Last week I posted about DOL's new app for employees to keep records of their hours worked, so to be fair, the DOL does not limit its computerized assistance to employees. It also has on line assistance designed to help the employer community comply with their obligations under various statutes.
Although not as cool as an "app" the DOL's various elaws are helpful. The most recent, and what prompted today's post, is one to help an employer know if an incident is recordable under OSHA. To walk you through the regulations in a systematic form, check out theOSHA Recordkeeping Advisor.
For an employer not sophisticated in OSHA requirements, it's a good first step.
Legislative Override of Supreme Court
What a difference three years makes. Unlike the opening weeks of the prior Congress when it could not act fast enough to get the reversal of the Supreme Court's decision in the Lilly Ledbetter case to President Obama's desk, the offering of the Arbitration Fairness Act by Senator Franken, faces much more difficult sledding. Franken bill would block mandatory arbitration clauses in cell phone contracts.
Although this bill has been introduced now for several sessions, the latest is at least tied to the Supreme Court's recent decision in ATT Mobility LLC v. Concepcion which upheld an arbitration agreement that prohibited class actions. See Franken's press release from earlier today here. The bill would ban mandatory arbitration both in consumer transactions and in the workplace (with an exception for arbitration provided for by collective bargaining).
Still, having testified at the Judiciary Committee hearing in the fall of 2009 where Senator Franken challenged mandatory arbitration, I have some personal experience with how strongly he feels about this bill. Here's a link to the testimony on the arbitration issue (fortunately for me I was testifying about the Gross decision).
For supporters of arbitration, although it would seem that passage of the AFA would be out of the question in this Congress, I wouldn't necessarily turn out the lights. If, and that' certainly is a big if, the idea that arbitation is unfair in a consumer setting could touch a chord in a large number of people (and it does not seem to have done so yet) this is one that could catch momentum quickly.
Particularly since arbitration is not something that most legislators have strong feelings about one way or another. For those who think it is a good thing in employment matters, the fact that prohibiting in the employment context always gets linked to banning it in consumer transactions is not comforting.
Update (05/19/2011 ) - Although the text of the bill is not yet posted on the official Senate website, it is S.B. 987 and should be available in the next few days. From seeing a copy of the bill on BNA's Daily Labor Report, one interesting thing is that the bill has dropped the ban on arbitration in franchise agreements which was present in prior versions. Presumably, that was done to remove the objections of some. See the comment from the Defense Research Institute, which also points out that the bill contains a provision that would nullify another Supreme Court arbitration decision, Rent-A-Center West, Inc. v. Jackson, 120 S. Ct. 2772 (2010). The 2011 version of the Arbitation Fairness Act requires that decisions on the enforcibility of the arbitration agreement be made by the court, not an arbitrator.
Although this bill has been introduced now for several sessions, the latest is at least tied to the Supreme Court's recent decision in ATT Mobility LLC v. Concepcion which upheld an arbitration agreement that prohibited class actions. See Franken's press release from earlier today here. The bill would ban mandatory arbitration both in consumer transactions and in the workplace (with an exception for arbitration provided for by collective bargaining).
Still, having testified at the Judiciary Committee hearing in the fall of 2009 where Senator Franken challenged mandatory arbitration, I have some personal experience with how strongly he feels about this bill. Here's a link to the testimony on the arbitration issue (fortunately for me I was testifying about the Gross decision).
For supporters of arbitration, although it would seem that passage of the AFA would be out of the question in this Congress, I wouldn't necessarily turn out the lights. If, and that' certainly is a big if, the idea that arbitation is unfair in a consumer setting could touch a chord in a large number of people (and it does not seem to have done so yet) this is one that could catch momentum quickly.
Particularly since arbitration is not something that most legislators have strong feelings about one way or another. For those who think it is a good thing in employment matters, the fact that prohibiting in the employment context always gets linked to banning it in consumer transactions is not comforting.
Update (05/19/2011 ) - Although the text of the bill is not yet posted on the official Senate website, it is S.B. 987 and should be available in the next few days. From seeing a copy of the bill on BNA's Daily Labor Report, one interesting thing is that the bill has dropped the ban on arbitration in franchise agreements which was present in prior versions. Presumably, that was done to remove the objections of some. See the comment from the Defense Research Institute, which also points out that the bill contains a provision that would nullify another Supreme Court arbitration decision, Rent-A-Center West, Inc. v. Jackson, 120 S. Ct. 2772 (2010). The 2011 version of the Arbitation Fairness Act requires that decisions on the enforcibility of the arbitration agreement be made by the court, not an arbitrator.
Fred Whitton Challenge Sunday 8th May 2011
I started this blog two years ago with the FWC 2009 with no inkling that events would turn me into what the media types that contact me call 'a cycling campaigner' and this a correspondingly campaigning site. It is refreshing to get several hundred miles away from the stressed out competition between roadusers in the London commuter belt, to an event where everybody is at least aiming to enjoy a long ride in idyllic lakeland countryside.
My club had a team of 6 (down from 7 due to a nasty crash in the Masters' Race at Hillingdon a few days before). We had come ready for the hills but possibly not the weather. There was steady rain in the morning but by the time I started at 8am it looked as though there may be some respite from the worst of it. However I got the torrential downpour of hail with high wind as I was tackling the first really steep climb at Honister. The wind was still howling and the rain lashing down as I tackled the first really steep descent off the same hill when I found to my alarm that my newly fitted Bonti tyres, while virtually puncture proof, were not well suited to these conditions. The rider behind thought I was gone and it is true I more skied than cycled down much of this slope.
I left my two clubmates I was with to recover at the Buttermere feed; they would both have come in with much better times than I, had not both their chains broken; another indication of the taxing conditions of the day. I cautiously picked my way around the hills losing control on several more occasions before the rain dried up in the early afternoon and the roads started to dry, thankfully before I reached the monsters of Hardknott and Wrynose passes.
Time did not really matter after all this but I came in at seconds over 8 hours, establishing a trend of a slower time for each of the past three years.
An equipment review for these harsh conditions:
- The Ribble winter bike was perhaps a little heavier than ideal for all these climbs but I really had no option as I have moved my triple chainset from my carbon (so as not to look quite so daft racing). I had taken the trouble to remove the mudguards but it may have been better to leave them on. Ideally I would have a light bike with a triple or compact chainset.
- A chain tool. I always carry a multitool that contains one. I did not need it but two of my clubmates could have done with one!
- Tyres. Go for something grippy. I nearly came a cropper as a consequence of my unwise tyre choice.
- Good raingear. Fortunately my club rainjacket is excellent and proved worth its (insubstantial) weight in gold.
Will I be back? I am always doubtful soon after completing it but a clubmate and I have already made our hotel booking for 2012, and of course we do need to secure ourselves those sought after entries.
All credit again to the organisers. They do a fantastic job even in challenging conditions.
I left my two clubmates I was with to recover at the Buttermere feed; they would both have come in with much better times than I, had not both their chains broken; another indication of the taxing conditions of the day. I cautiously picked my way around the hills losing control on several more occasions before the rain dried up in the early afternoon and the roads started to dry, thankfully before I reached the monsters of Hardknott and Wrynose passes.
Time did not really matter after all this but I came in at seconds over 8 hours, establishing a trend of a slower time for each of the past three years.
An equipment review for these harsh conditions:
- The Ribble winter bike was perhaps a little heavier than ideal for all these climbs but I really had no option as I have moved my triple chainset from my carbon (so as not to look quite so daft racing). I had taken the trouble to remove the mudguards but it may have been better to leave them on. Ideally I would have a light bike with a triple or compact chainset.
- A chain tool. I always carry a multitool that contains one. I did not need it but two of my clubmates could have done with one!
- Tyres. Go for something grippy. I nearly came a cropper as a consequence of my unwise tyre choice.
- Good raingear. Fortunately my club rainjacket is excellent and proved worth its (insubstantial) weight in gold.
Will I be back? I am always doubtful soon after completing it but a clubmate and I have already made our hotel booking for 2012, and of course we do need to secure ourselves those sought after entries.
All credit again to the organisers. They do a fantastic job even in challenging conditions.
Now an iPhone App for Wage and Hour Litigation
This is clearly a first for this blog. A link to the apple app store.
But when the Department of Labor releases an app for iPhone, iPod and iPad with this description:
Technology, as employers have found with email, can be a two-edged sword. It will be interesting to see how this one plays out down the line.
A hat tip to my Indianapolis colleague, Christopher Murray, for pointing this out.
But when the Department of Labor releases an app for iPhone, iPod and iPad with this description:
DOL-Timesheet for iPhone, iPod touch, and iPad on the iTunes App Store, it sounds blog worthy to me.... a timesheet to help employees independently track the hours they work and determine the wages they are owed. .... This new technology is significant because, instead of relying on employer's records, workers can now keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.
Technology, as employers have found with email, can be a two-edged sword. It will be interesting to see how this one plays out down the line.
A hat tip to my Indianapolis colleague, Christopher Murray, for pointing this out.
Cycling Infrastructure
What a great opportunity to use some of this space for long distance cycle routes. You could easily use one carriageway for bicycles and one for motor vehicles; alternatively one lane in each direction could be a high quality wide cycle lane.
However cyclists were obviously the last thing on the mind of the Highway Engineer who designed this. I was cycling down here with a lorry behind. I had no wish to hold him up but the 'blanking off' of one lane with projecting keep left traffic islands meant there was no way he could get by. To give the driver his due he was not a road rage moron and he waited patiently until the end of the previously dual section before he could get by.
This scene to me just typifies want of thought and wasted opportunity. Useful cycling infrastructure could be set up here and on roads like it at minimal cost. It is not that we do not have the space for infrastructure; we do not have the will.
Further up the A30 east of Staines, money has been wasted painting a cycle lane onto the pavement with give way markings at every junction and crossing point. Nobody will use it and motorists will wonder why not.
You can glimpse some of this exciting new infrastructure (and maybe some of the reasons I will not be making use of it) on the left in this footage.
Arbitration As Protection Against Class Actions
Today the Supreme Court gave a powerful tool for employers to avoid collective and class actions when it overturned the 9th Circuit's decision in ATT Mobility LLC v. Concepcion (4.27.11) [pdf]. Justice Scalia writing for a sharply divided court, split on the now familiar lines, rejected attempts by states (in this case California) that would prohibit arbitration agreements which prohibit class treatment of claims.
Here, it was a consumer agreement under a system that could hardly be called unfavorable to the individual, in fact the district court had found that the individual couple who were attempting to lead a class action over the purchase of a phone, were undoubtedly better off in arbitration than as members of a class action that would last several years and likely result in a nominal payment to class members. Still to be fair, it is also hard to argue with the point made by Justice Breyer in dissent that it is unlikely that many lawyers would have been interested in taking such a case on an individual basis.
On first blush, given the rage of FLSA collective actions and the desire for larger systemic class actions reflected by the Dukes v. Walmart case, every company that does not have in place a requirement that all disputes be settled by arbitration, and in that arbitration agreement, a provision that prohibits class treatment, will now be considering it again.
This is not to say that arbitration is a panacea ---the cost advantage is being lost as more and more arbitrations are proceeding just like a lawsuit that is being litigated in court, and the lack of any ability to effectively appeal the decisions is a serious danger, both of which have to be weighed against the risk of large collective or class actions. What today's decision permits is a re-calculating those odds with more certainty that you can accomplish the aim of defusing collective/class action liability if you are willing to pay the price of accepting the downsides or arbitration in individual cases.
Everyone has and continues to wait with concern the Court's decision in Dukes v. Walmart, which offers the Court an opportunity to put parameters on broad scale class litigation if it wishes. It might be argued that today's decision augurs well for the employer community on how that case may turn out. Many employers may well wait until July when that shoe drops to do the recalculation between barring class/collective actions via arbitration or continuing to take their chances in the court system. Assuming the Court decides that case fully, it should at a minimum give even more certainty when making that calculation.
Besides companies engaging in that rebalancing, the other thing that is likely to happen is renewed talk about passage of the Arbitration Fairness Act, which would ban pre-dispute arbitration agreements between employers and employees (and also with consumers and in franchise agreements.) It seems unlikely that bill will pass during this Congress, but the there will surely be more discussion.
If the American Arbitration Association were a traded stock today, its price would be soaring.
Here, it was a consumer agreement under a system that could hardly be called unfavorable to the individual, in fact the district court had found that the individual couple who were attempting to lead a class action over the purchase of a phone, were undoubtedly better off in arbitration than as members of a class action that would last several years and likely result in a nominal payment to class members. Still to be fair, it is also hard to argue with the point made by Justice Breyer in dissent that it is unlikely that many lawyers would have been interested in taking such a case on an individual basis.
On first blush, given the rage of FLSA collective actions and the desire for larger systemic class actions reflected by the Dukes v. Walmart case, every company that does not have in place a requirement that all disputes be settled by arbitration, and in that arbitration agreement, a provision that prohibits class treatment, will now be considering it again.
This is not to say that arbitration is a panacea ---the cost advantage is being lost as more and more arbitrations are proceeding just like a lawsuit that is being litigated in court, and the lack of any ability to effectively appeal the decisions is a serious danger, both of which have to be weighed against the risk of large collective or class actions. What today's decision permits is a re-calculating those odds with more certainty that you can accomplish the aim of defusing collective/class action liability if you are willing to pay the price of accepting the downsides or arbitration in individual cases.
Everyone has and continues to wait with concern the Court's decision in Dukes v. Walmart, which offers the Court an opportunity to put parameters on broad scale class litigation if it wishes. It might be argued that today's decision augurs well for the employer community on how that case may turn out. Many employers may well wait until July when that shoe drops to do the recalculation between barring class/collective actions via arbitration or continuing to take their chances in the court system. Assuming the Court decides that case fully, it should at a minimum give even more certainty when making that calculation.
Besides companies engaging in that rebalancing, the other thing that is likely to happen is renewed talk about passage of the Arbitration Fairness Act, which would ban pre-dispute arbitration agreements between employers and employees (and also with consumers and in franchise agreements.) It seems unlikely that bill will pass during this Congress, but the there will surely be more discussion.
If the American Arbitration Association were a traded stock today, its price would be soaring.
Court of Appeals Decides Rubin v. Islamic Republic of Iran
The matter of Rubin v. Islamic Republic of Iran continues to wind its way through the federal court system. On March 29, 2011 the Seventh Circuit Court of Appeals issued a 41 page ruling in this complex case.
Deadly terrorist attacks in Jerusalem injured Jenny Rubin and several other Americans in 1997. Hamas carried out three bombings, receiving support from Iran. The American plaintiffs sued Iran in federal district court in Washington, DC and won a $71.5 million default judgment after Iran failed to appear in the case. Since then, there has been an effort by the plaintiffs to recover the judgment.
To retrieve the multi-million award, the plaintiffs filed legal paperwork in Illinois—through a process known as attachment—to seize two collections of antiquities located at the University of Chicago’s Oriental Institute. The cultural property includes the Persepolis and Chogha Mish Collections. The Oriental Institute excavated these Persian artifacts during the 1930s and 1960s, and it has maintained possession of them through a long-term academic loan. The museum says that it is ready to return the Chogha Mish objects to Iran. The plaintiffs also seek to attach a collection located at the Field Museum of Natural History in Chicago known as the Herzfeld Collection. The Field Museum purchased the Herzfeld objects in 1945, but the plaintiffs say that these artifacts were stolen from Iran during the earlier part of the twentieth century before their sale. The Field Museum continues to assert ownership of these antiquities while Iran does not make any claim to them.
The case triggered a dispute about how the federal Foreign Sovereign Immunity Act (FSIA) works. That law declares that a foreign state’s property located in the United States is immune from attachment. However, proving a statutory exception can defeat this immunity. If immunity is lifted, then a plaintiff can attach a foreign state’s property to satisfy a court judgment. The FSIA’s passage in 1976 was both a codification of and limitation on the longstanding legal principle that foreign nations are generally immune from court actions.
The plaintiffs litigated the case in the federal district court of the Northern District of Illinois, and Iran remained absent from the proceedings. When the magistrate judge ruled that only a foreign nation can claim sovereign immunity to its property under the FSIA--not a museum--Iran entered the case as a party to claim immunity. Together the Oriental Institute, the Field Museum, and Iran argued that the plaintiffs could not attach the cultural property contained in the three collections because of the immunity protections afforded by the FSIA.
After Iran entered the case as a party, the plaintiffs filed a motion for discovery to compel Iran to detail all its assets held in the United States, not just the cultural property located in Illinois. Iran objected to this request, but the district court magistrate judge sided with the plaintiffs. Iran filed an appeal with the Seventh Circuit Court of Appeals as a result, prompting the United States government to enter the case as a friend of the court (amicus curiae) in support of Iran’s position.
The Seventh Circuit considered the following questions.
1. Was the foreign state absolutely required to appear in federal court to activate the immunity protections given by the FSIA?
2. Does the FSIA protect a foreign state from broad discovery requests requiring it to give an accounting of all its foreign assets in the United States?
The district court answered yes to the first question and no to the second question. But the federal appeals court strongly criticized the lower court’s decision, calling its ruling “seriously flawed.” The Seventh Circuit wrote:
“The district court’s approach to this case cannot be reconciled with the text, structure, and history of the FSIA. Section 1609 of the Act provides that 'the property in the United States of a foreign state shall be immune from attachment' unless an enumerated exception applies. (Emphasis added.) This section codifies the longstanding common-law principle that a foreign state’s property in the United States is presumed immune from attachment. This presumptive immunity, when read with other provisions of the FSIA, requires the plaintiff to identify the specific property he seeks to attach; the court cannot compel a foreign state to submit to general discovery about all its assets in the United States. The presumption of immunity also requires the court to determine—sua sponte if necessary—whether an exception to immunity applies; the court must make this determination regardless of whether the foreign state appears.”
The case has been sent back to the district court, and the lower court must now handle the case consistent with the decision by the court of appeals.
The complete opinion can be found at http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=08-2805&submit=showdkt
Deadly terrorist attacks in Jerusalem injured Jenny Rubin and several other Americans in 1997. Hamas carried out three bombings, receiving support from Iran. The American plaintiffs sued Iran in federal district court in Washington, DC and won a $71.5 million default judgment after Iran failed to appear in the case. Since then, there has been an effort by the plaintiffs to recover the judgment.
To retrieve the multi-million award, the plaintiffs filed legal paperwork in Illinois—through a process known as attachment—to seize two collections of antiquities located at the University of Chicago’s Oriental Institute. The cultural property includes the Persepolis and Chogha Mish Collections. The Oriental Institute excavated these Persian artifacts during the 1930s and 1960s, and it has maintained possession of them through a long-term academic loan. The museum says that it is ready to return the Chogha Mish objects to Iran. The plaintiffs also seek to attach a collection located at the Field Museum of Natural History in Chicago known as the Herzfeld Collection. The Field Museum purchased the Herzfeld objects in 1945, but the plaintiffs say that these artifacts were stolen from Iran during the earlier part of the twentieth century before their sale. The Field Museum continues to assert ownership of these antiquities while Iran does not make any claim to them.
The case triggered a dispute about how the federal Foreign Sovereign Immunity Act (FSIA) works. That law declares that a foreign state’s property located in the United States is immune from attachment. However, proving a statutory exception can defeat this immunity. If immunity is lifted, then a plaintiff can attach a foreign state’s property to satisfy a court judgment. The FSIA’s passage in 1976 was both a codification of and limitation on the longstanding legal principle that foreign nations are generally immune from court actions.
The plaintiffs litigated the case in the federal district court of the Northern District of Illinois, and Iran remained absent from the proceedings. When the magistrate judge ruled that only a foreign nation can claim sovereign immunity to its property under the FSIA--not a museum--Iran entered the case as a party to claim immunity. Together the Oriental Institute, the Field Museum, and Iran argued that the plaintiffs could not attach the cultural property contained in the three collections because of the immunity protections afforded by the FSIA.
After Iran entered the case as a party, the plaintiffs filed a motion for discovery to compel Iran to detail all its assets held in the United States, not just the cultural property located in Illinois. Iran objected to this request, but the district court magistrate judge sided with the plaintiffs. Iran filed an appeal with the Seventh Circuit Court of Appeals as a result, prompting the United States government to enter the case as a friend of the court (amicus curiae) in support of Iran’s position.
The Seventh Circuit considered the following questions.
1. Was the foreign state absolutely required to appear in federal court to activate the immunity protections given by the FSIA?
2. Does the FSIA protect a foreign state from broad discovery requests requiring it to give an accounting of all its foreign assets in the United States?
The district court answered yes to the first question and no to the second question. But the federal appeals court strongly criticized the lower court’s decision, calling its ruling “seriously flawed.” The Seventh Circuit wrote:
“The district court’s approach to this case cannot be reconciled with the text, structure, and history of the FSIA. Section 1609 of the Act provides that 'the property in the United States of a foreign state shall be immune from attachment' unless an enumerated exception applies. (Emphasis added.) This section codifies the longstanding common-law principle that a foreign state’s property in the United States is presumed immune from attachment. This presumptive immunity, when read with other provisions of the FSIA, requires the plaintiff to identify the specific property he seeks to attach; the court cannot compel a foreign state to submit to general discovery about all its assets in the United States. The presumption of immunity also requires the court to determine—sua sponte if necessary—whether an exception to immunity applies; the court must make this determination regardless of whether the foreign state appears.”
The case has been sent back to the district court, and the lower court must now handle the case consistent with the decision by the court of appeals.
The complete opinion can be found at http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=08-2805&submit=showdkt
Subscribe to:
Posts (Atom)