More Attention to USERRA - A Bureaucratic Happening

The Department of Labor and the Department of Justice have signed a Memorandum of Understanding purporting to "ensure that the employment rights of men and women returning from military service are vigorously protected." More specifically it "streamlines and strengthens" enforcement of USERRA according to the DOL press release. Although I must admit to having a knee-jerk reaction against what I can envision as a hotly negotiated document between two executive departments, that will probably never see the light of day, that is probably both unfair and not true. But whether it is or not, what clearly is of interest is what the Department has been doing to educate the public and military members about the protections of USERRA. Quoting from the press release, DOL has been:

Providing briefings to more than 158,000 service members and others on USERRA;

Responding to almost 26,000 requests for technical assistance;

Distributing more than 240 televised Public Service Announcements, with a second announcement to be released shortly; and

Addressing most of the major human resource and employer organizations.

It sounds as most, if not all, returning soldiers (and sailors, marines and air force personnel) will be well aware of their rights (or at least their understanding of what DOL told them about their rights) when they get back home. Probably makes sense for employers to be equally aware. One place to start is the recently released proposed rules under USERRA, discussed in this earlier post.

Why the FAA Is Important If You Want To Arbitrate - A Texas Lesson

Texas is unique in that it is the only state where workers compensation insurance is not mandatory. Because a substantial number of employees are not covered (between 25 to 30% according to the last information I have heard) there is a whole body of law that has grown up around the rights of employees who are injured on the job, but have no workers compensation insurance. Many (in fact I would say most) employers who do not carry workers compensation insurance have alternative plans, frequently set up under ERISA, which provide similar benefits and most substitute binding arbitration for litigation of any disputes. Originally many of those plans permitted pre-injury waivers of negligence claims. That option has since been removed by legislative action.



But what happens when one of those plans with a pre-injury waiver and binding arbitration becomes the subject of a lawsuit? Here, the plaintiff argued that the waiver provision invalidated the agreement, thus negating the arbitration agreement. The trial court agreed and refused to order the case to arbitration. But on appeal, the Court of Appeals, reminds us all of the trumping effect of the Federal Arbitration Act. Where it is applicable, as it was here, it overrides any state law waiver arguments, thus the case was sent to arbitration. In Re: R & R Personnel Specialists of Tyler, Inc. (Tx. App. - Tyler 8/1804) [pdf].



Although the choice of forum is lost, the plaintiff is not without hope as it appears nothing would prevent the arbitrator from holding the waiver provision invalid in accordance with Texas law. The arbitrator is also clearly entitled to address other issues raised by the plaintiff as to whether the employer had failed to comply with the pre-requisites to arbitration.



While this particular situation is unique to Texas, the powerful impact of the FAA is not.

Speaking of Wasting Time - Let's Sue the Employee

At least that seems to be the idea of one British employer, Coleman Bennett International which is suing one of its salesman who instead of spending time making sales was allegedly making passes at the personal assistant to the Managing Director. The company calculates its loss at just over 450,000 pounds and seeks about half from its former straying employee. According to the story, Love work, not colleagues in the Hindustan Times, the company is claiming breach of contract from the distracted salesperson. The amount is based in part on the number of phone calls and text messages sent by the employee. Given American employers' aversion to court, it seems unlikely that we will see such suits this side of the pond, but you know there is all that time being spent on Fantasy Football!

Canada Comes To the Criminalization of Employment Law Party

Maybe they have been there before on other issues, but now they join the United States in the post Sarbanes era making it a criminal offense to take adverse action against whistleblowers. Michael Fitzgibbon at Thoughts of A Management Employer, the Canadian employment law blog, has the story and a link to what he calls a great legislative summary. And although I am not sure of the exact meaning, but you should know that this is an offence punishable on "summary conviction." Sounds pretty scary to me.

Up In Smoke - The Difference Between a Private and Public Employer

In a class just last Friday, Essential Employment Law, sponsored by the University of Texas School of Law, I made the point when discussing privacy rights that public sector employers have additional responsibilities arising from their constitutional obligations that are not visited on their private sector counterparts. Today's decision from the 7th Circuit is a good example of the difference. An employee (soon to be ex-employee) of the City of Evanston was arrested for the possession of a small amount of marijuana. Once it learned of his arrest through the local paper, the City began termination proceedings notwithstanding the pending criminal charge. Although in a similar situation, the employee would have had limited recourse, the same was not true for his employer. Instead, the Court found that the City had acted improperly:

Pursuant to an express policy as stated by its appellate counsel, the City refused to continue Franklin’s disciplinary hearing until after his criminal case was resolved, and the City asked Franklin to respond at the hearing to the criminal charges against him without advising him that his responses could not be used against him in his pending criminal proceedings. Franklin was thus effectively

forced to choose between his job and his Fifth Amendment rights, and this was an impermissible violation of his Fourteenth Amendment right to procedural due process.The net result, a reversal of his claim for violation of his civil rights under Section 1983.

Franklin v. City of Evanston (7th Cir. 9/27/04)[pdf]. The case which began with Franklin's arrest on November 7, 1997, thus heads back to district court for more proceedings.



One other interesting side note -- for those who argue the unfairness between laws regulating the use of marijuana and alcohol, the Court notes that although both possession of small amounts of marijuana and driving under the influence were similar misdemeanors, the fact that Franklin had been treated differently from employees arrested for DUI means only that, "rightly or wrongly, the City simply treats DUI less harshly than the possession of marijuana. This does not amount to unlawful discrimination."

5th Circuit Takes Limited View of Reverse False Claims Act

While not a whistle-blower claim, today's decision by the 5th Circuit under the so-called Reverse False Claims Act is significant as it limits a company's potential exposure to those types of claims brought by would be whistle-blowers. Here an employee maintained that the company falsified environmental reports, that if made truthfully, would have exposed the company to fines. The company argued that the possibility of imposition of fines was too uncertain to qualify under the Reverse False Claims Act. The United States which had intervened, agreed with the company although it would have a slightly more nuanced position. Holding it did not have to decide if there was a real difference in the two positions, the 5th Circuit reversed the district court holding the mere avoidance of regulatory action alone was not the type of reverse false claim covered under the statute. USA v.Georgia Gulf Corp. (5th Cir. 9/27/04)[pdf].

Fantasy Football - A Major League Work Problem?

Apparently so, at least big enough to get the attention of the NYT today. But their story is based on a report by a consulting firm that was blogged much earlier by a number of folks, including this post as Shel Holtz's site. If the consulting firm's estimate of lost time due to fantasy football is even close to correct, then it's a pretty expensive hobby, assuming it's done on 'work time.' The consultants calculate each 10 minutes spent on fantasy league activities has a collective cost of nearly $40 million in lost productivity. While the Times notes some employers are cracking down, Holtz gets specific, citing a story that GM has now barred access to a number of fantasy football sites. One nostalgic viewpoint, what about baseball? Telling when one doesn't even consider that the "national pasttime" might be causing a similar loss to employers.