2016-02-24T09:38:11.363-06:00A basic tenet of American employment law is that employment is at will, meaning that the employer can set the conditions of employment as long as it is not otherwise illegal.
2016-02-19T12:11:48.210-06:00As Justice Scalia''s body lies in state in the Great Hall of the Supreme Court this morning, my eye was caught by the first headline in today's Employment Law 360.
The case of course deals with whether a mandatory arbitration provision violates the National Relations Act. That has been the position of the NLRB for some time now, notwithstanding almost universal rejection by the courts. The first time its view was subjected to judicial review, the 5th Circuit rejected the position in a 2-1 decision, D.R. Horton, Inc. v. NLRB (5th Cir. 2013). Notwithstanding the split decision, the Board passed on seeking review by the Supreme Court.The Fifth Circuit on Thursday issued its judgment based on its October opinion that mostly reversed a National Labor Relations Board ruling that had found Murphy Oil arbitration agreements barring workers from pursuing class or collective actions as unlawful, setting the stage for a potential NLRB appeal.
I can’t honestly say what I anticipated 40 years ago today when I came to Austin to be sworn in as a member of the Texas state bar. But it is unlikely that I could have anticipated all the twists and turns, both professionally and personally, that have occurred since that October day 40 years ago.
Although I am sure I did not think in these terms at the time, my legal career was beginning when employment law as a discipline was truly in its infancy. Watching how it has changed over the years has and continues to be a fascinating experience and on-going intellectual challenge.
In fact a lot of things have changed since then. As an example, my starting salary, the one being paid by the largest law firms in Texas at the time was the grand sum of $15,600 a year.
2015-09-25T10:57:28.797-05:00One of the venerable sources of information for labor and employment lawyer's has been BNA's Daily Labor Report. I can't remember when I first started reading it regularly, but it has been a long time. Now it comes neatly to my in box, but back in the old days the paper version was circulated and so for the first few years it was certainly not new news by the time it made it to my desk.But I was just struck by three stories in yesterday's publication that are just so telling for employment law practitioners.The first was a story on an FMLA lawsuit:Firing After FMLA Request Raises Triable IssuesA tool and die designer for a Wisconsin manufacturer who was fired one work day after he asked for intermittent Family and Medical Leave Act leave to tend to his son's mental health problems raised triable claims that the company retaliated...How many times do we see these cases, where suspicious timing is the key. A few years back, I can remember trying a case in New Orleans where an employee had been terminated on his first day back after returning from FMLA leave for a heart condition.The employer was acting on things that it had uncovered while the manager had been out on leave. That of course didn't keep opposing counsel from harping on the fact that the timing alone was enough to show it was FMLA retaliation. I expected that from opposing counsel, a little more unnerving was the comment by the Judge that he didn't understand why big companies, with all their resources, do what they do when they knew that it would get them sued.Fortunately, the jury understood the employer's dilemma. If, when we had discovered the issues that ultimately led to the termination while he was out on leave, the company had called him in then, the suit would have been about interfering with his actual leave. And woe to the company if that had exacerbated his heart condition!Still, timing is always a real danger in these cases.The second story is just yet another example of the proof of the old adage in our business that no good deed goes unpunished.Recommendation Letter Saves Fired Professor's Bias SuitA black University of California professor who alleged that a department director was motivated by racial bias to refuse to reappoint him under a pretext of budget cuts and poor performance can proceed with his race discrimination claim, the... A professor bringing a race claim escapes summary judgment because the department head wrote him a positive letter of reference after telling him he would not be re-appointed because of a budget deficit. The deficit was avoided, others who had also been told they would be let go were not, and Exhibit A is the gracious reference letter.Finally, a note showing how aggressive governmental agencies have become in at least considering pushing the limits of employer responsibility.Commission Seeks Comment on Workplace Murder Case The Occupational Safety and Health Review Commission is requesting briefs from interested parties on a pending case that involves the murder of a health-care worker by a potential client, the commission announced in a statement issued Sept....Obviously a tragic event where a health care worker is murdered by a psychiatric patient that she had visited at his home on several occasions. The ALJ found the employer was responsible for a general duty violation. The Commission is now seeking briefing from interested parties:The commission seeks comments on the extent to which a health-care provider should be able to protect its employees from the potential violent acts of third parties, and whether an employer's failure to do so should be considered a violation of the general duty clause (29 U.S.C. § 654(a)(1)).Amazing at how just one day's post can hit so many of the things I have learned over the past 40 years.It remains to be seen how much longer I will be learning these lessons from The Daily Labor Report, but it certainly has been a major source of information for a long time. [...]
2015-07-24T10:39:14.546-05:00One of the humbling aspects of keeping an online journal for any period of time, particularly when you are so unwise as to make predictions is that there exists documented proof of your own errors.
2015-07-23T10:05:04.131-05:00All too often, I have seen the annual performance evaluation show up in a trial as a Plaintiff's exhibit, rather than what you would think should be true, that it ought to be the best evidence for the employer, particularly if the subject of the lawsuit is a dismissal for poor performance.
2015-07-22T11:17:38.244-05:00If on my 18th birthday, I had been given the following list of what I thought I would be doing on my 65th birthday, I am not sure what my answer would have been:Broadcasting yet another game as the voice of the Houston Astros;Preparing for another year of teaching history at a small liberal arts college;Resting besides my parents in Restlawn Memorial Cemetery;Trying a race discrimination and retaliation case in state court in North Carolina; orCovering politics for the Dallas Morning NewsMy first choice would probably have been being the voice of the Houston Astros, although in thinking about it, that's unlikely, both that I would have ever had the chance or that it would be on the list since I didn't become an Astros fan until I lived in Houston after graduating from law school.But trying a lawsuit in North Carolina, which is what I was actually doing on my 65th birthday earlier this summer, would probably have not been a choice either. But as it turns out, trying lawsuits, or more accurately handling lawsuits that occasionally get tried, is how I have spent the last 40 years of my life. And, for good or bad, mostly good I think, at the tail end of that 40 years, it has often meant coming in to help try cases which I have not been involved in preparing. And that's how I ended up in the Forsyth, North Carolina County Hall of Justice for the month of June, 2015.The other birthday that also passed unmentioned in these pages occurred last Friday, the 13th anniversary of my first post on Jottings By an Employer's Lawyer. Instead of posting, I was in Clovis, New Mexico preparing for a case that was to start trial on Monday, July 20th. Although one always hear of cases settling on the court house steps, this one actually went beyond that, as it didn't settle until just before we started jury selection this Monday morning.Last year's birthday post contemplated giving it up:12 Years Ago Posted 10:08 PM by Michael Fox I posted the initial post on this blog. A dozen years is a long time to keep anything going, although you could seriously question whether or not this last year it was really going as the posts were few and far between. As I have spoken in the past, when I began I was the first labor and employment law blog, although there were some others that joined soon after. Now there are literally hundreds, so the immediate almost news type reporting is amply covered. So I have contemplated giving this a decent burial. However, as I near the end of my active practice, I thought maybe this would be a good space to reflect back on some of the things that have happened. If that proves workable and meaningful, then maybe Jottings will stay alive for some time. If not, well we can cross that bridge when we get there.Given the paucity of posting last year, many would argue that much like Tom Watson waving farewell to the British Open on the Swilcan bridge on the 13th anniversary of this blog, the time has come that I should do the same.But the sentiment that moved me last year, that there are reflections that I have that might be worth sharing, are still present. I am not sure that this space is much more than my own personal page for reflection at this point, but on the oft chance that anyone is still listening, I am holding off on the farewell wave yet a little longer. [...]
2015-05-04T09:31:59.931-05:00I was shocked this morning on one of the business news summaries I get to see a report that 150 Americans die from hazardous working conditions each day. To me that was a shocking figure.
2015-01-30T10:38:41.006-06:00When I started practicing, 40 years ago, the law of employment was still covered in the legal treatises under the law of Master and Servant.
2014-12-09T14:52:30.207-06:00The Washington Post has a great interview with someone who spent the last 30 years covering the labor beat for the New York Times, Steven Greenhouse. He is taking a buyout and will be writing a book, but his insight on labor unions and inequality are worth checking out.
While I was at law school, I realized the actual work of what one does day to day, that journalism was more fun and intellectually stimulating, I found, than being a lawyer. I decided that if I could get a job at the New York Times or The Washington Post, I would do that rather than being a lawyer..... Many lawyers have said to me that they’re envious that I have such an interesting job, and I turn around and say I’m envious that you’re making five times as much as I am.For anyone who has any interest in the subject matter that this blog covers, this is required reading.
2014-12-09T14:31:38.544-06:00First, the good news. The Supreme Court today unanimously held that post-shift security checks, even when required by the employer were noncompensable postliminary activities under the Portal to Portal Act, reversing a determination by the 9th Circuit. Integrity Staffing Solutions v. Busk, (S.Ct. 12/10/14).I was wrong by at least a month on the timing, I had predicted early 2015, but at least I got the results right, and more importantly so did the Supreme Court. Back in September in an Employment Law 360 article I was quoted:While he said it wouldn't be a slam dunk, Fox said the justices are more likely than not to reverse the Ninth Circuit, which he said "doesn't have a great track record" at the Supreme Court. Fox said it's likely a decision, if it is strongly in favor of retailers, would be issued in early 2015.A longer wait for a decision would likely jangle nerves among defense lawyers since it would suggest the justices are more divided on the issue — and perhaps more likely to side with the Ninth Circuit, he said."I'll really begin to get nervous if it hangs around to June of next year," Fox said. "If it's hanging around until June I think there are going to be more and more people moving closer to the cliff."Justice Thomas wrote the decision, and as he often did, looked closely at the language of the statute in question, the Portal to Portal Act of 1947. Specifically the term "principal activity or activities" as it had been interpreted by the Supreme Court, to mean 'integral or indispensable' and basically concluded that since going through a security screening had nothing to do with the job in question, pulling products and packing them for shipping to Amazon consumers, it was clearly not intended to be compensable under the FLSA as amended by the Portal to Portal Act.He also rejected the 9th Circuit's emphasis on the fact that it was required by and benefited the employer, noting making the only requirement would totally undo the whole Portal to Portal Act.As a small aside, Justice Thomas may have made himself more popular with organized labor, as he discounted one of plaintiffs' arguments, that the employer could have reduced the time spent in the screening to a de minimis amount by adding more security stations or staggering the shifts noting:These arguments are properly presented to the employer at the bargaining table, see 29 U. S. C. §254(b)(1), not to a court in an FLSA claim.This decision, like many for employers at the Supreme Court is a welcome relief, not because it greatly advances any particular argument for employers, but because an adverse determination could have been so bad.Now to the rant. Notwithstanding Justice Thomas' well known dislike of legislative history, he does understand the importance of context and so he set out the background of what happened from the the FLSA's passage in 1938 to the early expansive readings of the language by the Supreme Court, and the need for reaction by Congress, which happened in the Portal to Portal Act of 1947:These decisions provoked a flood of litigation. In the six months following this Court’s decision in Anderson, unions and employees filed more than 1,500 lawsuits under the FLSA. S. Rep. No. 37, 80th Cong., 1st Sess., pp. 2–3 (1947). These suits sought nearly $6 billion in back pay and liquidated damages for various preshift and postshift activities. Ibid.Congress responded swiftly. It found that the FLSA had “been interpreted judicially in disregard of long established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers.” 29 U. S. C. §251(a). Declaring the situation to be an “emergency,” Congress found that, if such interpretat[...]
2014-11-24T15:42:46.907-06:00While I was starting a week long trial in the Southern District of Texas, the 5th Circuit was taking a wide, pro-employee view of Sarbanes Oxley. In Halliburton v. Administrative Review Board (5th Cir. 11.12.14) the Court was faced with an unusual factual case.
2014-09-26T14:32:21.540-05:00Implicit bias as a concept has been bubbling around the world of employment discrimination for a few years now. Although the fact that Google is seriously studying the issue as it applies to its own workforce may not mean that the concept is now main stream, I do think it means it is an issue that we will be hearing more about.
The lecture begins with a dismal fact: Everyone is a little bit racist or sexist. If you think you’re immune, take the Implicit Association Test, which empirically measures people’s biases. Dr. Welle goes on to explain that some of the most damaging bias is unconscious; people do the worst stuff without meaning to, or even recognizing that they’re being influenced by their preferences.Hardly a definition of intentional discrimination.
2014-08-26T12:38:32.009-05:00Yesterday's post about the difficulty that courts have in dealing with religious discrimination, see Not Off to a Good Start and Onionhead: the newest religion? could not have been a better segue way to today's decision from the 5th Circuit, Davis v. Fort Bend County, (5th Cir. 8.26.14).
“being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice.”Instead, the majority opinion focused on what it called a historical reluctance of court's to delve too deeply into an individual's professed religious belief:
This court has cautioned that judicial inquiry into the sincerity of a person’s religious belief “must be handled with a light touch, or judicial shyness.” Tagore, 735 F.3d at 328 .... “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” Id. .... Indeed, “the sincerity of a plaintiff’s engagement in a particular religious practice is rarely challenged,” and “claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff’s credible assertions.” Id.Judge Jerry Smith, politely, but vigorously disagreed with the Court's limited view:
In its well-written opinion, the majority errs in holding that our inquiry is limited to the sincerity of an employee’s alleged religious belief; we must also consider whether that belief is “religious” in nature or merely a personal preference or a secular social or economic philosophy.I can see en banc, or perhaps even Supreme Court review written all over this one. So perhaps, at least in this Circuit, the question I raised yesterday will soon be, if it is not already, answered by Davis.
2014-08-25T09:31:13.161-05:00Six weeks ago, on the 12th anniversary of this blog, I indicated that I would see if last year's lack of posting would continue and whether or not it was time to give this blog a formal ending. Based on the last six weeks, it is definitely on its death bed.However, I have been recently involved in preparation and a trial of a lawsuit, so I am going to cut myself a little slack. And if you have to try a case in August, Taos, New Mexico is about as nice a venue as you can get. One of the things that I am just now catching up on was actually announced by the EEOC on my birthday. They have sued Syossett based health network United Health Programs and its parent company, Cost Containment Group, Inc. for religious discrimination. The charge: employees are being forced to participant in what the EEOC calls "religious practices" which are part of a belief system that a family member created called Onionhead. According to the EEOC press release:Employees were told wear Onionhead buttons, pull Onionhead cards to place near their work stations and keep only dim lighting in the workplace. None of these practices was work-related. When employees opposed taking part in these religious activities or did not participate fully, they were terminated. This is an unusual case in a couple of ways. First, the discrimination is in the nature of proselytizing as opposed to the more frequently seen failure to accommodate. But more importantly, it raises an issue that courts have been really reluctant to deal with: what is religion?Not exactly a new issue as almost ten years ago, I had this post: A Piercing Problem - 1st Cir. Ducks the Real Question, discussing the Cloutier v. Costco decision, involving the claim by an employee that as a member of the Church of Body Modification she had been discriminated against by not being allowed to wear a facial piercing. The Court's language then showed the reluctance of courts to venture into this nebulous debate:Determining whether a belief is religious is "more often than not a difficult and delicate task," one to which the courts are ill-suited. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Fortunately, as the district court noted, there is no need for us to delve into this thorny question in the present case. Hard to imagine how that question gets dodged in this litigation. See, EEOC Sues United Health Programs of America and Parent Company for Religious Discrimination.In fact the issues seems to be getting teed up from the git-go, as we would say in East Texas, as defendants have moved to dismiss on the basis that Onionhead is not a religion. In a response, the EEOC says, "What defendants glibly call 'self-improvement workshops' and 'corporate wellness programs' were actually compelled religious activities led by their spiritual adviser, "Denali," and other management in violation of Title VII." Employment Law 360 has a story on the latest, EEOC Defends Suit Over Workers Forced to Say 'I Love You.' ($)I have had relatively few issues involving religious discrimination over the years, but since writing about Cloutier I have long been curious as to how this question -- what is a religion -- was going to be handled. It looks like we might begin to get an answer in the near future.[...]
2014-07-17T22:08:13.920-05:00I posted the initial post on this blog. A dozen years is a long time to keep anything going, although you could seriously question whether or not this last year it was really going as the posts were few and far between.
2014-03-25T10:36:21.232-05:00If you are a non-union employer (and overwhelmingly most employers are) you might not have given much thought to your how your confidentiality policy stacked up against the National Labor Relations Act. In fact your policy might read something like the following:
But if it does, then according to the NLRB, now buttressed by the 5th Circuit Court of Appeals, you are in violation of the NLRA because that policy infringes on employees Section 7 rights. Flex Frac Logistics v. NLRB (5th Cir. 3/24/14).Confidential InformationEmployees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; [Company] organization management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any [Company] records, reports or documents in any form, without prior management approval.Disclosure of Confidential Information could lead to termination, as well as other possible legal action.
2014-03-10T19:20:39.592-05:00In certain parts of Texas, plaintiffs seek to avoid being in federal court at all costs. Today, the 5th Circuit clarified a procedural hurdle to that tactic in a small category of cases.
2014-03-10T12:55:10.046-05:00That's a 64 million dollar question, literally. JP Morgan whistleblower gets $63.9 million in mortgage fraud deal.
2014-02-10T16:33:19.066-06:00The statute that among many other things marked the beginning of employment law as a discipline, passed a major hurdle 50 years ago today when it passed the House of Representatives by a vote of 290 to 130.
Hard to imagine in light of today's partisan divide in both chambers of Congress.
Supporting the bill were 152 Democrats and 138 Republicans. Opposing it were 96 Democrats (including 86 from the 11 states of the Confederacy) and 34 Republicans, including 10 from the South.
2014-02-08T19:06:16.488-06:00Fifty years ago, on another February Saturday, after what had been a grueling fight to pass a strengthened Civil Right bill out of the House, Representative Howard Smith (D-VA) who had lost his battle to bottle the bill in the Rules Committee that he chaired, offered an amendment on the floor of the House to expand the protected categories from race, color, national origin and religion, by adding sex.
2013-12-17T09:52:04.166-06:00Not to ruin the Christmas season, but when you get through the holidays and start focusing again on looming legal issues, you might want to read this article, Lawsuit Raises FCRA Fears, by Kristen Fratsch in Human Resource Executive On Line.
2013-12-05T13:34:21.031-06:00It will be interesting to see what the response is to today's announcement by the Department of Labor that complaints under any of the 22 federal whistleblowing statutes that OSHA enforces may now be filed on line.Here's the gist of the DOL press release:Whistleblowers can now file complaints online with OSHA Agency launches online form to provide workers a new way to file retaliation complaintsWASHINGTON – Whistleblowers covered by one of 22 statutesadministered by the U.S. Department of Labor’s Occupational Safety and Health Administration will now be able to file complaints online. The online form will provide workers who have been retaliated against an additional way to reach out for OSHA assistance online. ....Currently, workers can make complaints to OSHA by filing a written complaint or by calling the agency’s 1-800-321-OSHA (6742) number or an OSHA regional or area office. Workers will now be able to electronically submit a whistleblower complaint to OSHA by visitingwww.osha.gov/whistleblower/WBComplaint.html.The new online form prompts the worker to include basic whistleblower complaint information so they can be easily contacted for follow-up. Complaints are automatically routed to the appropriate regional whistleblower investigators. In addition, the complaint form can also be downloaded and submitted to the agency in hard-copy format by fax, mail or hand-delivery. The paper version is identical to the electronic version and requests the same information necessary to initiate a whistleblower investigation.Unlike some other government websites that have been in the news recently, this one at least opens.If you are now curious about the form, click here.It will be interesting to see how quickly individuals learn of this availability and what happens with the number of complaints. The discrimination/retaliation section is unusual because the individual does not have to designate which statute the complaint is filed under, nor is there any description of what the 22 laws cover.On the information you are suggested to read before completing the form, OSHA says what is going to happen when the complaint is submitted:Upon receipt of a complaint, OSHA will contact the complainant to determine whether to conduct an investigation. It is very important that a complainant respond to such contact; if a complainant is unresponsive, OSHA cannot proceed with an investigation and the complaint will be dismissed. If OSHA proceeds with an investigation, the complainant will have an opportunity to offer documents and other evidence in support of the complaint, and the employer will be notified of the allegation and permitted to submit a response. OSHA does include this admonition:BY LAW, A COMPLAINANT'S INFORMATION, INCLUDING HIS/HER IDENTITY, MUST BE PROVIDED TO THE EMPLOYER. A WHISTLEBLOWER COMPLAINT FILED WITH OSHA CANNOT BE FILED ANONYMOUSLY.The announced intention is that everyone who submits a form will be contacted by OSHA.This is going to be interesting; for employers, not necessarily in a good way. [...]
2013-11-05T14:17:16.456-06:00But if you are at all interested in what may be coming out of new NLRB General Counsel Richard Griffin's office, and if you are an employer you should be, then you should at least know of Jennifer Abruzzo and Rachel Lennie, the new deputy general counsel and assistant general counsel respectively. See Corporate Counsel's, New NLRB GC Begins Building Labor Legal Team.