MMA Body Slam of $3.2 Million

$3.2 million is the total jury award to former Tapou T sales representative, Michelle Thomas, from a Los Angeles state jury. The jury first awarded $840,000 in compensatory damages, and then after finding the acts of the employer were with malice, added an additional $2.4 million. Jury Awards $2.4 Million in Punitive Damages to Ex-Employee of Apparel Firm

Although the newspaper article calls it a wrongful termination claim, the facts emphasized in the article were that Thomas was not paid the commissions she was promised, had to work 70 to 80 hours a week without overtime compensation, had to pay out of pocket for cable subscriptions that would allow her to watch the Tapou T show which airs on the Versus network, and one that particularly seemed to be galling that

she was roundly criticized by a supervisor for not watching one required program on her birthday.

I must admit that I had never heard of Tapou T and don't know a whole lot more about Mixed Martial Arts fighting, much less that there was a reality tv show about developing new fighters. And so my headline reference to body slam is probably an inappropriate reference that goes back fifty years ago when I watched professional wrestling from the Dallas Sportatorium with my grandfather.

At least back then, body slams were a big thing. Regardless of whether its an MMA term or not, it's likely that Tapou T is feeling pretty slammed today.

Retaliation in the Supreme Court - Danger Zone for Employers

If there is one area of Supreme Court jurisprudence that employees can certainly not complain about it is the law of retaliation Today's decision in Thompson v. North American Stainless (S.Ct. 1/24/11) certainly does nothing to change that. A unaminous Court (with Justice Kagan not sitting) held that an employee who had been fired for his fiancee's protected activity was also protected by Title VII.

If I had any hope for an employer favorable decision, I had thought it would come from the strict constructionists, who could read the language of Title VII:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

to mean that Congress had said it was the individual who actually engaged in the protected activity that was protected, since it did not read because "he, or someone he is close to" had done certain acts. Which is what the en banc 6th Circuit had done.

I thought that they might have also noted that Congress knows how to expand the zone when it wishes, e.g. the Americans with Disabilities Act which contains a specific provision for association type discrimination where of course Title VII does not.

But when I saw today's opinion was authored by Justice Scalia, I knew it was not to be.

As of now, employers have an unclear line (conceded by Justice Scalia) about what relationship will be considered sufficient to extend one employee's concerted activity to another:

Applying the Burlington standard to third-party reprisals, NAS argues will place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC.

Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s anti-retaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.

The easy way to look at today's decision is that the zone of protected activity is now expanded beyond the protection of the one who engages in the activity. Just how far and under what circumstances that zone will reach will be fought out in the courts. A battle that no doubt starts today.
 
The guidelines, to the extent we have them are this:

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington,  “the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutorytext and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] theuncertainties and unfair discrepancies that can plague ajudicial effort to determine a plaintiff’s unusual subjective feelings.”

I am afraid those 'guidelines' leave a lot of "filling in" for the lower courts to do.  

So I was right -- the "strict constructionist view" controlled, just not the way I had hoped. Which may just show that even when one is "strictly construing" legislative wording, it is possible for judges to "make" not just "interpret" the law. Imagine that.

Imperial Winter Series Race 9: Saturday 22nd January

Quite a large field of at least 40 riders turned out for today’s 3rd cat race. At the sign in Lucy kindly promised me no wind, which turned out to be a half kept promise. The wind was merely strong, rather than last week’s gale, and came from the North so forming a headwind up the finishing straight. A seasonal 6ºC. Perhaps because of the better conditions, and perhaps partly also because I took the precaution of taking the train to work yesterday, I had a much better race. There were some spirited attacks including a solo attempt in the last two laps. I often get this wrong but I do not think anyone stayed away. We must have been doing a reasonable pace as we lapped the 4th cat race twice today, not something that’s happened on the races I have done in this series so far. Came in within the bunch.  No crashes.
26.65 miles in 1:06:09. Average speed 24.17 mph. Max 32.3 mph
As I was leaving my fellow cycling blogger Skippy found me and we had a quick chat, curtailed by the fact I had to get home to walk the dog before dark. He is clearly doing good work finding sponsorship for paralympic athletes.  It was a pleasure to meet him in the flesh. He had struggled to find the circuit so it may be worth pointing to directions here (with added bonus of a rear shot of one of my clubmates!). Hillingdon is a good place to start racing especially if you first get yourself there for some Thursday evening Prime Coaching sessions in the summer months to get used to bunch riding at speed and the layout of the circuit.

Transport Policy again

The Department for Transport has just laid before Parliament a report entitled Creating Growth, Cutting Carbon; Making Sustainable Local Transport Happen.  It includes the following information:

"According to the Retail Price Index, the cost of buying a car fell by 29% in cash terms between 1999 and 2009, while general RPI inflation over the same period was 29%. However, the cost of car maintenance, petrol and oil, and tax and insurance all increased markedly faster than general inflation. The "combined" cost of motoring (covering purchase price and running costs) fell by 11% relevant to the general rate of inflation. Over the same period rail fares rose by 43% and bus and coach fares rose by 58% "

Meanwhile the Automobile Association, reported inevitably in the Daily Mail, are complaining again about petrol prices:

'Sooner or later, politicians will have to face reality - more and more drivers cannot afford these prices. They are pushing up inflation and taking money from other consumer spending.'

The inexorable rise in the number and mileage of motor vehicles, with the inevitable associated congestion and pollution, is surely related to the fall in the costs of motoring both in real terms and more particularly in comparison to public transport.  The costs continue to fail to cover the 'externalities'.

This, from a briefing note prepared by the Institute of Fiscal Studies, continues to hold true:

"Why, in theory, should a government be concerned to change consumer behaviour through the use of fuel duty? The argument is that the costs of motoring exceed the private costs faced by an individual motorist. There are environmental costs, noise costs, road-damage costs and congestion costs which people may not factor into their decision about whether and how much to drive. This means that the costs to society of motoring exceed the costs to the individual, which will lead to a level of motoring that is both inefficiently high and inefficiently cheap from a social perspective. The duty is therefore a way of forcing the private motorist to take account of these social costs."

I am assuming the list of external costs does not include death, personal injuries and medical costs on the (slightly dubious) assumption that these externalities are covered by motor insurance.  Certainly I would add additional external costs relating to obesity and lack of fitness due to no longer moving ourselves around in the manner we evolved (or were designed if you prefer) to accomplish without the assistance of fossil fuels.

I do not claim to know the price of fuel at which these externalities are properly taken into account but I am very sure the level must exceed that at which at least some AA members have to think about whether they should be saving money by using public transport, car sharing or even a bicycle.  I see no evidence that our society is moving away from motorised transport as being overwhelmingly the default option for moving ourselves around.

I see a test of government mettle looming.

Postscript:  for a more in depth analysis of fuel costs try the Road Danger Reduction Forum who recommend an increase in petrol duty

One thing you learn very rapidly as a cyclist is the dramatic effect of air resistance which is proportional to the square of air speed.  One way to save petrol is therefore to drive at a slower speed.  There are even better reasons to do this, of course, and I have now set myself a voluntary limit of 20 mph in built up areas.  I find this has virtually no effect on the time it takes me to drive anywhere but it certainly does attract aggression from a few other motorists.

A Ray of Sanity in the FLSA Collective Action Morass: Half-pay in Misclassification Cases

Given the overwhelming number of FLSA collective actions that continue to be filed, it is hard to find very much encouraging news, but one ray of sanity is the 4th Circuit's opinion in Desmond v. PNGI Charles Town Gaming, (4th Cir. 1/18/11) [pdf].

The issue was the not inconsequential question of how do you calculate damages in a misclassification case. Here, the employees were thought to be exempt under the administrative exemption, but the court held otherwise.

Plaintiffs of course seek a 150% premium (time and one-half) of the newly computed hourly rate, while defendants argue that overtime has already been calculated in. and so the premium should only be 50% or half-pay. The counter by the plaintiffs is that it gives the defendants the benefits of a fluctuating work week calculation, without having to comply with the regulations.

Noting that it was joining four other circuits and the DOL itself, the Court found the correct way of calculating damages in such cases to be set out by the Supreme Court in Overnight Motor Transportation Co. v. Missel (1942), one of the Court's early FLSA decisions. 

According to the court

The First, Fifth, Seventh, and Tenth Circuits all have determined that a 50% overtime premium was appropriate in calculating unpaid overtime compensation under 29 U.S.C. § 216(b) in mistaken exemption classification cases, so long as the employer and employee had a mutual understanding that the fixed weekly salary was compensation for all hours worked each workweek and the salary  provided compensation at a rate not less than the minimum wage for every hour worked.

Although there may be examples of where individuals were badly served by misclassification, in most cases, it is a case of individuals paid higher than most employees,who clearly understood that they were not receiving any pay for overtime, and were willing to work under those terms. Thus in many respects, any  recovery under the FLSA really is a windfall for them.

The 4th Circuit decision does not eliminate the penalty for misclassification, but it does at least rein it in, so that it is more appropriate.

One other lesson to be learned from this case is how it started.  It has been a highly contested (and no doubt expensive) case. Yesterday's decision is the second time it has been in the 4th Circuit and the second time it has been sent back to the district court for additional action.

Its genesis was when three racing officals were discharged because they unaminously declared the wrong horse to have won a race.  It certainly was not the first, nor will it be the last, case where an employee unhappy with his discharge, which may be perfectly legal makes it to counsel who can not help with the "presenting problem," but can help in other ways.

Imperial Winter Series Race 8 - Saturday 15th January

Photo Courtesy LondonCycleSport

Unseasonably mild at 12.5°C but with a very strong blustery south-westerly wind which caught me out early in the race.  I was on a wheel round a bend turning into the wind but a gap opened ahead and I just could not get by.  I and a few others were dropped, though I did struggle on to finish last.   So no meaningful stats or report from me this week.  Lessons must be learnt from such failures.

Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII?

The headline in today's Daily Labor Report caught my attention, Court Revives Fired Gay Employee's Retaliation, Harassment Claims ($). I thought maybe it was another another step down the road for protection against sexual orientation discrimination, but still within the limits of Title VII.
But when I looked at the decision, Dawson v. Entek International (9th Cir. 1.10.11) [pdf] what I found was even more confusing.

The Court had in fact discussed the line of cases I was thinking about -- where a number of courts have found Title VII protection for sexual orientation based on gender stereotyping. However, the Court specifically found that there was no evidence of gender stereotyping in this case, and so dismissed what it called claims for sexual discrimination under both Title VII and Oregon state discrimination law. 

The Court held that it was error to dismiss Dawson's sexual orientation discrimination claim under Oregon state law. (There was a question about the effective date of the statute versus the conduct. The 9th Circuit side stepped that question by noting that even before the effective date Oregon had recognized a common law claim for sexual orientation discrimination.)

The part that obviously prompted the DLR headline, and caught my attention after reading the opinion, was the Court's holding that the trial court erred in dismissing his retaliation claim under both Title VII and Oregon state law.  There was no question Dawson had complained, but there was also no question that he had complained only about taunts based on his homosexuality, i.e. his sexual orientation, not anything based on gender stereotyping. 

I think the problem in the court's analysis is here:

Title VII prohibits an employer from discriminating against an employee for opposing an unlawful employment practice, such as filing a complaint alleging sexual orientation harassment and hostile work environment.

After making clear that sexual orientation is not protected under Title VII, the Court seems to have made a logical error in calling sexual orientation discrimination an unlawful employment practice.
In this case, depending on the remedies under Oregon state law, it may not matter, but as the decision is currently written it would certainly impact Title VII retaliation law.

It would be quite a step forward, not to mention ironic, if you could be fired for your sexual orientation, but could not be fired for complaining that you were being discriminated against because of your sexual orientation.

Surely we are not that much in the Alice in Wonderland world, at least not yet.