title VII it is much broader than cases involving sexual assault.
Here is the language of the Franken Amendment that survived conference :
The bill now goes back to the Senate where passage is expected before Christmas.SEC. 8116. (a) None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 that is awarded more than 60 days after the effective date of this Act, unless the contractor agrees not to:
(1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention; or
(2) take any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates that the employee or independent contractor resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress,false imprisonment, or negligent hiring, supervision, or retention.
(b) None of the funds appropriated or otherwise made available by this Act may be expended or any Federal contract awarded more than 180 days after the effective date of this Act unless the contractor certifies that t requires each covered subcontractor to agree not to enter into, and not to take any action to enforce any provision of, any agreement as described in paragraphs (1) and (2) of subsection (a), with respect to any employee or independent contractor performing work related to such subcontract. For purposes of this subsection, a ‘‘covered subcontractor’’ is an entity that has a subcontract in excess of $1,000,000 on a contract subject to subsection (a).
(c) The prohibitions in this section do not apply with respect to a contractor’s or subcontractor’s agreements with employees or independent contractors that may not be enforced in a court of the United States.
(d) The Secretary of Defense may waive the application of subsection (a) or (b) to a particular contractor or subcontractor for the purposes of a particular contract or subcontract if the Secretary or the Deputy Secretary personally determines that the waiver is necessary to avoid harm to national security interests of the United States, and that the term of the contract or subcontract is not longer than necessary to avoid such harm. The determination shall set forth with specificity the grounds for the waiver and for the contract or subcontract term selected, and shall state any alternatives considered in lieu of a waiver and the reasons each such alternative would not avoid harm to national security interests of the United States. The Secretary of Defense shall transmit to Congress, and simultaneously make public, any determination under this subsection not less than 15 business days before the contract or subcontract addressed in the determination may be awarded.
Hat tip to the Washington Labor & Employment Wire for their post on the appropriations bill.
Update (12/21/09): President Obama signed the law over the week end. Obama Signs Into Law Restriction on Arbitration Clauses.
Update (12/30/09): If you check the comments below, a reader has pointed out that I may have read the Franken Amendment too broadly when I suggested it may cover any Title VII claim. I certainly can see the point, and actually
However, I am apparently not the only one to read it broadly (or at least write about it that way). The
Alaska Employment Law blog's post, The Breadth of the Franken Amendment, quotes from the Legislative & Public Policy Direct of NELA:
My guess is that defense contractors will put the wording from the Franken amendment "as is" into their agreements, and then when someone seeks to enforce arbitration of a Title VII claim with no relationship to "sexual assault or harassment" and we will get our first determination that matters. Even if the commentator below is correct about Title VII being limited, it seems a little harder to apply that reasoning to "negligent hiring, supervision or retention." ]Importantly, it bars contractors and subcontractors that are funded by 2010 appropriations not only from entering into pre-dispute “agreements” with their employees that require arbitration of Title VII claims, but also from ENFORCING any such agreements that already exist. It also appears to apply to such “agreements” with ANY of the contractors’ employees, anywhere, not just those whose jobs are funded by defense appropriations.
Legislative drafting is obviously not an easy task. Not that they need it, but it definitely provides job security to judges.
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